Outsourcing Torture...the Good Old USA

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H.R. 10: A Threat to Refugees and Persons at Risk of Torture
Section 3006: “Expedited Removal”

Section 3006 would allow immigration enforcement officers to deport without further review non-citizens who have been in the United States more than one year but less than five years, even though they have expressed a fear of persecution or torture.

Expedited removal currently applies to non-citizens arriving at an airport or land border with invalid travel documents, and allows an immigration officer to order them removed without further review unless they express a fear of persecution or torture. People who do express a fear of persecution or torture are to be referred to an asylum officer for a “credible fear” interview, and must pass this interview in order to be eligible for asylum in the United States. Current law also allows expedited removal to be applied to non-citizens who are found inside the United States without having been admitted or paroled and cannot show that they have been here for more than two years; the statute does not require such persons to be subjected to expedited removal, but gives the Secretary of Homeland Security the power to apply expedited removal to that group or to any sub-group of people within it.

These existing provisions already place broad uncontrolled power in the hands of immigration officers whose decisions are not subject to formal administrative or judicial review. Human Rights First has documented cases under current law where genuine refugees were deported under expedited removal. H.R. 10 represents a huge expansion of this already vast power, with no safeguards to protect genuine refugees and people at risk of torture from summary deportation.

Section 3006 would allow genuine refugees who have been in the United States for over a year, but qualify for a statutory exception to the one-year deadline in order to file for asylum, to be summarily deported without having their cases heard.

Section 208 of the Immigration & Nationality Act (INA) allows refugees present in the U.S. to file for asylum, but provides that they must do so within one year of their last arrival in the United States. H.R. 10’s expansion of expedited removal aims to summarily deport people who express a fear of persecution or an intent to apply for asylum but appear ineligible for asylum based on the one-year deadline because they have been in the U.S. for more than one year. It ignores the fact that such applicants may fall under a statutory exception to the one-year deadline based on extraordinary circumstances or changed circumstances; a classic example of the latter would be where a person came to the U.S. as an economic migrant two years ago, but learned recently that following a coup in his country all of his family had been killed due to their allegiance with the prior regime. This person’s eligibility for an exception to the filing deadline needs to be considered by a trained asylum officer or an immigration judge. Under H.R. 10, it would never be considered at all.

Section 3006 would allow genuine refugees who are ineligible for asylum based on the one-year deadline but are eligible for withholding of removal under INA Section 241(b)(3) to be summarily deported with no opportunity to claim that protection, in violation of U.S. legal obligations under Article 33 of the Refugee Convention.

Even asylum applicants who file more than one year after arrival and cannot qualify for an exception to the one-year deadline remain eligible for withholding of removal if they can show that they are refugees and would face a probability of persecution if deported. Withholding of removal is the basic minimum form of protection through which the U.S. ensures its compliance with its obligation under international law of Article 33 of the Refugee Convention not to return refugees to countries where their lives or freedom would be threatened. If an immigration officer thinks an intending asylum seeker has been here for more than one year but less than five, H.R. 10 does not provide for any investigation or review of the person’s eligibility for withholding.


Section 3006 would allow the return under expedited removal of non-citizens determined to have been in the U.S. for less than five years and who would face torture when deported.

H.R. 10 provides no means for persons subject to Section 3006 who fear they will be tortured if they are deported to make an application for protection under the Convention Against Torture (CAT), which was signed by the United States in 1989. The bill provides for referral to an asylum officer only for those who express an intention to apply for asylum or a fear of persecution. This omission sets the stage for very serious violations of the U.S.’s obligation under the CAT not to return people to countries where they would be tortured.


This massive expansion of expedited removal would also be likely to affect even more people than it seeks to target, because it is difficult for a person who has just been arrested by an immigration officer to prove that he or she has been in the United States for more than five years, or for less than one year so as to qualify for referral to an asylum officer.

