BRIEF OF AMICI CURIAE SC
Appeal: 13-1676 Doc: 82-1 RESTRICTED Filed: 03/26/2015 Pg: 1 of 49 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, DEPARTMENT OF HOMELAND SECURITY Respondents. _________________ ON PETITION FOR REVIEW OF A DECISION OF THE DEPARTMENT OF HOMELAND SECURITY. _________________ BRIEF OF AMICI CURIAE SCHOLARS OF HUMAN RIGHTS LAW IN SUPPORT OF PETITIONERS _________________ STEPHEN I. VLADECK 4801 MASS. AVE. NW ROOM 350 WASHINGTON, D.C. 20016 (202) 274-4241 JENNIFER B. CONDON CENTER FOR SOCIAL JUSTICE Counsel of Record *CHRISTINA LE * THOMAS LEHMAN *Third-Year Law Students SETON HALL LAW SCHOOL 833 MCCARTER HIGHWAY NEWARK, NJ 07102 (973) 642-8700 [email protected] Appeal: 13-1676 Doc: 82-1 RESTRICTED Filed: 03/26/2015 Pg: 2 of 49 AMICI CURIAE SCHOLARS OF HUMAN RIGHTS LAW DR. UPENDRA D. ACHARYA ASSOCIATE PROFESSOR OF LAW GONZAGA UNIVERSITY SCHOOL OF LAW SUSAN M. AKRAM CLINICAL PROFESSOR AND SUPERVISING ATTORNEY INTERNATIONAL HUMAN RIGHTS PROGRAM BOSTON UNIVERSITY SCHOOL OF LAW REBECCA BRATSPIES PROFESSOR OF LAW DIRECTOR, CENTER FOR URBAN ENVIRONMENTAL REFORM CUNY SCHOOL OF LAW KATHLEEN M. BURCH PROFESSOR OF LAW ATLANTA’S JOHN MARSHALL LAW SCHOOL MATTHEW H. CHARITY PROFESSOR OF LAW WESTERN NEW ENGLAND UNIVERSITY SCHOOL OF LAW ROGER S. CLARK BOARD OF GOVERNORS PROFESSOR RUTGERS SCHOOL OF LAW–CAMDEN DINA FRANCESCA HAYNES PROFESSOR OF LAW AND DIRECTOR OF HUMAN RIGHTS AND IMMIGRATION LAW PROJECT NEW ENGLAND LAW | BOSTON The academic affiliations of amici curiae are listed for affiliation purposes only. Appeal: 13-1676 Doc: 82-1 RESTRICTED Filed: 03/26/2015 Pg: 3 of 49 KATE JASTRAM LECTURER IN RESIDENCE EXECUTIVE DIRECTOR, MILLER INSTITUTE FOR GLOBAL CHALLENGES AND THE LAW UNIVERSITY OF CALIFORNIA–BERKELEY SCHOOL OF LAW JULES LOBEL BESSIE MCKEE WALTHOUR PROFESSOR OF LAW UNIVERSITY OF PITTSBURGH LAW SCHOOL DR. CLARK B. LOMBARDI UW LAW FOUNDATION PROFESSOR OF LAW UNIVERSITY OF WASHINGTON SCHOOL OF LAW BETH LYON ACTING DIRECTOR OF CLINICAL PROGRAMS VILLANOVA UNIVERSITY SCHOOL OF LAW SAIRA MOHAMED ASSISTANT PROFESSOR OF LAW UNIVERSITY OF CALIFORNIA–BERKELEY SCHOOL OF LAW VED P. NANDA JOHN EVANS DISTINGUISHED UNIVERSITY PROFESSOR THOMPSON G. MARSH PROFESSOR OF LAW DIRECTOR, INTERNATIONAL LEGAL STUDIES PROGRAM UNIVERSITY OF DENVER STURM COLLEGE OF LAW LORI NESSEL PROFESSOR OF LAW SETON HALL UNIVERSITY SCHOOL OF LAW DIRECTOR, IMMIGRANTS’ RIGHTS/INTERNATIONAL HUMAN RIGHTS CLINIC JOHN T. PARRY JEFFREY BAIN FACULTY SCHOLAR AND PROFESSOR OF LAW LEWIS & CLARK LAW SCHOOL Appeal: 13-1676 Doc: 82-1 RESTRICTED Filed: 03/26/2015 Pg: 4 of 49 JORDAN J. PAUST MIKE & TERESA LAW CENTER PROFESSOR OF INTERNATIONAL LAW UNIVERSITY OF HOUSTON LAW CENTER MICHAEL J. PERRY ROBERT W. WOODRUFF PROFESSOR OF LAW EMORY UNIVERSITY SCHOOL OF LAW JAYA RAMJI-NOGALES PROFESSOR OF LAW CO-DIRECTOR, INSTITUTE FOR INTERNATIONAL LAW AND PUBLIC POLICY TEMPLE UNIVERSITY, BEASLEY SCHOOL OF LAW DIEGO RODRÍGUEZ-PINZÓN PROFESSORIAL LECTURER IN RESIDENCE CO-DIRECTOR, ACADEMY ON HUMAN RIGHTS AND HUMANITARIAN LAW AMERICAN UNIVERSITY WASHINGTON COLLEGE OF LAW LEILA NADYA SADAT HENRY H. OBERSCHELP PROFESSOR OF LAW DIRECTOR, WHITNEY R. HARRIS WORLD LAW INSTITUTE WASHINGTON UNIVERSITY SCHOOL OF LAW WADIE E. SAID PROFESSOR OF LAW UNIVERSITY OF SOUTH CAROLINA SCHOOL OF LAW RACHEL SETTLAGE ASSISTANT PROFESSOR DIRECTOR, ASYLUM AND IMMIGRATION LAW CLINIC WAYNE STATE LAW SCHOOL DINAH SHELTON MANATT/AHN PROFESSOR OF INTERNATIONAL LAW GEORGE WASHINGTON UNIVERSITY SCHOOL OF LAW ROBERT D. SLOANE R. GORDON BUTLER SCHOLAR IN INTERNATIONAL LAW PROFESSOR OF LAW BOSTON UNIVERSITY SCHOOL OF LAW Appeal: 13-1676 Doc: 82-1 RESTRICTED Filed: 03/26/2015 Pg: 5 of 49 SUSAN LEA SMITH PROFESSOR OF LAW DIRECTOR, SUSTAINABLE ENVIRONMENTAL, ENERGY AND RESOURCES LAW PROGRAM WILLAMETTE UNIVERSITY COLLEGE OF LAW BETH STEPHENS PROFESSOR OF LAW RUTGERS SCHOOL OF LAW–CAMDEN RUTI G. TEITEL ERNST C. STIEFEL PROFESSOR OF COMPARATIVE LAW CHAIR, GLOBAL LAW AND JUSTICE COLLOQUIUM CO-DIRECTOR, INSTITUTE FOR GLOBAL LAW, JUSTICE, & POLICY NEW YORK LAW SCHOOL STEPHEN I. VLADECK PROFESSOR OF LAW AMERICAN UNIVERSITY WASHINGTON COLLEGE OF LAW MICHAEL J. WISHNIE WILLIAM O. DOUGLAS CLINICAL PROFESSOR OF LAW AND DEPUTY DEAN FOR EXPERIENTIAL EDUCATION YALE LAW SCHOOL SEVAL YILDIRIM ASSOCIATE DEAN FOR FACULTY DEVELOPMENT PROFESSOR OF LAW WHITTIER LAW SCHOOL Appeal: 13-1676 Doc: 82-1 RESTRICTED Filed: 03/26/2015 Pg: 6 of 49 CORPORATE DISCLOSURE STATEMENT Pursuant to Federal Rule of Appellate Procedure 26.1 and Local Rule 26.1, amici curiae certify that none of the individual law professors joining together to file this brief are publicly held corporations or parent corporations. To amici curiae’s knowledge, no publicly held corporation has any direct financial interest in the outcome of this litigation. i Appeal: 13-1676 Doc: 82-1 RESTRICTED Filed: 03/26/2015 Pg: 7 of 49 TABLE OF CONTENTS CORPORATE DISCLOSURE STATEMENT ............................................... i IDENTITY AND INTEREST OF AMICI CURIAE........................................1 SUMMARY OF ARGUMENT ...................................................................... 1 ARGUMENT ...................................................................................................3 I. THE CONVENTION AGAINST TORTURE AND FARRA REQUIRE AN OBJECTIVE ASSESSMENT OF THE RISK OF TORTURE UPON TRANSFER, INCLUDING THE RELIABILITY OF DIPLOMATIC ASSURANCES........................................................................................... 3 A. CAT and FARRA Mandate that Diplomatic Assurances Be Subject to Meaningful and Impartial Review. ........................................................ 3 B. Diplomatic Assurances Cannot Alone Resolve Whether Torture Is More Likely Than Not. .......................................................................... 7 C. FARRA Incorporates CAT’s Requirement of Meaningful and Objective Review. ................................................................................ 11 D. The Rule of Non-Inquiry Does Not Apply to FARRA, Which Precludes Unquestioned Deference to Diplomatic Assurances. ......... 14 II. THE FIFTH AMENDMENT DUE PROCESS CLAUSE SEPARATELY REQUIRES BASIC PROCEDURAL PROTECTIONS BEFORE AN INDIVIDUAL MAY BE REMOVED ON THE BASIS OF DIPLOMATIC ASSURANCES. .............................................................. 16 A. Due Process Requires A Meaningful Opportunity to Rebut Diplomatic Assurances. .......................................................................................... 16 ii Appeal: 13-1676 Doc: 82-1 RESTRICTED Filed: 03/26/2015 Pg: 8 of 49 B. Termination of Petitioners’ Deferrals of Removal Based Upon Untested Diplomatic Assurances Denied Them Due Process of Law 22 III. FOREIGN COURTS ARE DEEPLY SKEPTICAL OF DIPLOMATIC ASSURANCES AND SUBJECT THEM TO MEANINGFUL TESTING AND REVIEW. ........................................................................................ 24 A. The United Kingdom ........................................................................... 26 B. Canada.................................................................................................. 29 C. The European Court of Human Rights ................................................ 30 CONCLUSION ............................................................................................. 33 CERTIFICATE OF COMPLIANCE WITH RULE 32(a) ........................... 35 STATEMENT OF AUTHORITY TO FILE ................................................ 35 STATEMENT REGARDING PARTICIPATION BY PARTIES, THEIR ATTORNEYS, OR OTHER PERSONS ................................................ 355 CERTIFICATE OF SERVICE ..................................................................... 