Section 3007: “Expedited Removal”

Section 3007 would allow immigration enforcement officers to deport without a hearing any non-citizen who was not admitted to the U.S. by immigration authorities and who has been here for less than five years.  This could result in the summary deportation of people who could face serious harm if deported, including battered spouses and children, victims of human trafficking, and migrants from Cuba.

Expedited removal currently applies to non-citizens arriving at an airport or land border with invalid travel documents, and allows an immigration officer to order them removed without further review unless they express a fear of persecution or torture.  People who do express a fear of persecution or torture are to be referred to an asylum officer for a “credible fear” interview, and must pass this interview in order to be eligible for asylum in the United States.  Current law also allows expedited removal to be applied to non-citizens who are found inside the United States without having been admitted or paroled and cannot show that they have been here for more than two years; the statute does not require such persons to be subjected to expedited removal, but gives the Secretary of Homeland Security the power to apply expedited removal to that group or to any sub-group of people within it.  

These existing provisions already place broad uncontrolled power in the hands of immigration officers whose decisions are not subject to formal administrative or judicial review.  Human Rights First has documented cases under current law where genuine refugees were deported under expedited removal. H.R. 10 represents a huge expansion of this already vast power, with inadequate safeguards to protect vulnerable groups otherwise eligible for relief from removal under U.S. law.

● Section 3007 would require the summary deportation of battered spouses and children whose unlawful entry into the U.S. was connected to the abuse they suffered.

Battered immigrant spouses and children of U.S. citizens or lawful permanent residents who entered the United States without being admitted by an immigration inspector are not supposed to considered “inadmissible” (under INA section 212(a)(6)(A)(ii)) if there was a substantial connection between the battery or cruelty they suffered and their unlawful entry into the U.S.  They are eligible to petition for permanent residence under the Violence Against Women Act (VAWA), passed by Congress in 1994.  This law recognized that because many immigrant women and children are dependent on a U.S. citizen spouse or parent for their own immigration status, some U.S. citizen or permanent resident spouses and parents abuse the power this gives them to abuse their dependent family members by threatening to report them to immigration authorities.  VAWA remedied this situation by allowing battered immigrant spouses and children to file for immigration relief and thus enable them to seek safety and independence from their batterers.  Section 3007, however, makes no provision for battered spouses or children.  Battered spouses or children found in the U.S. without having been admitted would be subject to mandatory summary deportation, even if they were eligible for relief under VAWA or had petitions under VAWA pending.

● In the same way, section 3007 would require the summary deportation of victims of human trafficking and victims of serious crimes such as rape, torture, trafficking, incest, domestic violence, sexual assault, involuntary servitude, kidnapping, abduction, and other offenses who would otherwise be eligible for protection under the Victims of Trafficking and Violence Protection Act. 

Victims of severe forms of human trafficking, who are primarily women and children, and of other serious criminal activity may be granted T or U visas allowing them to remain in the United States if they have suffered serious harm and are prepared to assist U.S. law enforcement in investigating or prosecuting such crimes.  Section 3006 would subject these vulnerable people to expedited removal.   In addition to endangering the safety of the victims, this foils the interest of law enforcement in repressing human trafficking and related abuses, by increasing their captors’ hold over them (“if you set foot outside this door you can be deported to Thailand tomorrow”) and by requiring the rapid deportation of potentially useful witnesses. 

● Section 3007 could result in the return under expedited removal of non-citizens determined to have been in the U.S. for less than five years and who would face torture when deported.

H.R. 10 provides no means for persons subject to section 3007 who fear they will be tortured if they are deported to make an application for protection under the Convention Against Torture (CAT), which was signed by the United States in 1989.  The bill provides for referral to an asylum officer only for those who express an intention to apply for asylum or a fear of persecution.   Although many people at risk of torture would express this fear in terms of persecution or asylum, section 3007 makes no provision for hearing the CAT claims of people whose torture would not be related to their race, religion, nationality, political opinion, or membership in a particular social group.  

● This massive expansion of expedited removal would also be likely to affect even more people than it seeks to target, because it is difficult for a person who has just been arrested by an immigration officer to prove that he or she has been in the United States for more than five years, or for less than one year so as to qualify for referral to an asylum officer. 

Most people who are present in the U.S. without admission do not walk around with five years’ worth of rent receipts in their pockets.  In the asylum context, proving one’s date of entry typically takes some time and effort, and involves gathering documentation and witnesses—none of which can be accomplished in an expedited removal proceeding.

