Closing the CAT Loophole in Credible Fear Cases

Is it time to give CAT authority to DHS?

By Andrew R. Arthur on October 7, 2018

In my last post, I discussed the takeaways from a September 2018 report issued by the Migration Policy Institute (MPI) captioned "The U.S. Asylum System in Crisis, Charting a Way Forward", the recent data on the number of aliens applying for credible fear after apprehension at the ports of entry and along the border, and the attorney general's decision in Matter of A-B-. As I noted at the end:

The attorney general's decision in Matter of A-B-, once fully implemented, should cut the number of credible fear findings by limiting the number of possible asylum claims, as I explained in a July 2018 post.

The effectiveness of that decision, however, will likely be blunted to a significant degree, for reasons that I will detail in my next post.

True to my word, I am returning to the subject to explain how the Convention Against Torture (CAT) affects the number of positive credible fear findings by asylum officers, and possible fixes for that problem.

By way of background, section 235(b) of the Immigration and Nationality Act (INA) governs expedited removal of aliens from United States. That section of the INA allows immigration officers with the Department of Homeland Security (DHS), not immigration judges, to order certain aliens removed from the United States if they are inadmissible on the basis of fraud, because they lack proper documents, or because they entered without being admitted or paroled.

As I explained in my April 2017 Backgrounder titled "Fraud in the 'Credible Fear' Process":

If the alien asserts a fear of persecution, the arresting officer will refer the alien to an asylum officer for a "credible fear interview". If the asylum officer determines that the alien has a credible fear, the alien is placed in removal proceedings before an immigration judge, where the alien can file his or her application for asylum.

Under section 235(b)(1)(B)(v) of the INA, "the term 'credible fear of persecution' means that there is a significant possibility, taking into account the credibility of the statements made by the alien in support of the alien's claim and such other facts as are known to the officer, that the alien could establish eligibility for asylum under section 208."

Notably, that section of the INA does not mention the Convention Against Torture (CAT), or require that asylum officers determine whether an alien has a credible fear of torture, despite the fact that CAT had been in effect in the United States for almost two years by the time expedited removal was added to the INA by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. Nonetheless, the regulation implementing credible fear determinations by asylum officers directs those officers to consider whether an alien has "a credible fear of ... torture", as well. Specifically, 8 C.F.R. § 208.30(e)(3) states:

An alien will be found to have a credible fear of torture if the alien shows that there is a significant possibility that he or she is eligible for withholding of removal or deferral of removal under the Convention Against Torture, pursuant to 8 CFR 208.16 or 208.17.

Thus, in assessing whether an alien has a credible fear, asylum officers also assess whether an alien has a claim for possible protection under CAT, even in cases where there is no credible fear of "persecution" on account of any of the five grounds set forth in section 101(a)(42) of the Immigration and Nationality Act (INA) under the standards set forth in Matter of A-B-.

To explain, as the BIA held more than 30 years ago in Matter of Mogharrabi, an alien needs to show either past persecution or a well-founded fear of persecution on account of race, religion, nationality, membership of a particular social group, or political opinion to be granted asylum in the United States. Four of those grounds (race, religion, nationality, and political opinion) are straightforward. The fifth, on the other hand, is open-ended. Or, to quote Matter of A-B-:

As the Board and the federal courts have repeatedly recognized, the phrase "membership in a particular social group" is ambiguous. ... Neither the INA nor the implementing regulations define "particular social group." "The concept is even more elusive because there is no clear evidence of legislative intent." ... As then-Judge Alito noted for the court, "[r]ead in its broadest literal sense, the phrase is almost completely open-ended. Virtually any set including more than one person could be described as a 'particular social group.' Thus, the statutory language standing alone is not very instructive."

By applying prevailing law, as I explained in a June 2018 post, the attorney general in that decision provided bright-line rules for immigration judges, asylum officers, and the BIA to follow in in interpreting the phrase "membership in a particular social group" in cases involving criminal harm inflicted or threatened by non-government actors.

