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Loopholes in U.S. Immigration Law to Protection From Removal to Torture Under Article 3 of the Convention Against Torture

NCJ Number
205016
Author(s)
Timothy O. Woods J.D.
Date Published
December 2003
Length
40 pages
Annotation
This paper argues that Article 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), as interpreted and implemented by the United States, inadequately protects aliens from acts of torture; it further contends that the United States has created loopholes in U.S. immigration law that undermine the CAT's intended purpose.
Abstract
Section 1 of this paper provides an overview of the CAT, including it historical context, its primary aim and implementation by the United Nations, the "non-refoulement" provision of Article 3, and its ratification and incorporation into domestic law by the United States. Article 3 is noted to be the CAT's central enforcement and relief mechanism. According to two officials who were involved in the preparation and drafting of the CAT, Article 3 makes clear that "a state is not only responsible for what happens in its own territory, but it must also refrain from exposing an individual to serious risks outside its territory by handing him or her over to another state from which treatment contrary to the Convention might be expected." Section 2 of the paper provides a background discussion of selected terms and conditions in the CAT, such as the definition of "torture" and the non-refoulement provision. The meanings given these terms and conditions by the United States are discussed. The United States' implementation of Article 3 is addressed in section 3. Aliens' protection from removal from the country by U.S. authorities is compared with other relief for aliens available under U.S. asylum and under traditional withholding-of-removal laws. Also reviewed in this section are the various degrees of burden of proof for the risk of torture in the country to which the alien would be removed in order for the alien to be eligible for relief under these laws. The difference between withholding-of-removal and deferral-of-removal relief are discussed. Section 4 of this paper argues that loopholes in U.S. immigration law with reference to protection from removal from the United States to the likelihood of torture in the country of origin undermines the intended purpose of the CAT. Each of these loopholes is analyzed. The loopholes pertain to deferral of removal; the expedited removal process and reinstatement of removal and high-seas interdiction; the lawful sanctions exception; diplomatic assurance; and the prerequisite of public official involvement for torture to occur. Section 5 of the paper presents statistical data on the number of Article-3 claims filed each year in the United States. Section 6 challenges the United States to close its loopholes that undermine the intent of the CAT to prevent removal of aliens to a country where he/she is at high risk for torture. The challenge involves not only complying with the full obligations under the CAT, but also supporting and heralding the letter and spirit of this treaty. 228 notes

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