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Immigration-related Provisions of H.R. 10 - Amnesty International USA Briefing Paper
Released 15 October 2004  By Amnesty International USA

September 30, 2004

Limiting Protection under the Convention Against Torture (Section 3032)

H.R. 10 would lift the absolute bar on returning a person to a place where he or she would likely be tortured, thereby reversing U.S. law and violating treaty obligations. When the United States ratified the Convention Against Torture (CAT), it recognized that there are no exceptions to the prohibition on torture. The law implementing the U.S. ratification of the Convention Against Torture (section 2242 of the Foreign Affairs Reform and Restructuring Act) stated that the United States would "not 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."

Under H.R. 10, however, various categories of persons, including foreigners regarded by the Attorney General as a danger to national security, serious criminals, and persons who allegedly participated in the persecution of others, could themselves be returned to places where they would likely be tortured. It is by now a peremptory principle of customary international law that no human being—no matter who he or she is—should be tortured.

Under current law, CAT protection only bars the return of a person to the place where he or she would likely be tortured, and still allows the United States to deport the person to another place. CAT protection is not a route to immigration; it allows no adjustment to permanent legal residency in the United States. When conditions change in the person's home country so that the threat of torture subsides, the person can then be deported.

The new exceptions to CAT protection would apply retroactively, so that persons previously granted a reprieve to avoid sending them back to torture could now be deported even if they are at substantial risk of torture.

H.R. 10 would also change the burden of proof for protection from torture to a standard that contradicts the UN Convention, and that is difficult or impossible to meet. Instead of showing that torture upon return would be "more likely than not," the applicant would have to provide "clear and convincing evidence" that he or she would be tortured upon return. It is almost impossible to provide clear and convincing evidence of a future occurrence. Under current U.S. law, in keeping with the Convention Against Torture itself, CAT protection is based on a likelihood of future torture; it has to be a strong likelihood, more than a 50 percent chance, not a mere possibility. That is a very high standard to meet, but not an impossible one. Requiring a person to demonstrate clear and convincing evidence that he or she will be tortured in the future essentially means that no one will be protected from torture because it is a standard that can almost never be met.

Broadening the Power to Remove Foreigners to Countries without Governments (Section 3033)

H.R. 10 is a dangerous move to allow the United States to deport someone whether or not the country accepts the person, so long as the country does not physically prevent the deportee from entering its territory. This provision evidently is intended to preempt a case that will be argued before the Supreme Court on October 12, Jama v. INS, in which a Somali man seeks to forestall his deportation to Somalia because it lacks a functioning government.

The fundamental guarantees codified in international human rights law depend principally on governments for their implementation and enforcement. As the current conditions in Somalia powerfully demonstrate, where a state has no functioning central government, even the most basic human rights protections cannot be secured. The U.S. Immigration and Nationality Act currently includes language that authorizes deportation to "a country with a government that will accept the alien into the country's territory" (INA § 241(b)(1)). The Supreme Court will soon decide how this should be interpreted.

This provision also gives the Department of Homeland Security (DHS) the discretion to deport people to countries other than where they are citizens or residents if DHS believes deporting the person to his or her home country "would be prejudicial to the United States." The word "prejudicial" is not further defined. This vague authority would allow persons to be returned to any country, even ones in which they had never set foot.

In combination with the new authority sought in section 3032 of this bill to allow certain categories of people to be sent to places where they are likely to be tortured, this provision could provide legal authority for the government to send people to countries notorious for systematic use of torture, even if the person in question has no ties to that country. In effect, this could enable the outsourcing, or rendering, of persons for the purpose of being tortured.

Expanding Categories of People Unable to Seek Withholding of Removal (Section 3031):

H.R. 10 expands the categories of people who are automatically prohibited from "withholding of removal," a provision in current U.S. law that prohibits the return of persons whose lives or freedom would be threatened if returned. Withholding of removal is not a grant of asylum, and does not allow the recipient to adjust to permanent resident status. It does not prevent deportation to a country other than where the person would likely be persecuted.

