Sample
Brief to EOIR in Support of Respondent's Claim under the
UN Convention Against Torture
SAMPLE BRIEF IN SUPPORT OF RESPONDENT'S CLAIM UNDER
THE UNITED NATIONS CONVENTION AGAINST TORTURE
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.
For a complete description of the procedural stages at
which Convention claims may be raised and various deadlines
for filing motions to reopen, please see Ms. Rosati's
article, Finally! U.S. Law Implements Article 3 of the U.N.
Convention Against Torture: An Analysis of the Legislation
and Interim Regulations, published in the AILA Removal and
Relief Handbook (1999).
SAMPLE BRIEF IN SUPPORT OF RESPONDENT'S CLAIM UNDER
THE UNITED NATIONS CONVENTION AGAINST TORTURE
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
1. 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
judgement 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).
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