1. society
2. crime
3. personal offense
4. torture

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Nos. 13-1676(L), 14-2212
IN THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
LEONIDAS BIMENYIMANA, A079-187-646,
FRANCOIS KARAKE, A079-187-167, AND
GREGOIRE NYAMINANI, A079-187-168,
Petitioners,
v.
ERIC H. HOLDER, JR., UNITED STATES ATTORNEY GENERAL, AND
DEPARTMENT OF HOMELAND SECURITY,
Respondents.
PETITIONERS’ OPENING BRIEF
Kate Desormeau
AMERICAN CIVIL LIBERTIES UNION
IMMIGRANTS’ RIGHTS PROJECT
39 Drumm Street
San Francisco, CA 94111
Phone: (415) 343-0778
Lee Gelernt
Judy Rabinovitz
AMERICAN CIVIL LIBERTIES UNION
IMMIGRANTS’ RIGHTS PROJECT
125 Broad Street, 18th Floor
New York, NY 10004
Phone: (212) 549-2600
Counsel for Petitioners
Ryan C. Tisch
David Y. Chung
CROWELL & MORING LLP
1001 Pennsylvania Avenue, NW
Washington, DC 20004
Phone: (202) 624-2500
Counsel for Francois Karake
Evelina Norwinski
M. Blake Huffman
ARNOLD & PORTER LLP
555 12th Street, NW
Washington, DC 20004
Phone: (202) 942-6474
Counsel for Gregoire Nyaminani
Jeffrey B. O’Toole
BONNER KIERNAN TREBACH &
CROCIATA LLP
1233 20th Street, NW, 8th Floor
Washington, DC 20036
Phone: (202) 712-7000
Counsel for Leonidas Bimenyimana
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TABLE OF CONTENTS
STATEMENT IN SUPPORT OF ORAL ARGUMENT ....................................... 1
PRELIMINARY STATEMENT ............................................................................ 1
JURISDICTIONAL STATEMENT ....................................................................... 3
STATEMENT OF THE ISSUES............................................................................ 4
STATEMENT OF THE CASE ............................................................................... 5
A.
Rwandan Officials Tortured Petitioners to Obtain False Confessions ......... 5
B.
The District Court Found that the Evidence Against Petitioners Had
Been Extracted Through Torture, Suppressed the Confessions and
Dismissed the Case ....................................................................................... 9
C.
The Immigration Court’s Ruling That Petitioners Would More Likely
Than Not Be Tortured Again if Returned to Rwanda ................................ 12
D.
DHS Efforts to Overturn the IJ’s Grant of CAT Protection ....................... 14
E.
DHS’s Final Orders of Removal ................................................................ 19
STANDARD OF REVIEW .................................................................................. 22
SUMMARY OF ARGUMENT ............................................................................ 22
ARGUMENT ........................................................................................................ 24
I.
PETITIONERS’ CLAIMS ARE JUSTICIABLE ...................................... 25
A.
The Rule of Non-Inquiry Does Not Bar Review ........................................ 25
B.
Political Question Doctrine Does Not Bar Review .................................... 28
II.
PETITIONERS’ REMOVAL TO RWANDA PURSUANT TO
DIPLOMATIC ASSURANCES VIOLATES CAT, FARRA, AND
THE FIFTH AMENDMENT ..................................................................... 31
A.
The Texts of CAT and FARRA Do Not Provide for Diplomatic
Assurances .................................................................................................. 31
B.
Use of Diplomatic Assurances Is Prohibited Under the Unique
Circumstances Here .................................................................................... 35
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III.
EVEN IF REMOVAL PURSUANT TO DIPLOMATIC
ASSURANCES IS PERMISSIBLE UNDER THESE
CIRCUMSTANCES, CAT, FARRA, AND THE DUE PROCESS
CLAUSE REQUIRE PROCEDURAL SAFEGUARDS NOT
SATISFIED HERE ..................................................................................... 45
A.
FARRA and CAT Prohibit Petitioners’ Removal Based on Assurances
Without Meaningful and Independent Review........................................... 45
B.
The Due Process Clause Likewise Bars Petitioners’ Removal to
Rwanda Absent a Meaningful Opportunity To Be Heard Before an
Impartial Adjudicator.................................................................................. 50
ii
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TABLE OF AUTHORITIES
Page(s)
Cases
Anim v. Mukasey,
535 F.3d 243 (4th Cir. 2008) .......................................................................passim
Atmaca v. Germany,
App. No. 45293/06, Eur. Ct. H.R. (European Ct. of Hum. Rts. Mar.
6, 2012) ............................................................................................................... 47
Beauchamp v. De Abadia,
779 F.2d 773 (1st Cir. 1985) ............................................................................... 51
Bimenyimana v. Higgs et al.,
No. 09-00721 (E.D. Va. June 30, 2009) .......................................................14, 15
Camara v. Ashcroft,
378 F.3d 361 (4th Cir. 2004) .............................................................................. 27
Chahal v. United Kingdom,
23 Eur. Ct. H.R. Rep. 413 (1996) .................................................................37, 38
Crespin-Valladares v. Holder,
632 F.3d 117 (4th Cir. 2011) ........................................................................21, 27
El Al Israel Airlines v. Tsui Yuan Tseng,
525 U.S. 155 (1999) ............................................................................................ 35
In re Extradition of Howard,
996 F.2d 1320 (1st Cir. 1993) ............................................................................. 26
Ezeagwuna v. Ashcroft,
325 F.3d 396 (3d Cir. 2003) ............................................................................... 57
Filartiga v. Pena-Irala,
630 F.2d 876 (2d Cir. 1980) .........................................................................45, 50
Goldberg v. Kelly,
397 U.S. 254 (1970) ............................................................................................ 55
iii
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Hamdi v. Rumsfeld,
542 U.S. 507 (2004) ......................................................................................29, 53
Japan Whaling Ass’n v. Am. Cetacean Soc’y,
478 U.S. 221 (1986) ............................................................................................ 28
Khouzam v. Attorney General,
549 F.3d 235 (3d Cir. 2008) ........................................................................passim
Landon v. Plasencia,
459 U.S. 21 (1982) .............................................................................................. 50
Mahjoub v. Minister of Citizenship and Immigration,
IMM-98-06, 2006 F.C. 1503 (Canada Fed. Ct. Dec. 14, 2006) ......................... 49
Marbury v. Madison,
5 U.S. 137 (1803) ................................................................................................ 30
Marincas v. Lewis,
92 F.3d 195 (3d Cir. 1996) ................................................................................. 55
Mathews v. Eldridge,
424 U.S. 319 (1976) ......................................................................................50, 51
Mironescu v. Costner,
480 F.3d 664 (4th Cir. 2007) .......................................................................passim
MT, RB, & U v. Sec’y of State for the Home Dep’t
[2007], EWCA Civ. 808 ..................................................................................... 48
Niyibizi v. Mukasey,
300 F. App’x 371 (6th Cir. 2008) ....................................................................... 10
Nyaminani v. Higgs et al.,
No. 09-00773 (E.D. Va. July 14, 2009) ........................................................14, 15
Orloff v. Cleland,
708 F.2d 372 (9th Cir. 1983) .............................................................................. 55
Sea Hunt, Inc. v. Unidentified Shipwrecked Vessel or Vessels,
221 F.3d 634 (4th Cir. 2000) .............................................................................. 36
iv
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Siderman de Blake v. Argentina,
959 F.2d 699 (9th Cir. 1992) ..................................................................39, 44, 51
United States v. Al-Hamdi,
356 F.3d 564 (4th Cir. 2004) .............................................................................. 44
United States v. Duarte-Acero,
208 F.3d 1282 (11th Cir. 2000) .......................................................................... 36
United States v. Karake,
443 F. Supp. 2d 8 (D.D.C. 2006) .................................................................passim
Withrow v. Larkin,
421 U.S. 35 (1975) .............................................................................................. 54
Y. v. Sec’y of State for the Home Dep’t
[2006] SC/36/2005 & SC/15/2005 ..................................................................... 48
Yousuf v. Samantar,
699 F.3d 763 (4th Cir. 2012) .............................................................................. 45
Zadvydas v. Davis,
533 U.S. 678 (2001) ............................................................................................ 31
Zivotofsky ex rel. Zivotofsky v. Clinton,
132 S. Ct. 1421 (2012) ..................................................................................28, 29
Statutes
8 U.S.C. § 1158(a) ................................................................................................... 12
8 U.S.C. § 1158(b)(2)(A) ......................................................................................... 13
8 U.S.C. § 1231(b)(3)............................................................................................... 12
8 U.S.C. §1231(b)(3)(B) .......................................................................................... 13
8 U.S.C. § 1252 .......................................................................................................... 4
8 U.S.C. § 1252(a)(1) ................................................................................................. 3
8 U.S.C. §1252(a)(4) .................................................................................................. 3
18 U.S.C. § 3181 ...................................................................................................... 26
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Foreign Affairs Reform and Restructuring Act (“FARRA”), Pub. L.
No. 105-227, § 2242, 112 Stat. 2681, 2681-822 (1998) (codified at
8 U.S.C. § 1231 note) ..................................................................................passim
Other Authorities
8 C.F.R. § 1208.16(c)(4) .......................................................................................... 29
8 C.F.R. § 1208.16(f) ............................................................................................... 14
8 C.F.R. §1208.17 .................................................................................................... 13
8 C.F.R. § 1208.17(d) .............................................................................................. 15
8 C.F.R. § 1208.17(d)(1) .......................................................................................... 34
8 C.F.R. § 1208.17(d)(2) .......................................................................................... 34
8 C.F.R. § 1208.17(d)(3) ....................................................................................34, 53
8 C.F.R. § 1208.17(d)(4) .......................................................................................... 34
8 C.F.R. § 1208.17(f) .............................................................................14, 15, 16, 34
8 C.F.R. § 1208.18(c)(2) .......................................................................................... 35
8 C.F.R. § 1208.18(c)(3) .......................................................................................... 35
Amnesty Int’l, Dangerous Deals: Europe’s Reliance on ‘Diplomatic
Assurances’ Against Torture (2010)................................................................... 39
Columbia Law Sch. Human Rights Inst., Promises to Keep:
Diplomatic Assurances Against Torture in U.S. Terrorism
Transfers (2010) ................................................................................................. 39
Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (“CAT”), opened for signature Dec. 10,
1984, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85 ......................passim
Human Rights Watch, “Diplomatic Assurances” Against Torture:
Questions and Answers (2006) ........................................................................... 40
Human Rights Watch, Not the Way Forward: The UK’s Dangerous
Reliance on Diplomatic Assurances (2008) ....................................................... 39
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Human Rights Watch, Still at Risk: Diplomatic Assurances No
Safeguard Against Torture (2005) ...................................................................... 40
Local Rule 25(a)(1)(C)(i) ........................................................................................... 3
Rep. of the Special Rapporteur on Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment, transmitted by Note of the
Secretary General, U.N. Doc. A/60/316 (Aug. 30, 2005)............................37, 38
S. Exec. Rep. No. 101-30 ......................................................................................... 32
U.N. Comm. Against Torture, Alzery v. Sweden, Communication No.
1416/2005, U.N. Doc. CCPR/C/88/D/1416/2005 (Nov. 10, 2006) .................... 47
U.N. Comm. Against Torture, Consideration of Reports Submitted by
States Parties Under Article 19 of the Convention: Rwanda, U.N.
Doc. CAT/C/RWA/CO/1 (June 26, 2012) ....................................................42, 43
U.N. Comm. Against Torture, Pelit v. Azerbaijan, Communication
No. 281/2005, U.N. Doc. CAT/C/38/D/281/2005 (May 29, 2007).................... 46
U.N. Comm. Against Torture, Tapia Paez v. Sweden, Communication
No. 39/1996, U.N. Doc. CAT/C/18/D/39/1996 (1997) ...................................... 32
U.N. Comm. Against Torture, U.N. Doc. CAT/C/USA/CO/2 (July 25,
2006) ................................................................................................................... 46
U.N. High Commissioner for Human Rights, U.N. Rights Experts on
Torture and Counter-Terrorism Concerned about the Fate of
Guantánamo Detainees (Dec. 10, 2013) ............................................................ 37
U.N. Human Rights Comm., Concluding Observations of the Human
Rights Committee to the U.S., U.N. Doc.