37 iii Appeal: 13-1676 Doc: 82-1 RESTRICTED Filed: 03/26/2015 Pg: 9 of 49 TABLE OF AUTHORITIES Cases BB, PP, W, U and Others v. Sec. of State for the Home Dep't, [2015] EWCA Civ. 9, No. T2/2013/0503, 0506 &0513 ............................................. 28, 29 Abdulkhakov v. Russia, App. No. 14743/11, Eur. Ct. H.R. (2012) .............. 31 Anim v. Mukasey, 535 F.3d 243 (4th Cir. 2008) ........................................... 17 Baharon v. Holder, 588 F.3d 228 (4th Cir. 2009) ........................................ 20 BB v. Sec. of State for the Home Dep't, [2006] SC/39/2005 (SIAC) ..... 25, 27 Boumediene v. Bush, 553 U.S. 723 (2008) ................................................... 16 Chahal v. United Kingdom, 23 Eur. Ct. H. R. Rep. 413 (1996) ................... 31 DD & Anor v Sec. of State for the Home Dep't, [2008] EWCA Civ 289 ........ ............................................................................................................. 27, 28 In re Burt, 737 F.2d 1477 (7th Cir. 1984) .................................................... 14 In re Extradition of Howard, 996 F.2d 1320 (1st Cir. 1993) ....................... 15 INS v. St. Cyr., 533 U.S. 289 (2001) ............................................................. 16 Ismoilov v. Russia, No. 2947/06, Eur. Ct. H.R. (2008) ......................... 26, 31 Kaboulov v. Ukraine, App. No. 41015/04, Eur. Ct. H.R. ( 2009) ................ 31 Khouzam v. Att’y Gen., 549 F.3d 235 (2008) ........................................ passim Klein v. Russia, App. No. 24268/08, Eur. Ct. H.R. (2010) .......................... 32 Labsi v. Slovakia, App. No. 33809/08, Eur. Ct. H.R. (2012) ................. 25, 31 Lawrence v. Texas, 539 U.S. 558 (2003)...................................................... 30 iv Appeal: 13-1676 Doc: 82-1 RESTRICTED Filed: 03/26/2015 Pg: 10 of 49 Mahjoub v. Canada (Minister of Citizenship and Immigration), 2006 FC 1503 ............................................................................................... 25, 29, 30 Makhmudzhan v. Russia, App. No. 49747/11, Eur. Ct. H.R. (2012) .... 26, 32 Mathews v. Eldridge, 424 U.S. 319 (1976) .................................................. 18 Medellin v. Texas, 552 U.S. 491 (2008) ............................................. 4, 24, 25 Mironescu v. Costner, 480 F.3d 664 (4th Cir. 2007) ............................... 4, 14 MT, RB, & U v. Sec’y of State for the Home Dep’t, [2007] EWCA Civ. 808 ................................................................................................................... 26 Munaf v. Geren, 553 U.S. 674 (2008) .......................................................... 15 Plaster v. United States, 720 F.2d 340 (4th Cir. 1983) ................................ 14 Reno v. Flores, 507 U.S. 292 (1993) ............................................................ 17 Rusu v. INS, 296 F.3d 316 (4th Cir. 2002) ................................................... 17 Saadi v. Italy, Appl. No. 37201/06, Eur. Ct. H.R.(2008) ....................... 31, 32 Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155 (1993) ............................. 13 United States v. Karake, 443 F. Supp. 2d 8 (D.D.C. 2006).......................... 21 Withrow v. Larkin, 421 U.S. 35 (1975) ........................................................ 23 Y v. Sec’y of State for the Home Dep’t, [2006] SC/36/2005 (SIAC)............ 26 Youssef v. The Home Office [2004] EWHC 1884 (QB) ............................... 28 Yusupov v. Att’y Gen., 518 F.3d 185 (3d Cir. 2008) ........................ 12, 24, 25 Zelaya v. Holder, 668 F.3d 159 (4th Cir. 2012) ....................................... 5, 12 Zivotofsky ex rel. Zivotofsky v. Clinton, 132 S. Ct. 1421 (2012) .................. 13 v Appeal: 13-1676 Doc: 82-1 RESTRICTED Filed: 03/26/2015 Pg: 11 of 49 Zokihidov v. Russia, App. No. 67286/10, Eur. Ct. H.R. (2013) ................... 32 Statutes 8 U.S.C. §§ 1252(e) ...................................................................................... 13 8 U.S.C. §§ 1252(e)(2)(C) ............................................................................ 15 Foreign Affairs Reform and Restructuring Act of 1998, § 2242, Pub. L. No. 105-277, 112 Stat. 2681-822 ..................................................... 4, 12, 13, 15 Other Authorities 136 Cong. Rec. 36,198 (1990) ...................................................................... 12 8 C.F.R. § 208.16(c)(2) ................................................................................... 5 Brief of Amnesty Int’l et al. as Amici Curiae Supporting Petitioners, Bimenyimana v. Holder, appeal docketed Nos. 13-1676(L), 14-2212 (4th Cir. 2015)..................................................................................................... 9 Brief of Rwanda Experts Timothy Longman et al. as Amici Curiae Supporting Petitioners, Bimenyimana v. Holder, appeal docketed Nos. 131676(L), 14-2212 (4th Cir. 2015) ............................................................... 21 C.T. and K.M. v. Sweden, Communication No. 279/2005, U.N. Doc. CAT/C/37/D/279/2005 (Nov. 17, 2006) ..................................................... 6 Committee for the Prevention of Torture, 15th General Report on the CPT’s Activities Covering the Period 1 August 2004 to 31 July 2005, CPT/Inf (2005) .......................................................................................................... 7 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment art. 3, opened for signature Dec. 10, 1984, 1465 U.N.T.S. 85 .................................................................................................. 4 Human Rights Watch, World Report 2014, Rwanda.................................... 19 vi Appeal: 13-1676 Doc: 82-1 RESTRICTED Filed: 03/26/2015 Pg: 12 of 49 John T. Parry, International Extradition, the Rule of Non– Inquiry, and the Problem of Sovereignty, 90 B.U. L. REV. 1973 (2010) ............................. 15 Pelit v. Azerbaijan, Communication No. 281/2005, U.N. Doc. CAT/C/38/D/281/2005 (May 29, 2007) .................................................. 6, 8 Remarks at the Organization for Security and Co-operation in Europe (OSCE), Supplementary Human Dimension Meeting Opening Session, (Apr. 10, 2014) ...................................................................................... 9, 10 U.N Human Rights Comm., Alzery v. Sweden, Communication No. 1416/2005, ¶ 11.5, U.N. Doc. CCPR/C/88/D/1416/2005 (Nov. 10, 2006) ................................................................................................................. 6, 8 U.N. Comm. Against Torture, Agiza v. Sweden, Communication No. 233/2003, U.N. Doc. CAT/C/34/D/233/2003 (May 20, 2005) ............... 5, 6 U.N. Comm. Against Torture, Conclusions and Recommendations to U.S., U.N. Doc. CAT/C/USA/CO/2 (July 25, 2006) ....................................... 5, 7 U.N. Secretary-General, Interim Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, U.N. Doc. A/59/324 (Sept. 1, 2004).................................... 10 U.N. Secretary-General, Interim Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, U.N. Doc. A/60/316 (Aug. 30, 2005) ............................... 