That is all well and good, and quite helpful as relates to credible-fear claims. The problem is, again, that by regulation asylum officers must determine whether an alien has a credible fear of torture as well, a requirement that has likely strongly contributed to the 89 percent rate in which credible fear was found in cases in which credible fear was adjudicated in the first nine months of FY 2018.

The regulation implementing CAT, 8 C.F.R. §208.18, states, in pertinent part:

Torture is defined as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or her or a third person information or a confession, punishing him or her for an act he or she or a third person has committed or is suspected of having committed, or intimidating or coercing him or her or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

In Matter of G-A-, the BIA delineated the standards for adjudicating CAT cases:

In determining whether an alien is entitled to protection under the Convention Against Torture, all evidence relevant to the possibility of future torture in the proposed country of removal shall be considered, including, but not limited to: past torture inflicted upon the applicant; evidence that the applicant could relocate to another part of the country of removal where he or she is not likely to be tortured; gross, flagrant, or mass violations of human rights; and other relevant information regarding conditions in the country of deportation.

Therefore, even if an asylum officer were to find that an alien failed to show a credible fear of persecution because the alien failed to demonstrate that the harm inflicted or feared was on account of one of the five factors for asylum relief, if the asylum officer were to find that there was a "significant possibility" the alien could be subjected to significant physical or mental pain or suffering if returned to the country of removal, that officer could find that the alien still had a credible fear of torture, and refer the matter to the immigration court for removal proceedings.

Consider the case in which an alien asserts that a gang is attempting to recruit him, and will harm or kill him if he refuses to join. If the asylum officer believes the claim, the asylum officer may refer the case to the immigration court to determine whether the gang was acting "by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity." Matter of A-B- would not stop such a referral, even though country conditions evidence generally shows that the governments of the countries from which most of these claimants come (El Salvador, Guatemala, and Honduras) forcefully oppose the gangs.

There are three steps that the Trump administration could take to address this issue. First, the Department of State (DOS) could begin issuing "Profiles of Asylum Claims and Country Conditions", as I argued it should in a November 2017 post, to help asylum officers assess whether the harm that a credible-fear applicant claims would constitute "torture" under the regulations and case law. As I explained therein:

One of the most difficult issues facing any immigration judge or asylum officer in adjudicating asylum applications is making a determination about the country conditions in a country that judge or officer has not actually visited. A federal or state court judge only hears cases involving events that took place in the locality in which that judge sits. Immigration judges and asylum officers, on the other hand, regularly have to assess the validity of claims about events that occurred in places they have never visited (and depending on the claim, often would not want to) involving cultures with which they are generally unfamiliar.

[DOS] used to assist immigration judges and asylum officers in making those determinations.

For instance, in the past, DOS prepared what were known as "Profiles of Asylum Claims and Country Conditions" for the countries from which most asylum applicants had immigrated. These profiles would analyze common asylum claims from the countries for which they were prepared, broken down by each of the "five factors" for asylum relief: race, religion, nationality, membership in a particular social group, and political opinion.

Profiles also provided adjudicators with other critical information for assessing claims. For example, the profile for the People's Republic of China from 2007 detailed the treatment that returning immigrants to that country would receive, addressed issues relating to the validity of documentation presented by applicants, and raised issues related to the "national law on population and birth planning", among other issues.

At some point after 2009, however, DOS stopped issuing profiles. Not only that, however, but those documents have largely disappeared from the internet. [Emphasis added.]

Second, DHS could follow Congress's dictates in section 235(b)(1)(B)(v) of the INA, and limit credible fear to consideration of asylum claims only. There is no statutory authority for asylum officers to consider "credible fear of torture" claims; such authority strictly comes from regulation. The problem is, however, as the BIA held in Matter of G-A-:

Article 3 of the Convention Against Torture prohibits refoulement of an alien to a country where it is more likely than not that he will be subject to torture by a public official, or at the instigation or with the acquiescence of such an official.

DHS, with only an extremely limited and inapplicable exception, lacks jurisdiction over CAT claims by regulation, and therefore could not make such a determination. Instead, such determinations are left up to immigration judges and the BIA, again pursuant to the same regulations.