CCPR/C/USA/CO/3/Rev.1 (Dec. 18, 2006) .................................................46, 47
U.S. Dep’t of State, 2012 Human Rights Report: Rwanda (Apr. 19,
2013) ................................................................................................................... 42
U.S. Dep’t of State, Rwanda 2013 Human Rights Report Country
Report 1 (Feb. 27, 2014) ..................................................................................... 42
Universal Declaration of Human Rights, UN GAOR, Supp. No. 16,
U.N. Doc A/6316 (1948) .................................................................................... 38
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STATEMENT IN SUPPORT OF ORAL ARGUMENT
Petitioners respectfully request oral argument. Their petitions raise matters
of first impression for this Court and involve complex statutory and constitutional
issues. Oral argument will materially assist the Court.
PRELIMINARY STATEMENT
In 2001 and 2002, the Rwandan government brutally tortured Petitioners in
an effort to force them to confess to the murders of several individuals, including
two U.S. citizens. Eventually, Petitioners “confessed” and were sent to the United
States to stand trial in federal court for the murders. The U.S. District Court for the
District of Columbia, however, dismissed the case, finding that the only evidence
against Petitioners was their confessions, and that those confessions plainly had
been extracted through torture. Petitioners were subsequently placed into
immigration proceedings, where they were granted deferral of removal under the
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (“CAT”) because it was “more likely than not” that they would be
tortured again if returned to Rwanda.
Despite the findings of the district court and the grant of CAT relief by the
immigration court, the U.S. Government is now seeking to return Petitioners to
Rwanda. The Government is not doing so based on its view that conditions in
Rwanda have materially changed. Indeed, the very same government that tortured
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Petitioners remains in place in Rwanda, and the United States’ own State
Department reports show that Rwanda continues to engage in torture. Instead, the
U.S. Government is seeking to remove Petitioners based on “diplomatic
assurances” from the Rwandan government that it will not torture Petitioners again
if they are returned. The Government not only contends that it may rely on these
assurances to return Petitioners, but that it may do so without affording Petitioners
a hearing before a neutral decision-maker to test the reliability of these assurances.
The Government’s position, if accepted, would have far-reaching
implications for the protection of individuals facing torture in their home countries.
Not only does the Government’s position violate CAT, its implementing statute,
and the Fifth Amendment, but it also places the United States wholly out of step
with the international community.
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JURISDICTIONAL STATEMENT
In separate proceedings before an Immigration Judge (“IJ”) in 2007 and
2008 in Virginia, Petitioners were granted deferrals of removal to Rwanda under
CAT. On May 1, 2013, however, the Department of Homeland Security (“DHS”)
on its own determination issued final orders terminating Petitioners’ deferral of
removal based on diplomatic assurances from the Rwandan government and
instructed that Petitioners be removed to Rwanda. (A.R.88-146.)1 On October 20,
2014, DHS issued supplemental termination orders in Petitioners’ cases. (A.R.187.)
Petitioners filed timely petitions for review from both sets of DHS
termination orders, which were consolidated by this Court. See Petition for
Review, Dkt. 1, No. 13-1676 (filed May 23, 2013); Petition for Review, Dkt. 1,
No. 14-2212 (filed Nov. 6, 2014); Order, Dkt. 55, Case No. 13-1676 (issued Nov.
6, 2014) (consolidating No. 14-2212 with No. 13-1676). These petitions to review
are from final orders that dispose of all parties’ claims. This Court has jurisdiction
over the petitions under 8 U.S.C. § 1252(a)(1) (granting jurisdiction over petitions
for review from final orders of removal) and § 1252(a)(4) (granting jurisdiction
1
Petitioners adopt the Administrative Record under Local Rule 25(a)(1)(C)(i) for
citation purposes only. In the course of this case, DHS obtained and relied on
information from the State Department and possibly other information that it did
not disclose to Petitioners. Petitioners have no way of knowing the full scope of
the record DHS considered. Indeed, one of the central issues in this case is that
Petitioners did not have a meaningful process to develop an adequate record.
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over petitions for review raising “any cause or claim under the United Nations
Convention Against Torture”); see also Khouzam v. Attorney General, 549 F.3d
235, 246-49 (3d Cir. 2008) (finding jurisdiction over petition for review
challenging diplomatic assurances under 8 U.S.C. § 1252).
STATEMENT OF THE ISSUES
1.
Whether DHS can unilaterally overturn deferrals of removal based on
diplomatic assurances from the Rwandan government, and then shield its decision
from review based on an improper extension of the doctrines of non-inquiry or
political question.
2.
Whether DHS’s decision to terminate Petitioners’ CAT protection and
remove them to Rwanda, based on assurances from the very government that
tortured Petitioners previously and was found likely to do so again, violates CAT,
as implemented by the Foreign Affairs Reform and Restructuring Act (“FARRA”),
or the Fifth Amendment’s Due Process Clause.
3.
Whether DHS violated the Fifth Amendment’s Due Process Clause, CAT,
and FARRA when it terminated Petitioners’ deferral of removal without providing
Petitioners a meaningful opportunity to challenge the reliability of the diplomatic
assurances in a hearing before a neutral decision-maker.
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STATEMENT OF THE CASE
A.
Rwandan Officials Tortured Petitioners to Obtain False
Confessions
Petitioners, Rwandan citizens and ethnic Hutus, were among the hundreds of
thousands of people who fled Rwanda to the Democratic Republic of the Congo
(“DRC”) in the wake of the violent war and genocide in Rwanda in the early
1990s. Although Petitioners’ individual facts are marginally different, their stories
share the same general outline, and their petitions for review raise identical legal
issues. The details of their displacement, capture, and torture by Rwandan officials
are set forth in a decision of the U.S. District Court for the District of Columbia,
which presided over Petitioners’ criminal prosecution in the United States—and
which, after a five-week evidentiary hearing, suppressed all the evidence against
them as the product of torture. See United States v. Karake, 443 F. Supp. 2d 8
(D.D.C. 2006) (reproduced at A.R.1487-1558). This section relies on the facts
found by the district court.
As the district court found, all three Petitioners were victimized by the army
of the new (and current) Rwandan government, the Rwandan Patriotic Army
(“RPA”). Karake, 443 F. Supp. 2d at 15-19. During Petitioners Karake and
Nyaminani’s displacement in the DRC, the RPA repeatedly attacked the refugee
camps where they had sought protection. Id. at 16-17. Karake was shot in the leg
by an RPA soldier, and Nyaminani was twice captured by the RPA and detained in
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inhumane conditions. Id. Both men witnessed mass killings and atrocities
committed by RPA soldiers, and narrowly escaped with their own lives. Id.
Petitioner Bimenyimana, too, was harmed by the RPA: after several years of
displacement, Bimenyimana returned to Rwanda in 1997 in hopes of living
peacefully in his country. Id. at 18. RPA soldiers, however, targeted his family,
eventually killing eleven of his relatives, including his cousin, younger brother,
and grandfather. Id. at 18-19.
As a result of these horrors and the need for safety in numbers, Petitioners
joined the Army for the Liberation of Rwanda (“ALIR”), a group that opposed the
RPA. Id. at 16, 18-19. On March 1, 1999, Petitioners’ units participated in a
mission to the Bwindi Impenetrable Forest (“Bwindi”) in Uganda. During that
mission, some ALIR members murdered eight western tourists—including two
U.S. citizens—and one Ugandan park ranger. Id. at 19. Because U.S. citizens
were among those killed, the Federal Bureau of Investigation (“FBI”) commenced
an investigation and sought Rwanda’s assistance in determining which ALIR
members were involved. Id. at 20-22.
By 2001, all three Petitioners were captured by the RPA and imprisoned at
Kami Camp in Rwanda, a detention center run by the RPA. Id. at 71-72. As the
Karake court recounted in graphic detail, all three Petitioners suffered brutal
physical and psychological torture during their two-year imprisonment at the hands
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of RPA officials, including Captain Kibingo, the camp’s commander. Id. at 54-56.
Kami officials held Petitioners in horrific conditions2 and interrogated them about
the Bwindi murders over the course of many months, intent on extracting
confessions to turn over to the FBI. Id. On several occasions, Kami officials
brought Petitioners to the National Police Headquarters to be interrogated by the
FBI directly. Id. at 26. During these sessions, “Rwandan officials were a constant
presence in the interview room,” sometimes “serv[ing] as translators” and
“participa[ting] in questioning” the suspects. Id. Although the FBI agents were
aware that Petitioners were being interrogated at Kami Camp outside the FBI’s
presence, “[n]o U.S. official visited or attempted to visit Kami while [Petitioners]
were confined there.” Id. at 77.
Petitioners proclaimed their innocence, but over time, their interrogations by
the Rwandan officials became so violent that they broke under duress. Id. at 5456. For example, after Karake denied any involvement in the murders, Kami
2
For most of the time, Petitioners were housed in an area referred to as the
“Special.” Karake, 443 F. Supp. 2d at 54. Each Petitioner was housed alone in a
small room with a concrete floor and no mattress or bed to sleep on. Id. The
rooms were dirty, often wet, and infested with mosquitoes and lice. Id. Petitioners
sat in darkness because there was no electricity and the windows were kept
covered as punishment for their refusal to “confess.” Id. Their only toilets were
“jerry can[s]” which they were allowed to empty in the morning. Id. Food was
provided only once daily and consisted of a small cup of corn and beans
contaminated with sand and stones. Id. Petitioners lost significant weight and
suffered from hunger-related weakness, dizziness and headaches. Id.
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officials kicked and beat him with fists, a stick, and a brick. Id. at 56. For four
months, whenever Mr. Karake was in his cell, he was handcuffed from both wrists
to the opposite ankles. This “position was ‘how [he] lived.’” Id. at 56. Karake
was also subjected to a torture called “telefono,” consisting of being struck hard on
his ears until he experienced ringing. Id. at 64. As the torture became more brutal,
Karake told his torturers that he would say whatever they wanted. Karake
eventually gave several false confessions, which Captain Kibingo had forced
Karake to memorize, to the FBI. Id. at 55-56.
Nyaminani was similarly tortured during his detention at Kami. Id. at 56-57.
He was kept handcuffed in excruciating positions for long periods of time. Id. at
57. For two weeks, he was “subjected to the positional torture known as ‘kwasakwasa,’ where his wrists were bound together with nylon rope, one over his
shoulder and the other behind his back.” Id. at 56. He was often beaten while he
was handcuffed. Id. at 57. One day, after beating Nyaminani, Captain Kibingo
ordered him to provide a written statement. Id. When Nyaminani failed to confess
to the exact crimes Kibingo wanted, the torture resumed. Id. at 56-57. Nyaminani
confessed to the FBI the next day. Id. at 57.
Bimenyimana, too, was repeatedly beaten and bound in handcuffs from his
wrist to opposite ankle. Id. at 58. On at least one occasion, his arms were bound
so tightly with rope that his elbows actually met behind his back, resulting in
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permanent scars. Id. When Kibingo interrogated him, another soldier would hit
the bottoms of his feet until they swelled. Id. The day Bimenyimana first wrote a
“confession,” he was handcuffed and severely beaten with a brick that had been
put in a sock. Id. Only then did he agree to write a statement. Id. On another day,
Bimenyimana was so dizzy from hunger that when he was taken from his cell, he
fell down. Id. As he struggled to stand up, the soldiers kicked him. Id. He was
then taken to write another statement, which Rwandan officials gave to the FBI.
Id. at 59.
Based on these false confessions, Petitioners were brought to the United
States in early 2003 to stand trial in federal court for their alleged involvement in
the Bwindi killings.3
B.
The District Court Found that the Evidence Against Petitioners
Had Been Extracted Through Torture, Suppressed the
Confessions and Dismissed the Case
In federal court, Petitioners moved to suppress their “confessions” as
unconstitutionally coerced products of torture. Karake, 443 F. Supp. 2d at 48-49.
