Prepared by Kristen B. Rosati
Coppersmith Gordon Schemer Owens & Nelson PLC, Phoenix,
Arizona

This sample brief is designed to assist people in establishing claims under the interim regulations implementing Article 3 of the U.N. Convention Against Torture. See 64 Fed. Reg. 8478 (Feb. 19, 1999) (interim regulations). The brief covers the major issues that may be raised in a Convention case (all of which may not be relevant to every claim), and can be adapted for use at a variety of procedural stages, as explained below.

If a person is currently in deportation, exclusion or removal proceedings, he or she may apply for withholding and deferral of removal under the Convention by filing an application for asylum, Form I-589. See 8 CFR § 208.18(b)(1). He or she should supplement that application with an evidentiary appendix including a declaration from the claimant describing why it is more likely than not that he or she will be tortured upon return, corroborating declarations and evidence, and documentation from the State Department and human rights organizations reporting human rights violations in the country of removal. If a person already has filed an application for asylum but did not request relief under the Convention, the person should file a motion or other request with the immigration judge to amend the application to include the Convention request. If the person currently has an appeal pending before the Board of Immigration Appeals, the person should file a Motion to Remand to request Convention relief before the immigration judge.

If a person had a final order of exclusion, deportation or removal before March 22, 1999, the person had 90 days (until June 21, 1999) to file a motion to reopen that was not subject to the usual numerical and time limitations found in 8 CFR § 3.2 and 3.23, and without having to demonstrate that the evidence was unavailable and could not have been presented at a previous hearing. See 8 CFR § 208.18(b)(2). The filing of a motion to reopen does not automatically stay a person's removal, and an applicant should request a stay of removal. If a person's order of exclusion, deportation, or removal becomes final on or after March 22, 1999, and the person had not filed a request for Convention relief before the order became final, the interim regulations do not provide any guidance. A person will probably be required to file a motion to reopen that complies with all of the procedural requirements of 8 CFR § 3.2 and 3.23.

If a person previously applied for relief under the INS pre-regulatory administrative process and received a decision from the Office of the General Counsel, that decision is final and the person may not pursue relief under this new procedure. 8 CFR § 208.18(b)(4). If a person had a request for administrative relief pending on March 22, 1999 that had not been decided, that request for relief is terminated and the person must pursue relief through a motion to reopen. See 8 CFR § 208.18(b)(3)(ii). A motion to reopen for this group of people is not subject to the requirements of 8 C.F.R. §§ 3.2 and 3.23, and will be granted if it is accompanied by a notice from the INS that the person had a previously-filed administrative request for relief or the motion is accompanied by "other convincing evidence that the alien had a request pending with the Service." The regulations do not set a deadline for filing the motion to reopen, although the person's administrative stay of removal ends April 21, 1999 unless a motion to reopen is filed. If a person is under an administrative order of removal under INA § 238(b) (aggravated felons) or a removal, deportation or exclusion order that has been reinstated under INA § 241(a)(5) (illegal reentry after removal or voluntary departure under an order of removal), and the person expresses a fear of returning during these administrative removal or reinstatement proceedings, the person is referred to an asylum officer for a "reasonable fear determination" after the administrative removal order is entered. See 8 CFR § 208.31. The person must establish "a reasonable possibility that he or she would be persecuted on account of his or her race, religion, nationality, membership in a particular social group or political opinion, or a reasonable possibility that he or she would be tortured in the country of removal." If the asylum officer decides that the person has such a fear, the person is referred to an immigration judge for determination of his or her eligibility for withholding of removal under either INA § 241(b)(3) or the Convention Against Torture, or deferral of removal under the Convention. Either the INS or the alien may appeal the immigration judge's decision to the BIA. If the asylum officer decides that there is not a reasonable possibility that the person would be tortured, the person may request review of the decision by an immigration judge by filing a new form I-898, Record of Negative Reasonable Fear Finding and Request for Review by the Immigration Judge. If the immigration judge affirms the negative finding, the person may be removed without further review. If the immigration judge reverses the finding, the immigration judge will decide whether the person is eligible for withholding or deferral. Again, either the INS or the alien may appeal this determination to the BIA. If the person is under an administrative order of removal under INA § 235(c) (alien terrorists), the person's Convention claim will be decided under the administrative procedure described in 8 CFR § 208.18(d) and § 235.8(b)(4). The regulations do not provide guidance regarding who in the administration makes this determination. However, if the INS refers an application to an immigration judge pursuant to 8 CFR § 235.8(b)(2)(ii), the immigration judge will have jurisdiction over the Convention claim for these individuals.

