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Convention Against Torture; In the Matter of Yahia Meddah

Cite as "AILA InfoNet Doc. No. 99122505 (posted Jan. 1, 2000)"

UNITED STATE DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
BOARD OF IMMIGRATION APPEALS
FALLS CHURCH, VIRGINIA

________________________________
In the Matter of Yahia Meddah
A74-750-888v In Deportation Proceedings
________________________________
BRIEF OF AMICI CURIAE
ON BEHALF OF RESPONDENT

REGARDING ENFORCEMENT OF THE
UNITED NATIONS CONVENTION AGAINST TORTURE
AND CUSTOMARY INTERNATIONAL LAW


AMERICAN IMMIGRATION LAW FOUNDATION
NATIONAL IMMIGRATION PROJECT
CENTER FOR HUMAN RIGHTS ADVOCACY
THE WORLD ORGANIZATION AGAINST TORTURE USA
CENTER FOR CONSTITUTIONAL RIGHTS
THE NATIONAL COALITION TO PROTECT POLITICAL FREEDOM


Kristen B. Rosati
Coppersmith Gordon Schermer
Owens & Nelson, P.L.C.
2633 East Indian School Road, Suite 300
Phoenix, Arizona 85016
(602) 224-0999


Table of Contents

INTRODUCTION 1

ARGUMENT 4

I. An Individual May Not Be Removed To A Country Where There Are Substantial Grounds For Believing That Individual Would Be In Danger Of Being Subjected To Torture. 4

II. Where A Government Is Unable Or Unwilling To Protect An Individual From Torture By Private Groups, That Government Has Acquiesced In The Torture. 9

III. Individuals May Enforce Article 3 In Immigration Courts, Because Article 3 Is A "Self-Executing" Treaty Provision. 11

A. Article 3 contains no language requiring implementing legislation and is thus self-executing under Supreme Court precedent. 12

B. Article 3 raises a justiciable issue, and is thus self- executing. 19

C. Article 3 is enforceable by individuals in removal proceedings even though it does not provide a private right of action. 25

D. Article 3 is within the constitutional power of the U.S. treaty-makers, and is thus self-executing. 28

E. The Senate declaration that Articles 1-16 of the Torture Convention are not self-executing does not prevent individuals from raising Article 3 in defense to removal. 29

F. Conclusion regarding self-execution. 35

IV. Customary International Law Prohibits The Return Of Individuals To Torture. 36

V. The Immigration Courts Have Jurisdiction To Enforce Article 3 Of The Torture Convention And Customary International Law Prohibiting Return To Torture. 41

CONCLUSION 48

Table of Authorities

Cases

American Baptist Churches v. Meese, 712 F. Supp. 756 (S.D. Cal. 1989) 20

Barrera-Echaverria v. Rison, 44 F.3d 1441 (9th Cir. 1994) 46

Bartram v. Robertson, 122 U.S. 116 (1887) 12

Beltran-Zavala v. INS, 912 F.2d 1027 (9th Cir. 1990) 10

Cardenas v. Smith, 733 F.2d 909 (D.C. Cir. 1984) 17

Committee of U.S. Citizens Living in Nicaragua v. Reagan, 859 F.2d 929 (D.C. Cir. 1988) 38

Diggs v. Richardson, 555 F.2d 848 (D.C. Cir. 1976) 20, 22, 26

Edwards v. Carter, 580 F.2d 1055 (D.C. Cir. 1978) 29

Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980) 38

Florida v. Furman, 180 U.S. 402 (1901) 28

Foster v. Neilson, 27 U.S. (2 Pet.) 253 (1829) passim

Fourteen Diamond Rings v. United States, 183 U.S. 176 (1901) 36

Frolova v. Union of Soviet Socialist Republics, 761 F.2d 370 (7th Cir. 1985) 11, 16, 17, 20, 32

Galo -Garcia v. INS, 86 F.3d 916 (9th Cir. 1996) 42, 46

Greenpeace U.S.A. v. Stone, 748 F. Supp. 749 (D. Haw. 1990) 20

Haitian Refugee Center, Inc. v. Baker, 949 F.2d 1109 (11th Cir. 1991) 19

Head Money Cases, 112 U.S. 580 (1984) 19, 20, 26

Hopson v. Krebs, 622 F.2d 1375 (9th Cir. 1980) 29

Jordan v. Tashiro, 278 U.S. 123 (1928) 28

Kolovrat v. Oregon, 336 U.S. 187 (1961) 28 Cases

Lopez-Telles v. INS, 564 F.2d 1302 (9th Cir. 1977) 43, 46

Macleod v. United States, 229 U.S. 416 (1913) 34

Matter of Abu , A29 499 143 (IJ Feb. 19, 1997) (Phoenix) 8, 9, 40

Matter of A-H-, [file number redacted] (IJ July 14, 1997) (Arlington) 40

Matter of Diakite, A74212 940 (IJ Dec. 11, 1997) (Chicago) 9, 40

Matter of Dunar, 14 I. & N. Dec. 310 (BIA 1973) 19

Matter of H-, Int. Dec. 3276 (BIA 1996) 10

Matter of Kasinga, Int. Dec. 3278 (BIA 1996) 10

Matter of Medina, 19 I & N Dec. 734 (BIA 1988) 43, 44, 45, 47

Matter of N-L, [file number redacted] (IJ Nov. 12 1997) (Imperial, Cal) 9, 40

Matter of Q-T-M-T-, Int. Dec. 3300 (BIA 1996) 19, 41

Matter of S-M-J-, Int. Dec. 3303 (BIA 1997) 41

Matter of S-P-, Int. Dec. 3287 (BIA 1996) 41

Matter of Villalta, 20 I & N Dec. 142 (BIA 1990) 10

McMullen v. INS, 658 F.2d 1312 (9th Cir. 1981) 10

Murray v. The Charming Betsy, 6 U.S. (2 Cranch) 64 (1804) 34, 35

New York Indians v. United States, 170 U.S. 1 (1898) 36

Owings v. Norwood's Lessee, 9 U.S. (5 Cranch) 344 (1809) 15

Paquete Habana, 175 U.S. 677 (1900) 37, 45

Patsone v. Pennsylvania, 232 U.S. 138 (1914) 28

People of Saipan v. United States Dep't of Interior, 502 F.2d 90 (9th Cir. 1974) passim

Cases

Power Authority of the State of New York v. Federal Power Commission, 247 F.2d 538 (D.C. Cir.), vacated and remanded with instructions to dismiss as moot, 355 U.S. 64 (1957) 33, 34, 36

Rainbow Navigation, Inc. v. Department of Navy, 686 F. Supp 354 (D.D.C. 1988) 17, 18

Rainbow Navigation, Inc. v. Department of Navy, 911 F.2d 797 (D.C. Cir. 1990) 17

Reid v. Covert, 354 U.S. 1 (1957) 44

Rodriguez-Gonzalez v. INS, 640 F.2d 1139 (9th Cir. 1981) 46

Sale v. Haitian Centers Council, 509 U.S. 155 (1993) 4, 19

Siderman de Blake v. Republic of Argentina, 965 F.2d 699 (9th Cir. 1992) 38

Tel-Oren v. Libyan Arab Republic, 716 F.2d 774 (D.C. Cir. 1984) 25, 26, 27, 32, 38

United States v. Alvarez-Machain, 504 U.S. 653 (1992) 17

United States v. Noriega, 808 F. Supp. 791 (S.D. Fla. 1992) 19, 22

United States v. Percheman, 32 U.S. (7 Pet.) 51 (1833) passim

United States v. Postal, 589 F.2d 862 (5th Cir. 1979) 20, 28, 32

United States v. Rauscher, 119 U.S. 407 (1886) 28

United States v. The Schooner Peggy, 5 U.S. (1 Cranch) 103 (1801) 15

U.S. Constitution and Statutes

U.S. Const. art. VI, . 2 11, 13

Alien Tort Act, 28 U.S.C. . 1350 25

Immigration & Nationality Act, . 208(b)(2) 6

U.S. Constitution and Statutes

Immigration & Nationality Act, . 243(b)((3)(B) 6

Torture Victim Protection Act of 1991, Pub. L. No. 102-256, 106 Stat. 73 (1992), codified at 28 U.S.C. . 1350 31

Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-236, 108 Stat. 463, and amended Pub. L. No. 103- 322, 108 Stat. 1979, codified at 18 U.S.C. . 2340 et seq. 31

Regulations

8 C.F. R. . 3.1(d) (1998) 45, 46

8 C.F.R. . 240.1 (1998) 45, 46

8 C.F.R. . 240.41 (1998) 45, 46

Legislative Authority

136 Cong. Rec. S17486 (daily ed., Oct. 27, 1990) passim

138 Cong. Rec. S4784 (daily ed. Apr. 2, 1992) 32

Genocide Convention: Hearing on Executive Order Before a Subcomm. of the Senate Comm. on Foreign Relations, 92nd Cong., 1st Sess. 106 (1971) 33, 34

S. Exec. Rep. No. 101-30 30, 31

Senate Committee on Foreign Relations Report on the International Covenant on Civil and Political Rights, reprinted in 31 I.L.M. 645, 657 (1992) 31, 32

Survivors of Torture Support Act, S. 4308, 105th Cong. (1998) 12

Survivors of Torture Support Act, S. 1603, 105th Cong. (1998) 12

Survivors of Torture Support Act, S. 1603, 105th Cong. (1997) 12

Torture Victims Relief Act of 1998, HR 4309, 105th Cong. (1998) 12

Torture Victims Relief Act, S. 1606, 105th Cong. (1998) 12

Treaties

1987 European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, Eur.T.S. No. 126, reprinted in 27 I.L.M. 1152 (1988) 37

American Convention on Human Rights, 1977, O.A.S. Treaty Ser. No. 36, Off Rec. OEA/Ser. L/V/II. 23 doc 21 rev. 6 37

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature Feb. 4, 1985, G.A. Res. 39/46, 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc. A/RES/39/708 (1984), reprinted in 23 I.L.M. 1027 (1984), modified in 24 I.L.M. 535 (1985) passim

Inter-American Convention to Prevent and Punish Torture, 25 I.L.M. 519 (1986) 37

International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171 entered into force Mar. 23, 1976 30, 31, 37

Vienna Convention on the Law of Treaties, U.N. Doc. A/Conf. 39/27 (1969), entered into force Jan. 27, 1980, art. 31(1) 17

Other International Law Authority

U.N. Doc. 571 Leg/SER. E/13. IV.9 (1995) 1

Cartagena Declaration on Refugees, 1984-85 Report of the Inter-American Commission on Human Rights, at 177-82, Conclusion 5 39

Chahal v. United Kingdom, European Court of Human Rights, 22441/93 (1996) 7, 8

C

ommittee Against Torture, Communication No. 43/1996, U.N. Doc. CAT/C/17/D/41/1996 (1996) 6

Committee Against Torture, Communication No. 41/1996, U.N. Doc. CAT/C/16/D/41/1996 (1996) 6