At the suppression hearing, Captain Kibingo testified in detail, and falsely,
about Petitioners’ captivity. The court ultimately found Kibingo not credible,
explaining that “his testimony was either impeached or simply not believable.” Id.
3
This was after a “lengthy delay” resulting from Rwanda’s desire to prosecute
Petitioners on Rwandan soil. Id. at 48.
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at 73. The court found that he exhibited an “intense hatred toward these
defendants and ALIR,” id. at 61, a “palpable desire for revenge” against
Petitioners, and a willingness to employ any method to obtain that revenge, as
embodied in his testimony that “‘[w]ars are fought in different ways,’” id. at 73.
Because of the case’s high profile in Rwanda and the danger of retribution,
the district court permitted “[t]wo Rwandan witnesses . . . to use a pseudonym and
to testify under seal regarding their treatment as detainees at Kami Camp.” Id. at
13. A third Rwandan national who served as a translator was later permitted to
reopen his asylum proceedings specifically because his “personal[] involve[ment]
in exposing the Rwandan government’s use of torture [in Petitioners’ case] has
likely earned him few friends in the Rwandan government.” Niyibizi v. Mukasey,
300 F. App’x 371, 375 (6th Cir. 2008) (unpublished).
At the end of a five-week evidentiary hearing, which included country
conditions evidence and medical experts’ testimony about Petitioners’ physical
scars, the district court ordered the suppression of Petitioners’ “confessions” as
products of torture. Karake, 443 F. Supp. 2d at 92-93. Based on the extensive
factual record, the court concluded that “the conditions under which defendants
were held at Kami and the abuse and mistreatment they endured while being
interrogated shock the conscience and therefore render the statements involuntary
and inadmissible.” Id. at 85-86.
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The court also criticized the U.S. Government’s complicity, observing that
the FBI apparently ignored or failed to notice physical signs that Petitioners were
being mistreated. See, e.g., id. at 77-78 (noting that “[w]hen Karake arrived [at the
National Police Headquarters] . . . with a bandaged wrist and swollen arm,” the
FBI agent “was told that he had a blister that had become infected, but she made no
inquiry into how the injury had occurred in the first place.”). The court found that
“[d]espite their knowledge (or assumption) that the Rwandan investigators were
interrogating the suspects outside their presence . . . , when the Americans did have
contact with the [Petitioners], they made only cursory inquiries into the conditions
of their confinement.” Id. at 77. One reason for this “reluctance to be more
probing,” the court found, “became crystal clear during the hearing”:
[T]he Americans did not want to tread on the Rwandans’
sovereignty. They considered the defendants to be in the
custody and care of the Rwandan government, which, in
their view, limited their authority to inquire into the
conditions of the suspects’ confinement. . . . No
American official attempted to visit Kami during the time
that defendants were incarcerated there. . . . [T]he
Americans were completely dependent on the continued
willingness of the Rwandans to locate potential suspects
and to grant U.S. investigators access to them.
Id. at 78-79.
Further, the court surveyed the evidence of torture and other human rights
abuses by the Rwandan government—including reports of torture to U.S. officials
by asylum seekers and evidence of torture provided by two former Rwandan
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ministers—all corroborating Petitioners’ testimony about their experiences. Id. at
70-71. The court highlighted that “State Department Country Reports on Human
Rights Practices from 2001 and 2003 document numerous serious human rights
abuses by the Rwandan government . . . including extrajudicial killings and other
serious abuses, reports of torture and beating by security forces, and several
credible reports of disappearances.” Id. at 71 (internal quotation marks and
citations omitted).
In 2007, lacking any other evidence that Petitioners were involved in the
Bwindi murders, the Government moved to dismiss the charges and the court
granted the motion. (A.R.3548.)
C.
The Immigration Court’s Ruling That Petitioners Would More
Likely Than Not Be Tortured Again if Returned to Rwanda
Once the charges were dropped, Petitioners remained detained in the United
States and subject to removal to Rwanda. Petitioners feared that, if returned home,
the Rwandan government would target them for torture and possibly death because
of their testimony about torture at Kami Camp, their status as former members of
ALIR, and their ethnicity. Therefore, Petitioners sought relief from deportation
under 8 U.S.C. § 1158(a) (asylum), 8 U.S.C. § 1231(b)(3) (withholding of
removal), and CAT. Despite the district court’s finding that Petitioners had been
tortured, DHS opposed Petitioners’ applications for CAT relief.
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The IJ denied Petitioners asylum and withholding of removal as a matter of
law pursuant to the mandatory bars at 8 U.S.C. § 1158(b)(2)(A) and
§1231(b)(3)(B) based on their former association with ALIR. However, the IJ
granted them deferral of removal under CAT, see 8 C.F.R. §1208.17, finding that
they had been tortured and, more likely than not, would be tortured again if
returned to Rwanda. (A.R.2588-2614; 2633-57; 2664-84.)
The IJ found that each “[Petitioner] has established a credible fear of torture
in Rwanda” and as “a prisoner considered an enemy of the current regime, faces a
significant threat of physical force, beatings, and other serious abuse if he returns
to Rwanda.” (A.R.2612; see also A.R.2682; 2655.) Further, the IJ held that each
Petitioner
has provided corroborating documentation establishing
that representatives of the current Rwandan government
have a history of using torture against former ALIR
members in prison, and that torture by the same
authorities upon his return to Rwanda is probable,
particularly since [Petitioner] exposed the use of torture
and other abuse by government officials at their military
camps.
(A.R.2613 (internal citation omitted); see also A.R.2683, 2655.) DHS did not
challenge Petitioners’ deferral of removal before the Board of Immigration
Appeals (“BIA”). (See A.R.3657 (Bimenyimana); 3691-98 (Karake); 3735
(Nyaminani).)
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DHS Efforts to Overturn the IJ’s Grant of CAT Protection
While Petitioners’ immigration proceedings were pending, DHS began
seeking the State Department’s assistance in removing Petitioners “via diplomatic
assurances or to a third country via bilateral negotiations.” (A.R.3627.)
Petitioners had been detained in immigration detention facilities ever since
they were brought to the United States.4 After they were granted deferral of
removal, they requested that they either be released or be removed to a third
country (a permissible option under CAT provided there is no likelihood of torture
in that third country, see 8 C.F.R. § 1208.16(f)). When months went by with no
response, Petitioners Bimenyimana and Nyaminani challenged their continued
detention by filing for habeas relief in the U.S. District Court for the Eastern
District of Virginia. Petition, Bimenyimana v. Higgs et al., No. 09-00721 (E.D.
Va. June 30, 2009); Petition, Nyaminani v. Higgs et al., No. 09-00773 (E.D. Va.
July 14, 2009).
The habeas petitions prompted a swift response. In August 2009, ICE sent
each Petitioner a letter notifying him that, pursuant to 8 C.F.R. § 1208.17(f), the
Government was considering terminating his CAT relief in light of diplomatic
assurances from Rwanda that Petitioners would “be accorded all legal and
4
Petitioners have not had any disciplinary actions while in ICE detention, which
has now lasted over a decade.
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procedural guarantees under the laws and Constitution of Rwanda, as well as under
Rwanda’s international legal obligations . . . .” (A.R.2732.) The assurances were
dated August 2008; their existence had been withheld from Petitioners for a year.
(A.R.510; 2732.) Petitioners subsequently dismissed their habeas petitions out of
fear that they would provoke further action from DHS to return them to Rwanda.
Notice, Bimenyimana v. Higgs et al, No. 09-00721 (E.D. Va. Nov. 17, 2009);
Notice, Nyaminani v. Higgs et al, No. 09-00773 (E.D. Va. Nov. 17, 2009).
Generally, if DHS wishes to terminate an alien’s deferral of removal under
CAT and return the person to the country found likely to torture, it must request a
hearing before an IJ and present new evidence showing that torture is no longer
likely. See 8 C.F.R. § 1208.17(d). The regulations guarantee the individual
advance notice of the hearing, an opportunity to submit evidence, a de novo
determination by the IJ, and the right to appeal to the BIA. 8 C.F.R. § 1208.17(d).
In Petitioners’ cases, however, the Government did not attempt to use this
procedure, presumably because it recognized Rwanda still engaged in torture, as
evidenced by the State Department’s own reports. Instead, it followed a separate
regulatory procedure providing that DHS may terminate deferral based on
diplomatic assurances. See 8 C.F.R. § 1208.17(f); see also infra Part II.A. DHS
thus claimed authority to unilaterally terminate deferral without a hearing, without
submitting any evidence of changed circumstances in Rwanda to an IJ, and without
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the involvement of any independent decision-maker. It merely relied on the word
of the Rwandan government that it would not torture Petitioners again.
And to be sure, there were no changed circumstances in Petitioners’ case
that could have supported a termination hearing, had DHS requested one. The
same government whose officials tortured Petitioners remains in power in Rwanda
today. In fact, a month before the U.S. Government received Rwanda’s
assurances, Human Rights Watch—an international, non-governmental human
rights organization—published a report detailing how “[d]etainees in the hands of
Rwandan police and security agents are not assured of humane treatment. Extrajudicial executions by police, miserable prison conditions, and the practice of
torture have threatened and continue to threaten the lives and well-being of persons
in custody.” (A.R.3344.) And the United States’ own State Department Reports
continued to warn that Rwanda engages in torture. (See, e.g., A.R.196.) Further,
one of the very Rwandan officials providing Petitioners’ assurances, Martin
Ngoga, reportedly failed to honor previous assurances given to the United States.5
5
Mr. Ngoga’s credibility was further questioned in several reports, (A.R.1018,
3373, 3376.), including one stating there are “serious question marks about his
integrity.” (A.R.3373.) In addition, Mr. Ngoga was made aware of the district
court’s opinion finding that Petitioners were tortured but took no action against the
torturers. (A.R.3347.) Instead, Rwandan authorities have “made light” of
Petitioners’ treatment. (Id.)
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(A.R.1017-18, 3313.) Nevertheless, the State Department deemed the assurances
credible. (A.R.3618.)
Petitioners wrote to DHS to oppose the termination of their CAT protection
“based on statements from the very government that previously tortured” them.
(A.R.3576.) In particular, Petitioners argued that DHS’s termination procedure did
not satisfy due process because, among other things, there was no indication that
“the decisionmaker will make findings based on a record that was disclosed to
[Petitioners],” Petitioners had no “opportunity to present evidence and arguments
challenging the reliability of diplomatic assurances” at a hearing, and there was no
“neutral and impartial decisionmaker.” (A.R.3577-78 (internal quotation
omitted).) DHS did not respond.
The following year, in March 2010, the State Department released its 2009
Human Rights Report on Rwanda, which detailed continuing violence against and
murder of those opposed to the current Rwandan government. (A.R.2304-06.)
The Report also detailed abuse of detainees and prisoners, lack of due process,
arbitrary arrests, and harsh prison conditions. (A.R.2303-04.)
Despite the State Department report, three months later on June 11, 2010,
DHS Assistant Secretary John Morton issued a determination crediting Rwanda’s
assurances and conveying his decision to DHS Deputy Secretary Jane Holl Lute
for a final decision on Petitioners’ removal. Mr. Morton’s determination lists
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documents allegedly considered, but provides no explanation for his finding.
(A.R.2369-74.)
Petitioners again urged DHS not to rely on assurances from Rwanda and
sought due process in any determination on their removal, reiterating that “[t]he
ability to provide a written submission alone is not enough” to satisfy due process.
(A.R.1034.) In particular, Petitioners argued that Assistant Secretary Morton’s
decisions “fail[ed] to provide any substantive explanation for” crediting the
assurances. (A.R.1035.) Once again, DHS did not respond, much less grant a
meeting or hearing. Petitioners accordingly requested assistance from the State
Department in finding a third country for Petitioners and asked for a meeting.
(S.A.R.5-9.)
