One Downside to SCOTUS Decision on Third-Country Transit Bar to Asylum

The CAT loophole

By Andrew R. Arthur on September 13, 2019

In my last post, I discussed the Supreme Court's September 11, 2019, decision in Barr v. East Bay Sanctuary Covenant, which stayed a district court injunction of an interim final rule (IFR) requiring aliens who entered or arrived in the United States across the Southwest border to apply for asylum in a third country through which those aliens had passed before seeking that protection in the United States — the "third-county transit bar". The one downside to that decision, and to the IFR itself, is the fact that the Convention Against Torture (CAT) loophole was not addressed in the third-country transit bar.

I wrote about that loophole in an October 2018 post captioned "Closing the CAT Loophole in Credible Fear Cases, Is it time to give CAT authority to DHS?". As I explained therein, section 235(b)(1)(B)(v) of the Immigration and Nationality Act (INA) — which defines the term "credible fear of persecution" for purposes of expedited removal — does not explicitly include consideration of CAT claims. I stated:

Notably, that section of the INA does not mention [CAT], or require that asylum officers determine whether an alien has a credible fear of torture, despite the fact that CAT had been in effect in the United States for almost two years by the time expedited removal was added to the INA by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. Nonetheless, the regulation implementing credible fear determinations by asylum officers directs those officers to consider whether an alien has "a credible fear of ... torture", as well. Specifically, 8 C.F.R. § 208.30(e)(3) states:

An alien will be found to have a credible fear of torture if the alien shows that there is a significant possibility that he or she is eligible for withholding of removal or deferral of removal under the Convention Against Torture, pursuant to 8 CFR 208.16 or 208.17.

Thus, in assessing whether an alien has a credible fear, asylum officers also assess whether an alien has a claim for possible protection under CAT, even in cases where there is no credible fear of "persecution" on account of any of the five grounds set forth in section 101(a)(42) of the [INA] under the standards set forth in [the 2018 decision of the Attorney General (AG) in] Matter of A-B-.

That post continued:

Therefore, even if an asylum officer were to find that an alien failed to show a credible fear of persecution because the alien failed to demonstrate that the harm inflicted or feared was on account of one of the five factors for asylum relief, if the asylum officer were to find that there was a "significant possibility" the alien could be subjected to significant physical or mental pain or suffering if returned to the country of removal, that officer could find that the alien still had a credible fear of torture, and refer the matter to the immigration court for removal proceedings.

That likely was a major factor in the prevalence of positive "credible fear" findings by asylum officers — up to 88 percent of all claims by one measure based on the latest credible-fear statistics for FY 2019.

To address this issue, I explained that the Trump administration could take three steps.

First, the Department of State (DOS) could again issue "Profiles of Asylum Claims and Country Conditions". Those profiles, which were discontinued under the Obama administration, had been compiled by DOS officers to provide context for common asylum and CAT claims. The re-issuance of such profiles would help asylum officers (and immigration judges) assess whether the harm that a credible-fear applicant claims constitutes "torture" under the regulations and case law.

Second, U.S. Citizenship and Immigration Services (USCIS) could amend its regulations to limit credible fear to the terms set forth in statute, which did not include consideration (as stated above) of CAT claims. As I explained in that October 2018 post:

There is no statutory authority for asylum officers to consider "credible fear of torture" claims; such authority strictly comes from regulation. The problem is, however, as the BIA held in Matter of G-A-:

Article 3 of the Convention Against Torture prohibits refoulement of an alien to a country where it is more likely than not that he will be subject to torture by a public official, or at the instigation or with the acquiescence of such an official.

DHS, with only an extremely limited and inapplicable exception, lacks jurisdiction over CAT claims by regulation, and therefore could not make such a determination. Instead, such determinations are left up to immigration judges and the BIA, again pursuant to the same regulations.

Those regulations were initially implemented in February 1999, more than three years after CAT took effect, and only following legislation implementing CAT. That legislation, the Foreign Affairs Reform and Restructuring Act of 1998, section 2242(b) of Division G of Public Law 105-277 (October 21, 1998), states:

Not later than 120 days after the date of enactment of this Act, the heads of the appropriate agencies shall prescribe regulations to implement the obligations of the United States under Article 3 of the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment, subject to any reservations, understandings, declarations, and provisos contained in the United States Senate resolution of ratification of the Convention.