Most people who are present in the U.S. without admission do not walk around with five years’ worth of rent receipts of such documents in their pockets. In the asylum context, proving one’s date of entry typically takes some time and effort, and involves gathering documentation and witnesses—none of which can be accomplished in an expedited removal proceeding.
Section 3007: “Preventing Terrorists from Obtaining Asylum”

This section is NOT about preventing terrorists from getting asylum. Terrorists are already barred from asylum. This section would allow genuine refugees to be denied asylum if they were unable to document relevant conditions in their countries through State Department reports, could not prove their persecutor’s central motive for harming them, or had any inconsistencies between statements made to any U.S. government employees (whether written or oral and whether or not under oath) and their testimony before an immigration judge . Here are the key changes that create insurmountable hurdles for individuals seeking safe haven in the United States:

Section 3007 would require an asylum applicant to prove that her persecutor’s central motive in persecuting her was her race, religion, political opinion, nationality or membership in a particular social group.

Persecutors’ main concern in most cases is harming the individual, not explaining the reasons for their actions. The applicant’s main concern is—and should be —escaping this harm, not documenting the reasons for it. H.R. 10 would place an enormous and unnecessary burden on asylum seekers by requiring them to prove with unrealistic precision what is going on in their persecutors’ minds.

Section 3007 permits adjudicators to deny applicants asylum because they are unable to provide corroborating evidence of “certain alleged facts pertaining to the specifics of their claim.”

This disproportionately harms applicants who are detained and/or lack counsel. In addition, H.R. 10 seeks to constrain judicial review of a denial of asylum based on an applicant’s not having provided corroborating evidence.


Section 3007 gives adjudicators broad leeway to deny applicants asylum based on factors such as their perceived demeanor and inconsistencies between, for example, their testimony before an immigration judge and their “written or oral statements, whether or not under oath, made at any time to any officer, agent, or employee of the United States.”

Asylum applicants, particularly survivors of torture, rape, or forced abortion or sterilization, may not be comfortable telling this information to a uniformed male inspection officer in an airport. Asylum applicants in that setting may not be provided with appropriate interpreters, and may understandably fear discussing their problems in their home countries in any detail until later in the process when it is made clear to them that they are not going to be sent back to their home countries without their claims being heard.

Several courts of appeals have emphasized that statements taken under such conditions are unreliable. Furthermore, it is quite common for torture survivors suffering from post- traumatic stress to exhibit characteristics in their demeanor such as lack of eye contact, the inability to recall simple details that to an untrained person may appear to be symptoms of lying. For example, Fauyiza Kassindja, a young Togolese woman who fled female genital mutilation (FGM), would have been denied asylum under this standard with little chance of getting that determination reversed on appeal. Under current law, the Board of Immigration Appeals rightly reversed the Immigration Judge’s credibility finding in her case, and that decision has helped protect other women fleeing FGM.


This provision could allow an asylum applicant to be denied asylum on ground of credibility if the abuse she suffered or feared was not documented in the annual country conditions reports of the Department of State.

Although these reports are usually well researched, they are not an exhaustive and unfailingly accurate source of documentation of all of the wide range of human rights violations around the world that can give rise to valid asylum claims. In addition, since these reports only come out annually, they can hardly be relied on as adequate documentation of more recent events.
Section 3009: “Judicial Review of Orders of Removal”

Section 3009 would eliminate stays of removal pending judicial review, allowing refugees to be returned to the persecution they fear while their cases are pending in federal court.

This provision, applicable to ALL immigration cases, would have a particularly devastating impact on refugees and persons facing torture if they are deported.

Deportation is always a serious and traumatic event, and judicial review without a stay pending review is often quite meaningless -- as an appellant who is deported while his case is on appeal may lose and never recover much of the life he built in this country. But for people facing torture or other forms of persecution in their home countries, the lack of a stay is far more grave – it can mean the loss of life or freedom. Refugees who are deported, and then jailed or killed while their cases are on appeal to the federal court, will obviously find little comfort in being granted asylum afterwards. The perverse irony is that the greater the risk of harm to an asylum applicant, i.e., the stronger the asylum case, the more likely the person would be hurt by this provision.


