INS Memo on Convention Against Torture

April 27, 1998

Guidance on Compliance with Article 3 of the Convention against Torture

To: All Asylum Directors
All Supervisory Asylum Offices
All Asylum Officers

From: Office of International Affairs, Asylum Division

The INS is currently developing procedures to ensure compliance with Article 3 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (“Convention against Torture”). To ensure compliance with treaty obligations while long-term procedures are being developed, the Asylum Program has been asked to conduct interviews of individuals who have final orders of removal and who raise claims that they will be tortured if removed to the proposed country of removal. We appreciate the efforts of the asylum officers who have already arranged and conducted such interviews at the request of HQASY, without formal procedures set in place. This memo provides interim guidance on procedures and the role of the asylum officer in this process. 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.

How Claim is Raised

The INS will not consider requests for protection under the Convention against Torture until an applicant has received a final order of removal and has exhausted all avenues for seeking review. If an applicant has any request pending for administrative or judicial review or other action, that request should be resolved before the request for protection under the Convention against Torture is addressed. In the course of the affirmative asylum adjudication, asylum officers should not evaluate whether an applicant may require protection under the Convention against Torture. However, if asylum is referred or denied and it appears that the applicant may require protection under the Convention against Torture, the asylum officer should, upon concurrence of a supervisory asylum officer, place a memo in the file for the INS trial attorney and deportations officer (see attached). If the applicant is an eligible ABC class member against whom a final order of deportation previously was issued, asylum and withholding of removal are denied, and it appears that the applicant may require protection under the Convention against Torture, the Asylum Office should bring the case to the attention of HQASY.

Requests for protection under the Convention against Torture come to our attention in a variety of ways. The case may be referred by the UNHCR, the applicant or the applicant’s representative may contact the INS, or an INS trial attorney may identify the applicant as possibly requiring protection under the Convention against Torture. If the request is received by an Asylum Office, the APSO supervisor should immediately contact HQASY, either by phone or cc:mail. Any phone call should be followed-up with a cc:mail to Lyle Boeleus, Lorraine Eide, and Joanna Ruppel. HQASY will then coordinate with the APSO supervisor to arrange for an interview of the applicant, if appropriate.

Currently, there is no application form to apply for protection under the Convention against Torture. However, the applicant may submit a statement, or any other supporting documents for the claim. Asylum officers should not accept a Form I-589 if an applicant attempts to submit one for Convention against Torture purposes.

Representation

The applicant may be represented by an attorney or representative or by a consultant in the expedited removal context. The role of the attorney or representative is the same as it is in the affirmative asylum context. If present at the interview, the attorney, representative, or consultant should be allowed to make a statement or ask the applicant additional questions, as appropriate. The attorney or representative should submit a G-28, signed by the both the attorney and the applicant.

Interview and Note Taking

An interview to gather information regarding the applicability of Article 3 of the Convention against Torture should be conducted in the same manner as an asylum interview. That is, it should be conducted in a non-adversarial manner, and the asylum officer should elicit sufficient information about the claim to evaluate credibility and whether protection under Article 3 is required. The asylum officer must elicit from the applicant any experiences of torture or other harm the applicant has experienced in the past, the basis for the applicant’s fear that he or she would be tortured in the future, whom the applicant fears, the applicant’s knowledge of harm to individuals who may be similarly situated to the applicant, and any experiences of the applicant (in the country of feared torture or any other country, including the United States) that may place the applicant at risk of torture. For guidance on interviewing techniques and working with an interpreter, see Asylum Officer Basic Training lessons, Interviewing Parts 1-5. The applicant must be given an opportunity to explain any discrepancies in the testimony, including inconsistencies, inability to provide detail, and perceived implausibility. This opportunity to explain and any explanation must be documented in the interview notes.

Notes should be taken in a Q&A format and transcribed on a sworn statement form (see attached). The notes and sworn statement should be placed on the non-record side of the A-file.

The applicant and the applicant’s attorney or representative, if any, shall be given a copy of the signed sworn statement.

Interpretation

The asylum officer should use telephone interpreter services, if an interpreter is needed. If the applicant wishes to use his or her own interpreter, the applicant should be allowed to do so, but telephonic interpreter services should be used to monitor the interpretation.

Assessment

After the asylum officer has conducted the interview, he or she should write an assessment of the claim. (See attached template for format.) The assessment should contain a summary of the facts of the case, a credibility evaluation, and a recommendation as to whether or not the applicant requires protection under the Convention against Torture, and analysis supporting the recommendation. If the applicant is found not credible, the assessment should identify the reasons, any explanation provided for discrepancies, and a brief analysis of how the non-credible portions of the testimony are material to the claim. The assessment should contain a recommendation on whether protection is required under Article 3. If relevant to the recommendation, country conditions information should be cited. The assessment will not be considered a final determination on whether protection is required.