Other International Law Authority

Committee Against Torture, Communication No. 21/1995, U.N. Doc. CAT/C/16/D/21/1995 (1996) 7

Committee Against Torture, Communication No. 15/1994, U.N. Doc. CAT/C/13/D/15/1994 (1994) 7

Committee Against Torture, Communication No. 13/1993, U.N. Doc. CAT/C/12/D/13/1993 (1994) 7

Conclusion No. 15 (XXX) of the Executive Committee of the High Commissioner's Programme on "Refugees Without a Country of Asylum," 34 U.N. GAOR, Supp. No. 12A, 18 U.N. Doc. A/34/12/Add.1 (1979) 38, 39

Declaration of the Protection of all Persons from Being Subjected to Torture and Other Cruel Inhuman or Degrading Treatment or Punishment, G.A. Res. 34/52, U.N. GAOR, 30th Sess., Supp. No. 34, U.N. Doc. A/10408 (1976) 37

Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees (Geneva, 1992) 10, 11

Report of the United Nations High Commissioner for Refugees, 40 U.N. GAOR, Supp. No. 12, U.N. Doc. A/40/12 (1985) 39

Other Authority

62 Fed. Reg. 10312 (Mar. 6 1997) 47

Burgers, J. Herman and Hans Danelius, The United Nations Convention Against Torture: A Handbook on the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Martinus Nijhoff Publishers (1988) 21

D'Amato, Anthony, What Does Tel-Oren Tell Lawyers? Judge Bork's Concept of the Law of Nations is Seriously Mistaken, 79 Amer. J. Int'l L. 92 (1985) 25

Other Authority

Dearborn III, Charles H., Note, The Domestic Effect of Declarations That Treaty Provisions Are Not Self-Executing, 57 Tex. L. Rev. 233 (1979) 33

Fisler Damrosch, Lori, The Role of the United States Senate Concerning "Self-Executing" and "Non-Self-Executing" Treaties, 67 Chicago-Kent L. Rev. 515 (1991) 32

Goodwin-Gill, Guy S., Non-Refoulement and the New Asylum Seekers, The New Asylum Seekers: Refugee Law in the 1980's (D. Martin ed., 1988) 40

Goodwin-Gill, Guy S., The Refugee in International Law (1983) 39

Henkin, Louis, Treaties in a Constitutional Democracy, 10 Mich. J. Int'l L. 406 (1989) 36

Martin, Scott M., Non-Refoulement of Refugees: United States Compliance with International Obligations, 23 Harv. Int'l L. J. 357 (1983) 39

Meron, Theodor, Human Rights and Humanitarian Norms as Customary International Law (1989) 39

Office of the General Counsel, Compliance with Article 3 of the Convention Against Torture in the Cases of Removable Aliens (May 14, 1997) 5, 9

Office of the General Counsel, Guidance on Compliance with Article 3 Of the Convention against Torture (April 27, 1998) 23, 24

Parker, Karen and Lyn Beth Neylon, Jus Cogens: Compelling the Law of Human Rights, 12 Hastings Int'l & Comp. L. Rev. 411 (1989) 39

Parker, Karen, The Rights of Refugees under International Humanitarian Law, Refugee Law and Policy: International and U.S. Response (Ved P. Nanda ed., 1989) 40

Paust, Jordan J., Self-Executing Treaties, 82 Amer. J. Int'l L. 760 (1988) 14, 15

Restatement (Third) of the Foreign Relations Law of the United States (1986) passim

Risenfeld, Stefan A. and Frederick M. Abbott, The Scope of U.S. Senate Control over the Conclusion and Operation of Treaties, Chi.-Kent L. Rev. 571 (1991) 32

Other Authority

Small, Michael C., Enforcing International Human Rights in Federal Courts: The Alien Tort Statute and the Separation of Powers, 74 Geo. L. J. 163 (1985) 25

Vazquez, Carlos M., The Four Doctrines of Self-Executing Treaties, 89 Amer. J. Int'l L. 695 (1995) 12, 14, 21

INTRODUCTION

The United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Torture Convention), is a multilateral United Nations (U.N.) treaty which has provisions designed to prevent torture, prosecute torturers, and to compensate victims of torture. The U.S. signed the treaty on April 18, 1988, and the Senate adopted its resolution of advice and consent to ratification on October 27, 1990. See 136 Cong. Rec. S17486-92 (daily ed., Oct. 27, 1990). The U.S. did not become a full party to the treaty until November 1994, one month after President Clinton deposited the ratification with the U.N. Secretary General. See U.N. Doc. 571 Leg/SER. E/13. IV.9 (1995); Torture Convention, art. 27(2) ("the Convention shall enter into force on the thirtieth day after the date of the deposition of [a State's] instrument of ratification or accession").

In this brief, amici curiae discuss five issues fundamental to the resolution of the Respondent's claim under the Torture Convention. First, if an individual can demonstrate that there are substantial grounds for believing that he or she would be in danger of being subjected to torture, that individual must be granted relief from deportation, exclusion, or removal. If the standard is met, there are no exceptions to relief. Regardless of the crimes committed or the security risk an individual presents, the U.S. may not deport, exclude, or remove a person where there are substantial grounds for believing he or she would be tortured upon return.

Second, where a government is unwilling or unable to protect an individual from torture by a private group or organization, and there are substantial reasons to believe that the individual is in danger of being tortured by the private group, that individual is entitled to relief under the Torture Convention. In other words, where a government is unwilling or unable to protect an individual from torture, the government has "acquiesced" in the torture, and relief is available under the Torture Convention. Third, individuals may raise claims under Article 3 of the Torture Convention because it is a "self-executing" treaty provision enforceable in U.S. courts. When the U.S. Senate declared in its resolution of advice and consent to ratification that the treaty was not self-executing, the Senate intended only that the treaty not create a private cause of action-which is not sought by the Respondent in this case. The Senate did not intend, however, to prohibit individuals from relying on Article 3 in defense to deportation, exclusion, or removal. Because Article 3 is a self-executing treaty provision, domestic legislation or regulation is not required to implement those treaty rights. Indeed, the Immigration & Naturalization Service (Service) has acknowledged that the Executive Branch is required to enforce Article 3 despite the absence of domestic law. Fourth, even if Article 3 of the Torture Convention is not self-executing, customary international law prohibits the U.S. from returning any individual to a country where he or she is in danger of torture. In fact, this customary international law has risen to the level of jus cogens, and is thus a norm of international law that cannot be disregarded in any circumstances by the U.S. Finally, as officials of the Executive Branch, immigration judges and the Board have the duty-and the jurisdiction-to enforce Article 3 of the Torture Convention and the customary international law prohibiting return of an individual to torture. Because no domestic law addresses the return to torture of individuals ineligible for asylum or withholding of removal, the immigration courts have jurisdiction to take action consistent with that international law. Moreover, Article 3 itself provides jurisdiction to "competent authorities" in the U.S.-which most certainly include the immigration courts-to determine whether there are substantial grounds for believing an individual is in danger of torture. The Board has recognized on numerous occasions that it is bound by international law: in this instance, it is bound by both Article 3 of the Torture Convention and customary international law, and may not order the removal of the Respondent.

In fact, no one-including the Service-is arguing that the U.S. does not have an obligation to enforce Article 3 of the Torture Convention. The Service has acknowledged that, as part of the Executive Branch it has the obligation to enforce Article 3. Like the Service, so must other agents of the Executive Branch enforce U.S. international obligations. The Service's informal and discretionary practice of temporarily staying the removal of individuals pursuant to Article 3, while laudable, cannot take away the jurisdiction of the immigration courts. As Executive Branch officials and delegees of the Attorney General, both the Service and the immigration courts are obligated to enforce the Torture Convention and the customary international law prohibiting the return of individuals to torture.

ARGUMENT

I. An Individual May Not Be Removed To A Country Where There Are Substantial Grounds For Believing That Individual Would Be In Danger Of Being Subjected To Torture.

Article 3 of the Torture Convention prohibits the return of any person to a country where there are substantial grounds for believing that he or she would be in danger of being tortured. Article 3 provides:

(1) No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

(2) For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations, including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.

Article 1 of the Torture Convention defines torture 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 a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him 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. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

Accordingly, three elements are needed to establish "torture." First, it must be severe pain or suffering, either physical or mental. The inclusion of mental pain and suffering in the definition of torture is essential: many of the most barbaric and damaging tortures are psychological, such as mock executions or prolonged detention with sensory deprivation.

In addition, to meet the torture standard, the act must be inflicted intentionally. "[A]n action that results unintentionally or unforeseeably in severe pain or suffering does not qualify as torture." See Office of the General Counsel, Compliance with Article 3 of the Convention Against Torture in the cases of removable aliens, at 4 (May 14, 1997) ("Compliance with Article 3").

Finally, the torture must be 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." As discussed in Section II, infra, where a government is unable or unwilling to protect individuals from torture by private groups or organizations, the torture is inflicted with the acquiescence of the government.

If a person can show that there are substantial reasons for believing that he or she would be subjected to torture, under the above definition, the U.S. may not return that person. There are simply no exceptions to relief. Even if the person has been convicted of an aggravated felony or other "particularly serious crime" in the U.S., was convicted of a serious non-political crime outside the U.S., was a persecutor of others, or constitutes a security risk to the U.S., that individual may not be removed to torture. Thus, in contrast to asylum and withholding of removal, there are no exceptions to relief as long as the standard for relief is met.

Every court and U.N. organization to consider the issue has confirmed that there are no exceptions to relief under Article 3. For instance, the Committee Against Torture, the U.N. organization that monitors compliance with Torture Convention, has found in every case where there were substantial grounds for believing that a person would be subjected to torture upon return to a country, that Article 3 absolutely prohibits that person's removal. See Committee Against Torture, Communication No. 43/1996, U.N. Doc. CAT/C/17/D/41/1996 (1996) (Sweden prohibited from returning Kaveh Yaragh Tala to Iran, where he had been tortured as a member of the Mojahedin organization); Committee Against Torture, Communication No. 41/1996, U.N. Doc. CAT/C/16/D/41/1996 (1996) (Sweden had an obligation under Article 3 to refrain from returning petitioner Pauline Muzonzo Paku Kisoki to Zaire, where as a member of a political opposition party she was detained without trial for one year, raped, and severely beaten); Committee Against Torture, Communication No. 21/1995, U.N. Doc. CAT/C/16/D/21/1995 (1996) (Switzerland would violate Article 3 of the Convention if it returned petitioner Ismail Alan to Turkey, where he had been arrested and tortured due to his affiliation with a kurdish marxist-leninist organization); Committee Against Torture, Communication No. 15/1994, U.N. Doc. CAT/C/13/D/15/ 1994 (1994) (Canada prohibited from returning petitioner Tahir Hussain Khan to Pakistan, where Khan had been arrested and tortured on two occasions for being a member of a political opposition organization); Committee Against Torture, Communication No. 13/1993, U.N. Doc. CAT/C/12/D/13/1993 (1994) (Switzerland could not return petitioner Balabou Motombo to Zaire, who was a member of a political opposition group and arrested, tortured, and found guilty of conspiracy against the State for his political activities). These included one case in which the claimant had been convicted of a crime that would likely be considered a "particularly serious crime" in the U.S. See Communication No. 15/1994, at 5 (Canada's return of claimant to Pakistan would violate Article 3 of the Convention, even though Khan had been convicted in Canada of assault causing bodily injury).

