The U.N. Convention Against Torture: Overview of U.S. Implementation Policy Concerning the Removal of Aliens
The U.N. Convention Against Torture:
Overview of U.S. Implementation Policy
Concerning the Removal of Aliens
Updated January 25, 2008
Michael John Garcia
American Law Division
The U.N. Convention Against Torture:
Overview of U.S. Implementation Policy
Concerning the Removal of Aliens
The United Nations Convention Against Torture and Other Cruel, Inhuman, or
Degrading Treatment or Punishment (CAT) requires signatory parties to take
measures to end torture within their territorial jurisdictions. For purposes of the
Convention, torture is defined as an extreme form of cruel and inhuman punishment
committed under the color of law. The Convention allows for no circumstances or
emergencies where torture could be permitted. Additionally, CAT Article 3 requires
that no state party expel, return, or extradite a person to another country where there
are substantial grounds to believe he would be subjected to torture. CAT Article 3
does not expressly prohibit persons from being removed to countries where they
would face cruel, inhuman, or degrading treatment not rising to the level of torture.
The United States ratified CAT subject to certain declarations, reservations, and
understandings, including that the Convention was not self-executing, and therefore
required domestic implementing legislation to take effect. In accordance with CAT
Article 3, the United States enacted statutes and regulations to prohibit the transfer
of aliens to countries where they would be tortured, including the Foreign Affairs
Reform and Restructuring Act of 1998, section 2340A of the United States Criminal
Code, and certain regulations implemented and enforced by the Department of
Homeland Security (DHS), the Department of Justice (DOJ), and the Department of
State. These authorities, which require the withholding or deferral of the removal of
an alien to a country where he is more likely than not to be tortured, generally
provide aliens already residing within the United States a greater degree of protection
than aliens arriving to the United States who are deemed inadmissible on security-
or terrorism-related grounds. Further, in deciding whether or not to remove an alien
to a particular country, these rules permit the consideration of diplomatic assurances
that an alien will not be tortured there. Nevertheless, under U.S. law, the removal or
extradition of all aliens from the United States must be consistent with U.S.
obligations under CAT.
CAT obligations concerning alien removal have additional implications in cases
of criminal and other deportable aliens. The Supreme Court’s ruling in Zadvydas v.
Davis suggests that certain aliens receiving protection under CAT cannot be
indefinitely detained, raising the possibility that certain otherwise-deportable aliens
could be released into the United States if CAT protections make their removal
impossible. CAT obligations also have implications for the practice of “extraordinary
renditions,” by which the U.S. purportedly has transferred aliens suspected of
terrorist activity to countries that possibly employ torture as a means of interrogation.
For additional background on renditions and other CAT-related issues, see CRS
Report RL32890, Renditions: Constraints Imposed by Laws on Torture, and CRS
Report RL32438, U.N. Convention Against Torture (CAT): Overview and
Application to Interrogation Techniques, both by Michael John Garcia.
Overview of Relevant Portions of the Convention Against Torture...........1
Implementation of the Convention Against Torture in the United States.......4
Relevant Declarations, Reservations, and Understandings
Conditioning U.S. Ratification of
the Convention Against Torture...............................4
Foreign Affairs Reform and Restructuring Act of 1998................6
Application of the Convention Against Torture to U.S. Regulations
Concerning the Removal of Aliens............................8
General Removal Guidelines Concerning the Convention
Summary Exclusion of Arriving Aliens Inadmissible on Security
and Related Grounds..................................11
Effect of Diplomatic Assurances on Removal Proceedings........12
Application of the Convention Against Torture in Extradition Cases.....14
Criminalization of Torture Occurring Outside the United States........15
Potential Issues Arising Under Implementation of the Convention
Against Torture Concerning Removal of Aliens.....................15
Implications of the Convention Against Torture on
U.S. Alien Detention Policy.................................15
Implications of the Convention Against Torture on the Practice
of “Extraordinary Renditions” from the United States............18
The U.N. Convention Against Torture:
Overview of U.S. Implementation Policy
Concerning the Removal of Aliens
Overview of Relevant Portions of the
Convention Against Torture
In the past several decades the practice of torture by public officials has been
condemned by the international community through a number of international treaties
and declarations,1 leading some commentators to conclude that customary2
international law now prohibits the use of torture by government entities. Perhaps
the most notable international agreement prohibiting the use of torture is the United
Nations Convention against Torture and Other Cruel, Inhuman, or Degrading
Treatment or Punishment (Convention or CAT),3 which obligates parties to prohibit
the use of torture and to require the punishment or extradition of torturers found
within their territorial jurisdiction. Since opening for signature in December 1984,45
over 140 states, including the United States, have become parties to the Convention.
1 See, e.g., U.N. CHARTER art. 55 (calling upon U.N. member countries to promote
“universal respect for, and observance of, human rights and fundamental freedoms for
all....”); Universal Declaration on Human Rights, UN GAOR, Supp. No. 16, at 52, UN Doc.
A/6316, at art. 5 (1948) (providing that “no one shall be subjected to torture or to cruel,
inhuman or degrading treatment or punishment”); International Covenant on Civil andrdstth
Political Rights, G.A. Res. 2200A, U.N. GAOR, 3 Comm., 21 Sess., 1496 plen, mtg. at
49, U.N. Doc. A/RES/ 2200A (XXI), at art. 7 (1966) (providing that “[n]o one shall be
subjected to torture or to cruel, inhuman or degrading treatment or punishment”).
2 See RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES § 702,
Reporters note 5(d) (1987). But see A. Mark Weisbard, Customary International Law and
Torture: The Case of India, 2 CHI. J. INT’L. L. 81 (Spring 2001) (arguing that widespread
use of torture by states, despite existence of numerous international agreements and
declarations condemning it, indicates that the prohibition on torture has not reached the
status of customary international law).
3 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, G.A. Res. 39/46, Annex, 39 U.N. GAOR Supp. No. 51, U.N. Doc. A/39/51
(1984) [hereinafter “CAT”].
4 The United States has signed and ratified CAT subject to certain declarations, reservations,
and understandings. See infra at pp. 3-5.
5 As of January 16, 2007, 144 States were parties to CAT. See United Nations, Office of the
High Commissioner for Human Rights, Ratifications and Reservations for the Convention
against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment,
[http://www.ohchr.org/english/countries/ratification/9.htm] [hereinafter “CAT ratification”].