9, 10 vii Appeal: 13-1676 Doc: 82-1 RESTRICTED Filed: 03/26/2015 Pg: 13 of 49 IDENTITY AND INTEREST OF AMICI CURIAE Amici curiae are scholars of Human Rights Law who teach at American law schools. With expertise in international treaties and the constitutional and statutory law underlying our country’s fundamental human rights commitments, amici are well-positioned to assist the Court in addressing several important questions raised by this appeal. Specifically, amici believe that the removal of non-citizens on the basis of untested diplomatic assurances issued by the very governments from which torture is feared is inconsistent with this country’s absolute non-refoulement obligations under the U.N. Convention Against Torture (“CAT”) and the Foreign Affairs Reform and Restructuring Act of 1998 (“FARRA”). Amici write to explain that CAT and FARRA, as well as the Fifth Amendment guarantee of due process of law, require meaningful adversarial testing and impartial review of diplomatic assurances, which, standing alone, cannot resolve whether an individual faces a likelihood of torture upon removal. SUMMARY OF ARGUMENT CAT’s absolute prohibition on refoulement to torture, implemented by FARRA, mandates meaningful testing and objective review of diplomatic assurances to assess an individual’s risk of torture if removed. Indeed, as human rights law experts, including the U.N. treaty bodies charged with 1 Appeal: 13-1676 Doc: 82-1 RESTRICTED Filed: 03/26/2015 Pg: 14 of 49 enforcing the prohibition on torture, recognize, diplomatic assurances can neither supersede—nor alone satisfy—the objective assessment of whether torture upon removal is more likely than not. CAT and FARRA mandate a thorough and objective examination of the risk of torture in each individual case, including the reliability of diplomatic assurances. In addition to the objective process and review mandated by CAT and FARRA, the Fifth Amendment Due Process Clause separately requires basic procedural protections before an individual may be removed on the basis of diplomatic assurances. At a minimum, due process demands that non-citizens have a meaningful opportunity to rebut diplomatic assurances purporting to neutralize a previously established threat of torture in the receiving country, and to demonstrate that, notwithstanding the assurances, removal would violate the law. Finally, the jurisprudence of foreign courts interpreting CAT helps illuminate the scope of U.S. obligations under CAT and FARRA; Congress intended to incorporate this understanding of CAT developed internationally into the U.S. statutory scheme. This foreign jurisprudence also provides an important comparative perspective demonstrating why individuals facing removal must be afforded an opportunity to challenge diplomatic assurances: Foreign courts are deeply skeptical of diplomatic assurances and subject them 2 Appeal: 13-1676 Doc: 82-1 RESTRICTED Filed: 03/26/2015 Pg: 15 of 49 to meaningful testing and review. And significantly, after such testing, foreign courts often conclude that diplomatic assurances do not mitigate objectively measurable risks of torture. For all of these reasons, the need for a meaningful and objective process to challenge diplomatic assurances is essential. That is even more true where, as in the instant case, representatives of the specific country in question previously tortured the individuals seeking protection and deny that they did so in the face of objective evidence to the contrary. Particularly in these circumstances, unquestioned deference to diplomatic assurances—without the meaningful process amici urge—presents too great a risk that removal will accomplish an end-run around CAT and FARRA. The courts have a meaningful role to play in ensuring that the United States’ human rights commitments are not so easily disregarded. ARGUMENT I. THE CONVENTION AGAINST TORTURE AND FARRA REQUIRE AN OBJECTIVE ASSESSMENT OF THE RISK OF TORTURE UPON TRANSFER, INCLUDING THE RELIABILITY OF DIPLOMATIC ASSURANCES. A. CAT and FARRA Mandate that Diplomatic Assurances Be Subject to Meaningful and Impartial Review. CAT and FARRA do not contemplate diplomatic assurances as an adequate substitute for meaningful and objective analysis of an individual’s 3 Appeal: 13-1676 Doc: 82-1 RESTRICTED Filed: 03/26/2015 Pg: 16 of 49 risk of harm upon transfer. In fact, CAT and FARRA do not mention diplomatic assurances at all. Article 3 of CAT, to which the United States became a party in 1994,1 precludes any State Party from expelling, returning, or extraditing a “person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.” Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment art. 3, opened for signature Dec. 10, 1984, 1465 U.N.T.S. 85. Congress, through FARRA, implemented this obligation into domestic law.2 See Foreign Affairs Reform and Restructuring Act of 1998, § 2242, Pub. L. No. 105-277, 112 Stat. 2681-822 (codified as note following 8 U.S.C. § 1231); see also Medellin v. Texas, 552 U.S. 491, 516 (2008) (citing FARRA as an example where Congress gave “wholesale effect” to the United States’ treaty obligations); Mironescu, 480 F.3d at 666-67 (describing CAT’s 1 See U.N. Doc. 571 Leg/SER.E/13.IV.9 (1995). Specifically, Congress implemented CAT’s non-refoulement obligation into U.S. law through section 2242(a) of FARRA, which tracks the language of Article 3, and states unequivocally that it is “‘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.’” Mironescu v. Costner, 480 F.3d 664, 667 (4th Cir. 2007) (quoting FARRA, Section 2242(a)). Congress further “direct[ed] the heads of the appropriate agencies to ‘prescribe regulations to implement the obligations of the United States under Article 3.’” Id. (quoting Section 2242(b)). 2 4 Appeal: 13-1676 Doc: 82-1 RESTRICTED Filed: 03/26/2015 Pg: 17 of 49 ratification history and implementation through FARRA). As this Court has noted, the legality of a non-citizen’s removal under FARRA and its implementing regulations turns upon whether the person seeking protection “has demonstrated that it is more likely than not that he will be tortured if returned to such country.” Zelaya v. Holder, 668 F.3d 159, 161 (4th Cir. 2012) (citing 8 C.F.R. § 1208.16(c)(2)); see also 8 C.F.R. § 208.16(c)(2). As international law experts—including the U.N. treaty body charged with enforcing the non-refoulement obligation under CAT—recognize, diplomatic assurances alone, and on their face, cannot answer that inquiry. For example, the U.N. Committee Against Torture interprets Article 3 as mandating “a thorough examination of the merits of each individual case,” and “adequate judicial mechanisms of review” even in cases where diplomatic assurances are procured. U.N. Comm. Against Torture, Conclusions and Recommendations to U.S., ¶ 21, U.N. Doc. CAT/C/USA/CO/2 (July 25, 2006)3 [hereinafter 2006 CAT Conclusions]; see also U.N. Comm. Against Torture, Agiza v. Sweden, Communication No. 233/2003, ¶¶ 13.4, 13.8, U.N. Doc. CAT/C/34/D/233/2003 (May 20, 2005) (stating that Sweden’s transfer of an individual to Egypt on the basis of diplomatic assurances without “judicial or independent administrative review” did “not meet the procedural 3 available at http://www.state.gov/documents/organization/133838.pdf 5 Appeal: 13-1676 Doc: 82-1 RESTRICTED Filed: 03/26/2015 Pg: 18 of 49 obligation to provide for effective, independent and impartial review required by Article 3”). When assessing the lawfulness of refoulements under Article 3, the CAT Committee considers all relevant circumstances, including whether the country of transfer has engaged in a pattern of gross, flagrant or mass human rights violations, see C.T. and K.M. v. Sweden, Communication No. 279/2005, ¶ 7.2, U.N. Doc. CAT/C/37/D/279/2005 (Nov. 17, 2006), and whether enforcement mechanisms or other arrangements exist tending to demonstrate that the assurances can and will be effectively implemented, see U.N Human Rights Comm., Alzery v. Sweden, Communication No. 1416/2005, ¶ 11.5, U.N. Doc. CCPR/C/88/D/1416/2005 (Nov. 10, 2006). The Committee deems a searching review especially warranted where the receiving country has engaged in a consistent practice of torture. See Agiza, Communication No. 233/2003, ¶ 13.8; UN. Comm. Against Torture, Pelit v. Azerbaijan, Communication No. 281/2005, ¶ 11, U.N. Doc. CAT/C/38/D/281/2005 (May 29, 2007). The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“CPT”), created by the Council of Europe, also requires diplomatic assurances to “be open to challenge before an independent authority.” Committee