Torture Treaty Protects Criminal Aliens

Roberto was a cliché. He left Cuba at night in an inner tube, then found a ramshackle boat full of his countrymen several miles off the Cuban coast, and they pulled him aboard.

He left Cuba in part because it was impossible to make a decent living, but also because his father, an original revolutionary, expected Roberto to follow in his footsteps. So close was Roberto's father to Cuba's old guard that Castro himself had attended most of Roberto's childhood birthday parties. By the time he was a teenager, Roberto could see Communism for what it is, and fled.

Cuba has a sporadic record in taking its own people back, though there is evidence that the regime has an abiding interest in taking back political enemies who've fled. Roberto's older brother was beaten by his father and then imprisoned because he resisted military service. Having fled, Roberto believed that he'd fare much worse if returned to Cuba.

While Roberto may have been eligible for traditional political asylum relief, there was a hurdle that looked difficult to overcome. Normally, an asylum applicant must demonstrate that he is a member of a "particular social group," and that his membership in that group exposes him to government persecution. "Children of revolutionaries who have fled Cuba" was so small a group that it risked not being a "particular social group" at all, and the asylum claim might fail.

But Roberto was in luck because President Clinton had just signed the implementing legislation for a little known, U.N. sponsored law called the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment. It prevents the U.S. from removing an individual who would be tortured upon return to his home country.

The Torture Convention was adopted by the United Nations General Assembly on Dec. 10, 1984. The U.S. became a full state party to the Convention in November 1994. In 1998, Congress passed legislation implementing Article 3 of the Torture Convention as part of the Foreign Affairs Reform and Restructuring Act. This implementing legislation states that it is "the policy of the United States not to expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture...."

Note that it restrains America's power to extradite. If that wording wasn't troublesome enough, the Convention defines torture as "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted."

It could be fairly said that before 1998, when the U.S. became bound by the Torture Convention, all extradition courts honored a long-standing rule of non-inquiry, by which they refrained from undertaking inquiries into the justice systems of foreign countries. An extradition court's job was essentially to insure that the extradition request was legitimate and not a trumped up political charge. If the court was satisfied, it would issue a certificate of extradition, and it was then within the sole discretion of the Secretary of State to decide to hand over the individual.

Courts have expressly declined to entertain challenges to extradition based on human rights conditions in the requesting country, and have acknowledged their role is limited so as to prevent them from impinging on the Secretary of State's decision, which may be completely motivated by foreign policy considerations.

Not anymore. Some federal courts have gone as far as to say that when foreign national in extradition asserts a Torture Convention defense, they must decide if the Secretary of State has violated the Torture Convention by deciding to extradite.

There's probably not a day that goes by that Liu Zhanhao isn't grateful the United States signed the Convention. He has been wanted for prosecution by the Chinese government since he was implicated in a 1997 shipment of $1 million in heroin, hidden in pineapple tins, to Australia. He is a known confederate of Duncan Lam, a man widely regarded to be the top organized crime figure in Australia, and who, authorities say, has brought more than a half billion dollars in illicit drugs into Australia.

In addition to his drug trafficking activities, Zhanhao was convicted of credit card fraud by Canadian authorities, and his entry to the United States was marked by a conviction for immigration fraud. Though you'd expect him to be residing in a Chinese prison, he is instead a free man living in a Los Angeles suburb.

It is not only foreign nationals sought through extradition that have rights under the Torture Convention. Almost any illegal alien in removal proceedings, including some criminal aliens, can raise a Torture Convention claim, and even if an immigration judge is not convinced of its merits, a federal court may review its denial.

In 1998, the INS determined that 88 percent, or about 13,200, of all illegal aliens removed from the United States each month are sent back to only eight countries: Mexico, El Salvador, Guatemala, Honduras, the Dominican Republic, Jamaica, Colombia and Canada. In 1999, the State Department found that torture regularly occurs in every one of those countries except Canada and Jamaica. That year, removals to Canada and Jamaica totaled only 2,954, accounting for about 246 individuals per month. So in any given month, there are approximately 12,950 illegal aliens before immigration courts that have colorable claims for relief under the Torture Convention.

The benefits of the Torture Convention are unquestionable. We must ask now if it is possible for the U.S. to be party to a treaty that protects people from brutality without being compelled to protect and keep criminal aliens that other countries seek to prosecute.

Matt Hayes began practicing immigration law shortly after graduating from Pace University School of Law in 1994. He founded his own New York City firm in 1997, specializing in immigration law and representing new immigrants in civil and criminal matters. He recently left the practice for the "more normal life" of insurance defense. He lives in Bergen County, N.J.

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