Why Is The Supreme Court Allowing Aliens To Be Removed To Third Countries Where They Might Be Tortured?

The Supreme Court hasn't explained -- it may be that prior SCOTUS decisions provide an answer.

There are a few simple principles that we can get out of the way quickly before undertaking an effort to “read the tea leaves” about why the Supreme Court has, without comment, allowed illegal aliens with a Final Order of Removal to be sent to third countries rather than remain in the United States when their home country or country of last residence will not accept them back.

Written into the United States' immigration laws that specify the process for removal at the conclusion of all immigration proceedings is the RIGHT — it is in the immigration laws and regulations — for all persons subject to removal to make a claim under the United Nations Convention Against Torture — “CAT.”

But, the CAT only applies to the risk of torture by governments — it does not apply to conditions of general lawlessness or danger in any particular country. It is not enough to simply allege that a country is unsafe or hostile to foreigners to support a valid claim under CAT.

Understanding the process for seeking CAT protection requires understanding the interplay between the statute governing “Withholding of Removal” — 8 U.S.C. Sec. 1231 — and a particular regulation created by DOJ to address CAT claims following the Final Order of Removal — 8 CFR Sec. 206.18(c).

Section 1231 provides, in pertinent part:

This subsection is generally described as “Withholding of Removal.”

CFR Section 206.18(c) specifically addresses CAT claims within the context of “withholding removal”:

There are a few key details to take note of under the CAT regulation:

• The issue is whether it is “more likely than not” that the applicant “would be tortured” if removed to a third country.

• “The burden of proof is on the applicant….”

• “Evidence of past torture inflicted upon the applicant.”

The history of the country’s government of engaging in “gross, flagrant, or mass violations of human rights” is a consideration, but under the CAT it is the only “generalized” consideration beyond the catch-all “other relevant information” category of (iv). But even with regard to that category, the burden is on the applicant to make the case that he is “more likely than not to be tortured” because of whatever he puts forward under that “catch-all” category.

If the alien being removed to a third country has never been to that country, the best evidence of “likelihood of torture” is null — i.e., evidence of past torture of the applicant by the government of that country.

Whether or not there is a generalized risk of torture that would be noted under the “human rights violations” in (iii) is undercut by the very agreement by which the detainees are being sent to third countries — El Salvador, South Sudan, etc. This is where past decisions by the Supreme Court come into play.

I want to give a “Hat Tip” to my friend Andy McCarthy who made reference to a particular Supreme Court case that I think is quite instructive. It provides a logical basis for why the Supreme Court has opted to not provide an explanation when it allowed the third country removals to move forward.

In his recent column at NRO, Andy cited a 2008 Supreme Court decision in Munaf v. Geren — a unanimous decision authored by Chief Justice Roberts — that provides a very interesting clue as to the reason for the Court’s silence.

Munaf involved a habeas petition by two journalists who had traveled into Iraq in 2002 during the US —Iraq war. One — Shawqi Omar — was an American-Jordanian. While in Iraq, Omar and Munaf were arrested by the Multinational Force—Iraq for violations of Iraqi law, and held in detention provided by U.S. members of the MF-I. To avoid being turned over to the new Iraqi government for prosecution, the families of Omar and Munaf filed a habeas petitions in U.S. federal court, which entered a Preliminary Injunction preventing them from being transferred out of U.S. custody.

Again — this is not a deportation case, it does not involve “Removal” or “Withholding of Removal” under CAT during deportation proceedings.

But among the justifications for habeas relief, and seeking a permanent injunction against being turned over to the new Iraqi government for prosecution, was the risk that they would be tortured. The Supreme Court turned away the claim for reasons that are quite pertinent here:

Petitioners contend that these general principles are trumped in their cases because their transfer to Iraqi custody is likely to result in torture…. Such allegations are of course a matter of serious concern, but in the present context that concern is to be addressed by the political branches, not the judiciary….

…. Even with respect to claims that detainees would be denied constitutional rights if transferred, we have recognized that it is for the political branches, not the judiciary, to assess practices in foreign countries and to determine national policy in light of those assessments….

The Executive Branch may, of course, decline to surrender a detainee for many reasons, including humanitarian ones. Petitioners here allege only the possibility of mistreatment in a prison facility; this is not a more extreme case in which the Executive has determined that a detainee is likely to be tortured but decides to transfer him anyway. Indeed, the Solicitor General states that it is the policy of the United States not to transfer an individual in circumstances where torture is likely to result…. [T]he United States explains that, although it remains concerned about torture among some sectors of the Iraqi Government, the State Department has determined that the Justice Ministry—the department that would have authority over Munaf and Omar—as well as its prison and detention facilities have“ ‘ generally met internationally accepted standards for basic prisoner needs.’ “ Ibid. The Solicitor General explains that such determinations are based on “the Executive’s assessment of the foreign country’s legal system and … the Executive[’s] … ability to obtain foreign assurances it considers reliable.”