More than a year later, DHS sent Petitioners a copy of supplemental
assurances from Rwanda agreeing to allow the U.S. Embassy access to Petitioners
should they be returned, as well as a letter from the State Department including a
vague and unenforceable monitoring plan—nothing more than an outline of the
intended frequency of monitoring. (A.R.2134-46.) Although the supplemental
assurances were presented as evidence of Rwanda’s credibility, they in fact
undermined it, as the assurances deny that Petitioners were ever tortured in the first
place. (A.R.192 (“The guarantees and assurances contained herein should not be
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viewed as acknowledgment by the Government of Rwanda that the treatmentrelated allegations put forward by [Petitioners] are credible.”).)
As with the prior assurances, DHS provided no information about what
prompted the supplemental assurances, information State Department personnel
considered in evaluating them, and whether anyone at the relevant regional bureau,
Rwandan country desk, or the U.S. Embassy in Kigali expressed concerns about
the assurances.6
Thus, Petitioners were left once more to (1) request assistance from the State
Department in finding a third country for Petitioners (no response) (S.A.R.1-4),
and (2) send a letter to DHS continuing to oppose their return to Rwanda because
they remain at serious risk of torture and had never been afforded a meaningful
opportunity to contest the assurances. (A.R.824-39.)
Again, Petitioners received no response from DHS for over a year, until they
unexpectedly received final orders of termination of their deferral.
E.
DHS’s Final Orders of Removal
On May 1, 2013, DHS issued a Termination Decision and Order, concluding
that termination of Petitioners’ deferral of removal under CAT was appropriate and
ordering their removal on or after thirty days. (A.R.128-29.) That decision was
6
Counsel for Petitioners have also sought meetings with the State Department and
with DHS on these issues without success.
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based on the prior assurances and a new letter dated February 21, 2013, from the
State Department (the “Carson letter”), stating that in the Government’s view,
nothing material had changed with regard to the Rwandan government’s
assurances, last provided in 2011. (A.R.513-14.) Petitioners had not previously
seen that letter and had no opportunity to respond. The Carson letter came even as
the State Department was finalizing its 2012 Country Report on Rwanda (released
April 19, 2013), which evidences that human rights abuses were and continue to be
pervasive in Rwanda, particularly those related to torture and abuse during
detention. (A.R.1294-1312.)
Petitioners filed a Petition for Review and Emergency Motion for a Stay on
May 24, 2013, in this Court. That same day, Petitioners requested that DHS
voluntarily stay their removal pending proceedings in this Court and allow them to
respond to the Carson letter. (A.R.178-81.) On July 1, 2013, DHS denied
Petitioners’ request for a stay pending judicial review of the proceedings, but
granted a limited stay to allow them to respond to the Carson letter within thirty
days. (A.R.182-83.) DHS summarily rejected Petitioners’ request for an
additional thirty days to respond, despite a lack of any exigent circumstances.
(A.R.147.)
While Petitioners were preparing their response, DHS agreed to stay
removal pending review by this Court. This Court then placed Petitioners’ cases in
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abeyance on July 30, 2013, until DHS had received and responded to Petitioners’
response.
Although Petitioners had no access to the underlying documents or decisionmakers, they submitted a written response to the Carson letter to the best of their
ability on July 31, 2013. (A.R.147-64.) Petitioners pointed out the inadequacy of
time (thirty days) to respond given that they had been imprisoned for a decade, and
the letter was not timely disclosed to them. (A.R.147.) Petitioners again raised the
absence of due process and their concerns about ongoing conditions in Rwanda,
including concerns about torture raised in a 2012 report by the U.N. Committee
Against Torture and the Rwandan government’s economic and military support for
the violent rebel group March Movement (“M23”), even in the face of economic
sanctions from the United States, United Kingdom, and other countries.
(A.R.162.)
Still in detention, Petitioners waited for nearly another year without a
response from DHS. On July 11, 2014, Petitioners requested a meeting with DHS
to find a way to resolve this matter, such as by sending Petitioners to a third
country where they would not be tortured. (A.R.173-77.) DHS declined. Instead,
DHS waited more than three months and issued a supplemental termination
decision and order. (A.R.59-70.)
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STANDARD OF REVIEW
Petitioners’ claims raise questions of law subject to de novo review.
Crespin-Valladares v. Holder, 632 F.3d 117, 124 (4th Cir. 2011).
SUMMARY OF ARGUMENT
The only independent decision-makers to have reviewed Petitioners’
experiences in Rwanda—the U.S. District Court and the immigration court (IJ)—
found that Rwandan officials tortured Petitioners. The IJ also found Petitioners
would more likely than not be tortured by Rwandan officials again if returned
there. The IJ, in order to protect Petitioners and to comply with CAT and
FARRA’s prohibitions against removal to a country in which torture is more likely
than not, deferred Petitioners’ removal.
Despite this, the U.S. Government—which turned a blind eye to Petitioners’
prior torture, brought Petitioners to the United States to stand trial based on
coerced confessions and then (through DHS) opposed Petitioners’ application for
CAT protections—now seeks to terminate that deferral and return Petitioners to
Rwanda.
DHS made this determination despite overwhelming and undeniable
evidence of torture by the Rwandan government, including evidence from the U.S.
Government itself. The current Rwandan government has routinely violated laws
prohibiting torture and other human rights abuses, has denied allegations of torture
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and human rights abuses in the face of clear evidence (including in this case), and
has even risked losing aid from the United States, the United Kingdom and others
for such abuses. Yet DHS determined that Rwanda could be trusted, based on its
word, not to torture Petitioners this time. In doing so, DHS violated CAT,
FARRA, and due process. Diplomatic assurances are prohibited under CAT,
FARRA and the Fifth Amendment where, as here, the United States is seeking to
return individuals to the same government that tortured them in the past. And,
contrary to the Government’s apparent view, this Court may review whether the
use of diplomatic assurances under these circumstances violates statutory or
constitutional law. See infra Sections I and II.
Moreover, even if the use of diplomatic assurances were not prohibited in
such circumstances, the procedure DHS used here violates CAT, FARRA, and
Petitioners’ due process rights. See Khouzam v. Attorney General, 549 F.3d 235
(3d Cir. 2008). Petitioners have received only partial, conclusory information
about Rwanda’s assurances. In addition, DHS failed to explain adequately why
Petitioners’ evidence of ongoing and likely future torture was unpersuasive and, in
contrast, why the assurances provided by Rwandan officials are credible. This is
not surprising given that DHS has a clear interest in removing Petitioners from the
United States and returning them to Rwanda, where the Rwandan government has
said it will prosecute them for the Bwindi killings. Where, as here, the U.S.
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Government seeks to introduce diplomatic assurances to overturn a prior finding
that Petitioners are more likely than not to be tortured, Petitioners must be afforded
an opportunity to meaningfully respond to the assurances and must have a final
determination made by a neutral and impartial decision-maker. See infra Section
III.
In sum, this Court should prohibit Petitioners’ return to Rwanda based on
diplomatic assurances. If Petitioners are to be removed from the United States, it
may only be to a third country, or to Rwanda if an immigration judge determines
that conditions have changed in Rwanda. Alternatively, if the Court does not
prohibit the use of diplomatic assurances in Petitioners’ cases, it should remand to
DHS for the agency to develop in the first instance a meaningful process through
which Petitioners may challenge the assurances.
ARGUMENT
The Government has interpreted CAT to permit DHS to terminate deferral
unilaterally, without a hearing or the involvement of any independent decisionmaker, without any evidence of changed circumstances, and without judicial
review. However, the only other U.S. court to have addressed the legality of
terminating a CAT grant based on diplomatic assurances—the Third Circuit in
Khouzam—found that petitioner was entitled to more process than provided in the
FARRA regulations before he could be removed based on diplomatic assurances.
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549 F.3d at 259-60. Here, under the unique circumstances of this case, diplomatic
assurances may not be used, even with additional process. But even if diplomatic
assurances may be used under the circumstances here, Petitioners must be afforded
meaningful process before an independent decision-maker to challenge the
assurances, as the Third Circuit held in Khouzam.
I.
PETITIONERS’ CLAIMS ARE JUSTICIABLE
In Khouzam, the Government argued unsuccessfully that challenges to its
diplomatic assurances practices are non-justiciable. Khouzam, 549 F.3d at 249-54.
Here, too, the Government suggested that it may contest the justiciability of
Petitioners’ claims. See Parties’ Stipulated Settlement Agreement for
Respondents’ Non-Opposition to Petitioners’ Motion for Stay of Removal, Dkt. 30,
at 6 (filed July 3, 2013). Accordingly, Petitioners address the Government’s
anticipated justiciability argument.
In Khouzam, the Government relied on two doctrines to argue that
challenges to diplomatic assurances are not justiciable: the “rule of non-inquiry”
and the political question doctrine. 549 F.3d at 249-54. For the reasons set forth
below, and those provided by the Third Circuit in Khouzam, neither doctrine
precludes judicial inquiry into Petitioners’ claims.
A.
The Rule of Non-Inquiry Does Not Bar Review
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The rule of non-inquiry has no application here because: (1) it does not
apply to immigration cases, Khouzam, 549 F.3d at 253-54; and (2) even where it
applies, which is in extradition cases, it does not bar review of statutorily-based
CAT claims, as this Court held in Mironescu v. Costner, 480 F.3d 664, 670-73 (4th
Cir. 2007).
First, the rule of non-inquiry is a narrow doctrine that has no application to
immigration cases and, to Petitioners’ knowledge, has never been applied in such
cases. Rather, the doctrine was developed in the extradition context, and counsels
that courts may not re-evaluate the fairness of a requesting country’s criminal
justice system when determining whether an individual is extraditable. See
Mironescu, 480 F.3d at 669. The historical rationale is straightforward: courts
generally should not inquire into the fairness of the receiving nation’s judicial
system where both the U.S. Senate and the Executive Branch have already
determined that the system is sufficiently fair to justify an extradition treaty. See
In re Extradition of Howard, 996 F.2d 1320, 1329 (1st Cir. 1993) (explaining that
the “rationale” behind the rule of non-inquiry is that “[t]he existence of . . . a[n
extradition] treaty . . . indicates that . . . the executive and legislative branches
consider the treaty partner’s justice system sufficiently fair to justify sending
accused persons there for trial”). In contrast, in immigration cases, the Legislative
Branch had no role in signing off on the receiving country’s judicial system. (And
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as relevant here, the U.S. has no extradition treaty with Rwanda. See 18 U.S.C. §
3181 note.) In short, as the Third Circuit stated, the rule of non-inquiry has
“traditionally been applied only in the extradition context,” and there is no
justification or authority for expanding it into immigration cases. Khouzam, 549
F.3d at 253.7
Second, even in the extradition context, where the rule of non-inquiry
applies, the rule does not preclude courts from examining whether extradition to a
particular country would violate the individual’s constitutional or statutory rights.
Thus, as this Court held in Mironescu, the rule does not bar review where a
petitioner claims that his extradition “would violate a federal statute,” like
FARRA. Mironescu, 480 F.3d at 671-73 (rejecting government’s argument that
the court could not review petitioner’s claim that he would be tortured if
extradited). As a common-law doctrine “born by implication” from nineteenthcentury extradition cases, id. at 669 (internal quotation marks omitted), the rule of
non-inquiry is displaced where Congress acts to impose mandatory obligations on
the government:
[P]rior to the CAT and the FARR Act, the conclusion . . .
that individuals being extradited are not constitutionally
entitled to any particular treatment abroad rendered
7
Indeed, in CAT and asylum cases, it is perfectly commonplace for courts to
engage in detailed fact-finding to evaluate the fairness of foreign justice systems.
See, e.g., Crespin-Valladares, 632 F.3d at 120-21, 128-29; Camara v. Ashcroft,
378 F.3d 361, 365, 369-72 (4th Cir. 2004).
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evidence of the treatment they were likely to receive
irrelevant in the context of a claim on habeas that their
detention contravened federal law. . . . However, the
FARR Act now has given petitioners the foothold that
was lacking . . . . [I]n light of the Secretary’s conceded
obligation under the FARR Act not to extradite
Mironescu if he is likely to face torture, the rule of noninquiry does not bar habeas review of the Secretary’s
extradition decision.
