In my last post I discussed the decision of the Supreme Court of 11 September 2019 in Berlin Barr against East Bay Sanctuary Covenantwhich remained a preliminary injunction of a district court Interim Final Rule (IFR) Foreigners entering or arriving in the US across the Southwestern border must apply for asylum in a third country through which these foreigners have traveled before applying for protection in the US – the Third County Transit Bar. The only disadvantage of this decision and the IFR itself is the fact that the Convention against Torture (CAT) The gap in the transit bar of the third country was not closed.
I have this gap in an October 2018 post titled "Closing the CAT Gap in Credible Anxiety Cases, Is It Time to Give the DHS the CAT Authority?" Written. As I explained there, Section 235 (b) (1) (B) (v) of the Immigration and Nationality Act (INA) – Defining the concept of credible fear of persecution for the purpose of expedited removal – does not explicitly include consideration of CAT claims. I explained:
In particular, this section does not mention the INA (CAT) or requires asylum officials to determine whether a foreigner has a credible fear of torture, although CAT was in effect in the United States for nearly two years at this time. The expedited deportation was by law on the reform of illegal immigration and the responsibilities of immigrants from 1996 into the INA. However, the regulation on the implementation of credible fearfulness by asylum officials instructs these officials to consider whether a foreigner has "a credible fear of … torture". also. In particular 8 C.F.R. Section 208.30 (e) (3) provides:
A foreigner is found to have a credible fear of torture if the alien proves there is a significant likelihood of being affected by the deportation or postponement of deportation under Article 8 CFR 208.16 or 208.17 of the Convention against Torture.
In assessing whether a foreigner is credibly afraid, asylum officials also assess whether a foreigner is entitled to potential CAT protection, even if there is no credible fear of "persecution" for any of the five reasons set forth in § 101 (a ) (42) of the (INA) among those in (the decision of the Attorney General (AG) of 2018 in) matter of AB-.
This post continued:
Even if an asylum official finds out that a foreigner did not show a credible fear of persecution, because the alien could not prove that the damage inflicted or feared was attributable to one of the five factors for the asylum relief, if the asylum – seeker Englisch: www.germnews.com /archive/dn/1996/03/27.html Should it be found that there is a "significant likelihood" of the foreigner experiencing significant physical or mental pain or suffering on his return to the country of deportation, that official may find that the Foreigners still have credible fear of torture, and the police refer matter to the immigration court for removal procedures.
This was probably an important factor in spreading positive "credible anxiety" – findings from asylum officials – up to 88 percent of all action requests are based on the latest credible fears statistics for the financial year 2019.
To resolve this issue, I explained that the Trump administration could do three things.
First, the Department of State (DOS) could reissue "Profile of Asylum Claims and Country Conditions". These profiles, which were discontinued under the Obama administration, were created by DOS officials to create the context for joint asylum and CAT applications. The re-issuance of such profiles would help asylum officials (and immigration judges) assess whether the damage claimed by a credible applicant is "torture" under the rules and case law.
Second, the US Citizenship and Immigration Bureau (USCIS) could change its rules to limit credible fear to the US legal conditionswhich did not include consideration of CAT claims (as noted above). As I explained in this post of October 2018:
There is no legal authority for asylum-seekers to consider claims about "credible fear of torture". Such authority comes exclusively from regulation. The problem, however, is how the BIA held in the matter of G-A:
Article 3 of the Convention against Torture prohibits the refoulement of a foreigner in a country where it is most likely to be tortured by an official or at the instigation or consent of such an official.
The DHS is not responsible for any of the very limited and non-applicable exceptions to CAT claims and therefore could not make such a determination. Instead, such findings are left to the immigration judges and the BIA, also under the same terms.
These regulations were originally implemented in February 1999, more than three years after the entry into force of CAT, and only after the implementation of CAT. This Act, the Act on Reform and Restructuring of Foreign Policy of 1998, Section 2242 (b) of Division G of Public Law 105-277 (October 21, 1998), provides:
No later than 120 days after the date of entry into force of this Act, the Heads of Competent Agencies shall lay down rules implementing the United States obligations under Article 3 of the United Nations Convention against Torture and Other Forms of Cruel, Inhuman or Degrading Prevention of Harassment or Punishment, if any Reservations, understandings, statements and reservations contained in the US Senate resolution on the ratification of the Convention.