Section 3008: “Preventing Terrorists from Obtaining Asylum”

This section is NOT about preventing terrorists from getting asylum.  Terrorists are already barred from asylum.  This section would allow genuine refugees to be denied asylum if they were unable to document relevant conditions in their countries through State Department reports, could not prove their persecutor’s central reason for harming them, or had any inconsistencies between statements made to any U.S. government employees (whether written or oral and whether or not under oath) and their testimony before an immigration judge .  Here are the key changes that create insurmountable hurdles for individuals seeking safe haven in the United States:

● Section 3008 permits adjudicators to deny asylum because they are unable to provide corroborating evidence of “certain alleged facts pertaining to the specifics of their claim.”

Refugees often have to flee their countries under conditions that make it difficult, if not  impossible, to bring corroborating evidence of their persecution. For instance, the U.S. government and human rights groups have documented how the homes and villages of refugees from the Darfur region of Sudan have been attacked and burned, forcing them to flee for their lives without their belongings. But this bill would allow an otherwise credible asylum seeker to be denied asylum if he cannot provide corroborating documents that an adjudicator thinks he should be able to submit.  

This provision would disproportionately harms asylum seekers who are held in jails and detention facilities, and the many who are not represented by legal counsel. In addition, H.R. 10 seeks to constrain judicial review of a denial of asylum based on an applicant’s not having provided corroborating evidence.

● Section 3008 gives adjudicators broad leeway to deny applicants asylum based on factors such as their perceived “demeanor” and inconsistencies between, for example, their testimony before an immigration judge and their “written or oral statements, whether or not under oath, made at any time to any officer, agent, or employee of the United States.”

Under this provision, refugees can also be denied asylum based on their “demeanor” or an alleged lack of consistency with a prior statement.  The “demeanor” of a person who has suffered torture or persecution has repeatedly been found to be a poor indicator of credibility.  That’s not surprising, since victims of trauma often have a “flat” affect, and have difficulty in making eye contact or discussing the details of abuse.  Demeanor is also culture-specific: in many cultures, avoiding looking one’s interlocutor in the eye—particularly if the interlocutor is an authority figure--is a sign of respect.

In addition, asylum applicants, particularly survivors of torture, rape, or forced abortion or sterilization, may not be comfortable telling this information to a uniformed male inspection officer in an airport.  Asylum applicants in that setting may not be provided with appropriate interpreters, and may understandably fear discussing their problems in their home countries in any detail until later in the process when it is made clear to them that they are not going to be sent back to their home countries without their claims being heard.  Several courts of appeals have emphasized that statements taken under such conditions are unreliable. 

● Section 3008 would require any asylum applicant who states that her persecutors accused her of supporting a “guerrilla, militant, or terrorist” group to prove that her persecutors’ central reason for persecuting her was her race, religion, political opinion, nationality or membership in a particular social group. 

Repressive regimes around the world attempt to discredit legitimate political opposition members, and persecute ethnic minorities, by accusing them of being rebels or of supporting guerrilla or terrorist groups.  By subjecting any asylum applicant whose persecutors have accused her of being a militant or supporting guerrillas to a heightened burden of proof, section 3008 gives a presumption of credibility to such accusations, however unfounded.  This sends a message to repressive governments that what they need to do to insulate their actions from U.S. government scrutiny, and to exclude their victims from U.S. government protection, is accuse those they wish to persecute of being aligned with militant groups. 

Terrorists, people who have persecuted others, people who have committed serious non-political crimes abroad, and people who pose a danger to the security of our country are already excluded from both asylum and withholding of removal.  Section 3008 would deny asylum to people who are innocent of any such acts, simply because they cannot prove what was going on in their persecutors’ minds.  This additional requirement of proof would apply regardless of whether the U.S. government thought the persecutors’ accusations against the asylum applicant were at all credible.  It would also apply regardless of whether whatever the asylum applicant was accused of, if it were in fact true, would bar the person from asylum.  

In fact, on its face this provision would even apply to people who are accused of being guerrilla supporters by a terrorist organization.

● This provision could allow an asylum applicant to be denied asylum on grounds of credibility if the abuse she suffered or feared was not documented in the annual country conditions reports of the Department of State. 

Although these reports are usually well researched, they are not an exhaustive and unfailingly accurate source of documentation of all of the wide range of human rights violations around the world that can give rise to valid asylum claims. In addition, since these reports only come out annually, they can hardly be relied on as adequate documentation of more recent events.

Section 3010:  “Judicial Review of Orders of Removal”

Section 3010 would eliminate stays of removal pending judicial review, allowing refugees to be returned to the persecution they fear while their cases are pending in federal court.

● This provision, applicable to ALL immigration cases, would have a particularly devastating impact on refugees and persons facing torture if they are deported.   

