The Opportunity Provided by SCOTUS's Decision in Nasrallah: Move CAT Protection to DHS

Never let a bad decision go to waste

By Andrew R. Arthur on June 5, 2020
  • Currently, DHS has very limited (if any) jurisdiction over claims under the Convention Against Torture (CAT).
  • The former INS used to have jurisdiction over those claims for almost four years, before that jurisdiction was shifted to the immigration courts and the BIA. When INS had jurisdiction over CAT claims, that protection worked the way it was supposed to, without encumbering the immigration courts and the BIA.
  • CAT claims now clog those courts: In FY 2018, immigration judges and the BIA completed 69,618 CAT cases. Of that number, 1,157 aliens were granted withholding and 177 were granted deferral — 1,334 in total, or just under 2 percent of all cases completed.
  • Criminal aliens who have no other form of relief can still seek deferral of removal under CAT — needlessly extending their cases and delaying their removal from the United States.
  • Asylum officers in USCIS already consider whether an alien has a credible fear of torture in expedited removal proceedings (despite an absence of statutory authority to do so). Consideration of those CAT claims is likely a major reason why the affirmative credible fear rate in FY 2019 was 73.6 percent of all credible fear claims — allowing 75,252 aliens who had entered illegally or without proper documents to remain in the United States indefinitely.
  • Those 75,252 cases also added a huge burden to immigration judges' already staggering dockets.
  • Shifting jurisdiction over CAT from the immigration courts and the BIA to DHS would better protect aliens from torture because it would allow DHS to assess the likelihood an alien would be tortured at the time the alien is reviewed.
  • It would eliminate the burden on DOJ of adjudicating CAT claims (the vast majority of which, as noted, are denied), and expedite consideration of those claims, all while not significantly increasing the burden on DHS.
  • Under Nasrallah, circuit courts' consideration of CAT claims has been divorced from its consideration of final removal orders, meaning that even an alien who failed to file a timely petition for review could still seek review of DHS's orders denying them CAT — ensuring due process.

In my previous post, I discussed an opinion issued by the Supreme Court in Nasrallah v. Barr. The majority there held that circuit courts can review factual challenges to denials by the Department of Justice (DOJ) of protection under the UN Convention Against Torture (CAT) brought by criminal aliens. While I explained in that post how the Court erred in reaching that conclusion, it nonetheless provides the administration with an opportunity to shift the authority for making CAT determinations from DOJ to the Department of Homeland Security (DHS) — where it properly belongs.

The United States is a signatory to CAT, which it ratified on October 21, 1994. That ratification was not "self-executing", and required congressional legislation to make it effective.

The legislation implementing CAT is section 2242 of the Foreign Affairs Reform and Restructuring Act of 1998 (FARRA). Pursuant to that section, it is the policy of the United States "not to expel, extradite, or otherwise effect the involuntary removal of any person to a country where there are substantial grounds for believing that the person would be in danger of being subjected to torture." FARRA did not dictate how that policy was to be implemented, instead leaving it up to the "appropriate" executive branch agencies to enact regulations to enforce CAT protections.

Aside from the somewhat vague directions in FARRA, CAT protection is largely regulatory, and the regulations implementing CAT are found in 8 C.F.R. §§ 1208.16, 1208.17, and 1208.18.

There are two forms of CAT protection that are available to aliens: withholding of removal and deferral of removal. The latter is a more restrictive protection that is available to applicants for protection who are not eligible for withholding because they fall within one or more of a series of categories barring a grant of that form of CAT in section 241(b)(3)(B) of the Immigration and Nationality Act (INA) (including the fact that the alien is a persecutor, has been convicted of a particularly serious crime, or poses a danger to the national security of the United States).

The Congressional Research Service has explained: "DHS has primary day-to-day authority to implement and enforce these regulations, with the DOJ, through the Executive Office of Immigration Review (EOIR), having adjudicative authority over detention and removal." That is one way of putting it.