for the Prevention of Torture, 15th 6 Appeal: 13-1676 Doc: 82-1 RESTRICTED Filed: 03/26/2015 Pg: 19 of 49 General Report on the CPT’s Activities Covering the Period 1 August 2004 to 31 July 2005, para. 41, CPT/Inf (2005)17.4 The Committee has described that impartial review as “the only way of ensuring rigorous and timely scrutiny of the safety of the arrangements.” Id. In sum, CAT and FARRA mandate a thorough and objective examination of the risk of torture in each individual case. That scrutiny includes assessment of the reliability of diplomatic assurances. B. Diplomatic Assurances Cannot Alone Resolve Whether Torture Is More Likely Than Not. Diplomatic assurances, while potentially relevant to whether a noncitizen’s refoulement is consistent with Article 3, are not conclusive. International experts agree that diplomatic assurances cannot alone resolve whether torture is more likely than not. For example, in conclusions directed to the United States, the U.N. Committee Against Torture, expressed concern that treating such assurances as determinative of the Article 3 inquiry would violate state parties’ fundamental obligation to protect individuals against torture. 2006 CAT Conclusions, supra, at ¶¶ 20-21 (stating that individuals facing return should “always have the possibility to challenge decisions of refoulement” and citing 4 available at http://www.cpt.coe.int/en/annual/rep-15.pdf. 7 Appeal: 13-1676 Doc: 82-1 RESTRICTED Filed: 03/26/2015 Pg: 20 of 49 “concern” about the United States’ use of diplomatic assurances). And, in assessing the legality of refoulements in individual cases, the Committee has concluded that acceptance of diplomatic assurances “without more” does not diminish the risk of torture or satisfy the detaining country’s Article 3 obligations under CAT. See Pelit, Communication No. 281/2005, at ¶11-12 (concluding that Azerbaijan violated Article 3 of the CAT when it returned a refugee to Turkey based upon diplomatic assurances where other evidence indicated a persistent risk of torture). Like the CAT Committee, the U.N. Human Rights Committee has considered diplomatic assurances to be one “factual element” relevant to, but not conclusive of, the “overall determination” regarding the risk of torture. See Alzery v. Sweden, Communication No. 1416/2005, ¶ 11.3, U.N. Doc. CCPR/C/88/D/1416/2005 (Nov. 10, 2006) (concluding that the forced return of an Egyptian national to his home country violated the prohibition on refoulement notwithstanding diplomatic assurances, which were insufficient “to eliminate the risk of ill-treatment”). The U.N. Special Rapporteur on Torture Juan Méndez has similarly stated that diplomatic assurances “do not release States from their nonrefoulement obligations” or negate CAT’s requirement of an objective assessment of the risk of torture. Remarks at the Organization for Security 8 Appeal: 13-1676 Doc: 82-1 RESTRICTED Filed: 03/26/2015 Pg: 21 of 49 and Co-operation in Europe (OSCE), Supplementary Human Dimension Meeting Opening Session, 9 (Apr. 10, 2014) [hereinafter 2014 Special Rapporteur Remarks] (stating that even where diplomatic assurances are at issue, a person many not be returned “where there are reasonable grounds to believe” he faces torture or ill-treatment);5 see also U.N. Secretary-General, Interim Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, ¶ 51, U.N. Doc. A/60/316 (Aug. 30, 2005) [hereinafter 2005 Special Rapporteur Report] (stating former Special Rapporteur Manfred Nowak’s view that States “cannot resort to diplomatic assurances as a safeguard against torture and ill-treatment where there are substantial grounds for believing that a person would be in danger of being subjected to torture or ill-treatment upon return”). Significantly, as human rights law experts, including amici, recognize, diplomatic assurances cannot alone determine whether a State’s proposed transfer would satisfy CAT and FARRA, in part because such assurances are not legally binding and, as a practical matter, cannot counteract entrenched conditions that make torture in a receiving country likely. See Br. of Amnesty Int’l et al. as Amici Curiae Supporting Petrs., Bimenyimana et al. v. Holder 5 available at http://www.eda.admin.ch/content/dam/eda/en/documents/20140410-WienFolterpraevention-Rede-Mendez_EN.pdf 9 Appeal: 13-1676 Doc: 82-1 RESTRICTED Filed: 03/26/2015 Pg: 22 of 49 et. al, at 9, 13-14, appeal docketed Nos. 13-1676(L), 14-2212 (4th Cir. 2015). Indeed, three successive U.N. Special Rapporteurs on Torture have noted that diplomatic assurances are “unreliable” and an “ineffective safeguard against torture.” 2014 Special Rapporteur Remarks, supra, at 9; see also 2005 Special Rapporteur Report, supra, at ¶ 51 (stating that diplomatic assurances are “unreliable and ineffective in the protection against torture and ill-treatment”); U.N. Secretary-General, Interim Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, ¶ 37, U.N. Doc. A/59/324 (Sept. 1, 2004) (stating former Special Rapporteur on Torture Theo van Boven’s view that “diplomatic assurances should not be resorted to” for countries with a systemic record of torture). Such skepticism of diplomatic assurances is especially warranted when they are invoked to justify revocation of deferral of removal, as in the instant case. In this context, the meaningful and objective review mandated by CAT and FARRA serves as an essential protection against torture given that the receiving country providing the “assurance” is the very same jurisdiction previously recognized as presenting a substantial risk of torture to the individual—a threat that warranted the grant of deferral in the first place. In short, human rights experts, including those charged with investigating torture, as well as the treaty body tasked with interpreting and 10 Appeal: 13-1676 Doc: 82-1 RESTRICTED Filed: 03/26/2015 Pg: 23 of 49 applying CAT, agree that diplomatic assurances are never conclusive of whether a non-citizen’s refoulement is consistent with Article 3. Rather, determination of whether a removal would violate CAT or FARRA must assess all objective and available evidence bearing upon the risk of torture, while subjecting such assurances to meaningful testing and review. Here, the government has not gone back to the immigration court to show that conditions in Rwanda have changed. Rather, the U.S. is relying upon diplomatic assurances as the determinative factor to justify the return of Petitioners. That is impermissible under CAT and FARRA. Thus, regardless of how much process is afforded Petitioners to test the assurances, the U.S. cannot return Petitioners based upon diplomatic assurances. C. FARRA Incorporates CAT’s Requirement of Meaningful and Objective Review. The international consensus that Article 3 requires a meaningful and objective review of diplomatic assurances as part of the overall assessment of an individual’s risk of torture is relevant to domestic removal cases like this one because in passing FARRA, Congress intended to import these understandings into domestic law. Congress made clear that it intended the scope of the non-refoulement obligation under FARRA to be coextensive with the United States’ obligation under Article 3 of CAT. See, e.g., FARRA 11 Appeal: 13-1676 Doc: 82-1 RESTRICTED Filed: 03/26/2015 Pg: 24 of 49 § 2242(f)(2) (stating that “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”). In its understanding to Article 3, the Senate explained that a “substantial risk” of torture would be satisfied—and the executive judicially enjoined from transferring—if a petitioner demonstrated that torture was “more likely than not.” 136 Cong. Rec. 36,198 (1990); see also Zelaya, 668 F.3d at 167-68. That standard, which is equivalent to a “preponderance of the evidence” burden of proof, is conventional