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CONGRESS IMPLEMENTS UNITED NATIONS CONVENTION AGAINST TORTURE IN THE WAKE OF BOARD OF IMMIGRATION APPEALS DECISION

One of the provisions in the last minute massive budget bill we have been discussing throughout this issue is the implementation in US law of Article 3 of the United Nations Convention Against Torture. The provision is enacted in Section 2242 of H.R. 4328, the Omnibus Budget Bill.

That section states the following:

"It shall be the policy of the United States not to expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be

in danger of being subjected to torture, regardless of whether

the person is physically present in the United States.

REGULATIONS.- Not later than 120 days after the date of enactment of this Act, the heads of the appropriate agencies shall prescribe regulations to implement the obligations of the United States under Article 3 of the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment, subject to any reservations, understandings, declarations, and provisos contained in the United States Senate resolution of ratification of the Convention."

The Congress and the President's enactment of the UN convention comes in the wake of an important Board of Immigration Appeals decision in a recent case that states that the BIA lacks jurisdiction to adjudicate a claim for relief from deportation pursuant to Article 3 of the United Nations Convention Against Torture. The BIA states as the basis for its decision that there has been no specific legislation to implement the provisions of Article 3, no regulations have been promulgated with respect to Article 3 and the United States Senate has declared that Article 3 is a non-self-executing treaty provision. Presumably, that case would not have the same result if decided today.

The United States is a signatory to the 1984 treaty and the INS actually approved a case on the basis of the Torture Treaty earlier this year. We reported on this case in our May 1998 newsletter.

In May, the INS indicated that there were 80 other cases pending that were relying on this Treaty. The INS has not issued any statements regarding how it will handle these cases now and how it plans to comply with the law's four month deadline to issue regulations.

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