Deportation is always a serious and traumatic event, and judicial review without a stay pending review is often quite meaningless -- as a person who is deported while his case is on appeal may lose and never recover much of the life he built in this country.  But for people facing torture or other forms of persecution in their home countries, the lack of a stay is far more grave – it can mean the loss of life or freedom.  Refugees who are deported, and then jailed or killed while their cases are on appeal to the federal court, will obviously find little comfort in being granted asylum afterwards.  The perverse irony is that the greater the risk of harm to an asylum applicant, i.e., the stronger the asylum case, the more likely the person would be hurt by this provision.

The return by the United States of a refugee who is entitled to protection would be a direct violation of our obligations under the 1951 Refugee Convention and its Protocol.  The return of a person who is likely to face torture would also be a direct violation of U.S. obligations under the Convention Against Torture. 

● Automatic stays of deportation pending federal court review were already eliminated by the 1996 immigration law. 

Under current law, anyone who needs a stay of deportation while he appeals his case is already required to make a showing as to why he should get it, which includes convincing the appeals court that there is merit to his appeal.  Most courts that have considered this have held that the post-1996 standard for a temporary stay of removal should be the normal standard that courts apply for such stays in other kinds of cases -- based on some balance of the petitioner’s likelihood of success on the merits, the irreparable injury he would suffer if denied a stay, whether the government would suffer substantial injury from the granting of a stay, and public interest considerations. 

Under H.R. 10, temporary stays of removal would be abolished entirely.  The only remaining avenue for a federal court to block a removal order would be through an injunction under section 242(f) of the INA, requiring the petitioner to prove by clear and convincing evidence that the execution of the removal order would be prohibited as a matter of law.  This standard – which is actually higher than the standard that most applicants would be required to show in order to win their asylum cases – would fail to protect refugees from deportation while they wait for judicial review of their claims.

Section 3010 would eliminate all judicial review for persons claiming protection from removal under the Convention Against Torture (CAT) who are barred from direct review by the court of appeals.

A number of categories of appellants are already barred from review by the court of appeals under section 242 of the INA.  Section 3010 would preclude any federal court review for any applicant for CAT protection who is ineligible for review under section 242 due to disqualifying criminal convictions.  H.R. 10 would also preclude any judicial review of expedited removal orders, including claims by people under an order of expedited removal who were never given an opportunity to make a claim for protection under CAT. 

SECTION 3032: “detention of aliens barred from restriction on removal pending removal”

● Section 3032 would encourage the United States government to deport people to countries already determined to be likely to torture them.

Section 3032(a)(2) would apply to any person who is ineligible for withholding of removal due to criminal convictions or actions, past persecution of others, or a risk to national security, but is granted deferral of removal because he would be tortured if deported to a particular country.  Section 3032(b) would require the Secretary of State to seek a “diplomatic assurance” from that country’s government that it would not torture the person, so that the person could be deported there even though an Immigration Judge had already determined that he faced a clear probability of torture if returned to that country.  This requirement would apply to all cases where a person was granted deferral of removal—regardless of whether the United States would have any reason to trust the assurances of the government in question. 

It may be one thing to allow deportation of a person at risk of torture based on diplomatic assurances from another government as an extraordinary measure, in limited circumstances where the U.S. government would have reason to believe that such assurances would be sincere and effective and where the U.S. would actually follow up after deportation to see that the person was in fact safe.  It is a very different and dangerous step to turn the seeking of diplomatic assurances into a routine matter in any case where a person is granted deferral of removal under the Torture Convention.  Very few governments, whatever their human rights records or true intentions, are likely to declare to the United States government that they would subject a person to torture.   But by implying that obtaining such assurances would allow anyone covered by this section to be deported, Section 3032(b) creates a very serious potential for bad faith and willful or negligent blindness.    Many countries with bad records of torture are also countries whose assurances in any other area relating to human rights the U.S. government would normally hesitate to believe—do we want to require the Secretary of State to seek diplomatic assurances from Cuba?  From Sudan?  

● Section 3032(a)(2) would require that anyone not deported as described in the preceding paragraph be detained indefinitely. 