to judicial, not Executive, decisionmaking, further illustrating that Congress intended for claims under Article 3 to be subject to a meaningful process of impartial review based upon the available proofs. The absence of any additional understandings or reservations with regard to the prevailing understanding of Article 3 underscores the conclusion that Congress implemented CAT as so interpreted. Additionally, Congress’s adoption of essentially identical language in FARRA as that contained in the treaty is one of the “strongest indicators” that Congress intended to incorporate the understanding of the treaty “developed under international law into the U.S. statutory scheme.” Yusupov v. Att’y Gen., 518 F.3d 185, 203 n.32 (3d Cir. 2008) (reasoning that Congress intended 12 Appeal: 13-1676 Doc: 82-1 RESTRICTED Filed: 03/26/2015 Pg: 25 of 49 to incorporate international understanding of the Refugee Protocol within the Refugee Act of 1980 because it adopted “essentially identical language”); see also Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 180 & n.36 (1993) (similar reasoning where the text of Immigration and Naturalization Act was “so similar” to the treaty it implemented). Moreover, the provisions of FARRA and the REAL ID ACT that expressly provide for judicial review of CAT claims further demonstrate that Congress intended for meaningful review of diplomatic assurances under Article 3. See § 2242(d); 8 U.S.C. §§ 1252(e). Indeed, by assigning courts responsibility to enforce non-citizens’ statutory rights under FARRA, Congress made clear that the judiciary has a meaningful role to play in assessing the risk of torture abroad. Cf. Zivotofsky ex rel. Zivotofsky v. Clinton, 132 S. Ct. 1421, 1427-28 (2012) (political question doctrine did not apply where Plaintiff sought to enforce a “specific statutory right,” which invoked “the Judiciary’s power to decide [the] claim”). Accordingly, a claim under FARRA seeking relief from removal is not the “rare” case where prudential concerns might counsel against a searching judicial inquiry or any judicial inquiry at all. Cf. id. at 1434 (Sotomayor, J., concurring). Quite the opposite: FARRA, like CAT, mandates a meaningful and objective review of the likelihood of torture upon removal. 13 Appeal: 13-1676 Doc: 82-1 D. RESTRICTED Filed: 03/26/2015 Pg: 26 of 49 The Rule of Non-Inquiry Does Not Apply to FARRA, Which Precludes Unquestioned Deference to Diplomatic Assurances. The meaningful and impartial review required by CAT and FARRA overrides any claim of deference to the Executive’s factual determinations, based upon diplomatic assurances, regarding the likelihood of torture upon removal. For that reason, as this Court has recognized, the rule of non-inquiry, a prudential doctrine requiring qualified deference to the State Department’s extradition decisions, does not apply to challenges to the legality of transfers under FARRA. See Mironescu, 480 F.3d at 672. As a judge-made doctrine developed in response to concerns about international comity in the extradition context, the rule of non-inquiry has no application to FARRA, a statute that creates express substantive rights and mandates judicial review in the removal context. Id. at 672; see also Plaster v. United States, 720 F.2d 340, 348 (4th Cir. 1983); In re Burt, 737 F.2d 1477, 1483 (7th Cir. 1984). Indeed, even in the extradition context, the rule of noninquiry is not mandated by constitutional separation of powers concerns, but rather reflects a limited deference regarding the interpretation of extradition treaties. See In re Extradition of Howard, 996 F.2d 1320, 1329, 1330 n.6 (1st Cir. 1993) (describing historical rationale for the rule as recognition that “absent a contrary indication in a specific instance, the ratification of an 14 Appeal: 13-1676 Doc: 82-1 RESTRICTED Filed: 03/26/2015 Pg: 27 of 49 extradition treaty” indicates that the “executive and legislative branches consider the treaty partner’s justice systems sufficiently fair to justify sending the accused persons there for trial”); see also John T. Parry, International Extradition, the Rule of Non–Inquiry, and the Problem of Sovereignty, 90 B.U. L. REV. 1973, 1978–96 (2010). Those prudential concerns are wholly inapplicable where the interpretation of an extradition treaty is not at issue and Congress has provided “a contrary indication” mandating judicial review of whether torture is more likely than not in the “specific instance” of removal. See § 2242(d); 8 U.S.C. §§ 1252(e)(2)(C). Nor does the U.S. Supreme Court’s decision in Munaf v. Geren, 553 U.S. 674 (2008), provide to the contrary. That case not only did not involve FARRA’s application in the removal context, but it expressly reserved whether an individual could validly invoke FARRA in a habeas petition as a ground for blocking his or her involuntary transfer—the context in which the rule of non-inquiry would otherwise have the strongest possible force. 553 U.S. at 703 & n.6. Needless to say, where Congress has expressly provided for judicial review of CAT claims, prudential doctrines do not counsel against—never mind foreclose—judicial review. On the contrary, CAT and FARRA mandate a meaningful and objective review of the likelihood of torture upon removal. 15 Appeal: 13-1676 II. Doc: 82-1 RESTRICTED Filed: 03/26/2015 Pg: 28 of 49 THE FIFTH AMENDMENT DUE PROCESS CLAUSE SEPARATELY REQUIRES BASIC PROCEDURAL PROTECTIONS BEFORE AN INDIVIDUAL MAY BE REMOVED ON THE BASIS OF DIPLOMATIC ASSURANCES. A. Due Process Requires A Meaningful Opportunity to Rebut Diplomatic Assurances. Separate and apart from the meaningful and objective process mandated by CAT and FARRA, the Due Process Clause demands, at a minimum, that non-citizens have a meaningful opportunity to rebut diplomatic assurances purporting to neutralize a previously established threat of torture in the receiving country, and to demonstrate that their removal would violate the law notwithstanding the assurances. See Khouzam v. Att’y Gen., 549 F.3d 235, 257 (2008); cf. Boumediene v. Bush, 553 U.S. 723, 779 (2008) (concluding that a non-citizen who filed a habeas action must be afforded “a meaningful opportunity to demonstrate that he is being held pursuant to ‘the erroneous application or interpretation’ of relevant law’”) (quoting INS v. St. Cyr., 533 U.S. 289, 302 (2001)). Under longstanding precedent, non-citizens may not be removed from the United States without due process of law. Reno v. Flores, 507 U.S. 292, 306 (1993); see also Anim v. Mukasey, 535 F.3d 243, 261 (4th Cir. 2008) (immigration judge’s reliance upon State Department letter crediting foreign government’s representations violated asylum applicant’s due process rights). 