Moreover, the European Court of Human Rights has held that a similar treaty provision is an absolute bar to the return of an individual to torture, regardless of the State's compelling interest in removing the person. That court held that Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which states that no "one shall be subjected to torture or to inhuman or degrading treatment or punishment," prohibited Great Britain from deporting a Sikh to India where he faced torture. See Chahal v. United Kingdom, European Court of Human Rights, 22441/93, at 22-23 (1996). The fact that this man was a security risk to Great Britain because of his terrorist activities did not justify his deportation. The Court held:

Article 3 enshrines one of the most fundamental values of democratic society. . . . The Court is well aware of the immense difficulties faced by States in modern times in protecting their communities from terrorist violence. However, even in these circumstances, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the victim's conduct. . . . Article 3 makes no provision for exceptions and no derogation from it is permissible . . . even in the event of a public emergency threatening the life of the nation.

. . . . [W]henever substantial grounds have been shown for believing that an individual would face a real risk of being subjected to treatment contrary to Article 3 if removed to another State, the responsibility of the Contracting State to safeguard him or her against such treatment is engaged in the event of expulsion . . . . In these circumstances, the activities of the individual in question, however undesirable or dangerous, cannot be a material consideration. The protection afforded by Article 3 is thus wider than that provided by Articles 32 and 33 of the United Nations 1951 Convention on the Status of Refugees.

Id. Article 3 of the Torture Convention, because of its similarity to the European provision, should be construed in the same manner.

At least three immigration courts correctly have found that Article 3 protection cannot be denied to individuals who have committed crimes or who have engaged in conduct that renders them ineligible for asylum or withholding. As Immigration Judge (IJ) John W. Richardson concluded:

Under the terms of the Torture Convention, a person cannot be returned to a country in which he will be tortured even if he himself is a former torturer. In addition, a person cannot be denied the protection of non-refoulement and returned to face torture because he committed either an "aggravated felony" or a "particularly serious crime."

Matter of Abu , A29 499 143, at 13 (IJ Feb. 19, 1997) (Phoenix) (pending on cross-appeal to the Board). See also Matter of Diakite, A74212 940 at 11 (IJ Dec. 11, 1997) ("the Torture Convention does not bar any person from protection compared to the statutory bars to asylum and withholding of deportation precluding aggravated felons, former persecutors, and others from relief"); Matter of N-L- [file number redacted upon request of Respondent's attorney] (IJ Nov. 17, 1997) (respondent entitled to relief under Article 3, even where denied asylum and withholding of removal because he participated in the persecution of others).

The INS General Counsel also has acknowledged that "there are no exclusion grounds in Article 3 or elsewhere in the Torture Convention. Therefore, an alien who satisfies the standard of proof outlined above may not be excluded from the scope of Article 3 for criminal, national security or other reasons." See Office of the General Counsel, Compliance with Article 3 at 5.

In short, the U.S. may not remove an individual to a country where there are substantial reasons to believe an individual is in danger of being tortured, regardless of the activities of that individual. If the standard under the Torture Convention is met, there are simply no exceptions to relief. II. Where A Government Is Unable Or Unwilling To Protect An Individual From Torture By Private Groups, That Government Has Acquiesced In The Tortur

e.

In order to be protected by Article 3 of the Torture Convention, there must be substantial grounds for believing that an individual would be in danger of torture "by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity." Torture Convention, art. 1. In the Senate's resolution of advice and consent to ratification, the Senate expressed its understanding that, in order for an act to be taken with the "acquiescence" of a public official, the official must "prior to the activity constituting torture, have awareness of such activity and thereafter breach his legal responsibility to intervene to prevent such activity." 136 Cong. Rec. at S17491-92.

This standard comports with the grant of asylum or withholding of removal to individuals who fear persecution by private groups or organizations. In that context, where a government is unable or unwilling to protect individuals from persecution by private groups or organizations, they are entitled to relief. See, e.g., Matter of Kasinga, Int. Dec. 3278 at 12 (BIA 1996) (recognizing claim of persecution where the Togolese government was unwilling or unable to control the tribal practice of female genital mutilation); Matter of H-, Int. Dec. 3276 at 12-14 (BIA 1996) (recognizing claim of persecution by rival clan in Somalia, a non-governmental actor); Matter of Villalta, 20 I & N Dec. 142, 147 (BIA 1990) (finding that the Salvadoran government was unable to control paramilitary death squads). See also Beltran-Zavala v. INS, 912 F.2d 1027 (9th Cir. 1990) (applicant entitled to asylum where Salvadoran death squad was "uncontrollable"); McMullen v. INS, 658 F.2d 1312, 1317- 18 (9th Cir. 1981) (applicant entitled to withholding of deportation where the Republic of Ireland was unwilling or unable to control the activities of the Provisional Irish Republican Army); Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees at 65 (Geneva, 1992) ("Where serious discriminatory or other offensive acts are committed by the local populace, they can be considered as persecution if they are knowingly tolerated by the authorities, or if the authorities refuse, or prove unable, to offer effective protection.").

So too here, where a government knows that a private group is torturing people and is unable or unwilling to protect the victims, the government is breaching a legal duty to prevent that torture and has thus "acquiesced" in that torture.

III. Individuals May Enforce Article 3 In Immigration Courts, Because Article 3 Is A "Self-Executing" Treaty Provision.

The Supremacy Clause of the Constitution declares that treaties are of equal stature to other federal laws. See U.S. Const. art. VI, . 2 ("All Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."). The federal courts have consistently held that, under the Supremacy Clause, if a treaty provision being applied is "self-executing," an individual may enforce a treaty in U.S. courts in the absence of implementing legislation or regulation. See, e.g., People of Saipan v. United States Dep't of Interior, 502 F.2d 90, 97 (9th Cir. 1974); Frolova v. Union of Soviet Socialist Republics, 761 F.2d 370, 373 (7th Cir. 1985).

As discussed in this section, while different courts have approached the self-execution issue in four different ways, Article 3 is enforceable by individuals under each approach even in the absence of domestic law.

A. Article 3 contains no language requiring implementing legislation and is thus self-executing under Supreme Court precedent.

The self-execution doctrine originated in Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314 (1829), a case concerning whether, under a treaty transferring sovereignty of the Louisiana territory to the U.S., certain Spanish subjects had valid title to land granted to them by the King of Spain. To answer the question, Chief Justice Marshall looked at the language of the treaty to determine whether the parties to the treaty intended that the treaty itself confirm the plaintiffs' title, or whether the parties to the treaty intended that the domestic legislatures first enact implementing legislation to confirm such rights. Id. at 314- 15.

In the first expression of the concept of self-execution (but without using those words) the Chief Justice stated: Our constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself without the aid of any legislative provision. But when the terms of the stipulation import a contract, when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department; and the legislature must execute the contract before it can become a rule for the Court.

Foster, at 314-15.

The English version of the treaty stated that the Spanish grants "shall be ratified and confirmed to the persons in possession of the lands." Id. at 314. The Court held that this language contemplated future action by the legislature and therefore did not operate "of itself without the aid of any legislative provision." Id. at 314-15. Only four years later, however, the Court reversed itself when it examined the Spanish version of the same treaty, which stated that the grants "shall remain ratified and confirmed." United States v. Percheman, 32 U.S. (7 Pet.) 51, 88-89 (1833) (Marshall, C.J.). This language demonstrated that the treaty did not "stipulate for some future legislative act" and thus "operated of itself." Id.

The Court's conclusion that the treaty "operated of itself" if the treaty did not "stipulate for some future legislature act", id., reflected the constitutional presumption under the Supremacy Clause that treaties are self-executing. This constitutional presumption arises from the language of the Supremacy Clause that all treaties "shall be the supreme Law of the Land," U.S. Const. art. VI, . 2, and the constitutional history leading up to the ratification of the Constitution.

Before the Constitution was drafted, the U.S. was plagued by its inability to enforce its treaties, in part because of state legislatures' refusal to follow the treaties of the Continental Congress and their refusal to enact the laws required by those treaties. The U.S. was, at that time, operating under the same system of treaty law as Great Britain, where treaties were not enforceable in court unless the legislature implemented the treaty through legislation. In other words, all treaties were treated in Great Britain as non-self-executing. This reflected concerns in Great Britain with the allocation-of-powers: because treaties were concluded by the Crown without the participation of Parliament, treaties would not be considered as municipal law until Parliament had acted to incorporate the treaties into domestic law.

Because the British law of treaties was causing severe problems for the new country, when the Constitution was drafted the Framers ensured that treaties would be immediately enforceable as U.S. law rather than dependent for their execution on the legislature. The historical evidence surrounding the Constitutional Convention makes it absolutely clear that the Framers expected that all treaties would be self-executing, reversing the British presumption that all treaties would be non-self-executing. Congress adopted John Jay's report, for instance, that a treaty "made, ratified and published by Congress, . . . immediately [became] binding on the whole nation, and superadded to the laws of the land. . . . Hence [it was to be] . . . received and observed by every member of the nation . . ." Recommendations that treaties be ratified by congressional legislation were defeated. Moreover, the Federal papers and debates on the ratification of the Constitution reveal that the framers had an expectation that treaties would be enforceable by individuals: Alexander Hamilton, for instance, wrote that "treaties of the United States, to have any force at all, must be considered as part of the law of the land. Their true import, as far as respects individuals, must, like all other laws, be ascertained by judicial determinations." The historical record is replete with evidence that the Framers intended treaties to be self-executing and enforceable by individuals. Moreover, early cases reflected the intent of the Framers that treaties be immediately enforceable, and applied treaties without discussion of whether the treaty was self- executing or non-self-executing (i.e. whether legislation was required to implement the treaty rights). Chief Justice Marshall, for instance, wrote that "if [a treaty] be constitutional, . . . I know of no court which can contest its obligation." United States v. The Schooner Peggy, 5 U.S. (1 Cranch) 103, 110 (1801). The Chief Justice also noted: "Whenever a right grown out of, or is protected by, a treaty, . . it is to be protected. . . . The reason for inserting that clause [Art. III, sec. 2, cl. 1] . . . was, that all persons who have real claims under a treaty should have their causes decided . . . ." Owings v. Norwood's Lessee, 9 U.S. (5 Cranch) 344, 348-49 (1809). In fact, until Foster and Percheman, courts enforced treaties without discussion of whether they were enforceable in the absence of implementing legislation: it was assumed that under the Supremacy Clause, treaties were to be treated as law of the land.

