Dedicated to Michael Brown and Others who have been killed unjustly.
Written by: Zulu Ali, Esq
Situated in Manhatten, New York, the United Nations (U.N.) was established on October 24, 1945. In essence, it was created to implement international unity. The primary objective of the UN is to promote international peace, security, and human rights. It is made-up of five basic units: the General Assembly, Security Council, Economic and Social Council, Secretariat, and the International Court of Justice.
Convention Against Torture
The Convention Against Torture (CAT) is an international human rights treaty adopted by the U.N. on December 10, 1984. The purpose of the treaty is to promote human rights by preventing cruel and inhumane treatment around the world. The treaty has 156 nations that have signed to abide by the treaty. The countries are referred to as states. The treaty requires states to prevent torture within their borders and forbid the transport of anyone to any country when there is reason to believe they will be tortured. The United States became a party to the treaty in November 1994.
The treaty defines torture under Article 1 as follows: “For the purposes of this Convention, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”
U.S. Immigration Policy & U.N. Convention Against Torture
While CAT protection is broad, its benefits in the United States are narrow. The former Immigration and Naturalization Service (now USCIS) activated rules to implement the CAT in March 1999, over four years after it became a party to the treaty. The rules created to implement CAT created two types of relief for those seeking CAT protection.
The first is withholding of removal and the second is deferral of removal. In order to be eligible under the U.S. rules, an applicant must show that he or she would be intentionally subjected to pain or suffering, mental or physical, with the consent, instigation, or acquiescence of a person acting in an official government capacity.
The broader definition for protection under CAT under Article 3 reads as follows: “No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.
For the purpose of determining whether there are such grounds, the competent authorities shall 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.”
In the U.S., there are basically four types of undocumented immigrants subject to removal: an arriving alien, an illegal alien with a removal order that has been executed and who has returned to the U.S. without inspection, an illegal alien with a removal order that has not been executed, and an illegal alien without a removal order.
In each case, under CAT, an immigrant should be entitled to assert a claim and subjected to a fair and equitable procedure under the international standard set by the treaty. However, the U.S. rule does not conform with the standard set forth in the international standard as to protection or process; in fact, the process does not conform with the standard set forth in the U.S. rules.
The agencies overlooking the U.S. rules implemented pursuant to CAT is the United States Citizenship and Immigration Services (USCIS) and Executive Office of Immigration Review (EOIR). In essence, these are administrative agencies tasked with overseeing U.S. immigration laws. They have also been given the task of administering U.S. rules under CAT. What is wrong with this picture? What is wrong is that administrative agencies tasked with administering immigration laws should not be interpreting international human rights laws. As tasked, compliance with CAT treaty in the U.S. is scarce.
Typically, an immigrant facing deportation is confronted by an immigration officer and asked about fear. If the inquiry, regardless of how informative, does not satisfy the officer that the immigrant is fearful of returning, in many cases, the immigrant is removed to their country of origin without any oversight as to the process or fairness of the inquiry. This is especially true for arriving immigrants, immigrants caught at a port of entry, immigrants who have prior orders of removal that were executed and who returned. Immigrants with orders of removal that have not been executed are not provided an opportunity to express fear of returning before the removal order is executed.
A motion to reopen with an administrative agency is an option, but oftentimes not viable. A motion to reopen based on new circumstances, including a fear of persecution can be filed but a stay of removal is not automatic and an immigrant can be removed before the motion is adjudicated; therefore, an immigrant with a legitimate claim under CAT can be deported before a decision can be made. Additionally, like the standards set forth in U.S. rules implemented pursuant to CAT, a motion to reopen is often fruitless and not adequate to provide relief under treaty standards.
This process conflicts with current rules. Specifically, 8 USC 1252 states in relevant part: “..a petition for review filed with an appropriate court of appeals in accordance with This section shall be the sole and exclusive means for judicial review of any cause Or claim under the United Nations Convention Against Torture…”
In practice, many immigrants facing imminent persecution do not have the opportunity to pursue claims at the administrative agency level and are denied judicial review because the agencies procedures are often expedited, lack full and fair notice of rights, and coercive. By the time an immigrant becomes aware of his rights, expedited removal has been executed and they are removed before they can seek judicial review. Another roadblock to judicial review, is the unfair process of requiring exhaustion of constitutional claims of any unfair acts that transpired before the agency before they are claimed at the judicial level. In other words, the agency gets to determine whether their own process is constitutional. The question is how can an agency be tasked with determining the fairness of its own processes?
In essence, the U.S. rules for CAT protection as applied to Immigrants does not comply with its obligation under the treaty. Specifically, the U.S. rules have not been adequate in consistently providing immigrants a full and fair opportunity to seek a claim under CAT to prevent return to a nation where they would be persecuted.
Police Brutality in the U.S. and U.N. Convention Against Torture
In addition to Article 3 of the treaty, Articles 2, 4, 5, 6, commit parties to take effective measures to prevent any act of torture in any territory under their jurisdiction. This ensures that torture is a criminal offense, establishing jurisdiction over acts of torture committed by or against a party’s citizens, and establishing universal jurisdiction to try cases of torture where an alleged torturer cannot be extradited.
The United States failure to effectively deal with police brutality against minority citizens and other subjects within its jurisdiction undermines its obligations as a party to the treaty. Since becoming a party to the treaty, the U.S. has consistently failed to meet its obligation under the treaty.
In countless cases like Michael Brown, who was fatally shot and killed by a Ferguson, Missouri police officer who was not held to answer by a grand jury, we have seen egregious persecution by government officials and the unwillingness or inability to deal with these injustices and protect others from falling victim to the same persecution has become epidemic and systematic and completely out of hand.
Across the country, the U.S. is confronted with acts of police brutality and has consistently failed to adequately investigate and protect its citizens and subjects against torture by persons acting in official capacity. Clearly violating its obligation under the treaty.
The only way to adequately protect immigrants and citizens in the U.S. against violations set forth under CAT is to take all of these matters before the United Nations to fairly and properly review and impose the appropriate sanctions. The U.S. has proven that it is incapable of complying with its obligations under the treaty and continue to violate the rights of primarily minority citizens and immigrants at the hands of government actors, police and immigration officials.
In no other place have immigrants and black and brown people been more persecuted by the government than the U.S. In light of more than three centuries of the most inhumane treatment of a people (chattel slavery and Jim Crow laws), you would think that the U.S. would try to make it right; it has proven that it can’t so it’s time for oversight.
Zulu Ali is an attorney, educator, and activist. A former police officer and U.S. marine, he earned a doctorate in law (J.D.) from Trinity Law School; a masters in business (M.B.A.) and administration of justice (M.S.) from University of Phoenix; a liberal arts degree with a concentration in African studies from Regents College through a consortium with Tennessee State University; and police officer certification (P.O.S.T.) from the Tennessee Law Enforcement Training Academy.