16 Appeal: 13-1676 Doc: 82-1 RESTRICTED Filed: 03/26/2015 Pg: 29 of 49 Because non-citizens may not be removed without due process of law, they likewise are entitled to due process before the government may terminate orders deferring their removal. See Khouzam, 549 F.3d at 257 (describing application of due process to termination of deferral of removal as a “simple matter”). As such, under foundational and universal principles of constitutional due process, at a minimum, non-citizens must be afforded a meaningful opportunity to demonstrate the unlawfulness of their proposed removal—and to therefore contest the reliability of the diplomatic assurances asserting that they will not face torture if removed. Rusu v. INS, 296 F.3d 316, 321 (4th Cir. 2002) (recognizing that the process due to non-citizens in removal proceedings is the same “fundamental requirement” that applies before other liberty interests may be deprived: “the opportunity to be heard at a meaningful time and in a meaningful manner”). To be sure, a meaningful opportunity to be heard requires different process depending upon what “the particular situation demands.” Rusu, 296 F.3d at 321 (concluding in asylum proceeding that due process required applicants to “receive a full and fair hearing on their claims” (quoting Mathews v. Eldridge, 424 U.S. 319, 334 (1976)). Because termination of deferral of removal implicates a specific statutory right under FARRA not to be returned to torture and extinguishes an order providing essential protection 17 Appeal: 13-1676 Doc: 82-1 RESTRICTED Filed: 03/26/2015 Pg: 30 of 49 against a grave deprivation of liberty, a meaningful opportunity to vindicate those rights requires an impartial process that considers the totality of available evidence bearing upon the risk of torture in the receiving country— and does not just take diplomatic assurances as conclusive in every case. Indeed, the imperative of a meaningful process is further indicated by the factors courts customarily consider when determining the scope of process due. Specifically, under Mathews v. Eldridge, 424 U.S. at 335, courts balance: “(1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and probative value, if any, of any additional procedural safeguards; and (3) the Government’s interest, including the fiscal and administrative burdens that the additional or substitute procedures would entail.” When the termination of an order preventing removal to torture is at stake, each of the Mathews’ prongs weighs in Petitioners’ favor. Specifically, the liberty interest recognized by a deferral of removal— the right not to be tortured—is a compelling interest backstopped by the jus cogens norm of international law prohibiting torture. And, as amici explained above, when diplomatic assurances serve as the sole justification for terminating an order protecting against torture, the risk of an erroneous deprivation of that vital interest is unacceptably high. See supra Point I.B. 18 Appeal: 13-1676 Doc: 82-1 RESTRICTED Filed: 03/26/2015 Pg: 31 of 49 (describing unreliability and limited predictive value of such assurances). Significantly, that risk is even higher when diplomatic assurances are used to terminate deferral of removal to countries that not only routinely torture, but also frustrate oversight and accountability for such abuses. The high risk of erroneous deprivation is thus intolerably high in the instant matter where credible reports indicate not only that torture persists in Rwanda, but that the government actively thwarts mechanisms of objective monitoring and oversight of its human rights violations. See Human Rights Watch, World Report 2014, Rwanda 1, 4 (describing alleged torture of criminal defendants at secret detention facilities and the government’s obstruction of “independent civil society organizations,” including the take-over of one of Rwanda’s “last remaining independent human rights organizations”).6 Finally, the burden on the Government of providing non-citizens with adequate process prior to terminating deferral orders protecting against torture is low given that the government already routinely provides such process to other non-citizens facing removal. See Baharon v. Holder, 588 F.3d 228, 233 (4th Cir. 2009) (“Those who . . . seek refuge under our laws have the right to know that the 6 available at http://www.hrw.org/world-report/2014/countrychapters/rwanda 19 Appeal: 13-1676 Doc: 82-1 RESTRICTED Filed: 03/26/2015 Pg: 32 of 49 evidence they present of mistreatment in their home country will be fairly considered and weighed by those who decide their fate.”). Indeed, when diplomatic assurances are at issue, the Mathews test points toward a process close to, if not the functional equivalent of, the process that normally governs removal proceedings. See Khouzam, 549 F.3d at 257 (describing due process in removal proceedings as requiring three elements, all “predicated upon the existence of a ‘neutral and impartial’ decisionmaker”: (1) “factfinding based on a record produced before the decisionmaker and disclosed to him or her;” including a “reasonable opportunity to present evidence on [his or her] behalf;” (2) the opportunity “to make arguments on his or her own behalf;” and (3) “the right to an individualized determination of his or her interests”) (internal citations omitted). And to assess the reliability and sufficiency of diplomatic assurances, meaningful process must allow for consideration of objective factors such as: (i) the human rights record of the country in question and the extent to which torture is routine there; (ii) the degree of government control over potential torturers, including police, military, and other security forces, and the degree to which the rule of law is embedded therein; (iii) whether assurances are capable of future verification, including whether proposed monitoring mechanisms are capable of effectively policing torture; and (iv) whether torture is likely to be inflicted 20 Appeal: 13-1676 Doc: 82-1 RESTRICTED Filed: 03/26/2015 Pg: 33 of 49 in secret notwithstanding diplomatic assurances. In amici’s considered view, adequate consideration of these factors simply cannot occur without permitting an individual facing termination of a deferral order a reasonable opportunity to present live evidence and arguments tending to contradict the assurances, and to receive an individualized determination of his or her claim from an impartial decisionmaker. Khouzam, 549 F.3d at 257. The essential nature of such modest procedural safeguards is underscored in cases such as this one, in which representatives of the specific country in question breached diplomatic assurances in the past, previously tortured the individuals seeking protection, and denied torture in the face of objective evidence to the contrary. See United States v. Karake, 443 F. Supp. 2d 8, 71 (D.D.C. 2006) (rejecting as patently unbelievable denials of torture by Rwandan officials of the Petitioners sub judice); see Br. of Rwanda Experts Timothy Longman et al. as Amici Curiae Supporting Pets., Bimenyimana et al. v. Holder et al., appeal docketed Nos. 13-1676(L), 14-2212 (4th Cir. 2015). To hold in such a case that the mere proffering of diplomatic assurances is all the process that is due would denude the Fifth Amendment of any meaning. 21 Appeal: 13-1676 Doc: 82-1 B. RESTRICTED Filed: 03/26/2015 Pg: 34 of 49 Termination of Petitioners’ Deferrals of Removal Based Upon Untested Diplomatic Assurances Denied Them Due Process of Law. In light of this analysis, the process afforded to the Petitioners prior to termination of their deferrals of removal in the instant matter violated due process in multiple respects. First, the Petitioners were denied the opportunity for factfinding based upon a record fully disclosed to them prior to the termination decision. See Petrs.’ Br. 56-57. Indeed, the Petitioners only had access to the Government’s justification for its termination decision after the government had already terminated their deferral of removal, and even then, the record provided by DHS lacked complete information. See Petrs.’ Br. 5657; (A.R. 147-164.) This denied Petitioners a meaningful opportunity to contest the Government’s conclusion that the risk of torture had diminished. Second, Petitioners were denied a meaningful opportunity to develop a record with their own evidence. Although Petitioners provided written submissions to the Government, they were only permitted to do so in response to actions the Government had already taken, and were not afforded the opportunity to present witnesses or make oral presentations at a hearing. (A.R. 147-164.); see also Khouzam 549 F.3d at 257 (concluding that due process requires that individuals facing termination of deferral of removal have the opportunity to develop a factual record by presenting evidence of their own 22 Appeal: 13-1676 Doc: 82-1 RESTRICTED Filed: 03/26/2015 Pg: 35 of 49 claims). The opportunity to submit a letter to the very agency seeking to remove the Petitioners, after it had already decided to terminate their deferral, was not sufficient process. See Khouzam, 549 F.3d at 257 (rejecting the idea that “the general ability to correspond with an agency [is] sufficient to satisfy due process”). Finally, and most fundamentally, Petitioners were denied due process because, in terminating their deferral of removal, DHS did not act as a neutral and impartial decisionmaker. See Khouzam, 549 F.3d at 258 (casting doubt on the ability of agencies that perform simultaneous investigative and adjudicative functions to qualify as neutral and impartial decision makers); see also Withrow v. Larkin, 421 U.S. 35 (1975) (due process may be violated when “the risk of unfairness” caused by “the combination of investigative and adjudicative functions” “is intolerably high”). Here, due to the Government’s partiality, the “risk of unfairness” occasioned by the Government’s reliance upon its own untested record regarding conditions in Rwanda and the reliability of diplomatic assurances was “intolerably high.” See Withrow, 421 U.S. at 58. In amici’s view, given the stakes, the need for further process to ensure that Petitioners have a meaningful opportunity to demonstrate the likelihood of their torture in Rwanda, notwithstanding the assurances proffered by the Rwandan government, is manifest. 23 Appeal: 13-1676 III. Doc: 82-1 RESTRICTED Filed: 03/26/2015 Pg: 36 of 49 FOREIGN COURTS ARE DEEPLY SKEPTICAL OF DIPLOMATIC ASSURANCES AND SUBJECT THEM TO MEANINGFUL TESTING AND REVIEW. The above points establish that under governing law diplomatic assurances must be subjected to meaningful adversarial testing and impartial review. But it is worth underscoring that the practice of foreign courts— which widely recognize that diplomatic assurances, standing alone, say little about the risk of torture upon transfer—further supports that conclusion. Indeed, foreign courts closely scrutinize diplomatic assurances within an overall objective and rigorous assessment of the risk of torture upon removal. This jurisprudence is directly relevant to the Government’s non-refoulement obligations under CAT. See, e.g., Medellin, 552 U.S. at 516; Yusupov, 518 F.3d at 203. It also provides an important comparative perspective demonstrating why Petitioners must have an opportunity to challenge the diplomatic assurances purporting to justify their removal to a country where they have already been tortured, and where they claim (and an immigration judge has previously agreed) they will be tortured again. In order to interpret the scope of U.S. obligations under an international treaty, U.S. courts frequently rely upon the post-ratification understanding developed by other state parties to the treaty. See, e.g., Medellin, 552 U.S. at 516 (relatively consistent state interpretation “strongly suggests” that 24 Appeal: 13-1676 Doc: 82-1 RESTRICTED Filed: 03/26/2015 Pg: 37 of 49 domestic courts should similarly view the treaty); Yusupov, 518 F.3d at 203 (citing unanimous view of state parties to Refugee Convention to interpret mirror U.S. statutory provision). Thus, in assessing Petitioners’ claim under CAT and FARRA, this Court may—and, indeed, should—consider the procedures employed by foreign courts, which have interpreted the nonrefoulement obligation under Article 3 of CAT as mandating an effective, independent, and impartial review of diplomatic assurances as part of an overall assessment of an individual’s risk of torture. The procedures employed by foreign courts reflect many of the hallmarks of a fair and meaningful process, including: the right to present evidence and argument, see Mahjoub v. Canada (Minister of Citizenship and Immigration), 2006 FC 1503; consideration by a neutral and impartial decisonmaker, see Labsi v. Slovakia, App. No. 33809/08, Eur. Ct. H.R., ¶120, 125-27 (2012); MT, RB, & U at ¶ 94 at ¶ 94 (affirming BB v. Secretary of State for the Home Department, [2006] SC/39/2005 (SIAC), ¶¶ 5,6); and an individualized factual determination guided by objective factors, see Ismoilov v. Russia, No. 2947/06, Eur. Ct. H.R., ¶121 (2008); Makhmudzhan v. Russia, App. No. 49747/11, Eur. Ct. H.R., ¶72, 75-76 (2012). 25 Appeal: 13-1676 Doc: 82-1 RESTRICTED Filed: 03/26/2015 Pg: 38 of 49 Significantly, as set forth below, the meaningful process recognized by foreign courts often results in determinations that diplomatic assurances do not mitigate demonstrable risks of torture. A. The United Kingdom The United Kingdom provides individuals seeking protection under CAT a meaningful opportunity to challenge the reliability of diplomatic assurances and to demonstrate a substantial risk of torture upon transfer notwithstanding the assurances. See e.g., MT, RB, & U v. Sec’y of State for the Home Dep’t, ¶ 11, [2007] EWCA Civ. 808. For example, the UK Special Immigration Appeals Commission (“SIAC”)7 requires that diplomatic assurances be presented in open court and subject to challenge. See Y v. Sec’y of State for the Home Dep’t, [2006] SC/36/2005 (SIAC). A neutral decisionmaker then assesses whether there is a “sound objective basis” for believing assurances will be fulfilled.”8 MT, RB, & U at ¶ 94 (analyzing whether compliance with assurances can be monitored or verified by other means) (affirming BB v. Sec. of State for the Home Dep’t, [2006] SC/39/2005 7 SIAC adjudicates national security removal cases, the context in which diplomatic assurances have arisen in the UK. 8 The court noted that the determination might be based on the degree to which the destination country adheres to the rule of law, the extent to which it possesses the political will and national interest in fulfilling assurances, and whether it has adequate control over agencies including security forces. Id. 26 Appeal: 13-1676 Doc: 82-1 RESTRICTED Filed: 03/26/2015 Pg: 39 of 49 (SIAC), ¶¶ 5,6). Applying that searching review in DD & Anor v Sec. of State for the Home Dep’t, [2008] EWCA Civ 289 (April 9, 2008) (“DD &. Anor (EWCA)”), the England and Wales Court of Appeal refused to credit the government’s claim that diplomatic assurances from Libya were unquestionably reliable. DD &. Anor (EWCA), ¶ 320. The court noted that “whether deporting someone would infringe his human rights under Article 3 of the Convention . . . at no point lies within the exclusive province of the executive.” DD & Anor (Ct. of Appeals), ¶ 41. It again questioned whether a “sound objective basis” existed for believing the assurances would be fulfilled, considering: (1) the Libyan security forces’ history of human rights abuses and impunity; (2) competition between Libyan intelligence and security organizations; (3) the risk that the UK’s relationship with the foreign country (or other circumstances) might change; and (4) whether the UK could apply diplomatic pressure if monitoring failed to reveal abuse. DD & Anor (SIAC), ¶¶ 354, 362, 368. Despite fully crediting the former ambassador’s diplomatic expertise, familiarity with the negotiations, and sincere motivations, the Court agreed with the SIAC that “there is too much scope for something to go wrong, and too little in place to deter ill-treatment or to bring 27 Appeal: 13-1676 Doc: 82-1 RESTRICTED Filed: 03/26/2015 Pg: 40 of 49 breaches . . . to the UK's attention.” DD & Anor (Ct. of Appeal), ¶ 80 (citing DD & Anor (SIAC), ¶ 368). Similarly, an England and Wales High Court decision, Youssef v. The Home Office [2004] EWHC 1884 (QB), demonstrates the importance of an impartial, objective process in ferreting out the risk of torture that may be masked by the Executive’s desire to transfer a person for political expedience. In that case, the British Prime Minister took the position that Egypt’s assurances should be taken at face