Decision-Making Process

After a supervisory asylum officer has reviewed the assessment and determined it to be sufficient (e.g., contains sufficient information to make a determination and analysis is legally sound), one copy of the following should be sent via FedEx to Joanna Ruppel and two copies to Lyle Boelens: assessment, sworn statement, any notes, and any supporting documents and other relevant information in the file. A cc:mail should then be sent to Joanna Ruppel, Lyle Boelens, and Lorraine Eide, confirming that the documents have been forwarded.

HQASY-QA will review the materials and may consult with the Resource Information Center, where appropriate. If it appears that additional information is needed or there is an error in the analysis, the case may be returned to the asylum office for further action. HQASY-QA will forward the materials to the DRL and the Office of General Counsel. After the DRL has submitted an advisory opinion, or indicated that it does not wish to submit an opinion on the case, the Office of General Counsel will make a final determination on whether the applicant requires protection under the Convention against Torture. HQASY will forward the original DRL response to the asylum office, which is responsible for assuring that the DRL response is filed on the record side of the A-file.

Expedited Removal

In every credible fear interview conducted under expedited removal procedures, the asylum officer must ask the applicant questions relating to the applicability of Article of the Convention against Torture. However, the asylum officer does not need to conduct as extensive an interview as he or she would for a Convention against Torture interview. The asylum officer need only obtain sufficient information to determine whether the applicant may require protection under Article 3 of the Convention against Torture. If it appears that such protection may be required, the asylum officer should make a note in the assessment that Convention against Torture issues may need to be addressed if the applicant is ordered removed. The asylum officer should also check box 6.11 on the Form I-870.

If an applicant who may require protection under Article 3 fails to establish a credible fear of persecution, but does not request immigration judge review of the negative credible fear determination, the asylum officer should immediately notify HQASY. If the applicant requests immigration judge review of the negative credible fear determination, the case should be forwarded to the immigration judge for review. The asylum officer should place a note in the file requesting that the supervisory asylum officer be contacted before any removal order is executed, if the immigration judge upholds the negative credible fear determination. If the immigration judge concurs in the negative credible fear determination, the asylum officer should notify HQASY for a determination of whether a separate interview should be conducted to evaluate whether the applicant requires protection under Article 3 of the Convention against Torture.

If the applicant establishes a credible fear of persecution, and the asylum officer also determines that the applicant may require protection under Article 3 of the Convention against Torture if the applicant is ultimately ordered removed, the asylum officer should, upon concurrence of a supervisory officer, place a memo in the file this effect (see attached).

Withholding Claims after Previous Order Reinstated

Guidance in the October 16, 1997, memo from HQASY, “Revised Procedures for Withholding of Removal Adjudication’s pursuant to 8 C.F.R. 241.8” provides that an asylum officer should identify for HQASY any withholding case in which it is found that the applicant is not eligible for withholding of removal under 241(b)(3) of the INA, but may require protection under Article 3 of the Convention against Torture. The memo further instructs that the asylum officer should not make a determination of whether Article 3 protection is required. This is now amended to require that asylum officers make a recommendation on whether protection under the Convention against Torture is required. The recommendation should not be contained in the NOID, but on a separate assessment sheet.

Withdrawals

A person who asked for protection from removal under the Convention against Torture may later seek to withdraw the request. A withdrawal form has been developed and is attached to this memo. In any case in which an applicant seeks to withdraw the request, HQASY must be notified before the applicant is given the withdrawal form. HQASY will then provide guidance on how to proceed with the case.

Training

To date, certain supervisors in each Asylum Office have received two trainings on standards under Article 3 of the Convention against Torture. These supervisors are responsible to provide training to asylum officers who conduct interviews and write recommendations in cases arising under this Convention. HQASY will work to provide additional training materials and support in this function. Asylum officers are also referred to the section on the Convention against Torture in the most recent AOBTC lesson plan, International Human Rights Law.

As indicated above, the procedures are still in the early stages of development and we are treading in new territory. We appreciate your patience and flexibility in working to ensure compliance with our treaty obligations. Please let me know if you have any questions.

Joseph E. Langlois
Deputy Director

Attachments:

1. Torture Convention Recommendation For Consideration By the Office of General Counsel (template)
2. Template for Sworn Statement
3. Memo for File
4. Withdrawal Form

[Editor’s Note: Attachments are not available at this time.]