Automatic stays of deportation pending federal court review were already eliminated by the 1996 immigration law.

Under current law, anyone who needs a stay of deportation while he appeals his case is already required to make a showing as to why he should get it, which includes convincing the appeals court that there is merit to his appeal. Most courts that have considered this have held that the post-1996 standard for a temporary stay of removal should be the normal standard that courts apply for such stays in other kinds of cases -- based on some balance of the petitioner’s likelihood of success on the merits, the irreparable injury he would suffer if denied a stay, whether the government would suffer substantial injury from the granting of a stay, and public interest considerations.

Under H.R. 10, temporary stays of removal would be abolished entirely. The only remaining avenue for a federal court to block a removal order would be through an injunction under section 242(f) of the INA, requiring the petitioner to prove by clear and convincing evidence that the execution of the removal order would be prohibited as a matter of law. This is a higher standard than what most applicants would be required to show in order to win their cases. It would not protect refugees from deportation while they wait for judicial review of their claims.

Section 3009 would eliminate all judicial review for persons claiming protection from removal under the Convention Against Torture (CAT) who are barred from direct review by the court of appeals.

A number of categories of appellants are already barred from review by the court of appeals under section 242 of the INA. Section 3009 would preclude any federal court review for any applicant for CAT protection who is ineligible for review under section 242 due to disqualifying criminal convictions; many of those affected by this measure would also be made ineligible for CAT protection by section 3032 of this bill. H.R. 10 would also preclude any judicial review of expedited removal orders, including claims by people under an order of expedited removal who were never given an opportunity to make a claim for protection under CAT.


SECTION 3032: “Exception to Restriction on Removal for Terrorists and Criminals”

Section 3032 would violate the Convention Against Torture by returning people who have committed crimes or human rights violations to situations where they would be tortured.

The Convention Against Torture (CAT), which the United States signed under President Ronald Reagan and ratified under President George H.W. Bush, prohibits the United States from deporting a person “to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.” This prohibition is absolute, under both U.S. and international law.

H.R. 10 would violate the CAT by stripping its protection from persons who have committed crimes, human rights violations, or other bad acts that would disqualify them from withholding of removal but would leave them eligible under current law for deferral of removal, the minimal form of protection from removal that implements CAT’s absolute prohibition on returning people to a country or countries where they would face torture. CAT does not prohibit the U.S. from deporting such people to a third country where they would not be likely to be tortured. But H.R. 10’s proposal to strip people of protection against torture based on their past histories is in blatant violation of Article 3 of CAT.


Section 3032 also allows these changes to be applied retroactively and would result in those individuals with CAT protection having their status revoked where such grounds did not exist before.

Under current law, the U.S. government can revoke protection under CAT if it determines the person would not be tortured if returned to their country. H.R. 10 now allows the new heightened standard of proof (described below) as well as the bar to eligibility (described above) to be applied to a person who has already been granted protection under CAT.


Section 3032 would require non-citizens who fear torture if deported to prove by “clear and convincing evidence” that they would be tortured -- a burden of proof that is both unrealistic and in conflict with the normal evidentiary standard for withholding of removal.

CAT currently affords a limited form of relief against a particularly extreme form of harm. It is already difficult to win under the current statute -- and few people do. Raising the burden of proof to “clear and convincing” is unrealistic and impractical. This change also conflicts with the U.S. Senate’s determination, in its resolution of advice and consent on the treaty, that the standard of proof for protection under CAT is that the applicant must show that it is “more likely than not that he or she would be tortured.” This “more likely than not” standard is the same standard applied to withholding of removal under Section 241(b)(3), and reflects a consensus that the level of proof that triggers mandatory protection based on our obligation of non-return is a probability of the harm in question, not clear and convincing evidence that the harm would take place.


