More Review of Torture Claims Good but Not Enough, Advocates Say

The Supreme Court recently removed one procedural hurdle for noncitizens seeking humanitarian relief but the high court’s ruling clears up no substantial issues about a law they’ll make their claims under, immigration attorneys say—allowing some relief seekers to be sent back to torturous conditions.

Estrella Santos-Zacaria, a Guatemalan transgender woman, asked for federal review of the Board of Immigration Appeals’s decision denying her protection under the Convention Against Torture. In a unanimous decision, the justices said federal judges can weigh in on BIA’s decisions before discretionary administrative remedies are exhausted. In Santos-Zacaria’s case, her petition may be sent back to BIA for further review but that doesn’t guarantee relief.

While lawyers are hopeful that earlier review by a federal court will facilitate a smoother process for their clients, they express concerns that immigration judges and the BIA too readily dismiss the risk of torture, and say it shouldn’t be so difficult to get humanitarian relief.

CAT protections, including deferral and withholding of removal, allow noncitizens who aren’t eligible for asylum to remain in the US. To receive protection, a noncitizen must show an immigration judge that if they are deported, it’s more likely than not that they will be tortured with government acquiescence or participation. Unlike asylum, protections under the Convention are mandatory and serious criminal convictions can’t disqualify a noncitizen. But protections are especially difficult to win, said Eleni Bakst, a lawyer at the Capital Area Immigrants’ Rights Coalition.

Even arguing that a client experienced previous harm in their country of origin doesn’t guarantee CAT protections if an immigration judge determines that the likelihood of future torture is less than 50%.

Bakst and other immigration advocates say the standard should be lowered. In asylum cases, a 10% chance of persecution is enough to establish a well-founded fear. Something between 10% and 50% would probably be fairer, said John Bray, a Dallas-based immigration attorney.

Paul Schmidt, a former immigration judge and chairman of the BIA between 1995 and 2001, said the process for evaluating claims under the Convention isn’t scientific. There’s no formula to plug in that will tell the odds of someone being tortured. “It’s sort of in the mind of the beholder,” Schmidt said.

The Origins of More Likely Than Not

The greater than 50% standard originates from the US Senate’s interpretation of Article 3 of the United Nation’s Convention Against Torture—which the US implemented as part of the Foreign Affairs Reform and Restructuring Act in 1998. The UN’s convention doesn’t include percentage values, instead, it says countries shouldn’t deport someone when there are “substantial grounds for believing that he would be in danger of being subjected to torture.”

In 2015, in Rodriguez-Molinero v. Lynch, the US Court of Appeals for the Seventh Circuit expressed concerns about the more-likely-than-not standard being taken too literally, because the UN only requires “substantial grounds for believing.”

Writing for a unanimous panel, Judge Richard A. Posner noted that noncitizens “who had ‘only’ a 49.9 percent probability of being tortured would be removed—an absurd distinction.”

Posner, who helped pioneer applying microeconomic theory to legal rules, said that “data and statistical methodology that would enable a percentage to be attached to the risk of torture simply do not exist.”

As an immigration judge, Schmidt said he and other immigration judges relied heavily on country conditions reports published by the US Department of State. Asked if he believed the reports were an adequate representation of a country, Schmidt said “certainly not.”

Bakst said statistics provided by other countries can also be inaccurate. In El Salvador, the government doesn’t allow monitoring bodies into its prisons so data on inmate torture is incomplete.

Pushing back against questionable reports and statistics, immigration advocates are aware that immigration judges and the BIA may dismiss their client’s risk of torture, and their client may be tortured anyway.

Such was the case for Patrick Julney, a client of CAIR Coalition who was denied deferral under the Convention for failure to show that the likelihood of torture was more than 50% and deported to Haiti. Bakst said that “immediately upon his arrival in Haiti, he was imprisoned and tortured.” Julney was denied access to food, water, and medicine.

Estelle McKee, a clinical immigration law professor at Cornell Law School, represented a schizophrenic man from El Salvador who was denied CAT relief. After his deportation, McKee hired a Salvadorean attorney to track down her client.

She said the attorney couldn’t even enter her client’s village because it was gang-controlled.

“I don’t have much hope that he survived,” McKee said.

McKee and other immigration attorneys agree that the Supreme Court’s decision will speed up the humanitarian claims process, though results may vary. Julney’s case was reviewed by the Third Circuit, but his outcome was unchanged.

Exceptions to Humanitarian Protection

When reviewing denials of CAT relief, some federal judges believe there are few reasons to reverse the BIA’s findings. “We must apply the ‘extremely deferential’ substantial evidence standard of review,” Judge Lawrence Vandyke said, dissenting in part in the Ninth Circuit’s decision to compel the BIA to grant torture protections to Elmer Giovanny Rogel Lopez.

Some federal circuits have allowed immigration judges to carve out exceptions to the Convention’s definition of torture, concluding that if harm was caused by a “rogue officer” it doesn’t meet the Convention’s government participation requirement. Other federal judges say the government acquiescence requirement isn’t met if a foreign government is attempting to control the feared private actor, even if its efforts are ultimately unsuccessful.

“I think we really have to ask the question, ‘What does this treaty mean, if so few people get relief under it?’” McKee said, “Is the world really that paradisaical a place now that torture doesn’t happen? I don’t think so.”