To the extent that the treaty itself reflects the intent of the treaty parties that the treaty be enforceable only through domestic legislation, however, Foster and Percheman deviate not at all from the language of the Supremacy Clause and the intent of the Framers: those cases simply call for the direct application of the treaty along with any limitations contained in the treaty. It is clear that the self-execution doctrine as formulated in Foster and Percheman did not reverse the constitutional presumption that treaties would be immediately enforceable as law. The Court in Foster made that clear by contrasting the system of treaty law in Great Britain with that in the U.S. After discussing the British rule of treaties, the Court noted: In the United States a different principle is established. Our constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself without the aid of any legislative provision.

Foster, 27 U.S. (2 Pet.) at 314 (emphasis added). Moreover, the Court in Percheman clarified that the presumption was in favor of self-execution when it enforced a treaty that did not "stipulate for some future legislative act" and thus "operated of itself." Percheman, 32 U.S. (7 Pet.) at 88-89. Foster and Percheman established that unless a treaty itself states that it is to be enforced through future domestic legislation, that treaty is immediately enforceable in domestic courts in the U.S.

Many courts, appropriately following the methodology of Foster and Percheman, have looked to the language of the treaty to determine whether the treaty-makers contemplated future legislation to enact those rights. See. e.g., Frolova, 761 F.2d at 373 ("Of course, if the parties' intent is clear from the treaty's language courts will not inquire into the remaining factors."); Cardenas v. Smith, 733 F.2d 909, 918 (D.C. Cir. 1984) (examining the language of a treaty which stated explicitly that its restrictions "shall not give rise to a right of any person to . . . obtain judicial relief"). This approach also squares with the basic rule of treaty interpretation that a court first must look to the language of a treaty to determine its meaning. See United States v. Alvarez-Machain, 504 U.S. 653, 663 (1992) (a court must "first look to [a treaty's] terms to determine its meaning"). See also Vienna Convention on the Law of Treaties, U.N. Doc. A/Conf. 39/27 (1969), entered into force Jan. 27, 1980, art. 31(1) (treaties are to be interpreted "in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose"). Turning to Article 3 of the Torture Convention, the language of the provision indicates that it was intended to grant substantive rights to individuals whether or not domestic legislation was enacted. There is no language in Article 3 indicating that future legislation is contemplated to enact the right to non-refoulement, and Article 3 is thus self- executing. See Percheman, 32 U.S. at 88-89 (treaty operates "of itself" when it does not "stipulate for some future legislative act"). See also Rainbow Navigation, Inc. v. Department of Navy, 686 F. Supp 354, 357 (D.D.C. 1988) (noting presumption of self-execution unless the language of the treaty "manifests an intention that it shall not become effective as domestic law without the enactment of implementing legislation"), later decision rev'd on other grounds, 911 F.2d 797, 801 (D.C. Cir. 1990) ("Our analysis 'must, of course, begin with the language of the Treaty itself.' Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176, 180 . . . (1982). The clear import of treaty language controls unless 'application of the words of the treaty according to their obvious meaning effects a result inconsistent with the intent or expectations of its signatories.' Id. (quoting Mazimov v. United States, 373 U.S. 49, 54 . . . (1963).").

Interpreting Article 3 as granting immediately enforceable rights is especially appropriate in view of many other provisions in the Torture Convention that explicitly call for further legislative action by the State Parties in order to comply with their obligations under the Convention. See Torture Convention, art. 2(1) ("Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction."); art. 4 ("1. Each State Party shall ensure that all acts of torture are offenses under its criminal law. . . . "2. Each State Party shall make these offenses punishable by appropriate penalties which take into account their grave nature."); art. 5 ("1. Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offenses referred to in Article 4 . . ."); art. 14(i) ("Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress . . . ). In stark contrast to these other provisions, Article 3 calls for no legislative or other action by the States to comply with their non-refoulement obligations, simply providing that States "shall not" return individuals to torture.

Indeed, Article 3's direct prohibition that States "shall not" return individuals to torture indicates that these rights are effective immediately as domestic law. Other treaties containing such direct prohibitory language have been judged to be self-executing. In Rainbow Navigation, Inc. v. Department of Navy, 686 F. Supp. at 357, for instance, the court held that a treaty between the U.S. and Iceland regarding military cargo operations was self- executing due to the presence of its mandate that cargo transportation services "shall be provided" in a certain manner. The court stated that this "language of the treaty itself suggests that it was intended to operate of its own force upon ratification." Id.

In sum, because the language of Article 3 does not stipulate for any future legislative act, and the Supremacy Clause clearly creates a presumption that treaties immediately become effective as domestic law, Article 3 is a self- executing treaty provision enforceable by individuals. B. Article 3 raises a justiciable issue, and is thus self- executing.

Some courts have determined whether a treaty provision is self-executing by examining whether it raises a "justiciable" issue capable of court resolution. This method of analysis arises from language in the Supreme Court opinion in The Head Money Cases, in which the Court held that a treaty may be enforced by individuals when it "prescribes a rule by which the rights of the private citizen or subject may be determined. And when such rights are of a nature to be enforced in a court of justice, that court resorts to the treaty for a rule of decision for the case before it as it would to a statute." 112 U.S. 580, 598- 99 (1884). A number of lower courts have taken this language to mean that a treaty must have standards definite or specific enough to be enforced by a court. See also Restatement (Third) of the Foreign Relations Law of the United States, . 111 note 5 (a treaty is self-executing if it "can be readily given effect . . . without further legislation.").

The Ninth Circuit takes such an approach, examining four factors to determine whether a treaty provision is self- executing, including: the purpose of the treaty provision; the existence of domestic procedures appropriate for direct implementation of the treaty provision; the availability and feasibility of alternative enforcement methods of the treaty provision; and the immediate and long-range social consequences of a finding of self- or non-self-execution. People of Saipan, 502 F.2d at 97 (applying these factors, holding that the Trusteeship Agreement under which the U.S. administered the Trust Territory of the Pacific Islands (Micronesia) established "direct, affirmative, and judicially enforceable rights"). Other courts have added such factors as the circumstances surrounding the execution of the treaty, the nature of the obligations imposed by the treaty, and, generally, the capability of the judiciary to resolve the dispute. See Frolova, 761 F.2d at 373; United States v. Postal, 589 F.2d 862, 877 (5th Cir. 1979); Diggs v. Richardson, 555 F.2d 848, 851 (D.C. Cir. 1976); American Baptist Churches v. Meese, 712 F. Supp. 756, 770 (S.D. Cal. 1989) (concluding that treaty was not self-executing where the "language used does not impose any specific obligations," depriving the court of "any intelligible guidelines for judicial enforcement"); Greenpeace U.S.A. v. Stone, 748 F. Supp. 749, 767 (D. Haw. 1990) (treaty provision not enforceable where it lacked "standards and procedures to judicially enforce the treaty"). Because this approach is not tied to the language of the treaty itself (although the purpose of a treaty can certainly be derived from the language), this method of analysis allows judges to evaluate--without any fixed standards--whether a treaty should be enforceable by individuals. This "free-wheeling inquiry into [a] treaty's enforceability . . . . appears to ask the courts to engage in an open-ended inquiry to determine on a case-by-case basis whether judicial enforcement of a particular treaty is a good idea." It also allows a court to determine the issue without any reference whatsoever to the intent of the treaty parties regarding whether the treaty provision should be immediately enforceable in court. This method accordingly does not reflect adequately the constitutional presumption that treaties are self-executing, and amici urge the Board to rely solely on the language of the treaty, in conformance with the first approach.

Nonetheless, employing the justiciability approach, Article 3 of the Torture Convention clearly would be self-executing. The purpose of Article 3 indicates that it is self- executing. Article 3 creates a right that inures to individuals, not to the State Parties. As recognized by the drafters of the Torture Convention, the purpose of Article 3 is to prohibit States "from exposing an individual to serious risks outside its territory by handing him or her over to another State from which treatment contrary to the Convention might be expected." J. Herman Burgers and Hans Danelius, The United Nations Convention Against Torture: A Handbook on the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, at 125, Martinus Nijhoff Publishers (1988) (original emphasis omitted). Moreover, the Supreme Court has indicated that where individual rights are conferred pursuant to treaty provisions, they are self-executing. See The Head Money Cases, 112 U.S. at 598-99 (when the rights of the private citizen are prescribed by treaty, the "court resorts to the treaty for a rule of decision for the case before it as it would to a statute"); cf. Diggs, 555 F.2d at 851 (finding United Nations Security Council Resolutions non-self- executing where "they do not by their terms confer rights upon individual citizens; they call upon governments to take certain action").

As one court noted in concluding that the Geneva Convention Relative to the Treatment of Prisoners of War was self- executing:

[I]t is inconsistent with both the language and spirit of the treaty and with our professed support of its purpose to find that the rights established therein cannot be enforced by the individual POW in a court of law. After all, the ultimate goal of Geneva III is to ensure humane treatment of POWs--not to create some amorphous, unenforceable code of honor among the signatory nations. "It must not be forgotten that the Conventions have been drawn up first and foremost to protect individuals, and not to serve State interests."

United States v. Noriega, 808 F. Supp. 791, 794 (S.D. Fla. 1992) (quotation omitted). It similarly would be inconsistent with both the language and spirit of Article 3 and with the U.S.'s professed support of its purpose to find that the rights established by Article 3 cannot be enforced by an individual in removal proceedings.

Moreover, there are domestic procedures available for direct implementation of Article 3 relief. See People of Saipan, 502 F.2d at 97. Article 3's command is simple: it prohibits the removal of a person "where there are substantial grounds for believing that he would be in danger of being subjected to torture." Torture Convention, art. 3. Such fact-finding is well within the province of immigration courts, and procedures for withholding of removal are available to implement those findings. C.f. People of Saipan, 502 F.2d at 97, 99 (substantive rights for the U.S. to "promote the economic advancement and self-sufficiency" of Micronesian people and to protect them "against the loss of their lands and resources," held not to be too vague for judicial enforcement: the court can look "to the relevant principles of international law . . . which ha[s] achieved a substantial degree of codification and consensus"). Additionally, if a person is not eligible for asylum or withholding of removal, there is currently no other feasible alternative available to ensure that person's removal from the U.S. While the Service currently is granting temporary stays of removal for individuals eligible for Torture Convention relief, the Service will not provide any final relief to Torture Convention claimants unless formal regulations are promulgated. Moreover, even though Torture Convention relief is mandatory if an individual meets its standards, the present informal Service evaluation is completely discretionary: the Service may remove any individual at any time who is subject to a final removal order, even if that individual is eligible for relief under Article 3. Indeed, the Service is taking the position that it will not consider a Torture Convention stay until a final order of deportation is entered, presumably so that the Service has the greatest flexibility in exercising its "discretion" to remove an individual without review. Most significantly, the Service has failed to articulate any substantive standards to apply to its decision-making under the Torture Convention. See Office of the General Counsel, Guidance on Compliance with Article 3 of the Convention against Torture (April 27, 1998) ("This memo does not provide substantive guidance on the standards for protection under Article 3 of the Convention against Torture. Substantive guidance will be provided through training."). If those substantive guidelines indeed exist, they have not been published or made available outside the Service. Thus, the only present relief available is through a standardless and discretionary process where decisions are made by a political office, a process which simply cannot ensure that individuals will not be removed to torture.

