ILW.COM - Lamar Smith

Recent media stories have reported that aliens who participated in political killings, torture, or other human rights violations in their home countries have been able to take refuge in the United States. Former government and military officials from repressive regimes in countries such as Haiti, El Salvador, and the former Yugoslavia have been able to escape justice and live in American communities, sometimes in close proximity to other immigrants who were victims of their repression.

This Subcommittee held a hearing on February 17 of this year on H.R. 3058, the "Anti-Atrocity Alien Deportation Act." It amended the Immigration and Nationality Act to make aliens who have committed acts of torture inadmissible and removable. I think we should go farther so I have introduced a new bill, along with Representative Mark Foley: the "Serious Human Rights Abusers Accountability Act."

H.R. 5285 defines "serious human rights abuser" to include aliens who were persecutors, violators of religious freedom, war criminals, those involved in committing genocide, torturers, and those who commit crimes against humanity.

H.R. 5285 amends the Immigration and Nationality Act to make "serious human rights abusers" inadmissible and removable. It also provides criminal penalties for serious human rights abusers who reenter the United States illegally and for other persons who assist serious human rights abusers in entering the United States.

H.R. 5285 also bars serious human rights abusers from receiving immigration benefits or relief, such as refugee status, asylum, adjustment of status, naturalization, cancellation of removal, or withholding of removal.

This bill also addresses dangerous defects in the Torture Convention, which provides that aliens who may be tortured if returned to their home country cannot be deported.

The difference between asylum and torture relief is that to be granted asylum, an alien must show he or she would be persecuted on account of race, religion, nationality, membership in a particular social group, or political opinion. With torture relief, the "on account of" nexus is not required. The torture applicant has only to show they would be tortured for any reason.

In conversations with INS staff and others who are involved in trying and adjudicating torture claims, we have been told that claims of torture are proliferating unchecked. Torture is being watered down to the level of harm. And because an applicant need not show the "on account of" nexus, some aliens are being granted torture relief when they cannot even meet the asylum standard, but only have to show that it is more likely than not that they will be harmed (not true torture) for any reason.

Also, criminals and human rights violators, who are ineligible for all other forms of immigration relief, can and do apply for torture relief. To the maximum extent consistent with our obligations under the Torture Convention, the Congress instructed that the regulations exclude from torture protection aliens who are particularly serious criminals, aliens who committed a "serious nonpolitical crime" outside the US, and those who are a danger to U.S. security.

Despite this 1998 congressional instruction, the Justice Department has decided not to deport major criminals and serious human rights abusers who claim they will be tortured. In fact, some aliens claim they should not be deported because they will likely be mistreated in retaliation for becoming a criminal in the United States or for a previous act of torture they themselves committed! The number of cases where torture relief was the only form of relief sought by criminal aliens, presumably because the applicant was ineligible for all other forms of relief, more than quadrupled from 1999 to 2000.

Neither the Convention nor the ratification legislation obligate us to adjudicate torture claims in immigration court and the Board of Immigration Appeals. Prior to the regulations, the INS used to administratively examine torture claims as a last step before removal. Claims were not subject to review. We should return to this practice.

Also, Congress should re-examine the Torture Convention in light of abuses that have arisen since 1999. Serious criminals and human rights abusers should be barred from relief from deportation under the Convention. This bill does so by excluding such aliens from deferral of removal under the Convention. The bill also requires that torture applicants show clear and convincing evidence that they will be tortured if returned home. Simple justice and the safety of the American people deserve no less.

Some advocates of the torture regulations argue that we would be contradicting the Torture Convention if deferral of removal did not exist. But, it is well established by the Supreme Court that Congress can enact legislation that is more restrictive than an international treaty. Second, I believe the regulations implemented by the Justice Department do not adequately conform to our implementing legislation.

The purpose of the Torture Convention is to prevent torture in each of our own countries and to prosecute torturers. Such people should not be permitted to apply for immigration relief. Rather, they should be detained and prosecuted under our federal laws. Unfortunately, this is not happening.

The Torture Convention regulations also have a provision that states an alien can return to a country if the Secretary of State gives the Attorney General diplomatic assurances that the alien will not be tortured there. This tool is not being used either.

An alien can also be sent to a third country where torture would not occur. But the Justice and State Departments are not adequately pursuing this procedure either.

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