United States Department of Justice
Executive Office for Immigration Review
In the Matter of File No. A ________________
In Removal [Exclusion/ Deportation] Proceedings

Respondent

Brief in Support of Respondent's Claim

Under the U.N. Convention Against Torture

I. Introduction:
Respondent is requesting relief under Article 3 of The United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the "Convention Against Torture" or "Convention"). Article 3 of the Convention prohibits the U.S. from expelling, returning, or extraditing "a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture." U.S. law has now incorporated Article 3's prohibition against removal where an individual is likely to be tortured. On October 21, 1998, Congress passed and the President signed into law the Foreign Affairs Reform and Restructuring Act of 1998, P.L. 105-277 (the "new legislation"). Section 2242 of that new legislation implements Article 3 of the Convention Against Torture. Section 2242(b) of the new legislation required the Immigration and Naturalization Service ("INS") to promulgate regulations within 120 days of passage of the legislation. Pursuant to this statutory mandate, the Department of Justice promulgated interim regulations on February 19, 1999 to govern claims under the Convention.

See 64 Fed. Reg. 8479 (Feb. 19, 1999), amending 8 C.F.R. parts 3, 103, 208, 235, 238, 240, 241, 253, and 507. The interim regulations became effective on March 22, 1999.

Pursuant to the interim regulations, this court has jurisdiction to consider Respondent's claim for relief under the Convention, and Respondent now moves for that relief.

II. Factual Background:
[Provide extensive factual recitation of why Respondent more likely than not will be tortured upon removal. Be sure to submit an Evidentiary Appendix, attaching Respondent's Form I-589 and supporting evidentiary materials, including Respondent's declaration explaining in detail why he or she expects to be tortured upon return, declarations of other individuals corroborating Respondent's belief, any expert opinions obtained, and evidence from the State Department Country Reports or human rights organizations showing human rights violations, including torture.]

The Respondent's past torture in the country of removal is strong evidence that Respondent will be tortured upon return. In fact, the interim regulations direct the court to consider this evidence. See 8 C.F.R. § 208.16(c)(3).Moreover, this evidence of "gross, flagrant or mass violations of human rights within the country of removal" is important evidence that the court should consider in determining whether Respondent more likely than not will be tortured upon return. See 8 C.F.R. § 208.16(c)(3). See also Convention Against Torture, art. 3(b) ("For the purpose of determining whether there are [substantial grounds for believing that the person would be in danger of being subjected to torture], the competent authorities shall take into account all relevant considerations, including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights."). In addition, Respondent expects to testify credibly below regarding these matters, which under the interim regulations, is "sufficient to sustain the burden of proof without corroboration." 8 C.F.R. § 208.16(c)(2).

III. Procedural Background:
[Insert discussion of Respondent's immigration proceedings to date, including whether the Respondent has a final order of deportation, exclusion, or removal.

IV. Argument:
A. It is more likely than not that Respondent will be tortured upon removal.

Article 1 of 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 a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any 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. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.See also 8 C.F.R. § 208.18(a) (adopting Convention definition).

Under the interim regulations at 8 C.F.R. § 208.16(c), Respondent is entitled to relief if it is more likely than not that Respondent will be tortured upon return. As demonstrated below, Respondent can meet that burden.

1. Respondent will be subjected to the intentional infliction of severe physical or emotional pain and suffering.

The treatment Respondent expects on removal constitutes severe physical pain or suffering. [Insert another description of torture expected, including that reported in human rights reports.]

In addition, Respondent likely will suffer severe mental pain and suffering. The interim regulations provide that, in order to constitute torture,mental pain or suffering must be prolonged mental harm caused by or resulting from: (i) The intentional infliction or threatened infliction of severe physical pain or suffering; (ii) The administration or application, or threatened administration or application, of mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (iii) the threat of imminent death; or (iv) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the sense or personality.

8 C.F.R. § 208.18(a)(4). [Insert description of mental torture expected, if applicable.]

Moreover, this treatment most certainly would be intentionally inflicted. See 8 C.F.R. § 208.18(a)(5).

2. The treatment expected involves public officials.In addition, Respondent's torture will involve public officials in the country of removal. Torture is the infliction of severe pain or suffering "by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity." 8 C.F.R. § 208.18(a)(1). "Acquiescence" requires that the public official "prior to the activity constituting torture, have awareness of such activity and thereafter breach his legal responsibility to intervene to prevent such activity." 8 C.F.R. § 208.18(a)(7).