Finally, the "immediate and long-range social consequences" favor a finding of self-execution. See People of Saipan, 502 F.2d at 97. The standard under the Torture Convention is not an easy one to meet: it requires a demonstration that there are substantial grounds for believing that the person would be tortured upon return, or in other words, that it would be "more likely than not" that he would be tortured. See 136 Cong. Rec. at S17492. The social consequences of providing relief to the individuals who can meet this standard do not militate against finding Article 3 to be self-executing; we as a society cannot condone torture. See Restatement of Foreign Relations Law, . 702 ("A state violates international law if, as a matter of state policy, it practices, encourages, or condones . . . (d) torture . . ."). Particularly where an individual does not constitute a danger to the community, there is no adverse consequence to the U.S. for granting such relief. In summary, while the Board should not utilize the justiciability approach in determining self-execution because it fails to reflect the constitutional presumption that treaties may be enforced by individuals, a claim under Article 3 is indeed a "justiciable" issue that compels a finding that Article 3 is self-executing. The purpose of Article 3 is to create an individual right to avoid removal to torture; there are domestic procedures appropriate for direct implementation Article 3; there are presently no alternative avenues to obtain final relief under Article 3; and the immediate and long-range social consequences weigh in favor of finding Article 3 self-executing. C. Article 3 is enforceable by individuals in removal proceedings even though it does not provide a private right of action.

The third approach courts have used to determine self- execution looks at whether a treaty provision provides a cause of action to an individual. This approach is best illustrated in Tel-Oren v. Libyan Arab Republic, 716 F.2d 774 (D.C. Cir. 1984), in which a group of Israeli plaintiffs sued the Libyan government, the Palestine Liberation Organization (PLO) and other organizations for the PLO's kidnapping, torturing, and killing a number of persons taken as hostage in exchange for Israel's release of PLO prisoners. The district court dismissed the case, and the District of Columbia Circuit upheld the dismissal. However, each circuit judge filed a separate concurring opinion and had widely divergent reasons for affirmance. Judge Bork's concurring opinion--including his holding that a self- executing treaty must provide a cause of action--has become very controversial.

Judge Bork first concluded that the Alien Tort Act, 28 U.S.C. . 1350, which provides subject matter jurisdiction to the federal courts to hear claims by aliens for torts "committed in violation of the law of nations or a treaty of the United States," did not confer a cause of action on the plaintiffs. Tel-Oren, 726 F.2d at 801-808 (Bork, J., concurring). Rejecting that statutory basis for a cause of action, Judge Bork then examined whether the treaties cited by the plaintiffs created a cause of action, and found that they did not.

Judge Bork stated: "Absent authorizing legislation, an individual has access to courts for enforcement of a treaty's provisions only when the treaty is self-executing, that is, when it expressly or impliedly provides a private right of action." Id. at 808. To the extent this holding requires plaintiffs to assert a federal cause of action to have access to the federal courts to claim money damages, it is uncontroversial. However, Judge Bork's statement that a treaty is only self-executing if it provides a private right of action is erroneous, and the Supreme Court and D.C. Circuit cases on which he relied do not stand for that proposition. See The Head Money Cases, 112 U.S. at 598-99 (noting that a treaty may "contain provisions which confer certain rights upon the citizens or subjects of one of the nations residing in the territorial limits of the other, which partake of the nature of municipal law, and which are capable of enforcement as between private parties in the courts of the country," but at no point requiring the cause of action to be found in the treaty); Diggs, 555 F.2d at 851 (holding that provisions of a United Nations Security Council Resolution was not self-executing because they did "not by their terms confer rights upon individual citizens; they call upon governments to take certain actions.") (citing People of Saipan, 502 F.2d at 101).

Judge Bork's analysis reveals that, initially, he simply determined whether the treaties created enforceable rights for individuals by looking at such traditional self- execution factors as whether the language of the treaties explicitly contemplated implementing legislation. Tel-Oren, 726 F.2d at 809-810. However, because the plaintiffs in Tel-Oren had no source for a cause of action other than the treaties, Judge Bork then examined whether the treaties granted individuals the right to seek damages for a violation of the treaty provisions, but labeled this second step as determining "self-execution," as well. Id. at 810. Judge Bork thus erroneously conflated the issue of self- execution and a cause of action. See Restatement of Foreign Relations Law, . 111 cmt. h ("Whether a treaty is self- executing is a question distinct from whether the treaty creates private rights or remedies."). A number of other courts have been similarly confused by this equation of the self-execution issue with whether a treaty provides a cause of action, often where the only possible cause of action in the case is a treaty.

Tel-Oren and other decisions holding that a treaty must provide a cause of action should, therefore, be confined to cases in which there is no other cause of action for plaintiffs in a civil action. None of these decisions hold that a treaty provision must provide a cause of action in order to be enforceable in court as substantive law if the plaintiffs can demonstrate a distinct cause of action to gain access to the federal courts, or where individuals seek to invoke treaty rights in their defense. In fact, the adjudication of constitutional claims provides a useful parallel: the source of the substantive rights (the Constitution) does not itself create a cause of action--some other source must be found to assert federal jurisdiction-- but that does not make the Constitution unenforceable in defense to governmental action.

Accordingly, the Tel-Oren line of cases does not prevent individuals from relying on Article 3 as substantive law where those individuals are already before the court. This would be true where an individual is in removal proceedings, has been sued, or is being prosecuted and thus need not demonstrate a cause of action. See Kolovrat v. Oregon, 336 U.S. 187, 187 (1961); Patsone v. Pennsylvania, 232 U.S. 138, 145 (1914). This would also be true where an individual has a cause of action in another source, such as common-law forms of action, see Florida v. Furman, 180 U.S. 402, 428 (1901) (treaty enforced in action to remove cloud on legal title); Jordan v. Tashiro, 278 U.S. 123, 125 (1928) (state mandamus action), or in habeas corpus, see United States v. Rauscher, 119 U.S. 407 (1886) (extradition treaty enforced in federal habeas corpus action).

In fact, to the extent that the "private right of action" cases look for an intent to make treaties enforceable by U.S. courts, rather than look for the intent not to make them enforceable without implementing legislation, this approach turns the constitutional presumption that treaties are self-executing on its head. Such an approach should not be adopted by the Board.

D. Article 3 is within the constitutional power of the U.S. treaty-makers and is thus self-executing.

Still other courts have examined whether the subject of a treaty provision is within the constitutional power of the treaty-makers, and label the exercise "self-execution," as well. This approach holds that a treaty is not self- executing if it attempts to do what the Constitution otherwise delegates to Congress as a whole or to the House of Representatives. See Postal, 589 F.2d at 877 ("[T]reaties cannot affect certain subject matters without implementing legislation. A treaty cannot be self-executing to the extent that it involves governmental action that under the Constitution can be taken only by the Congress.") (internal quotations and citation omitted).

For instance, treaties that attempt to raise revenue or appropriate money or attempt to make conduct criminal have been held to be non-self- executing because those subjects are not within the constitutional power of the U.S. Senate. See Hopson v. Krebs, 622 F.2d 1375, 1380 (9th Cir. 1980) ("Treaty regulations that penalize individuals . . . are generally considered to require domestic legislation before they are given any effect); Edwards v. Carter, 580 F.2d 1055, 1058 (D.C. Cir. 1978) (same regarding raising revenue). Article 3 does not involve a subject outside of the constitutional ability of the Senate, however, and would be held self-executing under this approach, as well. E. The Senate declaration that Articles 1-16 of the Torture Convention are not self-executing does not prevent individuals from raising Article 3 in defense to removal.

As discussed in the sections above, both the Supremacy Clause and Supreme Court precedent require a court to examine the language of a treaty to determine whether it is self-executing. If a court looks past the language of Article 3, however, it may be tempted to conclude that Article 3 is not self-executing because the Senate included a declaration in its resolution of advice and consent to ratification of the treaty that Articles 1-16 of the Torture Convention are not self-executing. See 136 Cong. Rec., at S17492.

However, this Senate declaration that the treaty is not self-executing does not mean that the Senate intended to preclude individuals from relying on Article 3 in defense to removal. The legislative history of the Senate declaration indicates that the Senate intended this declaration to mean only that Article 3 does not provide a federal cause of action. The Senate did not intend to prevent individuals otherwise before a court from relying on Article 3 for substantive rights.

In the Senate Foreign Relations Committee Report on the ratification of the Torture Convention, the Committee reported the opinion of the Department of State that the declaration was to clarify that the treaty would not provide an independent cause of action. See S. Exec. Rep. No. 101- 30 at 41, Letter from Janet G. Mullins, Assistant Secretary, Legislative Affairs, Department of State, to Senate Foreign Relations Committee ("We have proposed a formal declaration that the Convention is not 'self-executing.' Any prosecution (or civil action) in the United States for torture will necessarily be pursuant to existing or subsequently enacted Federal or State law. In fact, as indicated in the original Presidential transmittal, existing Federal and State law appears sufficient to implement the Convention; thus, the Convention will not itself provide an independent cause of action U.S. courts . . .") (emphasis added).

The Report further indicates that the Senate did not contemplate that implementing legislation would be required for Article 3 relief:

The administration proposed a declaration that the Convention is not self-executing for articles 1 through 16. Since the majority of the obligations to be undertaken by the United States pursuant to the convention are already covered by existing law, additional implementing legislation will be needed only with respect to article 5, dealing with areas of criminal jurisdiction. The effect of the proposed declaration is to clarify that further implementation of the Convention will be through implementing legislation. In keeping with past practice, upon enactment of this legislation, the President will deposit the instrument of ratification.

See S. Exec. Rep. No. 101-30, at 10 (1990). To implement Article 5, Congress included criminal penalties for torture in the Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-236, 108 Stat. 463, and amended Pub. L. No. 103-322, 108 Stat. 1979, codified at 18 U.S.C. . 2340 et seq. The Convention was thereafter deposited by President Clinton with the United Nations Secretary General. Moreover, the Senate appended a similar non-self-executing declaration to its resolution of advice and consent to ratification of the International Covenant on Civil and Political Rights (the Covenant). In the Report of the Senate Foreign Relations Committee recommending ratification of the Covenant to the full Senate, the Committee stated that the self-executing declaration was designed to ensure that a private cause of action could not be based on the Covenant. See Senate Committee on Foreign Relations Report on the International Covenant on Civil and Political Rights, reprinted in 31 I.L.M. 645, 657 (1992) ("The intent is to clarify that the Covenant will not create a private cause of action in U.S. courts."). Significantly, the Senate stated that it intended its non-self-executing declaration for the Covenant to be "virtually identical" to that in the Torture Convention; that is, to prevent that treaty from providing a cause of action. See id. at 657 ("For reasons of prudence, we recommend including a declaration that the substantive provisions of the Covenant are not self-executing. The intent is to clarify that the Covenant will not create a private cause of action in U.S. courts. As was the case with the Torture Convention, existing U.S. law generally complies with the Covenant; hence, implementing legislation is not contemplated. We recommend the following declaration, virtually identical to . . . the one adopted by the Senate with respect to the Torture Convention . . . ") (emphasis added).