More precisely, in most cases, CAT claims are considered as protection from removal in the course of removal proceedings. Under 8 C.F.R. § 1208.16, immigration judges (IJs) within EOIR consider applications for withholding of removal, and under 8 C.F.R. § 1208.17, IJs have jurisdiction over applications for deferral of removal.

CAT applications are submitted on the same form as asylum and statutory withholding of removal under section 241(b)(3) of the Immigration and Nationality Act (INA) — the I-589 — and the three forms of protection are generally considered by the IJ in conjunction with one another (the applicant just checks a box if seeking CAT).

Specifically, if an alien asserts a fear of harm if returned, the IJ will determine first whether the alien is eligible for asylum. If the alien is barred from receiving asylum (because the applicant failed to file within one year of entry or does not merit asylum in the exercise of discretion), the IJ will consider whether the alien is eligible for statutory withholding of removal.

If the alien fails to establish that he or she will be harmed on account of race, religion, nationality, membership in a particular social group, or political opinion (the bases for asylum and for statutory withholding of removal), the IJ will determine if the alien is eligible for CAT withholding.

If, however, the alien is or would be barred from statutory withholding because the alien has been a persecutor, has been convicted of a particularly serious crime in the United States, committed a serious nonpolitical crime outside of the United States, or poses a danger to the national security, the IJ will assess whether the alien must be granted CAT deferral.

A whole lot of criminal aliens are not eligible for either asylum or statutory withholding because of their convictions. As an IJ, I could have disposed of a significant number of such cases, if I did not have jurisdiction over those respondents' CAT claims, as well. This was particularly true given the fact that there are no bars whatsoever to CAT deferral, meaning that any criminal alien who wanted to extend his or her time in the United States would simply apply for CAT and hope for the best.

Needless to say, all of that takes time and space on the IJs' docket. It does not, however, end there.

Where the IJ denies any or all of those forms of protection, the applicant by regulation may appeal that decision to the Board of Immigration Appeals (BIA). Pursuant to that regulation, DHS may appeal a grant of such protection to the BIA, as well (which is what happened in Nasrallah). Again, those cases strain the BIA's docket, as well.

If an alien receives an adverse decision from the BIA, the alien may file a petition for review of that decision under section 242 of the INA. Specifically, an alien can seek review of EOIR's denial of CAT under section 242(a)(4) of the INA.

In Nasrallah, the Supreme Court held that CAT determinations do not "merge" into final orders of removal. In other words, if an alien is denied CAT and ordered removed, the alien petitioner's eligibility for CAT is not subject to the restrictions in section 242(a)(2)(C) of the INA, limiting judicial review of factual determinations for aliens who are removable on certain criminal grounds (the "criminal alien bar"). This means that circuit court judges can review EOIR's assessment of the facts of a criminal petitioner's CAT claims, as well as their legal and constitutional claims.

Only once that whole process is completed, and only if the CAT appeal is denied, can the alien be ordered removed.

By regulation, DHS does have some (extremely limited) jurisdiction over CAT claims, at least putatively. Pursuant to 8 C.F.R. §§ 1208.18(d) and 1235.8(b)(4), the Immigration and Naturalization Service (INS) was required to assess whether an alien the INS regional director has ordered removed under section 235(c) of the INA (relating to the removal of an arriving alien on security and related grounds) was eligible for statutory withholding or CAT before removing the alien.

I say "putatively" because, of course, the INS was abolished on March 1, 2003. It is unclear whether authority to implement this provision has shifted to its successors at U.S. Customs and Border Protection ("CBP", which would encounter such "arriving alien") or U.S. Immigration and Customs Enforcement ("ICE", which would remove such alien), both of which are in DHS.

