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Trump Administration Proposes Rules that Place Non-Nationals at Risk of Torture

Vanessa Drummond, Katherine Holcomb and Juan E. Mendez

The Center for Human Rights & Humanitarian Law’s Impact Litigation Project and its Anti-Torture Initiative have submitted a comment urging the Department of Justice (“DOJ”) and Department of Homeland Security (“DHS”) to withdraw proposed rules on asylum in their entirety. The right to asylum and the right to be free from torture are recognized under domestic and international law. The United States has recognized the moral imperative of upholding the prohibition on torture and the right to asylum when it implemented the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”) and enacted the Refugee Act of 1980. The regulations proposed by the Departments would eliminate asylum for the vast majority of asylum seekers and make deferral or withholding of removal under the CAT unattainable for the majority of individuals seeking protection. As such, the regulations should be rejected in accordance with the United States’ treaty obligations and its commitment to upholding the dignity and rights of all human beings.

Before the deadline, a total of 86,692 comments were filed.  Like WCL, several civil liberties organizations, immigration and refugee law advocates, and other law schools have submitted comments urging withdrawal of these proposed new regulations and are preparing judicial complaints should the Trump Administration insist on these unlawful proposals.

The amendments proposed by the Departments would significantly increase the likelihood of individuals seeking asylum under the Refugee Act of 1980 or withholding of removal under the CAT being returned to countries where they face a substantial risk of persecution or of torture. In that sense, the regulations would violate the United States’ treaty and customary law obligations known as non-refoulement (no return).  Refugee law requires States to grant asylum to persons who may not return to the country they came from on account of a well-founded fear of persecution based on race, religion, national origin and political or ideological beliefs.  Significantly, this clause protects against all forms of persecution, not only against torture; but persons who have persecuted others are not eligible, so the benefit depends on first attaining the status of asylee.  In contrast, the CAT – which the United States signed in 1988 and ratified in 1994 – includes a more specific non-refoulement clause (Article 3) that prevents the return, via extradition, deportation, exclusion or removal, of any one to a place where the person would be at risk of torture.  This clause is more absolute because the person may not necessarily qualify as a refugee to benefit from it, but is also narrower in scope in that it protects against torture and ill-treatment but not against other forms of persecution. For this reason, US immigration procedure establishes two separate mechanisms to establish the facts and apply the norms: asylum for the asylum-seeker under the Refugee Act of 1980 and withholding of removal under the CAT for those invoking a risk of torture.  The proposed new federal rules would allow Executive Branch officials significant discretion in ignoring statutory and constitutional norms, as well as solemn obligations of the US under international law.

First, the rule change would significantly alter current laws pertaining to “acquiescence.” The Departments propose to revise the regulations defining torture to read (1) that pain or suffering inflicted by, or at the instigation of or with the consent or acquiescence of, a public official is not torture unless it is done while the official is acting in his or her official capacity (i.e. under “color of law”) and (2) that pain or suffering inflicted by, or at the instigation of or with the consent or acquiescence of, a public official not acting under color of law (i.e., a “rogue official”) does not constitute a “pain or suffering 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,” even if such actions cause pain and suffering that could rise to the severity of torture. The rule also proposes to revise the definition of “acquiescence of a public official” in the regulations to state the “awareness” requires a finding of actual knowledge or willful blindness. It further proposes to define “willful blindness” as “the public official or other person acting in an official capacity was aware of a high probability of activity constituting torture and deliberately avoided learning the truth; it is not enough that such public official acting in an official capacity or other person acting in an official capacity was mistaken, recklessly disregarded the truth, or negligently failed to inquire.”

In this connection, the proposed rules violate a well-established principle of international law about State responsibility for wrongful acts.  States are held responsible for the acts or omissions of their agents that are wrongful under international law, i.e., they violate a specific obligation under treaty or customary law.  An act of torture by a State agent, or an act of torture by a non-State agent that is tolerated or acquiesced to by a State agent fulfills the requirement for State responsibility whether or not the agent had specific responsibilities or was acting under “color of law.”  This fundamental policy change could well trigger refusals by other countries to extradite or deport individuals to the United States, which would evidently affect the national interest in fighting crime.