Additionally, in light of the real confusion in the courts regarding the meaning of self-execution and the contemporaneous judicial opinions equating self-execution with whether treaties provided a federal cause of action, see Tel-Oren, 716 F.2d 774, it is even more likely that the Senate declaration was simply intended to prevent the Torture Convention from providing a federal cause of action. When an individual is in removal proceedings, however, no independent cause of action is required: the individual is already before the court and is using Article 3 as substantive law in defense to removal. Respondent does not seek a cause of action under the Torture Convention. Finally, even if the Senate declaration was intended to prevent individuals from relying on Article 3 as substantive law in removal proceedings-which it was not-there has been considerable debate regarding whether courts must defer to such declarations. Many courts have recognized that it is the province of the courts to determine whether a treaty provision is self-executing. See e.g. Frolova, 761 F.2d at 373 ("Whether a treaty is self-executing is an issue for judicial interpretation."); Postal, 589 F.2d 876 ("[W]hether a treaty is self-executing is a matter of interpretation for the courts . . . .").

In fact, a Senate "declaration" may not be a part of the treaty at all, and thus would not be part of U.S. law under the Supremacy Clause. In the only published case to address the affect of a Senate resolution, declaration or understanding on the operation of a treaty, the District of Columbia Circuit held in 1957 that a Senate statement that does not affect U.S. international obligations, but has only domestic effect, is not part of a treaty and thus is not binding on courts as U.S. law.

In Power Authority of the State of New York v. Federal Power Commission, 247 F.2d 538, 542-544 (D.C. Cir.), vacated and remanded with instructions to dismiss as moot, 355 U.S. 64 (1957), which involved a treaty between the U.S. and Canada regarding the production of power from the Niagara River, the Senate had included in its resolution of advice and consent to ratification of the treaty a "reservation" that an act of Congress was necessary to designate the use of the U.S. share of the power. Id. at 539. The court held that because the U.S. internal use of the Niagara power was of no consequence to Canada, the reservation did not change the international obligations of the U.S., was thus not a true "reservation" to the treaty, and therefore was not a part of the treaty. Id. at 542 ("A party to a treaty may presumably attach to it a matter of purely municipal application, neither affecting nor intended to affect the other party. But such matter does not become part of the treaty.") (emphasis in original). The reservation was thus not applied by the court.

Moreover, the Senate itself has stated that its declarations "have no legal effect on the treaty." See Genocide Convention: Hearing on Executive Order Before a Subcomm. of the Senate Comm. on Foreign Relations, 92nd Cong., 1st Sess. 106 (1971) ("[S]o long as [the language of declarations or understandings] does not substantively affect the terms or international obligations of the treaty, or relates solely to domestic matters, there would be no legal effect on the treaty."). See also Restatement of Foreign Relations Law, . 313 (understandings and declarations are unilateral statements of a State concerning its interpretation of a treating and do not modify the States international obligations).

The Senate declaration that Article 3 of the Torture Convention is not self-executing is similarly a matter of purely domestic concern, because it deals with whether an individual can raise such a claim in domestic courts. Under Power Authority, the Senate declaration that Article 3 of the Torture Convention is not self-executing is not a part of the treaty, and is thus not a part of U.S. law. It is not necessary for the Board to reach the issue of whether the Senate declaration is binding, however, because it is clear that the Senate's declaration was intended only to prevent individuals from relying on the Torture Convention for a cause of action. The Senate did not intend to prevent individuals already before a court-such as individuals in deportation, exclusion, or removal proceedings-from relying on Article 3 in defense to removal. Construing the non-self-executing declaration as addressing only whether Article 3 creates a cause of action would allow the U.S. to maintain its treaty compliance. Courts should construe laws in such a way to maintain U.S. treaty compliance. See e.g. Macleod v. United States, 229 U.S. 416, 434 (1913) ("[An act of Congress] should be construed in the light of the purpose of the government to act within the limitation of the principles of international law, . . . and it should not be assumed that Congress proposed to violate the obligations of this country to other nations"); Murray v. The Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804) ("[A]n act of congress ought never to be construed to violate the law of nations, if any other possible construction remains . . ."). See also Restatement of Foreign Relations Law, . 114 ("Where fairly possible, a United States statute is to be construed so as not to conflict with international law or with an international agreement of the United States.").

F. Conclusion regarding self-execution.

In evaluating whether Article 3 of the Torture Convention is self-executing, the Board should adopt the treaty interpretation approach articulated by the Supreme Court in Foster v. Neilson and United States v. Percheman. Under that original articulation of the doctrine, a treaty provision may be enforced by individuals in U.S. courts unless the treaty language itself demonstrates that the treaty "stipulate[s] for some future legislative act." Percheman, 32 U.S. (7 Pet.) at 88-89. This is the only approach to the self-execution problem that adequately reflects the constitutional presumption that a treaty be immediately enforceable as domestic law in the U.S. Under this Supreme Court precedent, Article 3 of the Torture Convention is self-executing: its direct prohibitory language that an individual "shall not" be returned to torture creates immediately enforceable rights and contemplates no implementing legislation. Moreover, the Senate declaration that Article 3 is not self-executing should not prevent an individual from relying on Article 3 for substantive rights: the Senate intended its declaration to mean only that Article 3 does not create a federal cause of action, and there are, in any event, strong arguments that courts need not defer to Senate declarations on self- execution.

And one important principle must be kept in mind: regardless of whether Article 3 of the Torture Convention is self-executing, the U.S. must comply with it. See Restatement of Foreign Relations Law, . 111, comment h ("If an international agreement or one of its provisions is non- self-executing, the United States is under an international obligation to adjust its laws and institutions as may be necessary to give effect to the agreement."); see also Louis Henkin, Treaties in a Constitutional Democracy, 10 Mich. J. Int'l L. 406, 425 (1989) ("The international obligation of the United States under a treaty is immediate, whether a treaty is self-executing or not.")

IV. Customary International Law Prohibits The Return Of Individuals To Torture.

Even if Article 3 of the Torture Convention is not self- executing, customary international law prohibits the return of individuals to torture. Customary international law, which has grown out of the principles contained in numerous international human rights treaties and the U.N. Charter, reflects basic norms of a universal character that are followed by States regardless of whether those obligations are reflected in treaties. See Restatement of Foreign Relations Law, . 102(2) (customary international law is the "general and consistent practice of states followed by them from a sense of legal obligation").

Customary international law is part of U.S. law in the absence of conflicting domestic law. See The Paquete Habana, 175 U.S. 677, 700 (1900) ("International law is part of our law"; where there is no controlling domestic law, "resort must be had to the customs and usages of civilized nations . . . ."). See also Restatement of Foreign Relations Law, 3, . 111, comment c ("That international law and agreements of the United States are law of the United States means also that the President has the obligation and the necessary authority to take care that they be faithfully executed.").

The prohibition against removing a person who faces torture upon return constitutes customary international law with which the U.S. must comply. Torture has long been condemned by international law, as evidenced by the number of multilateral treaties and declarations prohibiting torture. See American Convention on Human Rights, 1977, ar. 5(2), O.A.S. Treaty Ser. No. 36, Off Rec. OEA/Ser. L/V/II. 23 doc 21 rev. 6; International Covenant on Civil and Political Rights, ar. 4, G.A. Res. 2200 (XXI), U.N. GAOR, 29th Sess., Supp. No. 16, at 52, U.N. Doc. A/6316 (1967); Inter-American Convention to Prevent and Punish Torture, 25 I.L.M. 519 (1986); 1987 European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, Eur.T.S. No. 126, reprinted in 27 I.L.M. 1152 (1988); Declaration of the Protection of all Persons from Being Subjected to Torture and Other Cruel Inhuman or Degrading Treatment or Punishment, G.A. Res. 34/52, U.N. GAOR, 30th Sess., Supp. No. 34, at 91, U.N. Doc. A/10408 (1976). See also Torture Convention, art. 3.

Indeed, the prohibition against torture is one of the handful of norms of international law that have attained the status of jus cogens ("compelling law"), and from which no derogation is permitted by any country, regardless of its domestic law. See Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 714, 717 (9th Cir. 1992) ("[A] jus cogens norm, also known as a peremptory norm of international law, is a norm accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international having the same character."; concluding in light of "extraordinary consensus" that "the right to be free from official torture is fundamental and universal, a right deserving of the highest status under international law, a norm of jus cogens") (internal quotations omitted); Committee of U.S. Citizens Living in Nicaragua v. Reagan, 859 F.2d 929, 941 (D.C. Cir. 1988) (listing the prohibition of torture among the few norms which meet the criteria for jus cogens); Tel- Oren, 726 F.2d at 781 (Edwards, J., concurring) ("[C]ommentators have begun to identify a handful of heinous actions--each of which violates definable, universal and obligatory norms" including bans on governmental torture); Filartiga v. Pena-Irala, 630 F.2d 876, 884 (2d Cir. 1980) ("Having examined the sources from which customary international law is derived--the usage of nations, judicial opinions and the works of jurists--we conclude that official torture is now prohibited by the law of nations.") (footnote omitted); see also Restatement of Foreign Relations Law, . 702(d) & comment n (practice of torture violates jus cogens).

In addition, the principle of non-refoulement is a well- accepted and fundamental tenet of customary international law. See, e.g., Conclusion No. 15 (XXX) of the Executive Committee of the High Commissioner's Programme on "Refugees Without a Country of Asylum," 34 U.N. GAOR, Supp. No. 12A, at 17, 18 U.N. Doc. A/34/12/Add.1 (1979) (urging observance of "the recognized principle of non-refoulement"); see also Guy S. Goodwin-Gill, The Refugee in International Law 97-100 (1983); Theodor Meron, Human Rights and Humanitarian Norms as Customary International Law 95-98 (1989); Scott M. Martin, Non-Refoulement of Refugees: United States Compliance with International Obligations, 23 Harv. Int'l L. J. 357 (1983).