CAT defines torture as “any act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted on a person...by or at the instigation of
or with the consent or acquiescence of a public official or other person acting in an
official capacity.”6 This definition does not include “pain or suffering arising only
from, inherent in or incidental to lawful sanctions.”7
According to the State Department’s analysis of CAT, which was included in
President Reagan’s transmittal of the Convention to the Senate for its advice and
consent, this definition was intended to be interpreted in a “relatively limited fashion,
corresponding to the common understanding of torture as an extreme practice which
is universally condemned.”8 Indeed, CAT Article 16 further obligates signatory
parties to take action to prevent “other acts of cruel, inhuman, or degrading
punishment which do not amount to acts of torture....”9 According to the State
Department, this distinction reflected the belief by the drafters of CAT that torture
must be “severe” and that rough treatment, such as police brutality, “while
deplorable, does not amount to ‘torture’” for purposes of the Convention.10 Further,
CAT provides that offenses of torture require actual intent to cause severe pain and
suffering; an act that results in unanticipated and unintended severity of pain and
suffering is not torture for purposes of the Convention.11
In accordance with Article 2 of the Convention, parties agree to take effective
legislative, administrative, judicial, and other measures to prevent acts of torture from
occurring within their territorial jurisdiction. Further, parties are required to ensure
that all acts of torture, as well as attempts to commit torture and complicity or
participation in torture, are criminal offenses subject to penalty.12 Importantly, CAT
Article 2 makes clear that “no exceptional circumstances whatsoever,” including a
state of war or any other public emergency, may be invoked to justify torture.13 The
State Department has claimed that this explicit prohibition of all torture, regardless
of the circumstances, was viewed by the drafters of CAT as “necessary if the
Convention is to have significant effect, as public emergencies are commonly
invoked as a source of extraordinary powers or as a justification for limiting
fundamental rights and freedoms.”14
6 CAT at art. 1(1).
8 President’s Message to Congress Transmitting the Convention Against Torture and Other
Cruel, Inhuman, or Degrading Treatment or Punishment, Summary and Analysis of the
Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or
Punishment, May 23, 1988, S. TREATY DOC. NO. 100-20, reprinted in 13857 U.S. Cong.
Serial Set at 3 (1990)[hereinafter “State Dept. Summary”].
9 CAT at art. 16(2).
10 State Dept. Summary, supra note 8, at 11.
11 See CAT at art. 1.
12 Id. at art. 4.
13 Id. at art. 2(2).
14 State Dept. Summary, supra note 8, at 5. On the other hand, the current position of the
CAT also imposes specific obligations upon signatory parties with respect to
their transfer of individuals to other countries. CAT Article 3 requires that no state
party expel, return, or extradite a person to another country where “there are
substantial grounds for believing that he would be in danger of being subjected to
torture.”15 In determining whether grounds exist to believe an individual would be
in danger of being subjected to torture, state parties are required to 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.”16 The State Department has interpreted the words “where applicable” to
indicate that competent authorities must decide whether and to what extent these
considerations are a relevant factor in a particular case.17 CAT Article 3 does not
expressly prohibit persons from being removed to countries where they would face
cruel, inhuman, or degrading treatment not rising to the level of torture.
U.S. executive branch appears to be that CAT does not apply to armed conflicts. The rule
of lex specialis provides that when two different legal standards may be applied to the same
subject-matter, the more specific standard controls. In a 2006 hearing before the Committee
Against Torture, which monitors parties’ compliance with CAT, representatives of the U.S.
State Department argued that CAT did not apply to detainee operations in Afghanistan, Iraq,
and Guantánamo, and that these operations were controlled by the laws of armed conflict
(i.e., the 1949 Geneva Conventions). Committee against Torture, Consideration of Reports
Submitted by States Parties under Article 19 of the Convention (United States), Summary
Record, CAT/C/SR.703 (May 12, 2006).
15 CAT at art. 3(1). There are important distinctions between the protections afforded to
aliens under CAT and under general U.S. asylum law. Asylum is a discretionary remedy
available to those who have a well-founded fear of persecution abroad. Whereas asylum
applicants only need to prove a well-founded fear of persecution on account of their
membership in a particular race, nationality, or social or political group, see Immigration
and Naturalization Act (INA) §§ 101(a)(42), 208(b), 8 U.S.C. §§ 1101(a)(42), 1158(b),
applicants for protection under CAT must prove that it is more likely than not that they
would be tortured if removed to a particular country. Proving that torture would more likely
than not occur is a more difficult standard to meet than proving that an applicant’s fear is
“well-founded” — a standard that only requires a fear to be “reasonable.” See INS v.
Cardoza-Fonseca, 480 US 421 (1987). In having a higher burden of proof, CAT protection
is similar to withholding removal on the basis of prospective persecution. CAT protections
and withholding of removal are also similar in that neither form of relief grants the recipient
or his immediate family a legal foothold in the United States. Additionally, “torture” is a
more particularized act than “persecution.” However, it is important to note that CAT
affords certain aliens broader protection than that provided by general asylum law. An
alien generally cannot receive asylum or withholding of removal if he, inter alia, (1)
persecuted another person on account of the person’s social or political group membership;
(2) committed a particularly serious crime, making him a threat to the community; or (3) is
a danger to the security of the United States. See INA § 208(b)(2), 8 U.S.C. § 1158(b)(2).
On the other hand, CAT protections extend to all classes of aliens, including those generally
ineligible for asylum and withholding of removal.
16 Id. at art. 3(2).
17 See State Dept. Summary, supra note 8, at 7.
The Committee Against Torture, the monitoring body created by the state parties
to the Convention,18 has interpreted the obligations of Article 3 as placing the burden
of proof on an applicant for non-removal to demonstrate that there are substantial
grounds to believe that he would be subjected to torture if removed to the proposed
country.19 Further, the Committee has interpreted the non-removal provisions of
Article 3 to refer to both direct and indirect removal to a state where the individual
concerned would likely be tortured, meaning that a state cannot remove a person to
a third country when it knows he would subsequently be removed to a country where
he would likely face torture.20
Implementation of the Convention Against Torture
in the United States
The United States signed CAT on April 18, 1988, and ratified the Convention
on October 21, 1994,21 subject to certain declarations, reservations, and
understandings,22 including a declaration that CAT Articles 1 through 16 were not
self-executing, and therefore required domestic implementing legislation.23 This
section will discuss relevant declarations, reservations, and understandings made by
the United States to CAT, and U.S. laws and regulations implementing the
Relevant Declarations, Reservations, and Understandings
Conditioning U.S. Ratification of the Convention
The Senate’s advice and consent to CAT ratification was subject to the24
declaration that the Convention was not self-executing. With respect to Article 16
of the Convention, which requires states to prevent lesser forms of cruel and unusual
18 See CAT at arts. 17-24. The Committee is not a quasi-judicial or administrative body, but
rather a monitoring body with declaratory powers only.
19 United Nations Office of the High Commissioner for Human Rights, Committee Against
Torture, Implementation of Article 3 of the Convention in the Context of Article 22, CAT
General Comment 1, at ¶ 5 (November 21, 1997), available at [http://www.unhchr.ch/tbs/
doc.nsf/(Symbol)/13719f169a8a4ff78025672b0050eba1?Opendocument]. The Committee’s
interpretation as to the scope of Article 3 was made in the context of CAT Article 22, which
permits the Committee, upon recognition by a state party, to receive communications from
individuals subject to the state’s jurisdiction who claim to be victims of a CAT violation by
a state party.