Id. at 671, 673. Mironescu thus squarely forecloses application of the rule of noninquiry here, even assuming the rule applied in the immigration context (which it
does not).
B.
Political Question Doctrine Does Not Bar Review
The political question doctrine also does not preclude review of Petitioners’
claims. The Government argued in Khouzam that its reliance on diplomatic
assurances implicates foreign relations and thus rendered the petitioner’s claims
non-justiciable. 549 F.3d at 249. But, as the Supreme Court has made clear, “it is
‘error to suppose that every case or controversy which touches foreign relations
lies beyond judicial cognizance.’” Japan Whaling Ass’n v. Am. Cetacean Soc’y,
478 U.S. 221, 229-30 (1986) (quoting Baker v. Carr, 369 U.S. 186, 211 (1969));
see also Zivotofsky ex rel. Zivotofsky v. Clinton, 132 S. Ct. 1421, 1428 (2012) (the
political question doctrine does not apply “merely because the issues have political
implications”) (internal quotation marks omitted). Rather, the doctrine applies
only in “narrow” circumstances “where there is a textually demonstrable
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constitutional commitment of the issue to a coordinate political department[] or a
lack of judicially discoverable and manageable standards for resolving it.”
Zivotofsky, 132 S. Ct. at 1427 (internal quotation marks omitted).
Those narrow circumstances are not present here. Petitioners have an
absolute, mandatory right under CAT and FARRA not to be returned to a country
where they are more likely than not to be tortured. See infra Section II; see also,
e.g., 8 C.F.R. § 1208.16(c)(4) (“If the immigration judge determines that the alien
is more likely than not to be tortured in the country of removal, the alien is entitled
to protection under the Convention Against Torture.”) (emphasis added). The
Executive Branch has no discretion to remove an individual to a country where he
is more likely than not to be tortured. And nothing in the Constitution suggests
that only the Executive Branch may decide whether its removal of an individual
comports with due process or FARRA. See Zivotofsky, 132 S. Ct. at 1427-28.
Indeed, the Judiciary has a particularly important constitutional role to play
in protecting individual rights, such as Petitioners’ constitutional right to due
process and their statutory right not to be sent to a country where they will likely
be tortured. As the Supreme Court has held, “[w]hatever power the United States
Constitution envisions for the Executive in its exchanges with other nations . . . it
most assuredly envisions a role for all three branches when individual liberties are
at stake.” Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2004); see also Zivotofsky, 132
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S. Ct. at 1427 (“The existence of a statutory right . . . is certainly relevant to the
Judiciary’s power to decide Zivotofsky’s claim.”); Marbury v. Madison, 5 U.S.
137, 166 (1803) (recognizing as non-justiciable those political issues that “respect
the nation, not individual rights”) (emphasis added).
The Government argued in Khouzam that there are no judicially manageable
standards to apply once diplomatic assurances are involved. But, as the Third
Circuit correctly held, there are objective, manageable considerations that courts
can use to resolve the claims Petitioners raise here, including:
whether the terms of the assurances would satisfy
FARRA; . . . the country’s record of torture; the
country’s record of complying with previous assurances;
whether there will be a mechanism to verify compliance
with the assurances; the identity and position of the
official relaying the assurances; and the . . . capacity of
the country to comply with the assurances.
Khouzam, 549 F.3d at 251-52. Immigration judges and federal courts routinely
weigh such factors when deciding asylum and CAT claims, as Mironescu
recognized. See Mironescu, 480 F.3d at 672 (rejecting Government’s argument
that “courts are ill-equipped to second-guess the expert opinion of the State
Department regarding whether torture is likely to occur in Romania” because
“American courts routinely answer similar questions”) (internal quotation marks
and brackets omitted). Likewise, courts are well equipped to assess whether
removal would violate a person’s due process rights. See, e.g., Anim v. Mukasey,
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535 F.3d 243, 256-58 (4th Cir. 2008) (holding that reliance on conclusory State
Department letter regarding petitioner’s alleged document fraud violated her due
process rights).8
Thus, as the Third Circuit properly held in Khouzam, challenges to
diplomatic assurances do not present political questions or implicate the rule of
non-inquiry. Petitioners’ claims are justiciable.
II.
PETITIONERS’ REMOVAL TO RWANDA PURSUANT TO
DIPLOMATIC ASSURANCES VIOLATES CAT, FARRA, AND THE
FIFTH AMENDMENT
A.
The Texts of CAT and FARRA Do Not Provide for Diplomatic
Assurances
The U.S. signed CAT in 1988 and ratified it in 1994. See CAT, opened for
signature Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85
(entered into force for the United States Nov. 20, 1994). Article 3 of the
Convention provides:
1. 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 subject to torture.
2. For the purpose of determining whether there
are such grounds, the competent authorities shall take
8
To the extent that any of these considerations touch on foreign relations issues,
courts are well equipped to handle such issues with “appropriate sensitivity.”
Zadvydas v. Davis, 533 U.S. 678, 696 (2001); see also Mironescu, 480 F.3d at 673
(“[W]e have no reason to doubt that district courts can adequately protect the
confidentiality of such communications by considering them in camera . . . .”).
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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.
The U.S. Senate ratified CAT with certain reservations. Relevant here, the United
States “understands the phrase, ‘where there are substantial grounds for believing
that he would be in danger of being subjected to torture’ as used in Article 3 of the
Convention, to mean ‘if it is more likely than not that he would be tortured.’”
S. Exec. Rep. No. 101-30, at 30 (1990).
It is well-established that CAT’s prohibition against refoulement is absolute
and without exception. The United Nations Committee Against Torture, the body
charged with monitoring CAT’s implementation, has confirmed that “[t]he test of
article 3 of the Convention is absolute . . . . The nature of the activities in which
the person concerned engaged cannot be a material consideration when making a
determination under Article 3 of the Convention.” U.N. Comm. Against Torture,
Tapia Paez v. Sweden, Communication No. 39/1996, ¶ 14.5, U.N. Doc.
CAT/C/18/D/39/1996 (1997); see also CAT art. 2(2) (“No exceptional
circumstances whatsoever, whether a state of war or a threat of war, internal
political instability or any other public emergency, may be invoked as a
justification of torture.”).
Congress implemented CAT into U.S. statutory law through FARRA. Pub.
L. No. 105-227, § 2242, 112 Stat. 2681, 2681-822 (1998) (codified at 8 U.S.C.
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§ 1231 note). FARRA adopts verbatim the operative language of Article 3(1) of
CAT, providing that “[i]t shall be the policy of the United States not to expel,
extradite, or otherwise effect the involuntary return of any person to a country in
which there are substantial grounds for believing the person would be in danger of
being subjected to torture . . . .” Id. (emphasis added). Moreover, Congress
demonstrated its intent that FARRA implement the full protections of CAT.
FARRA § 2242(f)(2) provides that “[e]xcept as otherwise provided, the terms used
in this section have the meanings given those terms in the Convention, subject to
any reservations, understandings, declarations, and provisos contained in the
United States Senate resolution of ratification of the Convention.” Thus, the
prohibition against refoulement under FARRA, like that in CAT, is without
exception.
Neither CAT nor FARRA, nor the U.S. reservations to CAT, provide for the
use of diplomatic assurances to terminate a grant of deferral of removal. Indeed,
they do not reference diplomatic assurances at all. Only the implementing
regulations promulgated under FARRA address diplomatic assurances, and then
only minimally.
Generally, the regulations provide that if DHS wishes to terminate an
individual’s deferral of removal under CAT, it must go back to the immigration
court and present new evidence that torture is no longer likely. Specifically, it
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must “file a motion with the Immigration Court . . . to schedule a hearing,”
supported by “evidence” that torture is no longer likely. 8 C.F.R. § 1208.17(d)(1).
If DHS presents such evidence, the IJ will schedule a hearing, giving the individual
advance notice and an opportunity to submit his own supplemental evidence. Id.
§ 1208.17(d)(2). At the hearing, “[t]he immigration judge shall . . . make a de
novo determination, based on the record of proceeding and initial application in
addition to any new evidence submitted by [DHS] or the alien, as to whether the
alien is more likely than not to be tortured in the country to which removal has
been deferred.” Id. § 1208.17(d)(3). If the IJ finds that there is no longer a
likelihood of torture, “the deferral of removal shall be terminated”; otherwise, “the
order of deferral shall remain in place.” Id. § 1208.17(d)(4). The IJ’s decision
may be appealed to the BIA. Id.
The regulations also set forth a different procedure—the one DHS used in
Petitioners’ case—by which DHS may terminate deferral based on diplomatic
assurances. See 8 C.F.R. § 1208.17(f) (“At any time while deferral of removal is
in effect, the Attorney General [or his delegate in DHS] may determine whether
deferral should be terminated based on diplomatic assurances forwarded by the
Secretary of State pursuant to the procedures in § 1208.18(c).”). The regulations
state that DHS, in consultation with the Secretary of State, shall determine whether
the assurances “are sufficiently reliable to allow the alien’s removal to that country
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consistent with Article 3 of the Convention Against Torture.” Id. § 1208.18(c)(2).
If DHS so determines, the regulations provide that “the alien’s claim for protection
under the Convention Against Torture shall not be considered further by an
immigration judge, the Board of Immigration Appeals, or an asylum officer.” Id.
§ 1208.18(c)(3). The regulations provide no further direction as to the procedures
that are afforded an alien before or after DHS makes a determination on the
assurances. See Khouzam, 549 F.3d at 243-44.
B.
Use of Diplomatic Assurances Is Prohibited Under the Unique
Circumstances Here
The use of diplomatic assurances to remove Petitioners to Rwanda violates
the absolute prohibition in CAT and FARRA against removing a person to a
country where he is more likely than not to be tortured. Diplomatic assurances
provided by a country that generally engages in torture, and that previously
tortured the very individuals it now claims it will protect, are inherently unreliable.
Here, where an IJ has already found that Petitioners were tortured by Rwandan
officials and are likely to be tortured again if returned, DHS cannot, consistent with
CAT and FARRA, rely on assurances from officials in the same Rwandan
government to terminate Petitioners’ CAT protection.
The jurisprudence of foreign courts and relevant United Nations treaty
bodies informs this Court’s interpretation of the scope of CAT Article 3
protections as implemented by FARRA. See El Al Israel Airlines v. Tsui Yuan
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Tseng, 525 U.S. 155, 167 (1999) (“‘Because a treaty ratified by the United States is
not only the law of this land . . . but also an agreement among sovereign powers,
we have traditionally considered as aids to its interpretation the negotiating and
drafting history (travaux préparatoires) and the postratification understanding of
the contracting parties.’” (quoting Zicherman v. Korean Air Lines Co., 516 U.S.
217, 226 (1996)); Sea Hunt, Inc. v. Unidentified Shipwrecked Vessel or Vessels,
221 F.3d 634, 646 (4th Cir. 2000) (“Postratification understandings of the
contracting parties are traditionally considered as aids to treaty interpretation.”);
United States v. Duarte-Acero, 208 F.3d 1282, 1287 (11th Cir. 2000) (looking to
the U.N. Human Rights Committee, the body charged under the International
Covenant on Civil and Political Rights (“ICCPR”) for monitoring that treaty’s
implementation).
The U.N. Committee Against Torture has specifically instructed the United
States that it should “only rely on ‘diplomatic assurances’ in regard to States which
do not systematically violate the Convention’s provisions.” U.N. Comm. Against
Torture, Conclusions and Recommendations to United States, ¶ 21, U.N. Doc.
CAT/C/USA/CO/2 (July 25, 2006). And the U.N. Special Rapporteur on Torture,
an expert appointed by the United Nations Commission on Human Rights to
examine torture-related questions, has taken the position that assurances are
inherently unreliable. In 2013, the Special Rapporteur on Torture and the Special
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Rapporteur on Human Rights and Counter-Terrorism stated that “‘diplomatic
assurances are unreliable and ineffective in protecting against torture and illtreatment, and States should not resort to them . . . . We have often seen
diplomatic assurances used by Governments to circumvent the absolute prohibition
of torture as established in the U.N. Convention against Torture.’” U.N. High
Commissioner for Human Rights, U.N. Rights Experts on Torture and CounterTerrorism Concerned about the Fate of Guantánamo Detainees (Dec. 10, 2013),
available at
http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=14084
&LangID=E#sthash.iynw6c7s.dpuf; see also Special Rapporteur on Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment, Rep. of the Special
Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, ¶ 51, transmitted by Note of the Secretary General, U.N. Doc.