In fact, there is an emerging consensus that this principle has achieved the status of jus cogens, as well, so that international law creates a binding obligation with which every country must comply, regardless of its domestic law. See Report of the United Nations High Commissioner for Refugees, 40 U.N. GAOR, Supp. No. 12 at 6, U.N. Doc. A/40/12 (1985) ("Due to its repeated reaffirmation at the universal, regional and national levels, the principle of non- refoulement has now come to be characterized as a peremptory norm of international law"); Cartagena Declaration on Refugees, 1984-85 Report of the Inter-American Commission on Human Rights, at 177-82, Conclusion 5 (non-refoulement is "a cornerstone of the international protection of refugees. This operative principle concerning refugees should be recognized in the present state of international law, as a principle of jus cogens."); see also Karen Parker and Lyn Beth Neylon, Jus Cogens: Compelling the Law of Human Rights, 12 Hastings Int'l & Comp. L. Rev. 411, 435-36 (1989) ("The principle of non-refoulement, usually referred to only in its refugee law application, is also part of human rights law and humanitarian law, and is acknowledged as a jus cogens norm. . . . [I]n all its applications, the right of non-refoulement, like all jus cogens norms, exists outside of treaties, and is non-derogable, binding and judicially enforceable.") (internal citations omitted). See also Guy S. Goodwin-Gill, Non-Refoulement and the New Asylum Seekers, The New Asylum Seekers: Refugee Law in the 1980's 104-106 (D. Martin ed., 1988) (the principle of non-refoulement in customary international law unambiguously encompasses a prohibition against the deportation of persons with a well- founded, particularized fear that their lives or freedom would be threatened if they returned to their homeland); see Karen Parker, The Rights of Refugees under International Humanitarian Law, Refugee Law and Policy: International and U.S. Response 3 (Ved P. Nanda ed., 1989) ("When torture is alleged under human rights law, the right of non-refoulement arises when the country of origin tortures or is a gross violator of human rights.").

A number of immigration judges correctly have recognized their responsibility to follow this customary international law prohibiting the return of an individual to torture. See Matter of Abu, A29 499 143, at 15 (IJ Feb. 19, 1997) (Phoenix) (on cross-appeal to the Board) (holding that "international law remains binding on this Court, as on every Court in the U.S., and prohibits the U.S. from returning a person to a country where they will be tortured"); Matter of A-H-, [file number redacted upon request of Respondent's Attorney] (IJ July 14, 1997) (Arlington); Matter of Diakite, A74 212 940 at 10 (IJ Dec. 11, 1997) (Chicago) ("Immigration Judges are not free to violate international law which most obviously includes treaties to which the United States is a signatory in the absence of contrary domestic legislation. It is well recognized that treaties entered into by the United States have authority tantamount to that of statutes enacted by Congress."); Matter of N-L, [file number redacted upon request of Respondent's Attorney] at 9-10 (IJ Nov. 12 1997) (Imperial, Cal) (IJ Jack W. Staton) ("An immigration judge cannot act in violation of a treaty obligation. . . . An immigration judge is without authority to order an alien removed where the government, through its attorney of the INS, concedes the alien will more likely than not be tortured upon return to his native land. The Convention Against Torture is binding on the officers of the government, who must see that the honor of the nation is not sullied by failing to follow our treaty obligation. I therefore have no jurisdiction to enter an order of removal.").

Given that the Board has recognized on numerous occasions that it is bound by international law, see Matter of S-M-J-, Int. Dec. 3303 at 3 (BIA 1997) (in deciding the burden of proof in asylum and withholding of deportation applications, acknowledging that "we do have certain obligations under international law to extend refuge to whose who qualify for such relief"); Matter of Q-T-M-T-, Int. Dec. 3300 at 20 (BIA 1996) (deciding that whether the aggravated felony bar to withholding of deportation was in compliance with the Protocol relating to the Status of Refugees); Matter of S-P- , Int. Dec. 3287 (BIA 1996) (holding that persecutor's motives may be determined by examining conformity with developing international norms regarding the law of war), amici urge the Board also to hold that customary international law prohibits the removal of an individual to torture.

V. The Immigration Courts Have Jurisdiction To Enforce Article 3 Of The Torture Convention And Customary International Law Prohibiting Return To Torture.

The Service argues that neither Immigration Judges nor the Board has jurisdiction to enforce the Torture Convention or the customary international law prohibiting the return to torture, citing cases in which the immigration courts were held not to have jurisdiction to enforce international law in the face of applicable domestic law. Because no domestic law addresses the return to torture of individuals ineligible for asylum or withholding of removal, however, the decisions cited by the Service are simply inapplicable.

In Galo -Garcia v. INS, 86 F.3d 916 (9th Cir. 1996), for instance, the respondent had withdrawn his application for asylum and withholding of deportation to rely on the customary international law of safe haven and nonreturn, which had been codified in U.S. law in the asylum and withholding of deportation statutes. The Ninth Circuit affirmed the Board's finding that it did not have jurisdiction over the claim:

Neither the Immigration and Nationality Act nor its regulations affirmatively grants jurisdiction over claims arising under customary international law. Accordingly, the IJ (and BIA) lack jurisdiction over Galo's claim, unless jurisdiction is somehow conferred independently by virtue of an obligation to ascertain and administer customary international law, as Galo contends.

While it has long been recognized that "international law is part of our law," and that "where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations," The Paquete Habana, 175 U.S. 677, 700. . . (1900), where a controlling executive or legislative act does exist, customary law is inapplicable. . . .

. . . The procedure for securing nonreturn is set forth in 8 U.S.C. . 1253(h) . . . . If Galo believed he qualified for nonreturn, the proper course of action was to apply for withholding of deportation or nonreturn under 8 U.S.C. . 1253(h). Alternatively, he could have sought asylum under 8 U.S.C. . 1158(a). Galo voluntarily withdrew his application for asylum and withholding, despite numerous warnings that doing so would destroy the court's jurisdiction to hear his claim.

86 F.3d at 918 (emphasis added). The Ninth Circuit thus clarified that where international law is superseded by domestic law, jurisdiction cannot be predicated on that international law. Conversely, where international law is not superseded by domestic law, the immigration courts may exercise jurisdiction over those claims.

Similarly in Lopez-Telles v. INS, 564 F.2d 1302 (9th Cir. 1977), applicable domestic law already addressed the relief requested by the respondent, depriving the immigration courts of rendering relief contrary to that law. In Lopez- Telles, the respondent requested discretionary relief from deportation for humanitarian reasons because her family had been killed and her home destroyed in a Nicaraguan earthquake. The Ninth Circuit held that, "given the exacting and difficult eligibility requirements established as statutory grounds for discretionary relief, [citing 8 U.S.C. . 1254(a)], the vesting by us of such broad power in an immigration judge would strike an anomalous note." Id. at 1303.

The immigration judge in Matter of Medina, 19 I & N Dec. 734 (BIA 1988), similarly attempted to award relief inconsistent with existing domestic law. In that case, the respondent sought relief from deportation under the Geneva Convention Relative to the Protection of Civilian Persons in Time of War and under customary international law prohibiting the repatriation of war refugees. The Board held that the immigration judge did not have jurisdiction to award relief from deportation on these grounds because domestic legislation involving refugees superseded that international law. The Board held that "in passing the Refugee Act of 1980 . . . Congress intended to establish a single, comprehensive basis for meeting the United States' humanitarian obligations regarding refugees. . . Further, whether to include war refugees (displaced persons) within the scope of the Act was specifically considered by Congress in the legislative process and was decided against." Id. at 745. Thus, a remedy could not be sought under the Geneva Convention because the Refugee Act superseded any treaty rights, id. at 741, and the Refugee Act was controlling legislation that precluded the application of customary international law. Id. at 746.

Such a conclusion is not surprising: under the "last-in- time" doctrine, domestic statutes supersede any conflicting prior international law obligations. See Reid v. Covert, 354 U.S. 1, 18 (1957) (domestic law may supersede international obligations by express abrogation or by subsequent legislation that irrevocably conflicts with international obligations). See also Restatement of Foreign Relations Law, . 115(2) (treaties are of equal stature to federal laws and control in the face of inconsistent statutes where the treaty is last-in-time).

Here, in contrast, there is simply no applicable domestic law governing when an individual who does not meet the definition of a refugee is entitled to protection from return to torture. The remedy of withholding of removal for refugees under 8 U.S.C. . 1243(h) is based on the Protocol relating to the Status of Refugees. Under the Protocol-and the implementing domestic statute-a person is entitled to withholding if he or she fears persecution on account of race, religion, national origin, membership in a particular social group, or political opinion. Moreover, a person may forfeit that protection by the commission of particularly serious crimes or other "bad acts" that indicate he or she is not deserving of refugee protection. Under Article 3 of the Torture Convention, in contrast, a person need not demonstrate feared persecution on any of these enumerated grounds, and cannot forfeit relief by the commission of crimes and other "bad acts" that render him ineligible for relief as a refugee. See Section I, supra. No domestic law implements Article 3 of the Torture Convention or the customary international law against return to torture.

Moreover, because there is no contrary domestic law (unlike in Matter of Medina), authority to award relief from removal to torture has been specifically delegated to the immigration courts. 8 C.F.R. . 240.1 (1998) provides:

In any removal proceeding pursuant to section 240 of the Act, the immigration judge shall have the authority to: determine removability pursuant to section 240(a)(1) of the Act; to make decisions, including orders of removal as provided by section 240(c)(1)(A) of the Act; to determine applications under [listing various sections of the Act]; to order withholding of removal pursuant to section 241(b)(3) of the Act; and to take any other action consistent with applicable law and regulations as may be appropriate.

An almost identical regulation applies to proceedings commenced before April 1, 1997. See 8 C.F.R. . 240.41 (1998). Moreover, the Board has authority to consider such a claim. See 8 C.F.R. .3.1(d) ("Powers of the Board--(1) Generally. Subject to any specific limitation prescribed by this chapter, in considering and determining cases before it as provided in this part the Board shall exercise such discretion and authority conferred upon the Attorney General by law as is appropriate and necessary for the disposition of the case.").

These regulations empower immigration judges and the Board to prohibit the removal of an individual who will be tortured upon return. No domestic statute or regulation is inconsistent with such action. Moreover, as the Supreme Court recognized in The Paquete Habana, international law is part of U.S. law in the absence of conflicting domestic law. 175 U.S. at 700. See also Galo-Garcia, 86 F.3d at 918; Barrera-Echaverria v. Rison, 44 F.3d 1441, 1450-51 (9th Cir. 1994) (international law controls where there is no conflicting domestic law). Because both Article 3 of the Torture Convention and the customary international law prohibiting the return to torture are part of U.S. law, an order prohibiting an individual's removal to torture is "consistent with applicable law," over which immigration judges have jurisdiction under 8 C.F.R. .. 240.01 and 240.41. Moreover, because the authority to order relief from removal to torture is "conferred upon the Attorney General [and thus, the Board] by law," the Board has jurisdiction under 8 C.F.R. . 3.1(d).

Indeed, Article 3 of the Torture Convention itself contains a provision providing jurisdiction to immigration courts to determine whether an individual would be subject to torture upon return. Article 3(2) of the Convention requires that:

For the purpose of determining whether there are such [substantial] grounds [for believing an individual would be in danger of being subjected to torture], the competent authorities shall take into account all relevant considerations, including where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.

"Competent authorities" most certainly include the immigration courts, the entity within the Department of Justice that normally makes factual determinations regarding an individual's entitlement to relief. Indeed, the standard to be applied-that there are "substantial grounds for believing that the individual would be in danger of being subjected to torture"-is the same type of factual finding required for withholding of removal for which the immigration courts are undoubtedly competent. Because Article 3 is a self-executing treaty provision, as discussed in Section III, supra, this jurisdictional provision immediately is effective as domestic law of the U.S.