20 Id. at ¶ 2.
21 CAT ratification, supra note 5. The Senate provided its advice and consent to treaty
ratification in 1990, but the U.S. did not deposit its instruments of ratification with the U.N.
until certain implementing legislation was passed four years later.
22 See SEN. EXEC. RPT. 101-30, Resolution of Advice and Consent to Ratification (1990)
[hereinafter “Sen. Resolution”].
23 Id. at III.(2).
punishment that do not constitute torture, the Senate’s advice and consent was based
on the reservation that the United States considered itself bound to Article 16 to the
extent that such cruel, unusual, and inhumane treatment or punishment was
prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the U.S.
Constitution.25 The United States also opted out of the dispute-settlement provisions
of CAT Article 30,26 though it reserved the right to specifically agree to follow its
provisions or any other arbitration procedure in resolving a particular dispute as to
the Convention’s application.
In providing its advice and consent to CAT, the Senate also provided a detailed
list of understandings concerning the scope of the Convention’s definition of torture.
These understandings are generally reflected via the specific U.S. laws and
regulations implementing the Convention. Importantly, under U.S. implementing
legislation and regulations, CAT requirements are understood to apply to acts of
torture committed by or at the acquiescence of a public official or other person acting
in an official capacity.27 Thus, persons operating under the color of law do not
necessarily need to directly engage in acts of torture to be culpable for them. For a
public official to acquiesce to an act of torture, that official must, “prior to the
activity constituting torture, have awareness of such activity and thereafter breach his
or her legal responsibility to intervene to prevent such activity.”28 Subsequent
jurisprudence and administrative decisions have recognized that “willful blindness”
by officials to torture may constitute “acquiescence” warranting protection under
CAT,29 but acquiescence does not occur when a government is aware of third-party
25 Id. at I.(2).
26 See id. at I.(3). CAT article 30 provides that disputes between two or more signatory
parties concerning the interpretation and application of the Convention can be submitted to
arbitration upon request. CAT at art. 30(1). If, within six months of the date of request for
arbitration, the parties are unable to agree upon the organization of the arbitration, any of
the parties may refer the dispute to the International Court of Justice. Id. Article 30 contains
an “opt-out” provision that enabled the United States to make a reservation to CAT’s
dispute-settlement procedure. Id. at art. 30(2).
27 Sen. Resolution, supra note 22, at II.(1)(b).
29 See, e.g., Zheng v. Ashcroft, 332 F.3d 1186 (9th Cir. 2003) (declaring that the correct
inquiry in deciding whether a Chinese immigrant was entitled to relief from removal from
U.S. under CAT was not whether Chinese officials would commit torture against him, but
whether public officials would turn a blind eye to the immigrant’s torture by specifiedth
individuals); Ontunez-Turios v. Ashcroft, 303 F.3d 341 (5 Cir. 2002) (upholding Board of
Immigation Appeals’ deportation order, but noting that “willful blindness” constitutes
acquiescence under CAT); Bullies v. Nye, 239 F.Supp.2d 518 (M.D. Pa. 2003) (under CAT-
implementing regulations, acquiescence by government to torture by non-governmental
agents requires either willful acceptance by government officials or at least turning a blindth
eye); see also Pascual-Garcia v. Ashcroft, 73Fed.Appx. 232 (9 Cir. 2003) (holding that
relief under CAT does not require that torture will occur while victim is in the custody or
physical control of a public official).
torture but is unable to stop it.30 In addition, mere noncompliance with applicable
legal procedural standards does not per se constitute torture.31
The Senate’s advice and consent to CAT was also subject to particular
understandings concerning “mental torture,” a term that is not specifically defined by
the Convention. The United States understands mental torture to refer to prolonged
mental harm caused or resulting from (1) the intentional infliction or threatened
infliction of severe physical pain and suffering; (2) the administration of
mind-altering substances or procedures to disrupt the victim’s senses; (3) the threat
of imminent death; or (4) the threat of imminent death, severe physical suffering, or
application of mind-altering substances to another.
With respect to the provisions of CAT Article 3 prohibiting expulsion or
refoulement of persons to states where substantial grounds exist for believing the
person would be subjected to torture, the United States declared its understanding
that this requirement refers to situations where it would be “more likely than not” that
an alien would be tortured, a standard commonly used by the United States in
determining whether to withhold removal of an alien for fear of persecution.32
Foreign Affairs Reform and Restructuring Act of 1998
The Foreign Affairs Reform and Restructuring Act of 1998 (FARRA)
announced 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
FARRA also required relevant agencies to promulgate and enforce regulations
to implement CAT, subject to the understandings, declarations, and reservations
made by the Senate resolution of ratification.34 In doing so, however, Congress
required that, “to the maximum extent consistent” with Convention obligations, these
30 See, e.g., Moshud v. Blackman, 68 Fed. Appx. 328 (3rd Cir. 2003) (denying alien’s claim
to reopen removal proceedings to assert a CAT claim based on her fear of female genital
mutilation in Ghana, because although the practice was widespread, the Ghanian
government had not acquiesced to the practice because it had been made illegal and public
officials had condemned the practice); Matter of S-V-, 22 I&N Dec. 1306 (BIA 2000)
(holding that protection under CAT does not extend to persons fearing entities that a
government is unable to control).
31 Sen. Resolution, supra note 22, at II.(1)(e).
32 Id. at II.(2). See generally INS v. Stevic, 467 U.S. 407, 429-30 (1984). This standard is
in contrast to the lower standard for determining whether an alien is eligible for
consideration for asylum based on a “well-founded fear of persecution” if transferred to a
particular country. To demonstrate a “well-founded” fear, an alien only needs to prove that
the fear is reasonable, not that it is based on a clear probability of persecution. See INS v.
Cardoza-Fonseca, 480 U.S. 421 (1987). See also supra at note 15.