H.R. 10 would automatically bar persons who have engaged in terrorist activities or who are believed likely to engage in such activities from withholding of removal (under current law, they are already barred from asylum). The definition of "terrorist activity" is quite broad, including coerced financial support, or for being a member of a nonviolent faction of an organization deemed to be a terrorist organization.

This provision would preclude an individualized determination to assess the seriousness of the terrorist activity alleged balanced against the severity of the persecution feared. In effect, this means that individuals who may never have committed a violent act, let alone an act of terrorism, or people who were forced against their will to provide some level of support, such as food or water, to a terrorist group could be automatically returned to a place where it is more likely than not that their lives or freedom would be threatened by reason of their race, religion, nationality, membership in a particular social group, or political opinion without ever having a chance to explain their situation to a judge.

Expanding Expedited Removal (Section 3006):

H.R. 10 would significantly expand the highly controversial policy of expedited removal—a process that allows low-level immigration officials to remove undocumented foreigners without a hearing before an immigration judge. The bill would allow such fast-track removal for foreigners who have been in the United States for up to five years, if an immigration officer decides they were not properly admitted to the United States.

Although the law that established expedited removal in 1996 provided authority to summarily remove undocumented foreigners who had been in the United States for less than two years, in fact, until recently, expedited removal has been implemented only for foreigners arriving at ports of entry without proper travel documents.

In November 2002, shortly after the arrival in Florida of a boat of Haitian asylum-seekers, expedited removal was expanded to include undocumented boat arrivals (except Cubans). In August 2004, the Department of Homeland Security (DHS) again expanded expedited removal to allow Border Patrol agents to remove undocumented foreigners within 100 miles of the border who had been in the United States for two weeks or less. Border Patrol agents were given only eight hours of training on expedited removal before they began implementing this drastic new fast-track removal authority.

Before Congress has had a chance to assess the impact of the expansion of expedited removal that has just occurred, this bill would push DHS to expand expedited removal to apply to all undocumented foreigners anywhere in the country unless they have been present in the United States for more than five years.

By applying expedited removal not just to new arrivals, but also to foreigners who have been living in the United States for up to five years, this bill would deprive people with jobs, homes, and families in the United States from being able to plead their case before an immigration judge before being summarily deported. People sent out of the country under expedited removal are forbidden to re-enter the United States for five years.

Expedited removal deprives foreigners of basic due process rights, and places their removal in the hands of the very law-enforcement agents who apprehend them. It would be akin in the criminal context to having the arresting police officer decide on the charge, the conviction, and then impose the sentence without the involvement of a judge.

As in the 1996 law, H.R. 10 retains an exception for foreigners who indicate an intention to apply for asylum or who express a fear of persecution, but adds a requirement that this exception apply only to foreigners who have been present in the United States for less than one year. Although a one-year deadline was imposed in 1996 for foreigners to be eligible to apply for asylum, that legislation included exceptions for changed country conditions that affect the asylum claim or for extraordinary circumstances that prevented the timely filing of the asylum claim. Under this bill, foreigners would have no opportunity to demonstrate changed country conditions or extraordinary circumstances.

In effect, this means that a refugee with a well-founded fear of persecution could be returned to face persecution in his home country by a Border Patrol agent or immigration inspector, even if the refugee expressed such fear, as long as the Border Patrol agent or immigration inspector determined that the person had been in the United States for more than one year and less than five years.

This expansion of expedited removal also denies people who would likely face torture if returned the opportunity to seek protection under the Convention Against Torture. This provision therefore violates U.S. treaty obligations under the Convention Against Torture.

Prior to 1996, only a judge could order a person deported from the United States. Immigration law is highly complex, and low-level officials can often be mistaken in determining whether a foreigner was properly admitted or how long the improperly documented person has been in the country. Because of language barriers, age, gender, and cultural differences, intimidation, and even health, it is often difficult for foreigners to express their fear of persecution to a uniformed immigration officer. Because their training is overwhelmingly focused on apprehending improperly documented persons, these officers are prone not to recognize, or credit, such expressions of fear. Expedited removal increases the prospect that legitimate refugees will be returned to persecution; expanding expedited removal further increases this likelihood.