This change would apply to all applicants for protection under CAT, not just “terrorists and criminals.”

Current statistics from the Executive Office for Immigration Review indicate that most people granted relief under CAT are granted withholding of removal. There are two types of relief under CAT – withholding of removal and deferral of removal. Four categories of people are ineligible for withholding of removal – persecutors, non-citizens convicted of “particularly serious crimes,” non-citizens who have committed serious “non-political crimes,” and non-citizens who are found to be a danger to the United States. Such individuals are granted deferral of removal, which is a form of relief that can be easily revoked and only forestall deportation.
Department of Justice statistics show that few persons are granted relief under the Convention Against Torture and of this small number, the great majority are NOT criminals and terrorists.

In FY 2003, only 490 people were granted protection under CAT, out of over 32,000 applications. Of these 427 were granted withholding of removal, and only 63 deferral of removal.

In FY 2002, only 558 people were granted protection under CAT, out of over 24,000 applications. 483 were granted withholding of removal and 75 deferral of removal.

In FY 2001, only 554 people were granted protection under CAT, out of 17,660 applications. 443 were granted withholding of removal and 101 deferral of removal.
Section 3032 also mandates that the Department of Homeland Security issue new regulations within six months of these legislative changes and explicitly precludes any federal court review of the new regulations.

This provision is particularly troubling given the clear conflict between H.R. 10 and U.S. obligations under the Convention Against Torture. The regulations issued to implement H.R. 10 would raise very significant legal issues that the federal courts should be allowed to considered.
Section 3033: Additional Removal Authorities

Section 3033 would allow people to be deported to countries with no functioning government to accept them, making them easy targets for grave human rights abuses.

This provision would allow the U.S. Government to send individuals in countries like Somalia, where the lack of a functioning government for more than ten years has made conditions so lawless and dangerous that our government will not send its own employees there. People at risk of deportation to such countries would include many who have been in the United States for years, some of them since childhood, who are in no way equipped to survive in such an environment. Deporting people to a country with no functioning government would place the United States in fundamental conflict with basic principles of international law.

Section 3033 would turn deportation from a relatively orderly process into a chaotic and potentially violent one. Countries unwilling to accept deportees would be encouraged to resist their entry into their country by physical force. This situation would both undermine U.S. relations with foreign governments and would greatly increase the risk of violence to such individuals.


Section 3033 would allow non-citizens to be sent to ANY country willing to accept them and threatens to return persons to countries where they would face persecution or torture without giving them an opportunity to make a claim for asylum, withholding of removal, or protection under CAT.

Under current law and practice, a non-citizen who was not placed in removal proceedings on arrival but is in the United States and facing possible deportation, is allowed to designate a country to which she wants to be removed. If she does not designate a country for removal, the immigration service designates one. If the person is in removal proceedings as “arriving aliens,” current law provides that she shall normally be returned to the country where she boarded the plane or vessel that brought her here or she can be removed to her country of citizenship or nationality provided that country accepts her; if removal to that country is not possible, the present statute provides for a series of alternative countries for removal.

Thus under current law return is to a country with which the deportee had some link. Only if removal any of those alternative countries is impossible, inadvisable, or impracticable does the statute allow the immigration service to deport the person to “another country whose government will accept the alien into that country.”

The current statutory framework also provides the immigrant in removal proceedings with some notice of the country to which she faces deportation. This allows her, if she fears persecution or torture there, to make any necessary applications for asylum or withholding protection while her case is before the immigration judge.

H.R. 10, by contrast, would allow the immigration service to immediately turn to “any other country whose government will accept the alien” if deportation to the “default” country does not work out. This could be a country that was never mentioned at all in her immigration court proceedings -- to which she had no notion she would ever be deported. When this happens, the deportee’s case in removal proceedings is over and she is under a final order of removal. If she then learns that she is being sent to a country where she would face persecution or torture, she has no forum available to present a claim for asylum or withholding of removal.