33 P.L. 105-277 [hereinafter “FARRA”], at § 2242(a) (1998).
34 Id. at § 2242(b).
regulations exclude from their protection those aliens described in § 241(b)(3)(B) of
the Immigration and Nationality Act (INA).35 INA § 241(b)(3)(B) acts as an
exception to the general U.S. prohibition on the removal of otherwise removable
aliens to countries where they would face persecution. An alien may be removed
despite the prospect of likely persecution if the alien:
(1) participated in genocide, Nazi persecution, or any act of
torture or extrajudicial killing;
(2) ordered, incited, assisted, or otherwise participated in the
persecution of an individual because of the individual’s race,
religion, nationality, membership in a particular social group, or
(3) having been convicted of a particularly serious crime, is a
danger to the community of the United States;
(4) is strongly suspected to have committed a serious
nonpolitical crime outside the United States prior to arrival; or
(5) is believed, on the basis of serious grounds, to be a danger to
the security of the United States.36
Aliens who are described in the terrorism-related grounds for deportation,
including those who have provided material support to terrorist organizations or have
espoused terrorist activity, are considered a security threat covered under INA §
241(b)(3)(B), and are thus removable and excludable from entry into the United
States despite facing prospective persecution abroad.37
36 INA § 241(b)(3)(B), 8 U.S.C. § 1231(b)(3)(B).
37 See INA §§ 237(a)(4)(B), 241(b)(3)(B), 8 U.S.C. §§ 1227(a)(4)(B), 1231(b)(3)(B). For
a discussion of the terrorism-related grounds for deportation and inadmissibility, see CRS
Report RL32564, Immigration: Terrorist Grounds for Exclusion and Removal of Aliens,
by Michael John Garcia and Ruth Ellen Wasem. Until 2005, the Secretary of State and
Attorney General each had authority, following consultation with the other, to conclude in
his sole, unreviewable discretion that an alien’s material support did not constitute terrorist
activity covered under the terrorism-related grounds to deportation. See INA §§
212(a)(3)(B)(iv), 237(a)(4)(B) (2004), 8 U.S.C. §§ 1182(a)(3)(B)(iv), 1227(a)(4)(B). The
REAL ID Act of 2005 (P.L. 109-13, Division B) significantly modified the terrorism-related
grounds for inadmissibility and deportation and may have eliminated this discretionary
authority with respect to deportable aliens. Although the material support waiver is found
in a provision of INA § 212 (concerning grounds for alien inadmissibility), this provision
was previously cross-referenced in INA § 237 (concerning grounds for alien deportation).
Accordingly, the waiver appeared to be available to aliens who were either inadmissible or
deportable on material support grounds. However, the REAL ID Act moved the material
support waiver to another provision of INA § 212 that is not cross-referenced in INA § 237.
As a result, it is unclear whether existing waiver authority may be properly exercised with
respect to aliens who have been admitted into the United States and are thereafter found to
have provided material support to terrorist entities. Nonetheless, the Secretary of Homeland
Security applied existing waiver authority towards certain aliens present in the United
States. See Dept. of Homeland Security, Press Release, Statement by Homeland Security
Secretary Michael Chertoff on the Intention to Use Discretionary Authority for Material
FARRA generally specifies that no judicial appeal or review is available for any
action, decision or claim raised under CAT, except as part of a review of a final order
of alien removal pursuant to § 242 of the INA.38 The ability of a person to raise a
CAT-based claim in non-removal proceedings (e.g., in the case of extradition), is the
subject of debate and conflicting jurisprudence. The Ninth Circuit Court of Appeals
held in one case that an individual subject to an extradition order may appeal under
the Administrative Procedures Act (APA), when his surrender would be contrary to
U.S. laws and regulations implementing CAT.39 The precedential value of this
decision, however, is unclear.40 The Fourth Circuit Court of Appeals, in contrast, has
held that judicial review (including habeas review) is unavailable with respect to
CAT-based challenges to an extradition order and interpreted FARRA as barring
judicial review of CAT-based actions in non-immigration proceedings.41
Application of the Convention Against Torture to
U.S. Regulations Concerning the Removal of Aliens
The requirements of CAT Article 3 take the form of a two-track system
requiring the withholding or deferral of an alien’s removal to a proposed receiving
state if it is more likely than not that he would be tortured there. Reliance on these
protections by aliens in removal proceedings has been frequent, though usually
unsuccessful. In 2006, for example, immigration courts considered 31,364 claims42
for CAT relief, and relief was granted in 578 cases. DHS has estimated that in the
Support to Terrorism, January 19, 2007, available at [http://www.dhs.gov/xnews/releases/
38 FARRA, supra note 33 at § 2242(d).
39 Cornejo-Barreto v. Seifert, 218 F.3d 1004 (9th Cir. 2000) (“Cornejo-Barreto I”)(finding
that the duty to consider prospective torture in making an extradition decision is a clear and
nondiscretionary duty, and therefore such consideration is subject to the Administrative
Procedure Act, 5 U.S.C. §§ 551, et seq.).
40 The holding in Cornejo-Barreto I was subsequently rejected. Cornejo-Barreto v. Siefert,
sitting en banc, later vacated Cornejo-Barreto II and denied the government’s request to
vacate Cornejo-Barreto I. Cornejo-Barreto v. Siefert, 389 F.3d 1307 (9th Cir. 2004) (en
banc). Cornejo-Barreto I continues to be cited as good law by the Ninth Circuit. See
Prasoprat v. Benov, 421 F.3d 1009, 1012 (9th Cir. 2005). But see Hoxha v. Levi, 465 F.3drd
554, 565 (3 Cir. 2006) (describing Cornejo-Barreto I as lacking binding precedential value
in the Ninth Circuit).
41 Mironescu v. Costner, 480 F.3d 664 (4th Cir. 2007), cert. dismissed, 2008 WL 94735
(U.S. January 9, 2008) (finding that FARRA § 2242(d) precludes review of an alien’s
CAT-based habeas petition in an extradition proceeding, because it provides that no judicial
appeal or review is available for any action, decision or claim raised under CAT, except as
part of a review of a final order of alien removal pursuant to § 242 of the Immigration and
42 U.S. Department of Justice, Executive Office of Immigration Review, Statistical Yearbook
2006, at M1 (February 2007). In 2005, for example, immigration courts considered 33,640
first four years following the implementation of regulations implementing CAT
Article 3, approximately 1,700 aliens were granted deferral or withholding of
removal based on CAT protections.43 In 2006, deferral of removal was granted in
General Removal Guidelines Concerning the Convention Against
Torture. CAT-implementing regulations concerning the removal of aliens from the
United States are primarily covered under §§ 208.16-208.18 and 1208.16-1208.18
of title 8 of the Code of Federal Regulations (C.F.R.), and prohibit the removal of
aliens to countries where they would more likely than not be subjected to torture.
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. For purposes of these regulations,
“torture” is understood to have the meaning prescribed in CAT Article 1, subject to
the reservations and understandings, declarations, and provisos contained in the
Senate’s resolution of ratification of the Convention.45 In accordance with this
definition, indefinite detention in substandard prison conditions has been recognized
as not constituting torture when there is no evidence that such conditions are46
intentional and deliberate. In at least certain circumstances, however, EOIR or
courts reviewing EOIR rulings have found that rape,47 domestic violence permitted48
by local law enforcement, and intentional and repeated cigarette burns coupled with
applications for CAT relief, of which roughly 2% were granted. U.S. Department of Justice,
Executive Office of Immigration Review, Statistical Yearbook 2005, at M1 (February 2006).