Significantly, this law did not regulate that such cases were heard by immigration judges or the BIA. In fact, the previous Immigration and Naturalization Service (INS) made CAT findings prior to the adoption of the above provisions when the background information for the implementing provisions clarified that:
In order to comply with the Convention prior to the adoption of implementing legislation, the INS has adopted a pre-regulation administrative procedure to assess the applicability of Article 3 to individual cases where a foreigner must be removed. In the context of this pre-regulation administrative procedure, after completion of the deportation, expulsion or removal procedure and before the execution of a definitive deportation order, the INS found that deportation of a foreigner to a particular country was compatible with Article 3 and found that the foreigner was in accordance with Article 3 could not be transferred to that country, the INS has used its existing discretion to ensure that the alien is not transferred to that country as long as he or she is likely to be tortured there. See INA § 103 (a); 8 CFR 2.1.
In formulating its administrative procedure prior to the regulation on compliance with Article 3 in relation to the removal of aliens, the INS has taken care not to extend the protection afforded by Article 3. Only the execution of a deportation order to a country where a foreigner is more likely not to be tortured would violate the convention. Therefore, the INS did not address the issue of whether Article 3 prohibits deportation in a particular case until there is a final administrative order for deportation to a location where a foreigner claims to be tortured and until all appeals request it Review, or other administrative or judicial challenges to the implementation of this decision have been resolved. This approach has enabled the INS to regulate the applicability of Article 3 to a case only where it is necessary to comply with the Convention. It has also allowed a single foreigner to exhaust all opportunities to obtain another more extensive advantage or protection that he or she may be entitled to before requesting the minimum guarantee provided for in Article 3 that he or she does not wish to receive certain country is returned in which it is likely that he or she would be tortured. At the same time, this approach has enabled the INS, the authority responsible for executing pick-up orders, to ensure that no contract is executed in circumstances that would violate the Convention. (Emphasis added.)
There is no reason why the provisions could not be changed again so that it is left to the DHS to make the final CAT determination for an externally challenged expedited removal.
In fact, it makes sense that the CAT authority be taken over by the Immigration Judges and the BIA and forwarded to the Department of Homeland Security (DHS), which now houses components that perform the tasks previously performed by the INS.
It can take years between the adoption of the decision refusing CAT protection and the execution of a deletion order. However, it is up to the DHS to ensure that the alien is not re-tortured at the time of deportation when executing such an order. If you authorize the DHS to have CAT claims in this regard (more or less equivalent to the functioning of this system before the 1999 regulations), you would be more efficient in fulfilling that obligation.
This would also absolve the immigration judge of responsibility for determining if a foreigner would be tortured on his return home. This in turn would relieve the already overburdened immigration courts.
This was indeed the third recommendation I made in this October 2018 post to close the CAT gap.
There is no open-source coverage of the number of cases where credible fears have been raised and which have been relocated solely on the basis of CAT. In my experience, this number should be quite high. If the administration wants to close the credibility gap, re-checking authority over CAT or at least creating profiles for asylum applications and country conditions through DOS is a good place to start.
Once again, there is significant positive evidence from the Supreme Court ruling of 11 September 2019 in East Bay Sanctuary Covenant, This decision is likely to reflect the Court's decision to exempt the judiciary from the political issues that inevitably arise from nationwide injunctions restricting activist judges and limiting the number of such rulings issued to individual unelected district judges in the future. With regard to this last point, I note that important questions have been raised by both the AG and Justice Thomas regarding the power of these judges to issue such injunctions (as stated in my last post).
However, until the CAT gap is closed, this decision and the IFR itself will not be sufficient to curb the flood of aliens seeking illegal entry into the United States. This is the reason why some or all of the above-mentioned proposals, in conjunction with an extension of the Migrant Protection Protocols (MPP) (also known as "Remain in Mexico"), address this issue across the entire South West border (with a proper one) functioning and fully equipped protocol) immigration court process to hear all these cases) is critical to success Addressing the thousands of migrants has accused them of illegal entry into the United States every month.
Progress in immigration is usually measured incrementally. Given the scale of border issues, it is time for the administration to consider all options. Closing the CAT gap is a good place for the next step.
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