Of course, it is probable that this authority has not shifted to either. Notably, the implementing statute for such removal (section 235(c)(1)(B) of the INA) directs the "immigration officer" or IJ encountering such alien and ordering such alien removed to report such removal to the attorney general ("AG", the head of DOJ), who will then (under section 235(c)(2) of the INA) review the order and order the alien removed (or not). That authority that was previously assigned to the AG's then-delegate, the INS regional director, under 8 C.F.R. § 235.8(b)(4) . But again, there is no longer an INS, and CBP and ICE are both in DHS, and therefore no one therein can be a delegate of the attorney general.

As the foregoing shows, the regulations are in need of a clean-up, and Nasrallah gives DOJ and DHS an opportunity and reason to do so.

EOIR has not always had (near-exclusive or whatever) jurisdiction over CAT. From the ratification of CAT (on November 20, 1994) until the issuance of an interim rule implementing FARRA (effective March 22, 1999), INS "adopted a pre-regulatory administrative process to assess the applicability of" CAT "to individual cases in which an alien is subject to removal." The interim rule explains:

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 [CAT]. If it is determined that the alien could not be removed to the country in question consistent with [CAT], the INS has used its existing discretionary authority to ensure the alien is not removed to that country for so long as he or she is likely to be tortured there.

...

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 [CAT]. [Emphasis added.]

In other words, when INS had jurisdiction over CAT, that protection worked the way it was supposed to, without burdening IJs and the BIA.

Of course, even prior to Nasrallah, there were plenty of reasons to shift EOIR's jurisdiction over CAT to DHS. As I have previously explained, divesting EOIR of its responsibility over CAT claims and giving that authority to DHS:

[W]ould actually protect aliens: Years can pass between the issuance of a final removal order and the actual removal of an alien from the United States. Giving the CAT determination to DHS would ensure that, at the time of removal, an assessment could be made that the alien was not facing torture upon return to the country of removal.

In addition, divesting immigration courts and the BIA of jurisdiction over CAT claims would also reduce the backlog of cases before the immigration courts.

A point I made above, but worth reiterating. And transferring those cases would cut the immigration courts' backlog, while not significantly increasing DHS's. How is that possible?

Well, EOIR statistics reveal that the component completed 69,618 CAT cases in FY 2018 (the last year for which data is available). Of that number, 1,157 aliens were granted withholding and 177 were granted deferral — 1,334 in total, or just under 2 percent of the total.

An additional 9,816 CAT claims were withdrawn (14 percent), 3,414 were abandoned (5 percent, likely because many or most of those aliens failed to appear), 3,288 were not adjudicated (4.7 percent, for reasons that are unclear, but likely because the aliens were granted some other form of relief, including the privilege of voluntary departure), and 25,964 were denied (37.3 percent). In addition, 25,802 were "other" (37 percent), again for reasons that are not clear.

Focusing on just the grants, however, adjudicating 1,334 cases is not a significant burden for DHS. By contrast, in FY 2018, 106,147 affirmative asylum claims were filed by aliens present in the United States with USCIS (cases with many more factual and legal issues).

And the department would likely deny as many cases as EOIR, but much more quickly. Looking at just the grants and denials, 95 percent of CAT claims in FY 2018 were denied, but still took up space on IJs' and the BIA's dockets.

Plus, as I noted in the aforementioned post (from October 2018), transferring responsibility over CAT from EOIR to DHS would close the "CAT loophole in credible fear cases".

To explain, section 235(b) of the INA governs expedited removal of aliens from United States. That section of the INA allows CBP officers — not immigration judges — to order aliens apprehended at or between the ports of entry removed from the United States if they are inadmissible on the basis of fraud, because they lack proper documents, or because they entered without being admitted or paroled.

Section 235(b) allows aliens to claim a credible fear of persecution, and if they make such a claim, they are referred by CBP to USCIS asylum officers. In FY 2019, asylum officers received 105,439 credible fear cases, and issued 102,204 decisions. Of that number, fear was established in 75,252 (73.6 percent of the total), while an additional 16,679 aliens were found not to have a fear (16.3 percent), and 10,273 cases were closed (10 percent, because the alien withdrew the request or was released without an interview, as well as other reasons).