In 2004, immigration courts considered 33,938 applications for CAT relief, of which
roughly 3% were granted. U.S. Department of Justice, Executive Office of Immigration
Review, Statistical Yearbook 2004, at M1 (March 2005). In 2003, immigration courts
considered 32,929 applications for CAT relief, of which roughly 2% were granted. U.S.
Department of Justice, Executive Office of Immigration Review, Statistical Yearbook 2003,
at M1 (April 2004).
43 See Immigration Relief under the Convention Against Torture for Serious Criminals and
Human Rights Violators; Hearing Before the House Subcomm. on Immigration, Borderthst
Security, and Claims of the House Comm. on the Judiciary, 108 Cong., 1 sess. 45, Serial
No. 34, at 11 (2003) (prepared statement of C. Stewart Verdery, Asst. Secretary for Policy
and Planning, Border and Transportation Security Directorate, U.S. Dept. of Homeland
Security) [hereinafter “DHS Testimony”].
44 Compare U.S. Department of Justice, Executive Office of Immigration Review, Statistical
Yearbook 2006, at M1 (February 2007) with U.S. Department of Justice, Executive Office
of Immigration Review, Statistical Yearbook 2005, at M1 (February 2006).
45 8 C.F.R. § 208.18(a). For example, for purposes of U.S. rules and regulations concerning
the expulsion of aliens, torture is specified as being an “extreme” form of cruel and unusual
punishment that “does not include lesser forms of cruel, inhuman, or degrading treatment
or punishment that do not amount to torture.” 8 C.F.R. § 208.18(a)(2).
46 Matter of J-E-, 23 I&N Dec. 291 (BIA 2002).
47 See Zubeda v. Ashcroft, 333 F.3d 463 (3rd Cir. 2003).
48 See Ali v. Reno, 237 F.3d 591 (6th Cir. 2001) (rejecting applicant’s CAT claim on other
severe beatings,49 may constitute torture under the Convention and prevent an alien’s
removal to a particular country.
Generally, an applicant for non-removal under CAT Article 3 has the burden of
proving that it is more likely than not that he would be tortured if removed to the
proposed country.50 If credible, the applicant’s testimony may be sufficient to sustain
this burden without additional corroboration.51 In assessing whether it is “more likely
than not” that an applicant would be tortured if removed to the proposed country, all
evidence relevant to the possibility of future torture is required to be considered,
including, inter alia, (1) evidence of past torture inflicted upon the applicant; (2) a
pattern or practice of gross human rights violations within the proposed country of
removal; and (3) other relevant information regarding conditions in the country of
removal.52 The Board of Immigration Appeals (BIA), the appellate administrative
body within EOIR, has recognized that evidence concerning the likelihood of torture
must be particularized; evidence of the torture of similarly-situated individuals is
insufficient alone to demonstrate that it is more likely than not that an applicant
would be tortured if removed to a proposed country.53
If the immigration judge considering a CAT application determines that an alien
is more likely than not to be tortured in the country of removal, the alien is entitled
to protection under the Convention.54 Protection will either be granted through the
withholding of removal or deferral of removal. Unless the alien is of a class subject
to mandatory denial of withholding of removal on security, criminal, or related
grounds, as provided by INA § 241(b)(3)(B), CAT-based relief is granted in the form
of withholding of removal. However, aliens falling under a category listed under INA
§ 241(b)(3)(B) cannot have their removal withheld, but only deferred.55 A number
of courts has recognized that an alien’s inability to establish a more general claim for
asylum, which is based on a well-founded fear of persecution on account of
belonging to one of five designated types of groups, does not necessarily preclude a
separate claim of relief under CAT.56
49 See Al-Shaer v. INS, 268 F.3d 1143 (9th Cir. 2001).
50 8 C.F.R. § 208.16(c)(2).
51 Id. See also Sarsoza v. INS, 22 Fed. Appx. 719 (9th Cir. 2001) (recognizing that BIA has
discretion in determining whether or not applicant’s credible testimony satisfies burden for
non-removal under CAT).
52 8 C.F.R. § 1208.16(c)(3).
53 See Matter of M-B-A, 23 I&N Dec. 474 (BIA 2002).
54 8 C.F.R. § 1208.16(c)(4).
56 See, e.g., Li v. INS, 33 Fed. Appx 353 (9th Cir. 2002) (affirming immigration judge’s
decision denying relief under CAT, but noting that failure of petitioner to meet general
standard for asylum eligibility did not preclude, separate, distinct relief available under
Deferral of removal is a lesser protection than withholding of removal, and
arguably reflects Congress’s intent that aliens falling under a category established by
INA § 241(b)(3)(B), “to the maximum extent possible,” be excluded from protections
afforded to other classes of aliens under regulations implementing CAT
requirements.57 Aliens granted deferral of removal to a country where they would
likely face torture may instead be removed at any time to another country where they
would not likely face torture.58 Further, such aliens are subject to post-removal order
detention for such periods as prescribed by regulation.59 Deferral may be terminated
either (1) at the request of the alien; (2) following a determination by an immigration
judge that the alien would no longer likely be tortured in the country to which
removal had been deferred; or (3) following a determination by the Attorney General
that deferral should be terminated on the basis of diplomatic assurances forwarded
by the Secretary of State that indicate that the alien would not be tortured in the
receiving country. 60
Summary Exclusion of Arriving Aliens Inadmissible on Security and61
Related Grounds. U.S. law designates certain arriving aliens as inadmissible on
security-related grounds, including for having engaged in terrorist activities.62 The
regulatory framework for proceedings to remove such aliens, outlined in 8 C.F.R. §
providing more discretion to the Attorney General or DHS Secretary with respect to
the method in which CAT obligations are assessed.
When a DHS Bureau of Customs and Border Protection (CBP) officer suspects
that an arriving alien is inadmissible on security or related grounds, the officer is
required to temporarily order the alien removed and report such action promptly to
the CBP district director with administrative jurisdiction over the place where the
CAT); Xu v. INS, 18 Fed. Appx. 542 (9th Cir. 2001) (noting that the BIA erred in concluding
that because petitioner failed to establish asylum eligibility, he necessarily failed to establishth
a prima facie case for relief under CAT); Kamalthas v. INS, 251 F.3d 1279 (9 Cir. 2001)
(holding that inability to state cognizable asylum claim does not necessarily preclude relief
under CAT Article 3).
