ILW.COM - Dan Stein

Summary: FAIR supports the intent of the legislation to deny safe haven in the United States on the basis of asylum to persons who were serious abusers of human rights in their home countries. FAIR also supports the effort to close loopholes that permit serious criminal law violators to use CAT claims to by-pass asylum/withholding bars to relief.

Thank you, Mr. Chairman, for the opportunity to present the views of the Federation for American Immigration Reform (FAIR) on this bill to foreclose refuge in the United States for aliens who are serious human rights abusers. My name is Dan Stein, and I am FAIR's executive director.

FAIR is a national, non-profit organization of concerned citizens nationwide promoting better immigration controls and an immigration time-out to insure that today's policies serve the current and future best interests of the American people. Since its founding more than twenty years ago, FAIR has insisted on the need to improve America’s entry controls; and FAIR has worked hard to support most of the recommendations of the U.S. Commission on Immigration Reform (1995) chaired by the late Barbara Jordan. FAIR does not receive any federal grants, contracts or subcontracts.

Our interest in the subject of today’s hearing relates to our concern that U.S. law promote substantial justice in its implementation of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.1

In our view, H.R. 5285 would plug a serious loophole in existing law that permits a serious human rights abuser to gain or maintain permanent residence in the United States under our asylum or torture convention policies. The perverse effect of current policy is that a torturer or other human rights abuser may gain or maintain permanent residence in this country along with the victims of that abuse for whom the refugee or asylum protections in this country are intended. FAIR is also interested in restoring an immigration system to one more consistent with overall congressional intent and the general view of the American people: We seek a system that is administratively manageable, maintains integrity, and rewards compliance with the law to ensure the spirit of the code is respected at all times.

The Convention Against Torture (CAT), signed by the United States in 1988 and which became effective for this country March 22, 1999, created the possibility for aliens present in the United States who prior to their entry had committed serious human rights abuses to escape justice for their actions.

This was probably never intended. It is arguable that CAT was not intended to create a whole new vehicle for would-be asylum seekers to use as an alternative to our nation’s existing refugee and asylum law. The Senate Report accompanying treaty ratification (Senate Report 101-30) (1990) stated CAT’s purposes as a treaty. There is no mention that the nation was creating a new right of action for those unsuccessful in obtaining asylum under U.S. law. Rather, the organic purpose of CAT is to create modifications to a nation’s criminal law to eliminate torture (in our case here in the U.S.) and to provide a legal recourse for those who’ve suffered torture at the hands of state actors.

Evidence for this theory can be found in the fact that the CAT has no provision for exclusion of criminals and other serious human rights abusers from its protection. As now interpreted by INS, the Convention and its implementing rules override provisions that would cause their removal. This is probably because CAT was not intended to become part of any nation’s domestic immigration law procedures. Prior to the CAT provisions becoming effective, the provisions of INA §241(b)(3) established the ineligibility for "withholding of removal" for aggravated felons and other categories of undesirable aliens.

The INS made these important points when proposed regulations for CAT were published on February 19, 1999 (Federal Register):

[T]here are some important differences between withholding of removal under section 241(b)(3) of the (Immigration and Nationality) Act and Article 3 of the Convention Against Torture. First, several categories of individuals including persons who assisted in Nazi persecution or engaged in genocide, persons who have persecuted others, persons who have been convicted of particularly serious crimes, persons who are believed to have committed serious non-political crimes before arriving in the United States, and persons who pose a danger to the security of the United States, are ineligible for withholding of removal. See INA section 241(b)(3)(B). Article 3 of the Convention Against Torture does not exclude such persons from its scope. (Emphasis added.)

Could this really have been intended? Did the Senate, when it ratified CAT, intend to create a whole new category of immigration relief for those ineligible for asylum or withholding of deportation? Was CAT intended to expand dramatically the relief now available under INA section 243(h)? We seriously doubt it. The Serious Human Rights Abusers Accountability Act of 2000 begins to correct this serious flaw by explicitly defining the term "serious human rights abuser" and specifying the grounds of inadmissibility or the basis for denying relief for those in proceedings. With the enactment of this law, serious human rights abusers will be excluded from entry to the United States as a refugee or denied asylum. In addition, any alien who is found to be a serious human rights abuser who is present in the country will become removable notwithstanding the provisions of the convention that, read abstractly, would seem to mandate to the contrary.

Mr. Chairman, FAIR agrees that this loophole needs to be closed quickly. Serious human rights abusers (as defined in section 2 of this bill to include aliens who participated in Nazi persecution, torture, genocide, crimes against humanity, or persecuted persons on account of race, religion, nationality, membership in a particular social group or political opinion) should not be able to use the U.S. as a shield from facing the consequences of their actions.

The issue of who has responsibility and standing to apply the provisions of this law against serious human rights abusers merits close attention. Clearly, the responsibility for excluding serious human rights abusers lies with consular officers abroad and asylum officers at ports of entry. If a serious abuser has gained entry into the United States, whether legally or illegally, the INS, in close cooperation with the Department of State, has the responsibility to take action. But, rather than leaving action to the discretion of the INS, it is important to provide a means for U.S. citizens and legal permanent residents to initiate requests for the INS to take action. In light of the political constraints that appear to influence the INS decision-making process in discretionary cases, it seems wise to also try to provide a mechanism for a U.S. citizen or legal permanent resident to force the hand of the INS to investigate and to definitively decide whether sufficient evidence exists that an alien has committed serious human rights violations abroad to invoke the provisions of this bill.

Increasingly the criteria for deciding eligibility for asylum and for withholding of removal have become complicated by new decision-making criteria. The trend in expanding the definition of membership in a particular social group and in adding new categories of beneficiaries, as was done by Sec. 601 of IIRAIRA, is putting an unfair and unmanageable burden on the asylum adjudication process. In that regard, the balancing criteria provided in Section 2(B)(ii) of the bill could further burden the adjudication process. We think that the provision is unnecessary inasmuch as the "extreme duress" standard in Section 2(B)(i) adequately protects refugees who were coerced against their will into participation in abusive actions against others.

On a broader level, Mr. Chairman, changing the evidentiary burden on the claimant from "clear probability" to "clear and convincing" will only be useful if Immigration Judges view it as a substantial change and apply it with rigor. It may have no practical effect. I will note, at this point, that there are now more than 10,000 cases pending based on claims under the new CAT rules. This presages a rapid increase for the future. For those who have been barred from relief by the aggravated felony rules, the CAT provides one more "bite at the apple." While many of those claims may have merit, our concern is that over time, advocates will work to broaden the CAT definitions to create an ever-widening set of immigration loopholes. This is based on plenty of experience in the field. We are concerned 1) that many aggravated felons will be successful in remaining in the country in ways now prohibited by asylum law, and 2) that the CAT will become the basis for expanding the definition of "torture" in new and novel ways that will include virtually all forms of regressive cultural and domestic practices where it can be alleged there is no modern state compliance with Western norms of civil protections. Enacting H.R. 5285 would at least slow down the process of overburdening a beleaguered system.

Mr. Chairman, we welcome this initiative to bring some rationality and manageability to the increasingly difficult responsibility of balancing the legitimate rights of aliens to be protected from human rights abuse while assuring that gross human rights abusers are not able to use our laws to evade justice for their crimes. We trust that the members of this subcommittee will support adoption of this bill.

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