A/60/316 (Aug. 30, 2005) (“It is the view of the Special Rapporteur that diplomatic
assurances are unreliable and ineffective in the protection against torture and illtreatment: such assurances are sought usually from States where the practice of
torture is systematic . . . .”).
The courts of foreign countries and international bodies have similarly
cautioned against relying on diplomatic assurances, particularly from regimes that
have a poor record of respecting human rights. For example, in Chahal v. United
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Kingdom, 23 Eur. Ct. H.R. Rep. 413 (1996) (A.R.3554), the European Court of
Human Rights found that the United Kingdom’s deportation of a Sikh activist
would violate the non-refoulement requirement in Article 3 of the European
Convention on Human Rights because “the violation of human rights by certain
members of the security forces in Punjab and elsewhere in India is a recalcitrant
and enduring problem. Against this background, the Court is not persuaded that
the above assurances would provide Mr. Chahal with an adequate guarantee of
safety.” Id. ¶ 105 (internal citation omitted).
Diplomatic assurances inherently lack credibility and enforceability and, for
that reason, should not be relied on to override a prior decision to grant CAT
protection. By their very nature, diplomatic assurances are sought only where
there is evidence of prior torture—that is, where the Government seeks to return a
person to another country with a reputation for torture. Yet countries that have
engaged in torture, like Rwanda, have already demonstrated a willingness to
violate national and international laws prohibiting such conduct. See, e.g., The
Constitution of the Republic of Rwanda, May 26, 2003, art. 15 (“No person shall
be subject to torture, physical abuse or cruel, inhuman or degrading treatment.”);
CAT art. 2 (accession by Rwanda Dec. 15, 2008) (requiring signatories to prevent
torture in their territories); Universal Declaration of Human Rights, UN GAOR,
Supp. No. 16, at 52, U.N. Doc A/6316, at art. 5 (1948) (prohibiting “torture” and
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“cruel, inhuman or degrading treatment”) (considered to be customary
international law); International Covenant on Civil and Political Rights art. 7,
opened for signature Dec. 9, 1966, 999 U.N.T.S. 171 (accession by Rwanda Apr.
16, 1975).9 When a country already violates its international and domestic legal
obligations by engaging in torture, the mere word of a government official in the
form of unenforceable diplomatic assurances that the country will not torture a
particular individual again is meaningless, absent a change in regime and
significant domestic reforms.
The unreliability of diplomatic assurances has been borne out by example
after example. Countries that have a record of torture but provide assurances that it
will not happen again simply do not honor those assurances. Diplomatic
assurances have been violated in numerous cases, resulting in the torture of those
whom the assurances were intended to protect. See, e.g., Columbia Law Sch.
Human Rights Inst., Promises to Keep: Diplomatic Assurances Against Torture in
U.S. Terrorism Transfers 39-40, 60 (2010) (A.R.1624) (detailing failed
assurances); Amnesty Int’l, Dangerous Deals: Europe’s Reliance on ‘Diplomatic
Assurances’ Against Torture 15-16 (2010) (same); Human Rights Watch, Not the
Way Forward: The UK’s Dangerous Reliance on Diplomatic Assurances 15
9
The prohibition against torture is a jus cogens norm, which is an international
standard so universally accepted that no derogation is permitted. Siderman de
Blake v. Argentina, 959 F.2d 699, 714 (9th Cir. 1992).
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(2008) (A.R.3086) (same); Human Rights Watch, “Diplomatic Assurances”
Against Torture: Questions and Answers 3-4 (2006) (same); Human Rights
Watch, Still at Risk: Diplomatic Assurances No Safeguard Against Torture 19, 22,
33-36, 57-60 (2005) (A.R.2914) (same). Surveying examples of breached
assurances, the Columbia Law School report concluded that assurances are “an
inherently flawed safeguard against torture” because “the sending government
cannot control what happens once an individual is transferred to the custody of
another government[.]” (A.R.1643.) It advised that “[t]his inherent deficiency
should caution the U.S. against transferring an individual to authorities that
routinely practice torture, no matter how robust the monitoring arrangement.”
(A.R.109.)
Given their inherent unreliability, there is good reason to believe that an
unenforceable assurance should never serve as the basis for terminating CAT
protections. But this Court need not reach a broad determination about the
unreliability of diplomatic assurances under all circumstances. The Court need
only conclude that, at a minimum, diplomatic assurances from the same
government that tortured Petitioners in the past cannot be relied on to terminate
their CAT relief. Moreover, there are additional facts here that make diplomatic
assurances uniquely unlawful in this case, including:
 Rwandan officials previously tortured Petitioners while they were in
Rwanda’s Kami military prison, see supra pp. 4-6;
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 The same government continues to rule Rwanda and, as
acknowledged by the State Department in its own country reports,
continues to engage in systematic torture, particularly of its political
enemies (A.R.196);
 The Rwandan government has not prosecuted or in any way held
responsible the government officials who tortured Petitioners, even
though those officials were identified in the U.S. district court opinion
detailing the torture (A.R.3347);
 Despite the detailed findings of torture by the U.S. district court, the
Rwandan Attorney General who provided the supplemental
assurances in this case, Tharcisse Karugarama, denied in those very
assurances that torture ever occurred (A.R.192 (stating that “[t]he
guarantees and assurances contained herein should not be viewed as
an acknowledgement by the Government of Rwanda that the
treatment-related allegations put forward by the [Petitioners] are
credible”)); and
 Petitioners are well known in Rwanda because of their testimony in
the U.S. district court exposing Rwanda’s torture, putting them at risk
of retribution. Indeed, Rwandan witnesses were allowed to testify
under pseudonym, and a court translator was subsequently allowed to
reopen his asylum proceedings, based specifically on the danger they
faced from being associated with Petitioners’ case. See supra p. 8.
Nonetheless, DHS contended that Rwanda will comply with its assurances based
on several conclusory assertions.
DHS first noted Rwanda’s improving record on torture, citing the State
Department’s report in 2013 that “there were fewer reports of abuse of detainees
and prisoners . . . than in 2012.” (A.R.7.) This reasoning does nothing to address
the undisputed fact that the Rwandan government still engages in torture—whether
or not it occurs less frequently than before—and that Petitioners in particular have
been found at risk of being tortured. And, notably, DHS has not argued that there
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are changed country conditions in Rwanda—and it did not attempt to return to
immigration court to argue that conditions have materially changed.
In fact, recent reports on Rwanda, including the State Department’s own
reports, show that the Rwandan government continues to torture, including in
circumstances that are similar to Petitioners’. See, e.g., U.S. Dep’t of State,
Rwanda 2013 Human Rights Report Country Report 1 (Feb. 27, 2014) (A.R.196)
(“The most important human rights problems in the country remained the
government’s targeting of political opponents . . . for harassment, arrest, and abuse;
disregard for the rule of law among security forces and the judiciary . . . . Other
major human rights problems included arbitrary or unlawful killings both inside
and outside of the country, disappearances, torture, harsh conditions in prisons and
detention centers, [and] arbitrary arrest, . . . .”); U.S. Dep’t of State, 2012 Human
Rights Report: Rwanda 2-7 (Apr. 19, 2013) (A.R.1294) (detailing illegal
detentions, torture of detainees to elicit confessions, disappearances, killings, and
support for the M23 armed rebel group terrorizing civilian populations); U.N.
Comm. Against Torture, Consideration of Reports Submitted by States Parties
Under Article 19 of the Convention: Rwanda, ¶¶ 10, 23, U.N. Doc.
CAT/C/RWA/CO/1 (June 26, 2012) (expressing “its concern about allegations of
torture that has occurred in some detention facilities in the State party, in particular
reports of 18 cases of torture and ill-treatment (such as severe beatings and electric
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shocks) during interrogations by Rwanda military intelligence in Kami and
Kinyinga camps,” and “reports that individuals charged with threatening national
security . . . had made confessions due to beatings and torture.”).
Yet, DHS stated that “[a]lthough the Department of State expressed concern
in June 2014 with respect to certain reported incidents of disappearances and
incommunicado detention in Rwanda, the Department of State does not have any
such concerns with respect to the reception and detention of [Petitioners].” (A.R.
9.) The reason DHS provided for the State Department’s lack of concern for
Petitioners was simply that Rwanda has provided assurances. (Id.) In other words,
the Government appears to have treated the assurances themselves as evidence of
their own reliability.
DHS also cited Rwanda’s “commitment to adhering to international human
rights norms” through its accession to several international treaties and its domestic
laws. (A.R. 8, 11, 37.) Yet this statement serves only to undermine Rwanda’s
assurances. Despite its promises through international treaties not to torture—
dating as far back as 1975—and its own laws prohibiting such conduct, the current
Rwandan government has systematically engaged in torture for years, flouting its
binding international and domestic legal obligations. If the Rwandan government
does not feel bound by these longstanding legal obligations and international
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norms, it is unclear why it should feel bound by unenforceable assurances as to
these three individuals.
Further, DHS cited the State Department’s “endorse[ment of] the reliability
of Rwanda’s diplomatic assurances” without providing any transparency into
State’s reasoning. (A.R.38.) Because Petitioners do not know the basis for the
State Department’s endorsement, they are significantly disadvantaged in
responding to it. Cf. Anim, 535 F.3d at 256 (holding that State Department letter
“contains insufficient indicia of reliability and, as a result, its use [in immigration
proceedings] was fundamentally unfair.”). Indeed, as is reflected in the record, the
State Department’s conclusory endorsement is at odds with Rwanda’s historic and
current conduct. Given these facts, DHS cannot, consistent with CAT and
FARRA, rely on promises from Rwanda to terminate Petitioners’ CAT protections
and return Petitioners to Rwanda.
Finally, for all of these reasons, DHS’s termination of Petitioners’ CAT
protection also violates their substantive due process rights. Non-citizens are
entitled to the constitutional protections of substantive due process when a
fundamental right is implicated. See United States v. Al-Hamdi, 356 F.3d 564, 574
(4th Cir. 2004) (analyzing substantive due process claim for non-citizen). Here,
Petitioners have a constitutionally protected, “fundamental and universal” interest
in being free from torture. Siderman de Blake v. Argentina, 965 F.2d 699, 717 (9th
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Cir. 1992); see also Filartiga v. Pena-Irala, 630 F.2d 876, 890 (2d Cir. 1980)
(“Among the rights universally proclaimed by all nations, . . . is the right to be free
of physical torture”); cf. Yousuf v. Samantar, 699 F.3d 763, 775 (4th Cir. 2012)
(finding that “torture, summary execution and prolonged arbitrary imprisonment . .
. are among these universally agreed-upon norms”). DHS’s termination of their
CAT protection under these circumstances violates that fundamental right.
So, in sum, DHS’s diplomatic assurances regulation, as applied to the unique
circumstances in this case, violates CAT, FARRA, and substantive due process.
III.
EVEN IF REMOVAL PURSUANT TO DIPLOMATIC ASSURANCES
IS PERMISSIBLE UNDER THESE CIRCUMSTANCES, CAT,
FARRA, AND THE DUE PROCESS CLAUSE REQUIRE
PROCEDURAL SAFEGUARDS NOT SATISFIED HERE
A.
FARRA and CAT Prohibit Petitioners’ Removal Based on
Assurances Without Meaningful and Independent Review
Even if the use of assurances under these unique circumstances is
permissible, CAT and FARRA require that deferral of removal not be terminated
without meaningful and independent review of the reliability and sufficiency of the
assurances.
