ILW.COM - Kevin Rooney

Mr. Chairman and Members of the Subcommittee, as Director of the Executive Office for Immigration Review (EOIR), I am pleased to have the opportunity to testify before this Subcommittee about the United Nations Convention Against Torture ("CAT"). Accompanying me today is Chief Immigration Judge Michael J. Creppy who oversees the Immigration Courts throughout the United States.

On February 19, 1999, the United States Department of Justice promulgated interim regulations implementing the obligations of the United States under Article 3 of the Convention Against Torture, which became effective on March 22, 1999. Under these regulations, an alien in removal, deportation, or exclusion proceedings before an Immigration Judge may request protection under the Convention Against Torture. Generally, if an Immigration Judge determines that an applicant has met the criteria and is therefore eligible for protection under the Convention Against Torture, the alien may be granted either withholding of removal or deferral of removal. Deferral of removal is a more limited form of protection.

In response to this Committee’s request, EOIR has submitted statistics concerning its caseload, including the Convention Against Torture cases both in the Immigration Courts and the Board of Immigration Appeals ("the Board") for fiscal years 1999 and 2000. The statistics are attached to my testimony and I ask that they be made part of the record here today.

First, let me say that our Convention statistics usually cover about sixteen months — from March 22, 1999 through July 31, 2000. Therefore neither fiscal years 1999 or 2000 are complete 12-month periods. By the end of this calendar year we should have statistics for the entire fiscal year 2000.

Page one of our submission responds to your first request by providing the total number of motions to reopen filed with the Immigration Judges and the Board of Immigration Appeals for fiscal year 1999 and fiscal year 2000. While EOIR is unable to identify the entire universe of motions to reopen based upon CAT claims,1 we are able to determine how many motions to reopen to apply for CAT protection were granted, as well as the disposition by the Immigration Judge of those applications. For example, in fiscal year 1999, 10,929 motions to reopen were filed with the Immigration Judges, of which 41 were granted in cases in which the alien applied for CAT protection.

Page 2 of the statistics shows the total number of decisions rendered by Immigration Judges on all applications for relief, including torture protection, filed by aliens in removal, deportation, and exclusion proceedings. These numbers are further broken down to show the number of decisions that were appealed to the Board. For example, in fiscal year 1999, Immigration Judges adjudicated 83,847 applications for relief, and 17,694 of these decisions, or 21 percent, were appealed to the Board.

The chart on page 2 also reflects the number of decisions made by Immigration Judges for applicants who requested protection under the Convention Against Torture in addition to applying for other forms of relief. In fiscal year 1999, Immigration Judges adjudicated 2,000 CAT applications in cases in which the applicants also requested other forms of relief, while in fiscal year 2000, there were 9,438 CAT Immigration Judge adjudications.

Also included is a breakdown of the number of decisions that were appealed to the Board of Immigration Appeals. In fiscal year 1999, there were 1,166 appeals --- 50 percent of the cases. In fiscal year 2000, there were 3,984 appeals --- 40 percent of the cases. In attachments 1 and 2, we have included a breakdown of the nationalities of those aliens who applied for protection under the Convention Against Torture, in addition to other forms of relief.

Page 3 of our statistics shows that from March 22, 1999, through September 14, 2000,2 a total of 19,949 CAT applications have been filed with the Immigration Courts. As of September 14, 2000, the Immigration Judges completed 13,085 or 66 percent of these applications and 6,864 cases remain pending.

Page 4 of our statistics reflects the disposition of the decisions rendered by Immigration Judges on applications for CAT protection for fiscal years 1999 and 2000 in the cases in which other forms of relief were requested. The analysis focuses on the number of cases in which withholding of removal and deferral of removal were granted and the appeal ratios. For example, in fiscal year 1999, there were 79 decisions, or 4 percent of the total number of decisions, by Immigration Judges granting aliens protection under the Convention Against Torture in the form of withholding of removal. Fifty-two percent of these decisions were appealed by the Immigration and Naturalization Service to the Board of Immigration Appeals. Comparatively, in fiscal year 1999, 90, or 4.5 percent of the total number of decisions, were granted deferral of removal protection. Thirty-seven of these decisions, or 41 percent, were appealed by the Immigration and Naturalization Service to the Board of Immigration Appeals.