Finally, as representatives of the Executive Branch, the immigration courts have the duty and the obligation to enforce the international obligations of the U.S. unless there is conflicting domestic law. Indeed, the Service has recognized the Executive Branch's non-refoulement obligation under the Torture Convention. The Service implies that the immigration courts do not have jurisdiction over Torture Convention claims because the Service has implemented an informal and discretionary process temporarily to prevent the removal of individuals. As laudable as the Services' actions may be, however, the Service decision to implement these informal and discretionary procedures cannot take away the jurisdiction of the immigration courts. No statute, regulation, or executive order gives that exclusive authority to the Service. As Executive Branch officials and delegees of the Attorney General, both the Service and the immigration courts are obligated to enforce the Torture Convention and the customary international law prohibiting the return of individuals to torture. The Board accordingly must exercise jurisdiction to prevent the removal of an individual to torture.

CONCLUSION

In sum, if an individual can demonstrate that there are substantial grounds for believing that he or she would be in danger of being subjected to torture, Article 3 of the Torture Convention and customary international law prohibit the deportation, exclusion, or removal of that individual, without exception. Immigration judges and the Board have the duty-and the jurisdiction-to enforce this prohibition. Amici request the Board to recognize this obligation and to prohibit the removal of this Respondent from the United States.

RESPECTFULLY SUBMITTED this 17th day of August, 1998.

By
Kristen B. Rosati
Coppersmith Gordon Schermer
Owens & Nelson, P.L.C.
2633 East Indian School Road, Suite 300
Phoenix, Arizona 85016
(602) 224-0999

Opened for signature Feb. 4, 1985, G.A. Res. 39/46, 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc. A/RES/39/708 (1984), reprinted in 23 I.L.M. 1027 (1984), modified in 24 I.L.M. 535 (1985).

Under the Senate "understandings to its resolution of advice and consent to ratification, the Senate stated that "substantial grounds for believing" means that a person must demonstrate that it is "more likely than not that he would be tortured." See 136 Cong. Rec. at S17492.

"Refouler" is a French term which means exclusion or expulsion from a country. See Sale v. Haitian Centers Council, 509 U.S. 155, 180-82 (1993).

In its resolution of advice and consent to ratification, the Senate stated its understanding that "mental pain or suffering refers to prolonged mental harm caused by or resulting from: (1) the intentional infliction or threatened infliction of severe physical pain or suffering; (2) the administration or application, or threatened administration or application, of mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (3) the threat of imminent death; or (4) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the sense or personality." 136 Cong. Rec., at S17491.

See INA . 208(b)(2) (asylum may not be granted where person participated in the persecution of others, has been convicted of a particularly serious crime, has committed a serious nonpolitical crime outside the U.S., is a danger to the security of the U.S., is inadmissible or removable for terrorist activities, or was firmly resettled in another country before arriving in the U.S.); INA . 243(b)((3)(B) (withholding of removal may not be granted where person participated in the persecution of others, has been convicted of a particularly serious crime, has committed a serious nonpolitical crime outside the U.S., or is a danger to the security of the U.S.).

In addition to its monitoring responsibilities, the Committee Against Torture hears complaints by individuals against States allegedly failing to comply with the Convention. Although the Committee may not hear complaints by individuals against the U.S. because the U.S. has not recognized the jurisdiction of the Committee, the case law of the Committee remains a useful tool in interpreting the Convention. See Carlos M. Vazquez, The Four Doctrines of Self-Executing Treaties, 89 Amer. J. Int'l L. 695 (1995) ("The Four Doctrines") (discussing four distinct approaches to the self-execution doctrine, including (1) the treaty interpretation approach, in which courts examine the language of a treaty, (2) the "justiciability" aproach, (3) the private right of action approach, and (4) the constitutionality approach).

To date, there is no legislation or regulation implementing the obligations of the U.S. to prevent the removal or extradition of individuals to countries where they are likely to be tortured. Article 3 implementing legislation has been proposed but the prospects for passage are uncertain. In July 1998, two separate bills were introduced in Congress to implement Article 3. See Torture Victims Relief Act of 1998, H.R. 4309, 105th Cong. (1998); Survivors of Torture Support Act of 1998, S. 4308, 105th Cong. (1998). Identical bills proposed earlier in the session have been referred to committees and are still pending. See Torture Victims Relief Act of 1998, S. 1606, 105th Cong. (1998); Survivors of Torture Support Act, S. 1603, 105th Cong. (1998). See also Survivors of Torture Support Act, S. 1603, 105th Cong. (1997) (passed both houses, but not signed by President due to unrelated provision). The first case to use the language "self-executing" was Bartram v. Robertson, 122 U.S. 116, 120 (1887).

See Vazquez, The Four Doctrines, at 697.

See id. at 699.

See Jordan J. Paust, Self-Executing Treaties, 82 Amer. J. Int'l L. 760 (1988) (discussing historical evidence that Framers intended treaties to be self-executing).

Id. at 760-61, quoting Jay, Report to Congress, Oct. 13, 1786, quoted in 1 C. Butler, The-Treaty Making Power of the United States 268 n. 4, 270, 389 (1902).

Id. at 761, citing J. Madison, Notes of Debates in the Federal Convention of 1787, at 520, and citing The Federalist No. 64, at 421-24 (Jay).

Id. at 762, quoting The Federalist No. 22, at 197 (Hamilton).

Id. at 760-764.

"Some provisions of an international agreement may be self-executing and others non-self-executing." United States v. Noriega, 808 F. Supp. 791, 797 n. 8 (S.D. Fla. 1992) (citing Restatement (Third) of the Foreign Relations Law of the United States, . 111 cmt. h ). Significantly, the Board has recognized that the Protocol relating to the Status of Refugees, which contains almost identical language in Article 33 prohibiting non-refoulement of refugees, is self-executing. See Matter of Dunar, 14 I & N Dec. 310, 313 (BIA 1973) (the Protocol, "being self-executing, has the force and effect of an act of Congress"). While a recent Board decision contains contrary language in dicta, see Matter of Q-T-M-T-, Int. Dec. 3300 (BIA 1996), and some federal courts have held without analysis that the Protocol is not self-executing, see, e.g. Haitian Refugee Center, Inc. v. Baker, 949 F.2d 1109, 1110 (11th Cir. 1991), the Supreme Court has recently refused to decide whether the non-refoulement provision of the Protocol is self-executing in a case in which the issue was squarely presented and forcefully urged by the Executive Branch. See Sale v. Haitian Centers Council, 504 U.S. 155 (1993) (not reaching the self-execution issue, although the district and circuit courts had dismissed the challenge to the Haitian interdiction program on that ground). Vazquez, The Four Doctrines, at 715.

See Anthony D'Amato, What Does Tel-Oren Tell Lawyers? Judge Bork's Concept of the Law of Nations is Seriously Mistaken, 79 Amer. J. Int'l L. 92 (1985); Michael C. Small, Enforcing International Human Rights in Federal Courts: The Alien Tort Statute and the Separation of Powers, 74 Geo. L. J. 163 (1985). Interestingly, the provisions of the Torture Convention addressing the criminalization of torture were explicitly non-self-executing. See art. 4 ("Each State Party shall ensure that all acts of torture are offenses under its criminal law."); art. 5 ("Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offenses referred to in Article 4."). Congress also created a civil cause of action for individuals who have been tortured when it passed the Torture Victim Protection Act of 1991, Pub. L. No. 102-256, 106 Stat. 73 (1992), codified at 28 U.S.C. . 1350 (Supp.).

International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171 entered into force Mar. 23, 1976 (guaranteeing certain rights in criminal proceedings). See 138 Cong. Rec. S4784 (daily ed. Apr. 2, 1992) (Senate non-self-executing declaration).

See e.g. Stefan A. Risenfeld and Frederick M. Abbott, The Scope of U.S. Senate Control over the Conclusion and Operation of Treaties, Chi.-Kent L. Rev. 571 (1991); Lori Fisler Damrosch, The Role of the United States Senate Concerning "Self-Executing" and "Non-Self-Executing" Treaties, 67 Chicago-Kent L. Rev. 515, 532 (1991); Charles H. Dearborn, III, Note, The Domestic Effect of Declarations That Treaty Provisions Are Not Self-Executing, 57 Tex. L. Rev. 233 (1979).

Amici reserve the argument that the Senate declaration that a treaty provision is non-self-executing is unconstitutional. While the Constitution granted the Senate the power to withhold consent to a treaty, the Constitution did not grant the Senate the power to impose terms not contained in a treaty. Moreover, because this non-self-executing declaration concerns the domestic effect of a treaty, it may be, in effect, domestic legislation without the participation of the House of Representatives. See Power Authority, 247 F.2d at 543 ("No court has ever said . . . that the treaty power can be exercised without limit to affect matters which are of purely domestic concern and do not pertain to our relations with other nations."); Fourteen Diamond Rings v. United States, 183 U.S. 176, 184 (1901) (Brown, J., concurring) (resolution of Senate after ratification of treaty had no legal effect on treaty and could not be treated as domestic legislation without the assent of the House of Representatives); New York Indians v. United States, 170 U.S. 1, 23 (1898) (Senate proviso regarding treaty "cannot be considered as a legislative act since the power to legislate is vested in the President, Senate and House of Representatives.").

The Service cannot, and does not, argue that the informal administrative procedure it is presently using to grant discretionary, temporary relief under the Convention constitutes domestic "law" on this point; indeed, the Service has not even published the availability of that discretionary, temporary relief.

The presence of such authority distinguishes the cases cited by the Service, where no authority at all existed for the relief requested. See Lopez-Telles v. INS, 564 F.2d at 1303 ("Nowhere is there any mention of the power of an immigration judge to award the type of discretionary relief that was sought here."); Rodriguez-Gonzalez v. INS, 640 F.2d 1139, 1142 (9th Cir. 1981) (holding that immigration judges did not have authority to terminate deportation proceedings on the basis that deportation would constitute an unfair labor practice).

In Matter of Medina, in contrast, the Geneva Convention was judged to be non-self-executing, 19 I & N. Dec. at 740, and contained no such jurisdictional provision.

See 62 Fed. Reg. 10312 (Mar. 6 1997) (supplemental information) ("Although Article 3 of the Torture Convention is not self-executing, the Attorney General has sufficient administrative authority to ensure that the United States observes the limitations on removal required by this provision. In fact, the Service has received and considered individual requests for relief under the Torture Convention since November 1994 and has arranged for relief where appropriate. For the present, the Department intends to continue to carry out the non-refoulement provision of the Torture Convention through its existing administrative authority rather than by promulgating regulations. The Service is, however, developing thorough guidelines to address Article 3 issues and intends to issue those guidelines soon. These guidelines generally, and the expedited removal process in particular, will be implemented in accordance with Article 3.").