57 FARRA, supra note 33, at § 2242(d).
58 See 8 C.F.R. § 208.17(b)(2).
59 See 8 C.F.R. § 241.13-14.
60 See 8 C.F.R. §§ 208.17(d)-(f).
61 Arriving aliens who lack necessary documentation to enter the United States (or used
fraud or misrepresentation to obtain such documentation) are subject to removal under INA
§ 235(b). 8 U.S.C. § 1225(b). If an alien falling under this category indicates an intention
to apply for asylum, or expresses a fear of persecution or torture, or a fear of return to his
or her country, the inspecting officer will refer the alien to an asylum officer for an
interview. 8 C.F.R. § 235.3(b)(4). If the asylum officer determines that the alien’s fear is
credible, the alien’s removal will be conducted through normal removal proceedings and the
alien’s CAT-based claims will be considered under that system of review. 8 C.F.R. §
62 INA § 212(a)(3), 8 U.S.C. § 1182(a)(3).
alien has arrived or is being held.63 If possible, the relevant officer must take a brief
statement from the alien, and the alien must be notified of the actions being taken
against him and of his right to submit a written statement and additional information
for consideration by the Attorney General, who has authority to assess whether
grounds exist to remove the alien.64 The CBP district director’s report is forwarded
to the regional director for further action. Essentially, this process ensures that final
decisions to remove aliens on security or related grounds are made at the highest
If the alien’s designation as inadmissible is based on non-confidential
information, however, the regional director has discretion to either conduct a further
examination of the alien concerning his admissibility or refer the alien’s case to an
immigration judge for a hearing prior to ordering removal.65 The regional director’s
written, signed decision must be served to the alien unless it contains confidential
information prejudicial to U.S. security, in which case the alien shall be served a
separate written order indicating disposition of the case, but with confidential
The regional director has broad discretion in determining application of CAT
Article 3 to removal decisions made under 8 C.F.R. § 235.8. The regulatory
provisions concerning consideration or review of normal removal orders are
explicitly deemed inapplicable in the cases described above.67 Instead, the regional
director is generally required “not to execute a removal order under this section under
circumstances that violate ... Article 3 of the Convention Against Torture.”68 No
further guidance is provided with respect to determining whether or not an alien is
more likely than not to be tortured in the proposed country of removal. Unlike in
cases involving CAT applications of non-arriving aliens, the regional director’s
decision for arriving aliens deemed inadmissible on security or related grounds is
final when it is served upon the alien, with no further administrative right to appeal.69
Effect of Diplomatic Assurances on Removal Proceedings. U.S.
regulations implementing CAT include a provision concerning “diplomatic
assurances,” which may terminate deliberation of an alien’s claim for non-removal.
Pursuant to this provision, the Secretary of State is permitted to “forward ...
assurances that the Secretary has obtained from the government of a specific country
that an alien would not be tortured there if the alien were removed to that country.”70
If such assurances are forwarded for consideration to the Attorney General or DHS
63 8 C.F.R. § 235.8(a).
64 Id.; INA § 235(c)(2)(B), 8 U.S.C. § 1225(c)(2)(B).
65 8 C.F.R. § 235.8(b)(2).
66 8 C.F.R. § 235.8(b)(3).
67 8 C.F.R. § 235.8(b)(4).
68 Id. See also 8 C.F.R. § 208.18(d).
69 8 C.F.R. § 235.8(c).
70 8 C.F.R. § 208.18(c)(1).
Secretary, the official to whom this information is forwarded shall then determine,
in consultation with the Secretary of State, whether such assurances are “sufficiently
reliable” to permit the alien’s removal to that country without violating U.S.
obligations under CAT Article 3.71 If such assurances are provided, an alien’s claims
for protection under Article 3 “shall not be considered further by an immigration
judge, the Board of Immigration Appeals, or an asylum officer” and the alien may be
removed.72 In 2008, a federal district court held that immigration authorities’
reliance upon diplomatic assurances to effectuate the removal of an alien who has
shown a likelihood of facing torture is subject to judicial review pursuant to FARRA
and the Due Process Clause of the Fifth Amendment.73
It should be noted that CAT Article 3 provides little guidance as to the
application of diplomatic assurances to decisions as to whether to remove an alien
to a designated country. While Article 3 obligates signatory parties to take into
account the proposed receiving state’s human rights record, it requires the proposed
sending state take into account “all relevant considerations” when assessing whether
to remove an individual to the proposed receiving state.74 Further, Article 3 does not
provide guidelines for how these considerations should be weighed in determining
whether substantial grounds exist to believe an alien would be tortured in the
proposed receiving state. Accordingly, it does not necessarily appear that the use of
diplomatic assurances by the U.S. conflicts with its obligations under CAT.
However, the United States has an obligation under customary international law to
execute its Convention obligations in good faith,75 and is therefore required under
international law to exercise appropriate discretion in its use of diplomatic
assurances. It could be argued, for example, that if a country demonstrated a
consistent pattern of acting in a manner contrary to its diplomatic assurances to the
United States, the United States would need to look beyond the face of these
assurances before permitting transfer to that country. For its part, the CAT
Committee has opined that diplomatic assurances that provide no mechanism for
enforcement do not adequately protect against the risk of torture, and therefore do not
absolve the sending country of its responsibility under CAT Article 3.76 In 2006, the
Committee recommended that the United States “establish and implement clear
71 8 C.F.R. § 208.18(c)(2).
72 8 C.F.R. § 208.18(c)(3). In certain circumstances, an alien might be able to challenge the
adequacy of a diplomatic assurance relied upon by immigration authorities to permit his
removal to a particular state. See Khuzam v. Hogan, 497 F. Supp.2d 615 (M.D.Pa. 2007)
(staying alien’s removal pending resolution of habeas claim challenging whether the
government properly complied with regulations for crediting diplomatic assurances).
73 Khuzam v. Hogan, 2008 WL 98545 (M.D.Pa. January 10, 2008).
74 CAT at art. 3(2).
75 See RESTATEMENT (THIRD) OF FOREIGN RELATIONS § 321 (1987) (recognizing that “every
international agreement in force is binding upon the parties to it and must be performed by
them in good faith”).
76 See Committee against Torture, Communication No 233/2003: Sweden. 24/05/2005
(Agiza v. Sweden), CAT/C/34/D/233/2003 (2005) at para. 13.4., reprinted in 44 ILM 1103
procedures for obtaining such assurances, with adequate judicial mechanisms for
review, and effective post-return monitoring arrangements.”77
Application of the Convention Against Torture
in Extradition Cases
CAT Article 3 also has implications upon the extradition policy of the United
States. Pursuant to 18 U.S.C. §§ 3184-3186, the Secretary of State is responsible for
determining whether to surrender a fugitive to a foreign country by means of
extradition. Decisions on extradition are presented to the Secretary of State
following a fugitive being found extraditable by a United States judicial officer.78 In
cases where torture allegations are made or otherwise brought to the State
Department’s attention, appropriate Department officers are required to review
relevant information and prepare for the Secretary a recommendation as to whether
or not to extradite and whether to surrender the fugitive subject to certain79
As with U.S. regulations concerning the deportation of aliens, regulations
concerning the extradition of fugitives reflect CAT requirements. Before permitting
the extradition of a person to another country, the State Department must determine
whether the person facing extradition is more likely than not to be tortured in the80
requesting state if extradited. For the purpose of determining whether such grounds
exist, the State Department must 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.”81 One consideration
presumably taken into account are any diplomatic assurances obtained from the State
requesting extradition. Extraditions are prohibited in cases where the State
Department concludes that it is more likely than not that the person facing extradition
would be tortured.82 However, courts have split on the availability of judicial review
(including habeas review) of extradition decisions by the Secretary of State that
allegedly violate CAT-implementing legislation.83
77 Conclusions and Recommendations of the Committee against Torture regarding the
United States of America, July 25, 2006, available at [http://www.unhchr.ch/tbs/doc.nsf/
78 18 U.S.C. §§ 3184-3186.