The Judiciary is not suited to second-guess such determinations—determinations that would require federal courts to pass judgment on foreign justice systems and undermine the Government’s ability to speak with one voice in this area….. [T]he political branches are well situated to consider sensitive foreign policy issues, such as whether there is a serious prospect of torture at the hands of an ally, and what to do about it if there is. As Judge Brown noted, “we need not assume the political branches are oblivious to these concerns. Indeed, the other branches possess significant diplomatic tools and leverage the judiciary lacks.” 479 F. 3d, at 20, n. 6 (dissenting opinion).

The agreements with foreign governments — El Salvador, South Sudan, Libya (?) — to accept illegal aliens with criminal histories from the United States have been negotiated by the State Department. Compare this to the typical practice under the Immigration statutes where removal to any country is being executed:

Other than the designated country providing consent to the removal to the designated country, there is no bi-lateral agreement at work in removing aliens under the statute.

If the designated country refuses to accept the alien back, a series of provisions provide for determining an alternative country of removal, one of which is any country that will agree to accept the alien.

Through the agreements negotiated with the countries listed above, the State Department now has a small number of countries that have entered into bi-lateral agreements with the United States to accept illegal aliens being removed from the United States when no other country is willing to accept them.

This is precisely the kind of agreement contemplated by the Supreme Court’s reasoning in Musaf. It is not the role of the judiciary to second guess the judgment of the political branches that a foreign government does not represent a “serious prospect of torture” with regard to illegal aliens removed to that government’s country. The Court does not assume the political branches are “oblivious” to those concerns when it enters into such agreements.

The fact that the State Department has entered into the agreements comes with the presumption that any such concerns have been addressed to the foreign governments as part of the negotiations leading to the agreements. As represented by the Solicitor General in Munaf, and noted by CJ Roberts in his opinion, the Solicitor General stated that it is the policy of the United States to “not transfer an individual in circumstances where torture is likely to result.”

The Munaf decision was unanimous. The composition of the Court has changed since 2008, with only the Chief Justice along with Justices Thomas and Alito still remaining on the Court.

There was a concurrence written by Justice Souter, and joined by Justices Ginsberg and Breyer. But the concurrence only noted that if it was a case where torture was likely and the Executive simply turned a blind eye or otherwise refused to acknowledge the risk — in the context of a U.S. citizen being turned over to a third country — the Court’s decision would not foreclose habeas relief to avoid that.

It may be that the Court intends to address this subject in greater detail in the future under the context of the immigration statutes. As noted, that was not the context for the Munaf decision. But revisiting or expanding on Munaf, given the changed composition of the Court and the complexity of the issue, is a question the Court may want to come before it in the ordinary course, with full development and briefing in the lower courts, and not via the “Shadow Docket.”

But it has allowed the removals to third countries because, at bottom, the political branches are better positioned to apply the protections of CAT and to enter into agreements with the third countries that ameliorate such concerns.

Last point — each of the eight aliens removed from the U.S. to South Sudan had an opportunity during his immigration proceedings to make a CAT claim. The District Judge in Massachusetts held that when the country of removal changes after the conclusion of the immigration proceedings, the alien must be given another opportunity to make a new CAT claim with regard to the newly designated country. That is not reflected in the statute or regulation. The Judge determined that principles of “due process” require such an opportunity.

But nothing in the statute or regulation limits an alien being removed to listing only one country in a CAT claim following a Final Order of Removal. In my opinion, it is not an unreasonable reading of the provisions to say that the alien should list on his first CAT claim all countries for which he has a basis to assert fear of torture on a “more likely than not” standard.

There are only 195 countries in the world. The vast majority would not require even momentary consideration. An illegal alien being removed from the United States is going to have a very difficult time establishing a fear of a likelihood of torture in Canada, Switzerland, Luxembourg, or New Zealand if he was lucky enough to have one of those — or dozens and dozens of others — as his third country for removal.

There is certainly a list of potentially “dangerous” countries that could be developed, but that is only the first step. The alien must then present a claim on a “more likely than not” basis that he would face torture if sent one of the countries on any such list. At the end of the day, a list that would even plausibly meet both tests — much less be supported by evidence that would carry the day — is going to be very short. That is not too great a burden on due process that it should not be required from an alien in making the one CAT claim he is entitled to under the law.

At the end of the day, the Supreme Court’s reasons for letting the third country removals to proceed without further court interference may be simpler than most suspect.