Furthermore, page 4 shows the number of decisions in which applications for CAT protection were denied and the number of those decisions that were appealed to the Board. In fiscal year 1999, of the 1,458 decisions denying CAT protection, 70 percent were appealed by the applicant to the Board. In fiscal year 2000, the number of decisions denying CAT protection increased to 6,652, of which 55 percent were appealed by the applicant to the Board. Comparatively, in fiscal year 1999 there were 169 decisions (8 percent of the total applications) granting protection under CAT, while in fiscal year 2000, there were 412 decisions (4 percent of the total applications).

To compare the number of decisions appealed where applicants are filing for CAT protection among other forms of relief with those where applicants are filing only for CAT protection, compare the charts on pages 4 and 5. For example, where applicants are filing for CAT protection among other forms of relief, 70 percent of the decisions in fiscal year 1999 and 31 percent of the decisions in fiscal year 2000 were appealed. Of those decisions denying protection, 70 percent were appealed to the Board in fiscal year 1999 and 54 percent in fiscal year 2000. By contrast, of the decisions where only CAT protection has been requested and is granted, 41 percent of the cases in fiscal year 1999 and 41 percent in fiscal year 2000 were appealed to the Board. Of the CAT-only decisions where protection was denied, 63 percent of the cases in fiscal year 1999, and 44 percent in fiscal year 2000 were appealed to the Board.

The number of decisions rendered by Immigration Judges in cases in which an alien in removal, deportation, or exclusion proceedings has been criminally charged3 and has applied for CAT protection, as well as other forms of relief, are displayed on page 6. These cases involve aliens who have been charged by INS as having committed aggravated felonies and other removable offenses prescribed by the Immigration and Nationality Act. In fiscal year 1999, the Immigration Judges adjudicated 613 CAT applications filed by criminally charged aliens, of which 445 (73 percent) were denied protection and 103 (17%) were granted protection. In fiscal year 2000, the Immigration Judges adjudicated 1,939 CAT applications for criminally charged aliens, of which 1344 (69 percent) were denied protection and 205 (11 percent) were granted protection. In order to provide the Subcommittee a more detailed picture of the aliens who are criminally charged and who have applied for CAT protection, a breakdown of the custody status of these aliens has been included on page 6. The detained category is broken down according to whether the alien is: 1) detained by the Immigration and Naturalization Service; or 2) held in federal, state or local criminal facilities and provided a removal hearing in those facilities in a program called the Institutional Hearing Program ("IHP"). The released category shows the number of aliens who were at one time detained by the Immigration and Naturalization Service and released on bond while a CAT application was pending. The non-detained category shows those aliens who have not been in custody during the entire pendency of their CAT application. In the non-detained category, an applicant may have been previously detained without EOIR’s being notified. INS provides EOIR with the information concerning the custody status of aliens.

The number of decisions rendered by Immigration Judges in cases in which an alien in removal, deportation, or exclusion proceedings who has been criminally charged requests only protection under the Convention is displayed on page 7 of the statistics attachment. In fiscal year 1999, the Immigration Judges adjudicated 72 CAT-only applications filed by criminally charged aliens. One-half of these decisions were appealed to the Board. In fiscal year 2000, the Immigration Judges adjudicated 291 CAT-only applications for criminally charged aliens, of which 26 percent were appealed to the Board.

The number of criminally charged aliens receiving protection under CAT, 103 in fiscal year 1999, is less than one percent of the total number of Immigration Judge decisions where the applicants filed for any type of relief. For fiscal year 2000, that number, 205, is less than four- tenths of one percent of the total number of Immigration Judge decisions where the applicants filed for any type of relief.

Mr. Chairman and Members of the Subcommittee, that concludes my prepared statement. Judge Creppy and I welcome any questions either you or any Member of the Subcommittee may have.

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