79 22 C.F.R. § 95.3.
80 22 C.F.R. § 95.2(b).
81 22 C.F.R. § 95.2(a)(2).
82 22 C.F.R. § 95.2(a)(2).
83 See supra at 8; see also 22 C.F.R. § 95.4 (stating that CAT-related extradition decisions
by the Secretary of State “are matters of executive discretion not subject to judicial
Criminalization of Torture Occurring
Outside the United States
Articles 4 and 5 of CAT obligate each state party to criminalize torture and
establish jurisdiction over offenses when such offenses are (1) committed within their
territory or aboard a registered vessel or aircraft of the state; (2) committed by a
national of the state; or (3) committed by a person within its territory and the state84
chooses not to extradite him. Following ratification of the Convention, the United
States enacted §§ 2340-2340B of the United States Criminal Code to criminalize acts85
of torture occurring outside its territorial jurisdiction. Pursuant to § 2340A, any
person who commits or attempts to commit an act of torture outside the United States
is subject to a fine and/or imprisonment for up to 20 years, except in circumstances
where death results from the prohibited conduct, in which case the offender faces life86
imprisonment or the death penalty. Persons who conspire to commit an act of
torture outside the United States are generally subject to the same penalties faced by
those who commit or attempt to commit acts of torture, except that they cannot
receive the death penalty.87 The United States claims jurisdiction over these
prohibited actions when (1) the alleged offender is a national of the United States or
(2) the alleged offender is present in the United States, irrespective of the nationality88
of the victim or offender.
Potential Issues Arising Under Implementation of
the Convention Against Torture Concerning
Removal of Aliens
Implications of the Convention Against Torture
on U.S. Alien Detention Policy
The provisions of CAT Article 3 appear to protect all individuals from removal
to a state where they are likely to be tortured, regardless of whether these individuals89
engaged in criminal practices themselves. However, while CAT obligates the
United States not to remove aliens to countries where they are likely to be tortured,
the Convention does not require the United States to permit such aliens’ open
presence in its territory. The question thus occurs as to what happens in the case of
84 See CAT at art. 5.
85 Prior to ratifying CAT, acts of torture committed within the United States were already
subject to various state and federal criminal statutes. For additional background, see CRS
Report RL32438, U.N. Convention Against Torture (CAT): Overview and Application to
Interrogation Techniques, by Michael John Garcia.
86 18 U.S.C. § 2340A(a).
88 18 U.S.C. § 2340A(b).
89 See CAT at art. 3(1).
an otherwise inadmissible or deportable alien whose removal is effectively barred by
In Zadvydas v. Davis, the Supreme Court held that Due Process requirements
of the U.S. Constitution require that the detention period of deportable aliens (e.g.,
aliens who were admitted into the U.S., and thereafter committed an immigration
violation that caused them to become removable) following a final order of removal
is limited to such duration as is “reasonably necessary to bring about that alien’s
removal from the United States, and does not permit indefinite detention.”90 In 2005,
the Supreme Court held that inadmissible aliens (i.e., arriving aliens who have not
been granted legal entry) also could not be indefinitely detained, though the Court’s
holding in this case was based on statutory construction of the INA rather than a
belief that inadmissible aliens were accorded the same Due Process protections as
It is important to note, however, that despite generally rejecting the practice of
indefinite detention, the Zadvydas Court nevertheless suggested that indefinite
detention of particular aliens might be warranted in limited cases where the alien was
“specially dangerous.”92 Though the Court only specifically mentioned mental illness
as a special circumstance perhaps warranting indefinite detention,93 it appears that
aliens detained on security or related grounds, such as terrorists, might also be
considered “specially dangerous” and warrant indefinite detention as well.
Following the Court’s ruling in Zadvydas, new regulations were issued to
comply with the Court’s holding.94 After a six-month detention period, which the
Zadvydas Court found to be presumptively reasonable, an alien’s request for release
90 533 U.S. 678, 679 (2001). For additional background on U.S. detention policy of non-
citizens, see CRS Report RL32369, Immigration-Related Detention: Current Legislative
Issues, by Alison Siskin.
91 Clark v. Martinez, 543 U.S. 371 (2005). Aliens who have yet to enter the U.S. are thought
to generally lack most constitutional protections. See, e.g., Zadvydas, 533 U.S. at 693 (“It
is well established that certain constitutional protections available to persons inside the
United States are unavailable to aliens outside of our geographic borders.”); Verdugo-
Urquidez v. United States, 494 U.S. 259, 270-71 (1990) (“aliens receive constitutional
protections when they have come within the territory of the United States and developed
substantial connections with the country”); United States ex rel. Knauff v. Shaughnessy, 338
U.S. 537, 542, (1950) (“At the outset we wish to point out that an alien who seeks admission
to this country may not do so under any claim of right.”); Nishimura Ekiu v. United States,
142 U.S. 651, 659-660 (1892) (“It is an accepted maxim of international law that every
sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation,
to forbid the entrance of foreigners within its dominions, or to admit them only in such cases
and upon such conditions as it may see fit to prescribe.”).
92 Zadvydas, 533 U.S. at 690.
93 See id. at 296 (noting that the Court’s ruling does not “consider terrorism or other special
circumstances where special arguments might be made for forms of preventive detention and
for heightened deference to the judgments of the political branches with respect to matters
of national security”).
94 See 8 C.F.R. §§ 241.13-14.
from detention, accompanied by evidence that his removal would not otherwise be
effected in the reasonably foreseeable future, may be reviewed by the DHS’s Bureau
of Immigration and Customs Enforcement (ICE).95 Following consideration of this
evidence, the ICE is required to issue a written decision either ordering the alien
released or continuing his detention.96 DHS regulations permit the continued
detention of certain classes of aliens on account of special circumstances, including,
inter alia, (1) aliens detained on account of serious adverse foreign policy
consequences of release; (2) aliens who have committed certain violent crimes; and
(3) aliens with a mental condition that makes them prone to violence.97 Following
the Court’s holding in Martinez, these regulations now apply to both deportable and
As a result of the Zadvydas decision, certain criminal aliens afforded non-
refoulement protection under CAT may be required to be eventually released from
detention, even though such aliens would otherwise be deemed deportable.99
According to the DHS, “in all but the most serious cases, a criminal alien who cannot
be returned — regardless of the reason — may be subject to release after six
months.”100 In 2003 the DHS stated that in practice less than one percent of criminal
aliens who have received CAT protection have been released from custody following
a final order of removal.101 However, given the Court’s ruling in Zadvydas and
subsequent jurisprudence suggesting that the use of indefinite detention may be
severely limited, as well as the growing number of aliens who have been granted
deferral of removal under CAT,102 the magnitude of this potential obstacle to alien
removal may increase over time.