Significantly, that implementing legislation did not direct that such cases be heard by immigration judges or the BIA. In fact, prior to the promulgation of the aforementioned regulations, the former Immigration and Naturalization Service (INS) made CAT determinations, as the background information for the implementing regulations made clear:

In order to conform to the Convention before the enactment of implementing legislation, the [INS] adopted a pre-regulatory administrative process to assess the applicability of Article 3 to individual cases in which an alien is subject to removal. Under this pre-regulatory administrative process, upon completion of deportation, exclusion, or removal proceedings and prior to execution of a final order of removal, the INS has considered whether removing an alien to a particular country is consistent with Article 3. If it is determined that the alien could not be removed to the country in question consistent with Article 3, the INS has used its existing discretionary authority to ensure that the alien is not removed to that country for so long as he or she is likely to be tortured there. See INA § 103(a); 8 CFR 2.1.

In formulating its pre-regulatory administrative process to conform to Article 3 in the context of the removal of aliens, the INS has been careful not to expand upon the protections that Article 3 grants. Only execution of an order of removal to a country where an alien is more likely than not to be tortured would violate the Convention. Therefore, the INS has not addressed the question of whether Article 3 prohibits removal in an individual case until there is a final administrative order of removal to a place where an alien claims that he or she would be tortured, and until all appeals, requests for review, or other administrative or judicial challenges to execution of that order have been resolved. This approach has allowed the INS to address the applicability of Article 3 to a case only when actually necessary to comply with the Convention. It has also allowed an individual alien to exhaust all avenues for pursuing any other more extensive benefit or protection for which he or she may be eligible before seeking the minimal guarantee provided by Article 3 that he or she will not be returned to a specific country where it is likely that he or she would be tortured. At the same time, this approach has allowed the INS, the agency responsible for executing removal orders, to ensure that no order is executed under circumstances that would violate the Convention. [Emphasis added.]

There is no reason that the regulations could not be amended again, to leave it up to DHS to make the final CAT determination for an alien facing expedited removal.

In fact, it makes sense that CAT authority be taken from immigration judges and the BIA and transferred to the Department of Homeland Security (DHS), which now houses components that perform the duties previously performed by the INS.

Years can pass between the issuance of the decision denying CAT protection and the execution of an order of removal. It is, nonetheless, incumbent on DHS in executing such an order to ensure that the alien is not being returned to torture at the time of removal. Giving DHS the authority over CAT claims in this context (which is more or less how that system worked prior to the 1999 regulations) would more effectively comply with this obligation.

It would also relieve immigration judges of the responsibility to determine whether an alien would face torture if returned home. This, in turn, would alleviate the strain on the already overburdened immigration courts.

That, in fact, was the third recommendation that I made in that October 2018 post to plug the CAT loophole.

I concluded:

There is no open-source reporting on the number of credible-fear cases that were referred to removal proceedings based on CAT alone; from my experience, however, that number is likely to be quite large. If the administration wants to plug the credible-fear loophole, reconsideration of authority over CAT, or at least issuance of Profiles of Asylum Claims and Country Conditions by DOS, are good places to start.

Again, there are significant positive takeaways from the September 11, 2019, decision by the Supreme Court in East Bay Sanctuary Covenant. That decision likely reflects a choice by the Court to extricate the judiciary from the political questions that are inevitably raised by nationwide injunctions, to rein in activist judges, and to limit the number of such injunctions that individual unelected district court judges will issue in the future. With respect to this latter point, I note that significant questions have been raised, both by the AG and by Justice Thomas, with respect to the authority of those judges to issue such injunctions at all (as detailed in my last post).

Until the CAT loophole is addressed, however, that decision, and the IFR itself, will be insufficient to fully stem the tide of foreign nationals seeking illegal entry into the United States. This is why addressing this issue under some or all of the proposals above, coupled with an expansion of the Migrant Protection Protocols (MPP) (also known as "Remain in Mexico") across the entire Southwest border (with a properly functioning and fully resourced immigration court process to hear all those cases) is critical to successfully addressing the thousands of migrants apprehended entering the United States illegally each month.

Progress in immigration is usually measured incrementally. Given the scope of the problems at the border, it is time for the administration to consider all options. Closing the CAT loophole is a good place to go next.