It is important to bear in mind that few people are granted relief under CAT, and that of those who are, most are not criminals or terrorists—out of 490 people granted protection under CAT nationwide in fiscal year 2003, only 63 were granted deferral rather than withholding of removal.   Many people granted deferral of removal have been people who were ineligible for withholding of removal due to old criminal convictions for which they had already served their time, including crimes that did not involve violence or suggest that the person would pose a threat to the community in the future.  Section 3032 would require all people in this category who would be tortured if deported to be detained indefinitely, with no possibility for an individualized assessment of the need to detain them.  This provision runs afoul of international legal standards against arbitrary detention.  In addition, the Supreme Court has already stated that “a statute permitting indefinite detention of an alien would raise a serious constitutional problem.”  Zadvydas v. Davis,533 U.S. 678 (2001).  By drafting such a statute, the authors of H.R. 10 would ensure a new round of federal litigation. 

● Section 3032(a)(1) would allow the Secretary of Homeland Security, in his “unreviewable discretion,” to detain indefinitely anyone who would have been ineligible for withholding of removal due to criminal convictions or actions, past persecution of others, or a risk to national security, and cannot be deported, but was not granted deferral of removal under CAT.

This provision too raises serious questions of constitutionality and arbitrariness of detention under the Supreme Court’s decision in Zadvydas.

● Among people with past criminal convictions, human rights abuses, or other disqualifying factors, section 3032 actually targets people recognized as being at risk of torture for mandatory, systematic indefinite detention. 

Taken as a whole, section 3032 would allow the Department of Homeland Security to designate as a “specially dangerous alien” and detain indefinitely anyone who is barred from withholding of removal but has not been granted any protection against removal, while requiring the indefinite detention—without any showing or even allegation of dangerousness—of anyone in this category who has been granted protection against removal under the Torture Convention.   The only way this disparity would seem to make practical (if not legal or moral) sense from the drafters’ perspective is if there is an expectation that the seeking of diplomatic assurances required under section 3032(a)(2) would in fact result in the deportation of most people granted protection under the Torture Convention in this category.  The structure of this provision thus places the Executive Branch in the very difficult position of being stuck between violating the Torture Convention’s prohibition against returning people to torture, and violating the prohibition against arbitrary detention articulated in other international legal instruments to which the U.S. is also a party.   Freedom from torture and freedom from arbitrary detention are both very basic human rights, long recognized under international law and contrary to this country’s legal norms and traditions.  The United States should not make laws that sacrifice one to the other.

Section 3033: Additional Removal Authorities

● Section 3033 would allow people to be deported to countries with no functioning government to accept them, making them easy targets for grave human rights abuses. 

This provision would allow the U.S. Government to send individuals to countries like Somalia, where the lack of a functioning government for more than ten years has made conditions so lawless and dangerous that our government will not send its own employees there.  People at risk of deportation to such countries would include many who have been in the United States for years, some of them since childhood, who may not speak the language, may not have family or other ties, and may be otherwise ill-equipped to survive in such an environment.  Deporting people to a country with no functioning government would place the United States in fundamental conflict with basic principles of international law.

Section 3033 would turn deportation from a relatively orderly process into a chaotic and potentially violent one.  Countries unwilling to accept deportees would be encouraged to resist their entry into their country by physical force.  This situation would both undermine U.S. relations with foreign governments and would greatly increase the risk of violence to such individuals. 

● Section 3033 would allow non-citizens to be sent to ANY country willing to accept them and threatens to return people to countries where they would face persecution or torture without giving them an opportunity to make a claim for asylum, withholding of removal, or protection under the Convention Against Torture.    

Under current law and practice, a non-citizen who was not placed in immigration court removal proceedings on arrival but is in the United States and facing possible deportation, is allowed to designate a country to which she wants to be removed.  If she does not designate a country for removal, the immigration service designates one.  If the person is in removal proceedings as an “arriving alien,” current law provides that she will  normally be returned to the country where she boarded the plane or vessel that brought her here or she can be removed to her country of citizenship or nationality provided that country accepts her; if removal to that country is not possible, the present statute provides for a series of alternative countries for removal. 

Thus under current law, a person can be deported to a country with which he had some link.  Only if removal to any of those alternative countries is impossible, inadvisable, or impracticable does the statute allow the immigration service to deport the person to “another country whose government will accept the alien into that country.” 

The current statutory framework also provides the immigrant in removal proceedings with some notice of the country to which she faces deportation.  This allows her, if she fears persecution or torture there, to make any necessary applications for asylum or withholding protection while her case is before the immigration judge. 

H.R. 10, by contrast, would allow the immigration service to immediately turn to “any other country whose government will accept the alien” if deportation to the “default” country does not work out.  This could be a country that was never mentioned at all in her immigration court proceedings -- to which she had no notion she would ever be deported.  When this happens, the deportee’s case in removal proceedings is over and she is under a final order of removal.  If she then learns that she is being sent to a country where she would face persecution or torture, she has no forum available to present a claim for asylum or withholding of removal.