February 26, 1999

Department of Justice Issues Formal Rule for Claims
Under the United Nations Torture Convention

WASHINGTON - The U.S. Immigration and Naturalization Service (INS) and the Executive Office for Immigration Review (EOIR) have jointly published a rule to formally implement U.S. obligations under an international treaty provision designed to protect persons from being returned to countries where they face torture.

The interim rule, published February 19, becomes effective March 22. As directed by Congress, it implements obligations under Article 3 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Under the new regulations, claims for Article 3 protection generally will be determined by Immigration Judges (IJs) of EOIR. The regulations permit aliens to raise Article 3 claims during regular immigration removal proceedings, affording the opportunity for prompt and fair consideration of claims. Decisions by IJs are subject to review by the Board of Immigration Appeals, a component of EOIR.

Under Article 3, the U.S. agrees not to "expel, return ('refouler') or extradite" a person to another state where he or she would be tortured. The regulations are designed to give complete and fair consideration to all claimants in a manner that does not unduly interfere with the removal process mandated by U.S. law.

U.S. obligations under the treaty have been in effect since November 20, 1994. Since that date, INS has considered Article 3 claims by an administrative process which will remain in place for the next 30 days. Under that procedure, claims can be raised only at the end of the removal process and after all appeals have been resolved. After initial consideration by INS asylum officers, the INS Office of General Counsel confers with the Department of State and makes the final determination as to whether the claimant requires protection under Article 3.

The new rule creates two separate types of Article 3 protection. The first is a new form of an existing remedy called withholding of removal--which will prohibit an alien's return to a specific country. Withholding of removal can be terminated only if the case is re-opened and the INS establishes that the alien is not likely to be tortured in that country. The second establishes deferral of removal, a more temporary form of protection. Deferral of removal will be granted to aliens who would likely face torture but who are ineligible for withholding of removal--for example, certain criminals, terrorists and persecutors. Deferral of removal is more easily and quickly terminated if the individual is no longer likely to be tortured in the country of removal. A deferral order would not alter INS authority to detain an individual subject to detention. Neither provision alters the government's ability to remove the person to a third country where he or she would not be tortured. However, both provision would ensure a person would not be returned to torture.

The new regulations will not apply to cases where INS has made a final decision under the existing procedures. Those already granted protection will be given either withholding or deferral of removal. Persons who have been ordered removed by an IJ and who have Article 3 claims pending with the INS will be sent notices that the interim process is ending and that they must file a motion to reopen with EOIR to seek consideration of the claim. These motions will be granted automatically. To provide a reasonable opportunity to file such a motion, the notice will also provide an automatic 30-day stay of removal. Those with no Article 3 claims pending with INS and who have been ordered removed before the effective date of the new regulations will not receive an automatic stay. However, they will have a 90-day window to file a motion to reopen with EOIR. During these 90 days, such motions will be exempt from the usual requirement that a motion to reopen be supported by previously unavailable evidence.

Article 3 protection is not the same as asylum. Persons claiming asylum must establish a "well-founded" fear of persecution, based on one of five grounds: race, religion, nationality, membership in a social group or political opinion. Article 3 does not require that the torture be feared on account of those five grounds, but a higher standard exists, with applicants required to establish that it is "more likely than not" that they would be tortured if removed to a specific country. Further, not all types of harm that qualify as persecution necessarily constitute torture. For those who meet the respective standards, a grant of asylum is discretionary while Article 3 protection is mandatory.

In addition, persons with serious criminal or terrorist backgrounds, as well as persecutors, cannot be granted asylum. However, such persons will not be returned to torture, and may be subject to detention where appropriate. Also, Congress has provided that individuals granted asylum can file for permanent resident status after one year and that an asylee's immediate family members may be granted the same status. Congress has not provided authority to grant permanent resident status to a person based on Article 3, nor the ability to bring family members to the United States.

Form I-589, Application for Asylum and for Withholding of Removal, will serve as an application form for Article 3 protection. INS will issue supplemental instructions with this form explaining how to use it to raise an Article 3 claim.

- INS -