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VISA SPOTLIGHT: INS ISSUES REGULATIONS IMPLEMENTING THE UNITED NATIONS CONVENTION AGAINST TORTURE
The United Nations Convention Against Torture, Article 3, prohibits subscribing nations from, expelling, returning or extraditing individuals to a country in which they would be subject to torture. The Convention has been in existence since 1984, and has been effective in the U.S. since late 1994. Not until last October, however, did Congress require regulations be passed for implementation of the Convention. Until that time, the INS had been using its discretionary authority to ensure that persons subject to torture were not removed.
Because the Torture Convention is in many ways similar to the Refugee Convention, the procedures for application are similar. There are, however, some important differences. First, certain persons who are ineligible for protection as refugees (for example, certain violent criminals, participants in Nazism or other forms of genocide) are protected under the Torture Convention. Second, the Torture Convention covers all people who may be subject to torture, whatever the basis, unlike the Refugee Convention, which only covers those persecuted on the basis of race, religion, nationality or political opinion. Third, the Torture Convention in narrower than the Refugee Convention in that it protects only against torture, not all threats to life or freedom.
The interim rule issued February 19, 1999 will become effective of March 22, 1999, and written comments will be accepted until April 20, 1999. Under the interim rule, protection under the Convention would be divided into two classes, those who are eligible for withholding of deportation under INA section 241(b)(3)(B), and those who are not. Those who are not eligible for withholding will be granted only deferral of removal, which may be revoked at any time when evidence is presented that the threat of torture no longer exists. For those who are eligible for withholding of deportation, a new form of withholding will be created.
The Convention provides protection "where there are substantial grounds for believing that [the person] would be in danger of being subject to torture." The regulations interpret this as placing on the person seeking protection the burden of establishing that it is more likely than not that the person will be tortured. This is the same standard required for withholding under section 241(b)(3). In making the determination of whether torture is more likely than not, the decision-maker is to consider all relevant evidence, including whether the person may be relocated to an area of the country of removal in which they will not be subject to torture, and whether there exists a pattern of gross human right violations in that country. In situations in which the Secretary of State has forwarded to the Attorney General diplomatic assurances that the person will not be tortured, special procedures will be used; these cases are expected to be rare.
Deferral of removal, the protection granted to those otherwise subject to removal under INA section 241(b)(3)(B), does not grant any lawful or permanent resident status, and may be terminated at any time. Furthermore, a deferral of removal does not remove the INS's authority to detain anyone who is otherwise subject to detention. The procedures for termination of the deferral are as follows. The local INS District Counsel may move for a hearing, which will be granted on an expedited basis if the INS establishes that they will present evidence that was not considered at any earlier hearing that is relevant to possibility of torture. The new determination will be made de novo.
The Convention Against Torture defines torture as "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or her or a third person information or a confession, punishing him or her for an act he or she or a third person has committed or is suspected of having committed, or intimidating or coercing him or her or a third person, or for ant reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity." As adopted by the U.S. Senate, torture does not include pain or suffering arising as a result of lawfully inflicted punishment, including the death penalty.
Under current procedures, asylum officers interview persons who express fear of persecution during an expedited removal process. Under the new regulations, these people will also be interviewed to determine whether they have a credible fear of torture that would qualify them for protection under the Convention.
People who are in INS proceedings on or after March 22, 1999 (the date these regulations become effective) may fully avail themselves of these regulations. Persons who were ordered removed before that date may reopen their cases to raise a claim under the Convention. Requests for protection under the Convention pending with the INS on March 22 will be adjudicated under these regulations. Requests that were decided before that date will be treated in two ways: requests that were granted will be treated as a grant of withholding unless the person is subject to mandatory denial of withholding, in which case the grant will be treated as a deferral of withholding. Requests that were denied will be treated as a denial under the new regulations.