The regulation would further change established practice and law such that acquiescence cannot be established by prior awareness of the activity alone but would require an omission of an act that the official had a duty to do and was able to do. The official or other person in question must have been charged with preventing the activity as part of his or her duties. The regulations do not provide guidance for determining what sorts of officials constitute “public officials.” However, the majority of Circuit Courts have held that even rogue officials acting in violation of official policy or his or her official status are still public officials for purposes of CAT.

Second, the regulations would raise the standard of proof for statutory withholding of removal and protection under the CAT from a “significant possibility” that the alien can establish eligibility for such relief or protection to a heightened “reasonable possibility.” In doing so, the Departments depart from the “substantial risk” assessment used by the Committee against Torture (“Committee”) and fail to consider relevant considerations of risk as outlined in the jurisprudence of the Committee and its General Comment No. 4, articulating State parties’ obligations under article 3 of the Convention.

Third, the Departments propose to use an expedited “fast-track” process for individuals seeking protection under the CAT that would remove them from section 240 proceedings, as is the current practice. Given the expedited nature of the proceeding proposed by the Departments, individuals seeking protection will likely be without the benefit of counsel and, despite the fact that their flight might be predicated on their torture or imminent torture, be required to meet the higher evidentiary burden proposed by the Departments during their interview with the asylum officer. The expedited process proposed by the Departments runs afoul of the United States’ obligations under the Convention pertaining to process and legal safeguards, as well as the due process rights of individuals – including non-citizens – under domestic law.

Fourth, the Departments propose a change to the regulations that would result in a policy of dissuasion by permitting the Departments to disclose the private information of applicants seeking protection under the Convention. The amendment would authorize all relevant and applicable information in or pertaining to the application for asylum, statutory withholding of removal, and protection under the Convention regulations as part of a federal or state investigation, proceeding, or prosecution; as a defense to any legal action relating to the alien’s immigration or custody status; an adjudication of the application itself or an adjudication of any other application or proceeding arising under the immigration laws; pursuant to any state or federal mandatory reporting requirement; and to deter, prevent, or ameliorate the effects of child abuse. The release would not be subject to special discretion.

These regulations establish a much more stringent standard to determine the risk of torture and simultaneously impose a nearly impossible burden of proof on the applicant who must meet it under conditions that are contrary to any notion of due process of law and fairness of administrative proceedings.  More importantly, the proposed new standards deliberately ignore the way torture happens in real life throughout the world.  There is no country in the world that officially incorporates torture as official policy.  In fact, most officials nominally charged with investigating crimes such as torture merely conduct some paper shuffling when the facts of torture cannot be ignored.  In practice, torture is almost universally ultra vires and legally impermissible and therefore disavowed and denied when it happens.  Under these proposed rules, it will be almost impossible to obtain protection against refoulement because most torture would be conducted by so-called “rogue agents” and would not constitute torture for purposes of non-refoulement. It must be noted that the object and purpose of the non-refoulement rule is the obligation of all States to prevent torture, even torture perpetrated by agents of another State.  In stark contrast, the Trump Administration disassociates itself from any obligation to help prevent torture anywhere in the world through its proposal.

The Departments fail to provide evidence supporting the benefits of the proposed rule change and run afoul of United States’ treaty obligations and clear congressional intent regarding the scope and nature of the Convention. Accordingly, the regulations should be rejected in full.

If the Administration wishes to insist on these dangerous and unlawful new regulations, it must explain why it chooses to depart from the comments made by WCL and many others, and give reasons in writing.  We will soon know if this becomes a fundamental change in US law or is yet another controversial proposal in the context of an electoral year.  If the regulations are enacted in the proposed form they will be undoubtedly challenged in court, and WCL expects to join others in an effort to declare them unconstitutional.