It is important to note that CAT only prohibits signatory parties from expelling
persons to states where they would likely to be tortured — it does not provide aliens
with protection from removal to states where they would not be tortured, even if such
aliens would face cruel, inhuman, or degrading treatment not rising to the level of
torture. Reaching agreements with countries to permit the removal of criminal aliens
to these countries (possibly for the purpose of prosecuting them), subject to the
condition that they will not be tortured or perhaps face other harsh forms of
treatment, could be one possible method for handling this potential problem,
although it is unclear whether other states would be receptive to such agreements.
95 8 C.F.R. §§ 241.13(b)-(e).
96 8 C.F.R. § 241.13(e).
97 See 8 C.F.R. § 241.14.
99 See Matter of Kebbem (BIA 2000) (upholding CAT relief for a Gambian national who had
fled to the United States after murdering another); Matter of Gazlev/Gazieva (BIA 2002)
(permitting CAT relief for man implicated in a shootout resulting in five dead in
100 DHS Testimony, supra note 43, at 13.
101 Id. at 11.
102 See supra at 8.
Implications of the Convention Against Torture on the
Practice of “Extraordinary Renditions” from the United States
When immigration officials identify a suspected foreign terrorist or similar
security threat at a port of entry, the government’s interest in the alien likely extends
beyond simply assuring that the suspect does not enter the United States. Security
and criminal law enforcement interests may also come into play. Controversy over
how CAT applies in reconciling these diverse interests is illustrated by the case of
In September 2002, U.S. authorities arrested Mr. Arar, a Canadian citizen born
in Syria, at John F. Kennedy Airport in New York while he was waiting for a
connecting flight to Canada. According to news reports, U.S. officials allege that Mr.
Arar was on a terrorist watch list after “multiple international intelligence agencies”
linked him to terrorist groups, though Mr. Arar has denied any knowing connection103
to terrorism. Though the particulars remain unclear, Mr. Arar alleges that he was
detained for several days of interrogation in the United States and asked to
voluntarily agree to be transferred to Syria. Mr. Arar claims he refused to approve
such transfer, but was nevertheless transferred to Jordan and then to Syria, where he104
was reportedly imprisoned for ten months. At the time of Mr. Arar’s transfer,
Syria was listed by the State Department as a regular practitioner of torture.105 Syria
is not a party to CAT. Upon release and his subsequent return to Canada, Mr. Arar
claims that he was tortured by Syrian officials in an effort to compel him to confess
to terrorist activities. Canada subsequently ordered a public inquiry as to what role,
if any, Canada played in Mr. Arar’s transfer to Syria,106 and Mr. Arar filed civil suit
in a U.S. federal court against various current and former U.S. officials for their role
in his transfer and alleged subsequent torture.107
In late 2003, then-Attorney General John Ashcroft was quoted as stating that
“In removing Mr. Arar from the U.S., we acted fully within the law and applicable
treaties and conventions.”108 The United States reportedly received assurances from
Syria that Mr. Arar would not be tortured prior to removing him there, and Syria has
103 DeNeen L. Brown & Dana Priest, Deported Terror Suspect Details Torture in Syria,
WASH. POST, November 5, 2003, at A1.
104 DeNeen L. Brown, Ex-Detainee Details Fearful Path to Syria, WASH. POST, November
105 U.S. Dept. of State, Bureau Of Democracy, Human Rights, and Labor, Country Reports
on Human Rights Practices — 2002 (March 31, 2003), available at [http://www.state.gov/g/
106 Arar Commission, Homepage, at [http://www.ararcommission.ca/eng/index.htm].
107 Arar’s complaint, filed with the U.S. District Court for the Eastern District of New York,
can be viewed at [http://www.ccr-ny.org/v2/legal/september_11th/docs/ArarComplaint.pdf]
[hereinafter “Arar Complaint”].
108 Canadian Sues U.S. Officials, WASH. POST, January 23, 2004, at A17.
reportedly stated that Mr. Arar was not tortured.109 It is unclear whether Mr. Arar’s
rendition complied with any legal procedures governing covert renditions that are not
handled through either extradition or the general process for alien removal. Further,
there appears to be no public information concerning what assurances, if any, were
given by Syria to the United States prior to Mr. Arar’s transfer.
Mr. Arar’s lawsuit claimed in part that his removal was in violation of
regulations concerning the removal of arriving aliens,110 and U.S. officials have
claimed that his removal was conducted pursuant to expedited removal procedures
outlined in INA § 235(c).111 On the other hand, it is possible that Mr. Arar’s rendition
was conducted at least in part pursuant to a law-enforcement action relating to the
war on terror rather than pursuant to U.S. immigration laws. Whether Mr. Arar’s
removal to Syria constituted a violation of U.S. obligations under CAT and CAT-
implementing laws and regulations may require a finding of fact as to the particular
nature of the assurances provided to the United States and the role they played in the
decision to remove Mr. Arar. Whether such a finding will be made in the foreseeable
future remains to be seen. On February 16, 2006, the U.S. District Court for the
Eastern District of New York dismissed Arar’s civil case on a number of grounds,
including that certain claims raised against U.S. officials implicated national security
and foreign policy considerations, and the propriety of those considerations was most
appropriately reserved to Congress and the executive branch.112 Mr. Arar
subsequently filed a notice of appeal in the Second Circuit.
The final report of the commission established by the Canadian government to
investigate Canada’s role in Arar’s transfer was released in September 2006. It
concluded that Arar had not been a security threat to Canada, but Canadian officials
provided U.S. authorities with inaccurate information regarding Arar that may have
led to his transfer.113
For a detailed discussion concerning the legality of renditions under the laws of
torture, including CAT, see CRS Report RL32890, Renditions: Constraints Imposed
by Laws on Torture, by Michael John Garcia.
109 DeNeen L. Brown, Canadian Sent to Middle East Files Suit, WASH. POST, November 25,
110 See Arar Complaint, supra note 108.
111 See U.S. Department of State, U.S. Views Concerning Syrian Release of Mr. Maher Arar,
October 6, 2003, available at [http://www.state.gov/r/pa/prs/ps/2003/24965.htm].
112 Arar v. Ashcroft, 414 F.Supp.2d 250 (E.D.N.Y. 2006).
113 Arar Commission, Factual Inquiry, at [http://www.ararcommission.ca/eng/26.htm].