While the interim regulations do not explain what "awareness" means, the Senate report to its resolution of advice and consent to ratification of the Convention clarified that "awareness" includes "both actual knowledge and `willful blindness.'" Thus, actual awareness of the torture is not required. Moreover, while neither the interim regulations nor the Senate report explain what is intended by a "legal responsibility to intervene to prevent such activity," the Convention Against Torture includes many provisions that provide such a legal duty to intervene. For instance, the Convention requires States to take effective measures to prevent torture within their countries, to criminalize torture, to train government officials to recognize torture, and to review their interrogation and custody procedures to prevent the occurrence of torture. If public officials allow the torture of Respondent, they will have violated these international obligations, and thus their duty to intervene to prevent Respondent's torture. Finally, where private groups are engaged in torture, but the government is unable or unwilling to control that activity, as in this case, the government has breached its legal responsibility to protect its nationals from torture, and has thus acquiesced to that torture. This comports with the treatment of this issue in asylum or withholding of removal under INA § 241(b)(3). In that context, where a government is unable or unwilling to protect individuals from persecution by private groups or organizations, such individuals are entitled to relief. So too here, where a government knows that a private group is torturing people and is unable or unwilling to protect the victims, the government has "acquiesced" in that torture. [Discuss evidence, such as human rights reports, that government is unwilling to control the private groups engaged in torture.]

3. The treatment will be under the perpetrator's custody or control.

Section 208.18(a)(6) of the interim regulations requires a torture victim to be "in the custody or physical control of the perpetrator." The treatment to which Respondent will be subject will indeed be while in the custody or control of the perpetrators.

4. The treatment will not constitute "lawful sanctions."

In its definition of torture, the Convention provides that torture "does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions." The interim regulations also contain such an exclusion, and go on to explain that "[l]awful sanctions include judicially imposed sanctions and other enforcement actions authorized by law, including the death penalty, but do not include sanctions that defeat the object and purpose of the Convention Against Torture to prohibit torture." 8 C.F.R. § 208.18(a)(3) (emphasis added).

The treatment that Respondent expects to receive, even if imposed after a judicial proceeding in the country of removal, cannot be treated as "lawful" because the imposition of brutal and tortuous sanctions without a fair trial and without due process would indeed "defeat the object and purpose of the Convention." Id. [Include information here concerning the lack of fair trials or judicial "sham" proceedings that Respondent would be subject to, as demonstrated in human rights reports.]

The intentional infliction of severe pain and suffering as a sanction after this type of judicial proceeding cannot be tolerated. Moreover, whether a sanction is "lawful" must be considered with reference to the morals and constitutional standards of the United States. In the Senate's understandings to its resolution of advice and consent, it provided that:

The United States understands that "sanctions" include judicially imposed sanctions and other enforcement actions authorized by United States law or by judicial interpretation of such law. Nonetheless, the United States understands that a State Party could not through its domestic sanctions defeat the object and purpose of the Convention to prohibit torture. For example, the Senate provided that the imposition of the death penalty under the constitutional standards of the United States is not "torture," and stated that "the United States understands that international law does not prohibit the death penalty, and does not consider this Convention to restrict or prohibit the United States from applying the death penalty consistent with the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States, including any constitutional period of confinement prior to the imposition of the death penalty." Under the Senate's understandings-to which the interim regulations have been written to conform-the death penalty would be legitimate and authorized by law only if it is imposed under the constitutional standards of the U.S., or standards substantially similar to those in the U.S.

Thus, if the method in which an execution is conducted in another country is particularly barbarous or causes extreme pain and suffering, or if the imposition of death is not proportional to the crime committed, the imposition of the penalty in those circumstances constitutes torture. Moreover, a sanction imposed for impermissible reasons, such as retaliation for political activities or opinions, would not be lawful in the U.S. and thus not fall within this exception.

6. There is no "on account of" requirement.

Finally, Respondent need not demonstrate that torture is feared because of Respondent's race, religion, nationality, membership in a particular social group, or political opinion. While the Convention does state that the torture be inflicted "for such purposes" as obtaining information or confessions, punishment, intimidation, coercion, or discrimination, this list is not exclusive.

Moreover, "intimidation" and "coercion" are such broad concepts that almost any reason for intentional torture would fall within these definitions.

B. Respondent is entitled to withholding of removal because Respondent does not fall within any of the bars in INA § 241(b)(3).

Under 8 C.F.R. § 208.16(c), Respondent is entitled to withholding of removal under the Convention Against Torture. None of the statutory bars to withholding apply to Respondent.