Raising the Burden of Proof and Credibility Standards for Asylum Claims (Section 3007):

H.R. 10 creates a new burden of proof for establishing an asylum claim by requiring the applicant to show that "the central motive" of his persecutor is the applicant's race, religion, nationality, membership in a particular social group, or political opinion. It then sets a high, well-nigh insurmountable, burden to provide "specific facts" that are credible and persuasive, and says that if an adjudicator calls for corroborating evidence for alleged facts relating to the claim, that "such evidence must be provided" unless a reasonable explanation is given why it can't be. H.R. 10 would also bar federal courts from reversing denial of asylum based on a failure to provide corroborating evidence.

While committing torture, rape, beatings, and other abuses, persecutors don't always explain themselves clearly to their victims. They also often have mixed motives. Immigration judges understand this. Hence, the Board of Immigration Appeals in Matter of S-P-, 21 I&N Dec. 486 (BIA 1996) ruled that asylum applicants are not required to show conclusively why persecution has or will occur. This bill would reverse that decision. The case involved a Sri Lankan who was tortured by his government purportedly to ascertain information about the identities of guerrillas and the location of camps, but also because of an unstated assumption by his torturers that his political views were antithetical to the government. When persecutors extort or rob, commit rape and other sexual abuses, or torture to gain information or some other advantage, this bill would fail to protect their victims unless the victim could show that the central motivation of the persecutor was the applicant's race, religion, nationality, membership in a particular social group, or political opinion.

H.R. 10 also introduces new credibility grounds for denying asylum, saying that the applicant's "demeanor" among other highly subjective factors may be determining factors in assessing credibility. Demeanor is highly cultural. In one culture, looking a judge in the eye would be interpreted as candor, while in another it would be interpreted as contempt; downcast eyes might be interpreted as respect for authority in one culture and evasiveness in another. Torture victims often have what mental health professionals call a "blank affect" when recounting their experiences, a demeanor that an adjudicator might misinterpret as demonstrating lack of credibility.

H.R. 10 also says that asylum can be denied for lack of consistency, including with any statement the applicant made at any time to any U.S. official. In order to escape persecution and flee to safety, refugees sometimes need to misrepresent why they are leaving one country and entering another. For reasons of fear, desperation, confusion and trauma they often do not tell the full story or, necessarily, the accurate story. To use an applicant's first statement to any U.S. official to impeach his or her sworn testimony, no matter how well supported, is unreasonable and unfair.

H.R. 10 also calls for consistency between the applicant's story and country conditions in the country from which the applicant claims asylum "as presented by the Department of State." This provision could be interpreted to exclude country conditions information from Amnesty International, other human rights organizations, journalists, and myriad other sources of relevant and reliable information that are not necessarily included in State Department country reports.

Finally, section 3007 of H.R. 10 is entitled "Preventing Terrorists from Obtaining Asylum." The Immigration and Nationality Act already prohibits terrorists, criminals, and other categories of people from applying for asylum (INA § 208(b)(A). There is nothing in this section that would further prevent a terrorist from applying for asylum. In fact, this section specifically makes it more difficult for ordinary people who are not barred from applying for asylum on criminal or terrorist bars from having a fair hearing on their claims. The title of this section demonstrates how the legitimate concern for preventing terrorism is being manipulated for purposes that have absolutely no bearing on the prevention of terrorism, but that erode civil liberties and basic due process rights.

Restricting Federal Court Review of Immigration Decisions and Eliminating Stays of Removal Pending Judicial Review (Section 3009)

This section of H.R. 10 would eliminate habeas corpus review in many immigration cases, which would be a major obstacle to Supreme Court review of immigration law.
It would also make it impossible for a federal court to grant a stay of deportation to a foreigner while his or her appeal to that court is pending. Under current law, stays of deportation are not automatic upon appeal; an appellant must convince a judge that the stay is warranted. If H.R. 10 successfully eliminates stays, it would have an especially severe impact on refugees and asylum-seekers, for whom deportation can mean the loss of life or freedom. And since it is much more difficult to pursue an appeal from abroad, the Department of Homeland Security would be able to terminate many cases simply by deporting the would-be appellant.


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