Comparing just the fear/no fear findings (91,931), 81.8 percent of claimants were found to have a credible fear, while just over 18 percent were found not to have a fear. Why is the "fear" rate so high? As I have explained before, the credible fear standard is too low. And INS decided, in December 2000, to add an assessment of whether an alien has a "credible fear of torture" to the asylum officers' credible fear determination.

Notably, however, there is no statutory requirement for such a determination. The credible fear of persecution definition in section 235(b)(1)(B)(v) 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.

Why does this matter? As I have explained:

[E]ven 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.

Given the fact that then-Attorney General Jeff Sessions provided bright-line rules for immigration judges, asylum officers, and the BIA to follow in making assessments in asylum cases involving criminal harm inflicted or threatened by non-government actors in Matter of A-B- (which likely significantly cut down on the number of grants) if an alien asserts that he or she fears such harm, the asylum officer would still be obligated to pass the case on to the IJ for an assessment of whether the alien has a CAT claim — even when it would be obvious that such harm did not implicate the government, a requirement for CAT protection.

Although there are no numbers on the number of positive credible fear findings based on CAT, I believe that many if not most of those 75,252 cases in which credible fear was found by asylum officers were based strictly on CAT — over which, as noted, DHS generally and asylum officers in USCIS specifically have no jurisdiction.

Assuming that belief to be true (and I have seen a lot of credible fear cases), if USCIS were to be given jurisdiction to determine whether those aliens have a CAT claim or not, those cases would never be referred to IJs, and would not further clog their dockets.

Remember — Nasrallah divorced the CAT determination from the final order of removal determination (despite the requirement in section 2242(d) of FARRA that no circuit court has jurisdiction to review a CAT denied "except as part of the review of a final order of removal"). So, an alien denied CAT by USCIS following an expedited removal order could still seek review of that determination in circuit court under section 242(a)(4) of the INA, despite the fact that expedited removal orders are not otherwise reviewable under section 242(a)(2)(A) of the INA — consistent with our international obligations and due process.

But most of the aliens eligible for that protection would likely receive it (and more quickly) from USCIS, and those who were not eligible would not bother to take an appeal, as they would be detained throughout that process (under section 235(b)(1)(B)(IV) of the INA).

That would satisfy FARRA, and section 242(a)(4) of the INA.

Aliens who went through proceedings, were ordered removed, and who were denied CAT prior to removal could also seek circuit court review of those denials under section 242(a)(4) of the INA. Would that contravene FARRA's requirement that circuit courts could only review CAT claims "as part of the review of a final order of removal"? No.

As Justice Kavanaugh stated in Nasrallah:

FARRA and [the "zipper clause" in section 242(b)(9) of the INA] simply establish that a CAT order may be reviewed together with the final order of removal, not that a CAT order is the same as, or affects the validity of, a final order of removal. [Emphasis added.]

If the Supreme Court says it, it must be true.

In fact, in rejecting the government's argument that "if a CAT order is not merged into a final order of removal, then no statute would authorize a court of appeals to review a CAT order in the first place", Justice Kavanaugh replied that "as a result of the 2005 REAL ID Act, [section 242(a)(4) of the INA] now provides for direct review of CAT orders in the courts of appeals." Again, under this logic, the circuit courts could review CAT denials even if an appeal of the underlying removal order was not timely filed (within 30 days of the final order of removal under section 242(b)(1) of the INA).

What DOJ did by regulation in 1999, DOJ and DHS can undo by regulation in 2020. Transferring jurisdiction over CAT claims from DOJ to DHS would protect aliens, streamline removal proceedings, reduce the burden on the IJs' and BIA's dockets, and ensure due process. Thanks to the Supreme Court in Nasrallah, there is no reason not to do so.