[Explain why statutory bars do not apply. If Respondent has a criminal conviction, be sure to explain why it should not be treated as a "particularly serious crime." On that issue, see Matter of S-S-, Int. Dec. 3365 (BIA 1999), which held that an immigration judge may not presume that any conviction is "particularly serious" unless the sentence imposed is over 5 years.]

C. Even if Respondent falls within the INA § 241(b)(3) bars-which he does not-he may not be removed and is entitled to deferral of removal.

Because Respondent has demonstrated that it is more likely than not that he would be subjected to torture upon return, the U.S. may not return Respondent. This absolute prohibition on returning an individual to torture is primarily what distinguishes the Convention Against Torture from the laws governing the treatment of "refugees." The exceptions to withholding of removal under U.S. law are derived from exceptions to relief for refugees contained in the 1951 Convention and the 1967 Protocol relating to the Status of Refugees.

In direct contrast to the Refugee Convention and Protocol, Article 3 of the Convention Against Torture contains no exceptions to relief. In Matter of H-M-V-, the BIA noted that "[t]he prohibition on refoulement found in Article 3 of the Convention provides no exception for persons convicted of particularly serious crimes." Indeed, as stated in the Supplementary Information to the interim regulations:

Article 3 prohibits returning any person to a country where he or she would be tortured, and contains no exceptions to this mandate. Nor do any of the United States reservations, understandings, declarations, or provisos contained in the Senate's resolution of ratification provide that the United States may exclude any person from Article 3's prohibition on return because of criminal or other activity or for any other reason.

International case law supports that conclusion, as well. The Committee Against Torture, the U.N. organization that monitors compliance with the Convention, has held that Article 3 absolutely prohibits the removal of a person where there are substantial grounds for believing he or she would be tortured. Moreover, the European Court of Human Rights held that a similar treaty provision, Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, is an absolute bar to the return of an individual to torture, regardless of the State's compelling interest in deporting a person due to terrorist activities:

Article 3 . . . enshrines one of the most fundamental values of democratic society. . . .

The Court is well aware of the immense difficulties faced by States in modern times in protecting their communities from terrorist violence. However, even in these circumstances, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the victim's conduct.

. . . Article 3 . . . makes no provision for exceptions and no derogation from it is permissible . . . even in the event of a public emergency threatening the life of the nation.

Because Article 3 of the Convention does not allow any exceptions to relief for individuals who would be tortured upon return, the regulations create two forms of relief:

(1) withholding of removal (which is subject to the statutory exceptions); and (2) "deferral" of removal (which is not subject to the statutory exceptions).

If this court determines that Respondent is subject to any of the statutory exceptions to relief in INA § 241(b)(3), which it should not, Respondent requests deferral of removal pursuant to 8 C.F.R. § 208.17.

V. Conclusion:

Respondent respectfully requests withholding of removal under the U.N. Convention Against Torture, as implemented in 8 C.F.R. § 208.16(c). Respondent has demonstrated that it is more likely than not that Respondent will be tortured upon removal.

Finally, if this court finds that Respondent is subject to the bars to withholding in INA  241(b)(3) - which it should not - Respondent requests deferral of removal under 8 C.F.R. § 208.17(a).

Dated this ___ day of _________________.
____________________________

Respondent's Attorney

United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature Feb. 4, 1985, G.A. Res. 39/46, 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc. A/RES/39/708 (1984), reprinted in 23 I.L.M. 1027 (1984), modified in 24 I.L.M. 535 (1985).

The U.S. signed the treaty on April 18, 1988, and the Senate adopted its resolution of advice and consent to ratification on October 27, 1990. See 136 Cong. Rec. S17486-92 (daily ed., Oct. 27, 1990). The U.S. became a full party to the treaty in November 1994, one month after President Clinton deposited the ratification with the United Nations Secretary General. See U.N. Doc. 571 Leg/SER. E/13. IV.9 (1995); Convention Against Torture, art. 27(2) ("the Convention shall enter into force on the thirtieth day after the date of the deposition of [a State's] instrument of ratification or accession").

See S. Exec. Rep. No. 101-30, 101st Cong., 2d Sess. (1990) ("The purpose of this condition is to make it clear that both actual knowledge and `willful blindness' fall within the definition of the term `acquiescence' in article 3.").

See Convention Against Torture, art. 2 (requiring State Parties to take effective measures to prevent torture); art. 4 (requiring State Parties to criminalize torture); art 10. (requiring State Parties to train government officials to recognize torture); art. 11 (requiring State Parties to "keep under systematic review interrogation rules, instructions, methods and practices as well as arrangements for the custody and treatment of persons subjected to any form of arrest, detention or imprisonment in any territory under its jurisdiction, with a view to preventing any cases of torture.").