The lack of process afforded to Petitioners to challenge their diplomatic
assurances is wholly out of step with the international community, which interprets
CAT to require meaningful, independent review of removal orders pursuant to
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diplomatic assurances.10 Specifically, the U.N. Human Rights Committee has
instructed the United States that, in order to comply with CAT, it must provide
“adequate judicial mechanisms for review” in all instances where removal is
attempted via diplomatic assurances, U.N. Comm. Against Torture, ¶ 21, U.N.
Doc. CAT/C/USA/CO/2 (July 25, 2006), as well as “effective mechanisms to
monitor scrupulously and vigorously the fate of the affected individuals.” U.N.
Human Rights Comm., Concluding Observations of the Human Rights Committee
to the U.S., ¶16, U.N. Doc. CCPR/C/USA/CO/3/Rev.1 (Dec. 18, 2006) (emphasis
added).
The U.N. Committee Against Torture has applied this requirement for
independent review to other nations. For instance, in Pelit v. Azerbaijan, the
Committee found that Azerbaijan had violated Article 3 in part due to a failure to
provide meaningful, independent review. Azerbaijan’s improper conduct included
“not suppl[ying] the assurances to the Committee in order for the Committee to
perform its own independent assessment of their satisfactoriness or otherwise.”
Communication No. 281/2005, ¶11, U.N. Doc. CAT/C/38/D/281/2005 (May 29,
2007) (emphasis added). The Committee also criticized Azerbaijan’s failure to
“detail with sufficient specificity the monitoring undertaken and the steps taken to
10
Again, international jurisprudence is particularly instructive in interpreting CAT
and its implementation through FARRA. See supra Section II(B).
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ensure that [such monitoring was] both . . . in fact and in the complainant’s
perception, objective, impartial and sufficiently trustworthy” to safeguard the
refouled individual from further Article 3 violations. Id.
Other international bodies and torture experts echo the Committee Against
Torture’s views on the need for meaningful judicial review of diplomatic
assurances. The U.N. Human Rights Committee has instructed the United States to
“exercise the utmost care in the use of diplomatic assurances” and to “adopt clear
and transparent procedures with adequate judicial mechanisms for review before
individuals are deported, as well as effective mechanisms to monitor scrupulously
and vigorously the fate of the affected individuals.” U.N. Human Rights Comm.,
Concluding Observations, supra ¶16 (emphasis added). The Human Rights
Committee also held, in Alzery v. Sweden, that the inability to contest diplomatic
assurances in the context of an “effective independent review” violates ICCPR
Article 7’s prohibition on torture. Communication No. 1416/2005, ¶11.8, U.N.
Doc. CCPR/C/88/D/1416/2005 (Nov. 10, 2006). “The existence of diplomatic
assurances, their content and the existence and implementation of enforcement
mechanisms are all factual elements relevant to the overall determination of
whether, in fact, a real risk of proscribed ill-treatment exists.” Id. ¶11.3.
In addition to these international bodies, the domestic law of other countries
is instructive. Tellingly, those CAT signatories that permit removal on the basis of
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diplomatic assurances generally provide for meaningful, independent judicial
review of the decision to remove. This review involves (1) an assessment of the
individual’s risk of suffering torture, (2) the subject nation’s history of torture, (3)
the sufficiency of the assurances, and (4) the sufficiency of monitoring systems to
protect the individual from suffering torture.
Courts in the United Kingdom, for instance, consider independent judicial
review of diplomatic assurances to be an essential component of the nonrefoulement obligation under CAT. This requires that records related to diplomatic
assurances be placed “in the open evidence,” and subject to “test[ing] and
record[ing].” Y. v. Sec’y of State for the Home Dep’t [2006] SC/36/2005 &
SC/15/2005, ¶58, (Special Immigration App. Comm’n); see also MT, RB, & U v.
Sec’y of State for the Home Dep’t [2007], ¶ 10, EWCA Civ. 808 (“The state’s
obligation is not only not to deport persons to a state where they face a real risk of
torture, but to also ensure that the proceedings in which that issue was considered
were fair. Proceedings are not fair if evidence is used that is not seen by the
[claimant] and his . . . advocates.”).
The Netherlands likewise affords judicial review of the sufficiency of
diplomatic assurances. In one case, for example, the Dutch high court halted a
deportation to Turkey on grounds that the diplomatic assurances were too vague.
See De Staat der Nederlanden (Ministerie van Justitie) tegen N. Kesbir, Het
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Gerechtshof’s Gravenhage, LJN: AS3366, 04/1595 KG, Jan. 20, 2005, cited in
(A.R.2291). The court’s analysis included an assessment of Turkey’s pattern of
committing torture, the risk to the deportee of torture, and whether the assurances
were sufficiently concrete.11
In contrast to the practices of these other countries, the U.S. Government in
this case is seeking to remove Petitioners on the basis of diplomatic assurances
without having afforded Petitioners the opportunity to develop a complete record
and test the assurances before an independent adjudicator. Removal under these
circumstances—without a meaningful opportunity to see all the evidence on which
the Government is basing its determination and respond to it, and without a hearing
or the involvement of any independent decision-maker—is incompatible with the
non-refoulement obligations in CAT and FARRA. Accordingly, insofar as the
diplomatic assurance regulation denies meaningful process, it is inconsistent with
CAT and FARRA.
11
See also, e.g., Atmaca v. Germany, App. No. 45293/06, Eur. Ct. H.R., ¶A.3
(European Ct. of Hum. Rts. Mar. 6, 2012) (describing how German Administrative
Court, “having heard the applicant in person” and considered county conditions
evidence, found that “the assurance given by the Turkish Government . . . was
insufficient to guarantee the applicant [fair treatment]”); Mahjoub v. Minister of
Citizenship and Immigration, IMM-98-06, 2006 F.C. 1503, at ¶¶82, 88 (Canada
Fed. Ct. Dec. 14, 2006) (holding that Canadian Minister’s decision to remove noncitizen based on assurances was “patently unreasonable” in light of “evidence from
a multitude of sources that cited Egypt’s non-compliance with assurances.”).
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The Due Process Clause Likewise Bars Petitioners’ Removal to
Rwanda Absent a Meaningful Opportunity To Be Heard Before
an Impartial Adjudicator
In addition to CAT and FARRA, the Due Process Clause of the Fifth
Amendment demands more process before Petitioners’ CAT protection can be
revoked based on Rwanda’s assurances. In violation of due process, the
Government has never afforded Petitioners a meaningful opportunity to test the
reliability of Rwanda’s assurances before a neutral decision-maker.
It is well settled that petitioners in removal proceedings, including those
seeking protection under CAT, are entitled to due process. Khouzam, 549 F.3d at
257 (holding that alien “was entitled to due process before he could be removed on
the basis of the termination of his deferral of removal” pursuant to diplomatic
assurances). Under the familiar Mathews test, courts must consider the following
three factors:
the interest at stake for the individual, the risk of an
erroneous deprivation of the interest through the
procedures used as well as the probable value of
additional or different procedural safeguards, and the
interest of the government in using the current
procedures rather than additional or different procedures.
Landon v. Plasencia, 459 U.S. 21, 34 (1982) (citing Mathews v. Eldridge, 424 U.S.
319, 334-35 (1976)). Each of the Mathews factors is easily met here.
First, Petitioners’ interest in avoiding torture is of paramount importance
under U.S. and international law. See Filartiga, 630 F.2d at 885 (holding that “the
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right to be free from torture is now among” the “fundamental rights” conferred by
international law); Siderman de Blake, 965 F.2d at 717 (“To subject a person to
[torture] is to commit one of the most egregious violations of the personal security
and dignity of a human being.”).
Second, the risk of erroneous deprivation of that interest is impermissibly
high. An IJ has already found that Petitioners will “more likely than not” be
tortured by the Rwandan authorities if returned. Petitioners had no opportunity for
independent fact-finding to challenge DHS’s termination decision, and thus, there
is a high risk that their removal will violate their fundamental right not to be
tortured.
The third Mathews factor—the Government’s interest in following “current
procedures”―is of limited value here. DHS’s Office of the Inspector General
issued a report in 2011 stating that “there is no ‘standard practice’” for dealing
with diplomatic assurances within DHS, and that “the Department’s approach to
assurances is ad hoc.” (A.R.2029, 2057.)12
12
Although DHS claims it has “established an assurances process that provides for
transparency and procedural safeguards for aliens for whom diplomatic assurances
have been obtained,” DHS’s OIG report suggests the opposite. (See A.R.2057
(noting the OIG was “provided no written departmental procedure or process
guiding the Department’s use of assurances”).) Moreover, any ad hoc procedures
that are purportedly in place do not provide for either a hearing or judicial review,
contrary to well established due process standards.
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In this case, this Court need not prescribe exactly what sort of hearing would
be required to review the Government’s reliance on diplomatic assurances. As in
Khouzam, the Court may grant the petitions for review while leaving it to the
Government in the first instance to fashion a procedure that meets the Due Process
Clause’s benchmarks. In Khouzam, the Third Circuit held that a non-citizen facing
termination of CAT relief based on diplomatic assurances “must have an
opportunity to present, before a neutral and impartial decisionmaker, evidence and
arguments challenging the reliability of diplomatic assurances proffered by the
Government, and the Government’s compliance with the relevant regulations.”
549 F.3d at 259. Equally important, “[t]he alien must also be afforded an
individualized determination of the matter based on a record disclosed to the
alien.” Id. The court clarified that the alien must receive “notice and an
opportunity to test the reliability of those assurances in a hearing.” Id. at 257, 259
(emphasis added).
The Third Circuit did not prescribe what sort of hearing was required—nor
need the Court in this case. There are a variety of options that could satisfy due
process, including a district court proceeding, see Mironescu, 480 F.3d at 672
(noting that “American courts routinely answer . . . questions” regarding “whether
torture is likely to occur” upon extradition), or a hearing before another neutral
decision-maker, such as an IJ. Indeed, as described above, the regulations
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generally require that if DHS wishes to terminate a grant of deferral under CAT, it
must request a hearing before an IJ, at which the IJ considers evidence and makes a
de novo determination about the continuing likelihood of torture. See 8 C.F.R. §
1208.17(d)(3). For purposes of the present petitions for review, however, the
Court need only find that the Government’s unilateral decision to terminate
Petitioners’ deferral does not satisfy the Due Process Clause.
Above all, Petitioners have not had the benefit of a neutral and impartial
decision-maker, which “is, of course, a fundamental component of due process.”
Beauchamp v. De Abadia, 779 F.2d 773, 776 (1st Cir. 1985); see also Khouzam,
549 F.3d at 257. DHS officials are not neutral and impartial, as they vigorously
opposed Petitioners’ applications for relief from deportation throughout prior
administrative proceedings. Even before the completion of those proceedings,
DHS was actively soliciting the State Department’s help to effectuate removal “via
diplomatic assurances.” (A.R.2496-97.) DHS’s interest in removing Petitioners
disqualifies them from being a neutral and impartial decision-maker. See Hamdi,
542 U.S. at 538 (“That even purportedly fair adjudicators ‘are disqualified by their
interest in the controversy to be decided is, of course, the general rule.’” (citation
omitted)).
DHS is asserting unilateral authority to remove CAT protections that
Petitioners won in contested immigration proceedings. While “the combination of
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investigative and adjudicative functions does not, without more, constitute a due
process violation,” Withrow v. Larkin, 421 U.S. 35, 58 (1975), surely the
combination of adversarial and adjudicative functions does. Just as a prosecutor
cannot unilaterally overturn a judge’s ruling, DHS should not be able to overturn
the immigration court’s findings without providing Petitioners a hearing before a
neutral and impartial decision-maker because in such circumstances, “‘the risk of
unfairness is intolerably high.’” Khouzam, 549 F.3d at 258 (quoting Withrow, 421
U.S. at 58).
The Government has also denied Petitioners a hearing with “an opportunity
to present . . . evidence and arguments challenging the reliability of diplomatic
assurances proffered by the Government[.]” Id. at 259. Petitioners have only had
an opportunity to provide written submissions to DHS, but DHS responded
belatedly, conclusorily, or not at all to Petitioners’ queries and proffers of
evidence. More fundamentally, “the general ability of an alien to correspond with
an agency [is not] sufficient to satisfy due process.” Id. at 257.13 Rather, an actual
fact-finding hearing is required because “written submissions do not afford the
flexibility of oral presentations; they do not permit the recipient to mold his
13
Khouzam reiterated the importance of a neutral decision-maker in refusing to
accept the possibility of providing written submissions as an adequate procedural
safeguard: “In addition to whatever others flaws exist in this purported
opportunity to argue, [Petitioners] would not have had the benefit of a neutral and
impartial decisionmaker.” Id.
