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.”