See, e.g., Matter of Kasinga, Int. Dec. 3278 at 12 (BIA 1996) (recognizing claim of persecution where the Togolese government was unwilling or unable to control the tribal practice of female genital mutilation); Matter of H-, Int. Dec. 3276 at 12-14 (BIA 1996) (recognizing claim of persecution by rival clan in Somalia, a non-governmental actor); Matter of Villalta, 20 I & N Dec. 142, 147 (BIA 1990) (finding that the Salvadoran government was unable to control paramilitary death squads). See also Beltran-Zavala v. INS, 912 F.2d 1027 (9th Cir. 1990) (applicant entitled to asylum where Salvadoran death squad was "uncontrollable"); McMullen v. INS, 658 F.2d 1312, 1317-18 (9th Cir. 1981) (applicant entitled to withholding of deportation where the Republic of Ireland was unwilling or unable to control the activities of the Provisional Irish Republican Army); Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees at 65 (Geneva, 1992) ("Where serious discriminatory or other offensive acts are committed by the local populace, they can be considered as persecution if they are knowingly tolerated by the authorities, or if the authorities refuse, or prove unable, to offer effective protection.").

Convention Against Torture, art. 1.136 Cong. Rec. at S17491. See also S. Exec. Rep. No. 101-30 at 6 ("It is imperative that other States Parties be prevented from using the `lawful sanctions' exemption to justify actions which are clearly torture by declaring them lawful under domestic law.").136 Cong. Rec. at 36198.

See Supplementary Information, 64 Fed. Reg. at 8479 ("Article 3 covers persons who fear torture that may not be motivated by one of those five grounds."); see also S. Exec. Rep. No. 101-30 at 16 ("Article 3 would extend the prohibition on deportation under existing U.S. law to cases of torture not involving persecution on one of the listed impermissible grounds [in section 241(b)(3)]."). Compare INA  208(b), 8 USC § 1158(b) (asylum may be granted to a "refugee"); INA § 101(a)(42)(A), 8 USC § 1101(a)(42) (defining refugee as "any person who is outside any country of such person's nationality or, in the case of a person having no nationality, is outside of any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion."); INA  241(b)(3)(A), 8 USC § 1231(b)(3)(A) (person may not be removed if that person's "life or freedom would be threatened in that country because of the alien's race, religion, nationality, membership in a particular social group, or political opinion").

See S. Exec. Rep. No. 101-30 at 14 ("The requirement of intent is emphasized in Article 1 by reference to illustrate motives for torture: obtaining information of a confession, intimidation and coercion, or any reason based on discrimination of any kind. The purposes given are not exhaustive, as is indicated by the phrasing for such purposes as.' Rather, they indicate the type of motivation that typically underlies torture, and emphasize the requirement for deliberate intention or malice.").See article 1(F) of the Refugee Convention (does not apply to a person who has committed a crime against peace, a war crime, a crime against humanity, a serious non-political crime outside the country of refuge, or has been guilty of acts contrary to the purposes and principles of the United Nations); article 33 2 (refoulement benefit does not extend to "a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country"). See also INA  241(b)((3)(B), 8 USC § 1231(b)(3)(B) (withholding or removal may not be granted where person participated in the persecution of others, has been convicted of a particularly serious crime, has committed a serious nonpolitical crime outside the U.S., or is a danger to the security of the U.S.).

Matter of H-M-V-, Int. Dec. 3365 at 3 (BIA 1998); see also id. at 16 ("Article 3 contains no exclusionary clause creating exceptions to eligibility for protection . . . .

Thus, although a torture victim may have been a persecutor or torturer of others, convicted of an `aggravated felony' or a `particularly serious crime, or considered a threat to United States security, he remains entitled to nonrefoulement. . . . Accordingly, unlike the limited protection afforded under the [Refugee] Convention and Protocol, the prohibition against refoulement set forth in Article 3 is absolute.") (Rosenberg, dissenting).See Supplementary Information, 64 Fed. Reg. at 8481.

See e.g., Committee Against Torture, Communication No. 43/1996, U.N. Doc. CAT/C/17/D/41/1996 (1996) (Sweden prohibited from returning applicant to Iran, where he had been tortured as a member of the Mojahedin organization).

See also, K. Rosati, "Article 3 of the U.N. Convention Against Torture: A Tool to Prevent Removal Just Became More Powerful," Bender's Immigration Bulletin at n, 30 (Feb. 1999) (citing additional Committee decisions).

See Chahal v. United Kingdom, European Court of Human Rights, 22441/93, at 79-80 (1996).