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argument to the issues the decision maker appears to regard as important.”
Goldberg v. Kelly, 397 U.S. 254, 269 (1970).
Furthermore, Petitioners have no way of knowing whether they have seen
the entire record that the Government is relying upon to credit the Rwandan
assurances. See Marincas v. Lewis, 92 F.3d 195, 203 (3d Cir. 1996) (asylum
procedure lacking a “complete record of the proceeding” violated due process
because it “insulate[d] the INS’s denial of asylum from effective administrative
and judicial review”). DHS has produced an administrative record in this case
containing, among other things, copies of the Rwandan assurances and documents
relating to the Department’s consideration of the Rwandan assurances. But
Petitioners did not see portions of that record (e.g., State Department
communications) until after DHS rendered its final decisions and transmitted them
to Petitioners. See, e.g., Orloff v. Cleland, 708 F.2d 372, 379 (9th Cir. 1983)
(finding that a post-decision hearing is not sufficient to satisfy due process).
Still other information appears to be missing altogether from the record that
DHS has created. For instance, an October 18, 2007 letter from DHS to the State
Department “formally request[ing]” assistance in removing Petitioners “to Rwanda
by diplomatic assurances or to a third country via bilateral negotiations” references
a September 17, 2007 letter from DHS to then U.S. Assistant Secretary of State for
African Affairs Jendayi E. Frazer. (A.R.3627.) Presumably, the missing
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September letter relates to the Government’s attempts to remove Petitioners
pursuant to diplomatic assurances (and perhaps sheds light on the process for
attaining assurances). Yet DHS has never produced that letter.
Likewise, DHS’s 2014 supplemental termination decision states that the
State Department has “confirmed to DHS its conclusion that Rwanda will comply
with its assurances in the Respondent’s case,” but DHS has provided no details
about that conclusion, e.g., when it was provided, by whom, or the basis for it.
(A.R.9.) The record does contain conclusory emails from the State Department to
DHS forwarding and summarizing the current Rwandan Minister of Justice’s
assertion that “[t]here is no reason known to me why we would [honor the
assurances] in 2011 and not be able to do so in 2014” (A.R.185-95), but there is
nothing in the record explaining why the State Department believes that assertion
is reliable. DHS’s supplemental termination decision also indicates that the State
Department “confirmed to DHS that Rwanda has ceased its support for M23
[combatants] as of November 2013 and that there is no indication that Rwanda is
supporting other rebel groups in the DRC,” yet that confirmation is also missing
from the record. (A.R.11.) These are just some of the obvious evidentiary gaps in
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the record—and there may well be more of which Petitioners have no way of
knowing.14
Not only is relevant information missing from the record, but the evidence
that DHS has revealed is often too vague to allow Petitioners to meaningfully rebut
DHS’s final decision to credit the Rwandan assurances. See Anim, 535 F.3d at 258
(finding that “[g]eneral deference to the Department of State cannot substitute for
an adequate evaluation of the reliability of a document, especially when the
document . . . provides practically no information upon which a reliability
determination can be made”); Ezeagwuna v. Ashcroft, 325 F.3d 396, 408 (3d Cir.
2003) (holding that BIA violated due process in relying on a State Department
determination and emphasizing that “the complete dearth of information about the
investigator or investigation undermines the [State Department’s determination] as
not only untrustworthy but also unhelpful”). Here, DHS’s termination decisions
are predicated heavily on opaque State Department conclusions that do not provide
a basis to assess their reliability. Petitioners’ due process rights are not satisfied by
14
For instance, DHS has yet to disclose: its policies, procedures, and guidelines
governing the procurement of assurances and evaluation of the sufficiency of those
assurances (if any exist, see A.R.2057); information on which Rwandan experts
State Department officials consulted and what their findings and recommendations
were; the State Department’s policies and procedures governing monitoring
compliance with assurances (if any exist); or what information and materials the
State Department considered in assessing the sufficiency and reliability of
monitoring procedures (e.g., in preparing Deputy Secretary of State Burns’s
August 18, 2011 letter to DHS, see A.R.2167).
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DHS’s conclusory assertion that it “has consulted regularly with the Department of
State and relies heavily on the Department of State’s unique foreign relations
expertise and its central role in negotiating and evaluating assurances.” (A.R.12.)
For example, the February 2013 letter from the Assistant Secretary of State
for African Affairs Johnnie Carson (A.R.513-14), on which DHS repeatedly relied
in its 2013 termination decision (A.R.488-506), contains unsupported assumptions
concerning key facts. That letter asserts that Petitioners “are likely to be housed at
. . . [a] civilian prison, not a military prison,” even though the State Department’s
2012 report on Rwanda summarized numerous reports of civilians held in military
detention. (Compare A.R.514 with A.R.1296-97.) DHS accepted Assistant
Secretary Carson’s assertion, even after acknowledging that torture still occurs
(albeit to a lesser extent) in military detention facilities—including at Kami, where
Petitioners were previously tortured. (A.R.501.)
Additionally, DHS’s 2014 supplemental termination decision reveals that,
just a few months before that decision, the State Department expressed concerns
about “certain reported incidents of disappearances and incommunicado detention
in Rwanda.” (A.R.9; see also A.R.274 (State Department statement that the
“United States is deeply concerned by the arrest and disappearance of dozens of
Rwandan citizens in Rwanda over the past two months” and that “additional
individuals may still be held incommunicado and without due process of law”).)
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Despite these concerns, the State Department (and ultimately, DHS) remarkably
concluded that it does not have “any such concerns with respect to the reception
and detention of” Petitioners. (A.R.9.) DHS has not revealed when the State
Department reached that conclusion and offers as its only rationale reliance on
Rwanda’s assurances.
Finally, DHS points to the State Department’s conclusions that the
monitoring arrangements to which Rwanda has agreed will be sufficiently
protective as evidence that compliance with the assurances is capable of
verification. (A.R.503-04.) But see Amnesty Int’l, supra at 11 (“[P]ost return
visits to a particular individual or just a few people would also put the detainee in
an untenable position: the person is forced to choose between staying silent or
reporting abuse in a situation where he or she will be clearly identifiable as the
source of the report.”). The record, however, contains incomplete information on
why the State Department believes the monitoring arrangements are satisfactory.
The documents in the record do not indicate, for example, whether comparable
monitoring conditions have worked in the past, why the State Department believes
that the contemplated monitoring visits would be frequent enough, or whether U.S.
embassy personnel are trained to identify signs of torture. Nor do they reveal
anything about the context within which such monitoring assurances were sought
and negotiated, which is critical to assessing their trustworthiness. Cf. Anim, 535
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F.3d at 257 (stating that missing information about how a State Department
investigation was conducted is “essential for two reasons”: (i) “[t]he manner of
eliciting the information is crucial to [the assurances’] probative value”; and (ii)
“documentary evidence . . . should be sufficiently clear and complete to give the
[alien] an opportunity to meaningfully rebut its allegations” (quotation marks and
citations omitted)).
Moreover, given the Rwandan Attorney General’s pointed refusal to
acknowledge that Petitioners were ever tortured in the first place (A.R.192) and
other Rwandan officials’ dismissive statements about Petitioners’ experience,15
there is good reason to question Rwanda’s commitment to transparent monitoring.
Indeed, the State Department’s 2013 report acknowledges that the Rwandan
government has limited international access to prisoners. (See A.R.202 (“[Human
Rights Watch] obtained access to visit prisons, but the government repeatedly
blocked access to individual prisoners . . . . The government did not permit
independent monitoring of undeclared detention facilities.”). And in Petitioners’
own cases, even when FBI agents were meeting with Petitioners in person while
investigating the Bwindi murders, Rwandan officials tightly controlled the FBI’s
access to Petitioners, and the FBI failed to notice the signs that Petitioners were
15
In response to the district court opinion in Karake, “senior Ministry of Justice
officials” likewise refused to acknowledge Petitioners’ torture, stating that
Petitioners “scars ‘proved nothing since all Rwandans had scars.’” (A.R.501.)
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being tortured. See Karake, 443 F. Supp. 2d at 78-79. As the Karake court found,
the American officials were “completely dependent on the continued willingness
of the Rwandans to locate potential suspects and to grant U.S. investigators access
to them,” when and where the Rwandan officials saw fit. Id. at 79. At no point
has DHS offered a cogent explanation of how future monitoring efforts would be
effective.
The procedural defects discussed above “prejudiced the outcome of the
case” and thus, Petitioners have “demonstrated a violation of [their] right to due
process.” Id. at 256, 261. Here, as in Khouzam, the absence of any meaningful
process by which Petitioners “could have challenged the Government’s termination
decision” makes it “obvious that [Petitioners were] substantially prejudiced.” 549
F.3d at 258. The Government has provided no hearing in this case, and given the
incomplete record justification for the termination decision, the lack of process in
this case is “inherently prejudicial.” See id.
CONCLUSION
The Court should grant the Petitions for Review and prohibit the
Government from returning Petitioners to Rwanda based on diplomatic assurances.
Alternatively, the Court should remand Petitioners’ cases to DHS to allow the
Department in the first instance to provide Petitioners with a meaningful process
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before a neutral decision-maker to challenge their diplomatic assurances in
accordance with CAT, FARRA, and due process.
March 19, 2015
Respectfully Submitted,
Lee Gelernt
Judy Rabinovitz
AMERICAN CIVIL LIBERTIES UNION
IMMIGRANTS’ RIGHTS PROJECT
125 Broad Street, 18th Floor
New York, NY 10004
Phone: (212) 549-2600
/s/ M. Blake Huffman
M. Blake Huffman
Evelina Norwinski
ARNOLD & PORTER LLP
555 12th Street, N.W.
Washington, D.C. 20004
Tel: (202) 942-6474
Fax: (202) 942-5999
Counsel for Gregoire Nyaminani
Kate Desormeau
AMERICAN CIVIL LIBERTIES UNION
IMMIGRANTS’ RIGHTS PROJECT
39 Drumm Street
San Francisco, CA 94111
Phone: (415) 343-0778
Counsel for Petitioners
/s/ David Y. Chung
David Y. Chung
Ryan C. Tisch
CROWELL & MORING LLP
1001 Pennsylvania Avenue, N.W.
Washington, D.C. 20004
Tel: (202) 624-2674
Fax: (202) 628-5116
Counsel for Francois Karake
/s/ Jeffrey B. O’Toole
Jeffrey B. O’Toole
BONNER KIERNAN TREBACH &
CROCIATA LLP
1233 20th Street, NW, 8th Floor
Washington, DC 20036
Phone: (202) 712-7000
Counsel for Leonidas Bimenyimana
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CERTIFICATE OF COMPLIANCE
I certify, pursuant to Federal Rule of Appellate Procedure 32(a)(7)(C), that
the attached Petitioners’ Brief contains 13,909 words and complies with the
typeface requirements of Federal Rule of Appellate Procedure 32(a)(5) and the
type style requirements of Federal Rule of Appellate Procedure 32(a)(6) because it
has been prepared in a proportionally spaced typeface using Word 2007, in 14point Times New Roman font.
Dated: March 19, 2015
/s/ M. Blake Huffman
M. Blake Huffman
Counsel for Gregoire Nyaminani
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CERTIFICATE OF SERVICE
I hereby certify that on March 19, 2015, I electronically filed the foregoing
document with the United States Court of Appeals for the Fourth Circuit by using
the appellate CM/ECF system. I certify that all participants in the case are
registered CM/ECF users and that service will be accomplished by the appellate
CM/ECF system.
Dated: March 19, 2015
/s/ M. Blake Huffman
M. Blake Huffman
Counsel for Gregoire Nyaminani
64