Those regulations were initially implemented in February 1999, more than three years after CAT took effect, and only following legislation implementing CAT. That legislation, the Foreign Affairs Reform and Restructuring Act of 1998, section 2242(b) of Division G of Public Law 105-277 (October 21, 1998), states:

Not later than 120 days after the date of enactment of this Act, the heads of the appropriate agencies shall prescribe regulations to implement the obligations of the United States under Article 3 of the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment, subject to any reservations, understandings, declarations, and provisos contained in the United States Senate resolution of ratification of the Convention.

Significantly, that implementing legislation did not direct that such cases be heard by immigration judges or the BIA. In fact, prior to the promulgation of the aforementioned regulations, the former Immigration and Naturalization Service (INS) made CAT determinations, as the background information for the implementing regulations made clear:

In order to conform to the Convention before the enactment of implementing legislation, the [INS] adopted a pre-regulatory administrative process to assess the applicability of Article 3 to individual cases in which an alien is subject to removal. Under this pre-regulatory administrative process, upon completion of deportation, exclusion, or removal proceedings and prior to execution of a final order of removal, the INS has considered whether removing an alien to a particular country is consistent with Article 3. If it is determined that the alien could not be removed to the country in question consistent with Article 3, the INS has used its existing discretionary authority to ensure that the alien is not removed to that country for so long as he or she is likely to be tortured there. See INA § 103(a); 8 CFR 2.1.

In formulating its pre-regulatory administrative process to conform to Article 3 in the context of the removal of aliens, the INS has been careful not to expand upon the protections that Article 3 grants. Only execution of an order of removal to a country where an alien is more likely than not to be tortured would violate the Convention. Therefore, the INS has not addressed the question of whether Article 3 prohibits removal in an individual case until there is a final administrative order of removal to a place where an alien claims that he or she would be tortured, and until all appeals, requests for review, or other administrative or judicial challenges to execution of that order have been resolved. This approach has allowed the INS to address the applicability of Article 3 to a case only when actually necessary to comply with the Convention. It has also allowed an individual alien to exhaust all avenues for pursuing any other more extensive benefit or protection for which he or she may be eligible before seeking the minimal guarantee provided by Article 3 that he or she will not be returned to a specific country where it is likely that he or she would be tortured. At the same time, this approach has allowed the INS, the agency responsible for executing removal orders, to ensure that no order is executed under circumstances that would violate the Convention. [Emphasis added.]

There is no reason that the regulations could not be amended again, to leave it up to DHS to make the final CAT determination for an alien facing expedited removal.

The third option is to divest the immigration courts and the BIA of authority over CAT claims generally. This would allow DHS to make a final determination not only in credible fear cases, but in removal cases generally, of eligibility for CAT.

Again, this was a responsibility borne by the former INS prior to the promulgation of the 1999 regulations. Further, such a proposal would actually protect aliens: Years can pass between the issuance of a final removal order and the actual removal of an alien from the United States. Giving the CAT determination to DHS would ensure that, at the time of removal, the alien was not facing torture upon return to the country of removal.

In addition, divesting immigration courts and the BIA of jurisdiction over CAT claims would also reduce the backlog of cases before the immigration courts. As the BIA noted in Matter of G-A-: "An alien's criminal convictions in the United States, however serious, are not a bar to deferral of removal under the Convention Against Torture." Therefore, even aliens who are not eligible for any other form of relief may still seek CAT protection from an immigration judge. Moreover, all of the credible fear of torture cases could be considered within DHS without the need for referral to removal proceedings before the immigration court, and therefore courts would only need to hear cases in which a credible fear of persecution had been found.

There is no open-source reporting on the number of credible-fear cases that were referred to removal proceedings based on CAT alone; from my experience, however, that number is likely to be quite large. If the administration wants to plug the credible-fear loophole, reconsideration of authority over CAT, or at least, issuance of Profiles of Asylum Claims and Country Conditions by DOS, are good places to start.