Litigation Reporter
Bloomberg Law
PHOTO: talkingbiznews.com
PHOTO: Public Realm
The Supreme Court recently removed one procedural hurdle for noncitizens seeking humanitarian relief but the high court’s ruling clears up no substantial issues about a law they’ll make their claims under, immigration attorneys say—allowing some relief seekers to be sent back to torturous conditions.
Estrella Santos-Zacaria, a Guatemalan transgender woman, asked for federal review of the Board of Immigration Appeals’s decision denying her protection under the Convention Against Torture. In a unanimous decision, the justices said federal judges can weigh in on BIA’s decisions before discretionary administrative remedies are exhausted. In Santos-Zacaria’s case, her petition may be sent back to BIA for further review but that doesn’t guarantee relief.
While lawyers are hopeful that earlier review by a federal court will facilitate a smoother process for their clients, they express concerns that immigration judges and the BIA too readily dismiss the risk of torture, and say it shouldn’t be so difficult to get humanitarian relief.
CAT protections, including deferral and withholding of removal, allow noncitizens who aren’t eligible for asylum to remain in the US. To receive protection, a noncitizen must show an immigration judge that if they are deported, it’s more likely than not that they will be tortured with government acquiescence or participation. Unlike asylum, protections under the Convention are mandatory and serious criminal convictions can’t disqualify a noncitizen. But protections are especially difficult to win, said Eleni Bakst, a lawyer at the Capital Area Immigrants’ Rights Coalition.
. . . .
Paul Schmidt, a former immigration judge and chairman of the BIA between and 2001, said the process for evaluating claims under the Convention isn’t scientific. There’s no formula to plug in that will tell the odds of someone being tortured. “It’s sort of in the mind of the beholder,” Schmidt said.
. . . .
As an immigration judge, Schmidt said he and other immigration judges relied heavily on country conditions reports published by the US Department of State. Asked if he believed the reports were an adequate representation of a country, Schmidt said “certainly not.”
Bakst said statistics provided by other countries can also be inaccurate. In El Salvador, the government doesn’t allow monitoring bodies into its prisons so data on inmate torture is incomplete.
Pushing back against questionable reports and statistics, immigration advocates are aware that immigration judges and the BIA may dismiss their client’s risk of torture, and their client may be tortured anyway.
Such was the case for Patrick Julney, a client of CAIR Coalition who was denied deferral under the Convention for failure to show that the likelihood of torture was more than 50% and deported to Haiti. Bakst said that “immediately upon his arrival in Haiti, he was imprisoned and tortured.” Julney was denied access to food, water, and medicine.
Estelle McKee, a clinical immigration law professor at Cornell Law School, represented a schizophrenic man from El Salvador who was denied CAT relief. After his deportation, McKee hired a Salvadorean attorney to track down her client.
She said the attorney couldn’t even enter her client’s village because it was gang-controlled.
“I don’t have much hope that he survived,” McKee said.
McKee and other immigration attorneys agree that the Supreme Court’s decision will speed up the humanitarian claims process, though results may vary. Julney’s case was reviewed by the Third Circuit, but his outcome was unchanged.
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Reads Emily’s full, well-written article at the above link.
A Government colleague once remarked to me that “the U.S. should never have signed the CAT.” Obviously, that private view has permeated and driven USG policy on implementing the CAT, particularly at the DOJ where it was immediately treated as “PNG” because of its lack of exclusionary clauses. Even “bad guys” aren’t supposed to be returned to torture (in terms of legal theory, if not reality).
There is no objective evidence that torture is on the decline worldwide. See, e.g., https://www.amnesty.org/en/what-we-do/torture/. Yet the mandatory protection required by the CAT remains elusive and quite arbitrary within the U.S. legal system.
One of the best examples of how Government officials who should be insuring that the legal protections under CAT are fairly and reasonably applied to achieve the Convention’s purposes are instead promoting an “any reason to deny” culture is former AG John Ashcroft’s precedent decision in Matter of J-F-F-, 23 I&N Dec. 912 (A.G. 2006). There, Ashcroft reversed a CAT grant by the IJ and the BIA to an unrepresented respondent. In the process, Ashcroft established the “enhanced test” that to gain CAT protection, the respondent must “establish that each step in the hypothetical chain of events is more likely than not to happen.”
In other words, this is an official invitation, some might say directive, to IJs to “lengthen the chain of causation until it breaks” (which it inevitably will, in most cases) and protection can be denied.
Moreover, many CAT claims, like this one, involve unrepresented respondents. The chances of an unrepresented respondent understanding the “chain of causation” or what it means to prove “each step is more likely than not to occur” are very slim.
Additionally, even if they did understand, since many of the unrepresented respondents are in detention, they would have little or no realistic chance of obtaining the type of detailed, timely expert testimony and comprehensive documentation, far beyond the DOS Country Reports (which, by the way are only available in English), necessary to overcome Ashcroft’s “de facto presumption of denial” and prove that every step of the “hypothetical chain” is “more likely than not” to happen.
Effectively, every problem mentioned by Emily and expert practitioners in this article is essentially (intentionally) magnified by J-F-F- and other anti-CAT administrative precedents.
CAT relief is mandatory, thus suggesting a high obligation on the part of IJs and other Government officials to insure non-return to torture. Yet, Ashcroft chastises the IJ involved in J-F-F- for essentially insuring that the respondent exercised his legal right to apply for CAT and helping him develop the record. Ashcroft even took the extraordinary step of disqualifying this IJ from any “hypothetical” future proceedings involving this respondent.
At the beginning of the BIA’s quest to interpret CAT (ironically at the same time Bush Administration lawyers at DOJ were secretly searching for legal pretexts to justify torture), I dissented from an unduly restrictive BIA precedent Matter of J-E-, 23 I&N Dec. 291, 304 (BIA 2002), Paul Wickham Schmidt, Board Member, dissenting, joined by Board Members John W. Guendelsberger, Noel Ann Brennan, Cecelia M. Espenoza, and Juan P. Osuna.
There, I stated:
The majority concludes that the extreme mistreatment likely to befall this respondent in Haiti is not “torture,” but merely “cruel, inhuman or degrading treatment.” The majority further concludes that conduct defined as “torture” occurs in the Haitian detention system, but is not “likely” for this respondent. In short, the majority goes to great lengths to avoid applying the Convention Against Torture to this respondent.
We are in the early stages of the very difficult and thankless task of construing the Convention. Only time will tell whether the majority’s narrow reading of the torture definition and its highly technical approach to the standard of proof will be the long-term benchmarks for our country’s implementation of this international treaty.
Although I am certainly bound to follow and apply the majority’s constructions in all future cases, I do not believe that the majority adequately carries out the language or the purposes of the Convention and the implementing regulations. Therefore, I fear that we are failing to comply with our international obligations.
I conclude that the respondent is more likely than not to face officially sanctioned torture if returned to Haiti. Therefore, I would grant his application for deferral of removal under the Convention Against Torture and the implementing regulations. Consequently, I respectfully dissent.
More than two decades after J-E-, my fears and predictions of officially-sanctioned non-compliance with CAT unfortunately continue to be proved correct.
I also note with pride that our Round Table of Former Immigration Judges ⚔️🛡 filed an amicus brief before the Supremes in Santos-Zacaria supporting the interpretation that eventually prevailed.
🇺🇸 Due Process Forever!
PWS
06-01-23