value given “that torture is banned under Egyptian law.” Youssef, ¶¶ 8, 38. But the Court refused, noting “strong evidence” of systematic torture of political prisoners, even though Egypt is a signatory to CAT, and clear evidence “that elements in the Egyptian Security Forces were a law unto themselves” and therefore could not be controlled even by good faith government efforts. Youssef, ¶ 78. Most recently, the Court of Appeal in BB, PP, W, U and Others v. Sec. of State for the Home Dep’t, rejected the notion that mere issuance of assurances from the Algerian government would avert the risk of torture. [2015] EWCA Civ. 9, No. T2/2013/0503, 0506 &0513, ¶54. Citing significant instances of inhumane treatment by Algeria, the Court instead required objective corroboration of the assurance’s reliability and workable, post-transfer enforcement mechanisms, especially in the absence of an 28 Appeal: 13-1676 Doc: 82-1 RESTRICTED Filed: 03/26/2015 Pg: 41 of 49 independent monitoring body. BB, PP, W, U and Others v. Sec. of State for the Home Dep’t, [2015] EWCA Civ. 9, No. T2/2013/0503, 0506 &0513, ¶31 (remanding after concluding that the proposed means of verifying assurances were inadequate). In sum, U.K. courts recognize the potential that diplomatic assurances may be used as an end-run around CAT’s non-refoulement obligation. To counter that risk, courts provide individuals seeking CAT protection with a meaningful opportunity to test the assurances’ reliability and to demonstrate that a risk of torture persists. B. Canada Canada also closely scrutinizes diplomatic assurances after providing an opportunity for meaningful adversarial testing of their reliability. Mahjoub v. Canada (Minister of Citizenship and Immigration), 2006 FC 1503; see also Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 SCR 3. For example, an individual facing refoulement is afforded the opportunity to “challenge” diplomatic assurances and demonstrate an ongoing risk of torture through development of factual record before a neutral decisionmaker. Majoub v. Canada (Minister of Citizenship and Immigration) 2006 FC 1503, ¶ 87. Significantly, courts will set aside administrative decisions upholding transfers based upon diplomatic assurances and direct a proper consideration 29 Appeal: 13-1676 Doc: 82-1 RESTRICTED Filed: 03/26/2015 Pg: 42 of 49 of Article 3 of CAT where the neutral adjudicator: (1) denies “these required procedural safeguards;” (2) “fails to consider the appropriate factors;” or (3) issues a decision that is “not supported by the evidence.” Suresh, [2002] 1 SCR 3, ¶ 125; see also Majoub, 2006 FC 1503, ¶¶ 87, 96 (setting aside administrative judgment that “consistently ignored critical evidence, failed to take important factors into consideration and arbitrarily relied on selective evidence” to credit diplomatic assurances contrary to “the overwhelming bulk of evidence” showing persistent torture in Egypt). In short, like the U.K., Canadian courts provide meaningful procedural protections prior to permitting transfers based upon diplomatic assurances. And in that process, courts routinely assess evidence related to the reliability of the assurance and the objective risk of torture. C. The European Court of Human Rights The European Court of Human Rights (“ECHR”)—the decisions of which are particularly persuasive to U.S. courts, see, e.g., Lawrence v. Texas, 539 U.S. 558, 576 (2003)—has held that courts must look beyond diplomatic assurances to assess whether they can provide “a sufficient guarantee” of protection. Saadi v. Italy, Appl. No. 37201/06, 28 February 2008, Eur. Ct. H.R., ¶ 148 (2008); see also Chahal v. United Kingdom, 23 Eur. Ct. H. R. Rep. 413, ¶¶ 93, 105 (1996). To do so, ECHR weighs diplomatic assurances 30 Appeal: 13-1676 Doc: 82-1 RESTRICTED Filed: 03/26/2015 Pg: 43 of 49 against objective factors relevant to the reliability of the assurances and overall risk of torture. That evidence may include “expert opinions and witness statements” presented by the applicant facing transfer. See Abdulkhakov v. Russia, App. No. 14743/11, Eur. Ct. H.R., ¶148 (2012). The ECHR also considers country conditions reporting by international, domestic, government, and NGO sources, see Kaboulov v. Ukraine, App. No. 41015/04, Eur. Ct. H.R., ¶ 107 (2009), and examines the Court’s prior cases crediting a risk of torture in the same receiving country, Labsi v. Slovakia, App. No. 33809/08, Eur. Ct. H.R., ¶¶ 120, 125-27 (2012). In this assessment, the human rights record of the receiving country is granted significant weight. In fact, where the receiving country engages in an enduring pattern of torture (or tolerates such conduct), the European Court of Human Rights views diplomatic assurances as presumptively insufficient and has cautioned against relying upon them altogether. See Ismoilov v. Russia, No. 2947/06, Eur. Ct. H.R., ¶ 121 (2008) (requiring concrete evidence showing “fundamental improvement” to protect against torture and “positive results”); Makhmudzhan v. Russia, App. No. 49747/11, Eur. Ct. H.R., ¶¶ 72, 75-76 (2012) (concluding that good faith of the Kyrgyz authorities as well as country’s democratic progress marked by new constitution, elections, and 31 Appeal: 13-1676 Doc: 82-1 RESTRICTED Filed: 03/26/2015 Pg: 44 of 49 other legal reform, did not justify reliance upon its diplomatic assurances where torture and ill-treatment remained intractable and widespread); Saadi v. Italy, Appl. No. 37201/06, Eur. Ct. H.R., ¶ 147 (2008) (recognizing that reliable sources indicated torture persisted notwithstanding the receiving State’s ratification of international human rights treaties and domestic law prohibiting torture). The Court also closely scrutinizes the content of the assurances, noting that “vague” assurances lacking “precision” do not adequately guard against torture. Klein v. Russia, App. No. 24268/08, Eur. Ct. H.R., ¶ 55 (2010); see also Zokihidov v. Russia, App. No. 67286/10, Eur. Ct. H.R., ¶ 141 (2013) (doubting the reliability of general assurances, unsupported by any enforcement or monitoring mechanisms). The Court also considers the source of the assurances and whether that person can bind the receiving state; whether compliance with the assurances can be objectively verified through compliance or other monitoring mechanisms; and whether the domestic courts of the sending state have examined the reliability of the assurances. Labsi, App. No. 33809/08, ¶ 120. Although the above summary is not exhaustive, it is representative. And it demonstrates widespread international consensus that diplomatic assurances are an unreliable and insufficient proxy for assessing the true risk 32 Appeal: 13-1676 Doc: 82-1 RESTRICTED Filed: 03/26/2015 Pg: 45 of 49 of torture that an individual faces upon removal, such that diplomatic assurances must be subjected to meaningful testing and review. This comparative perspective also underscores the inadequacy of the process afforded to Petitioners, who have been denied any meaningful opportunity to test the diplomatic assurances purporting to justify their removal to a country where they have already been tortured, and where they fear they will be so again. For the United States’ immutable non-refoulement obligations under CAT, as incorporated by Congress in FARRA, to mean anything, some modicum of meaningful, objective process is essential. CONCLUSION For the foregoing reasons, this Court should grant the Petition for Review and hold that the termination of Petitioners’ deferral of removal on the basis of untested diplomatic assurances violated CAT, FARRA, and the Due Process Clause of the Fifth Amendment. Respectfully Submitted, /s/ Jennifer B. Condon Jennifer B. Condon SETON HALL LAW SCHOOL CENTER FOR SOCIAL JUSTICE One Newark Center Newark, New Jersey 07102 (973) 642-8700 33 Appeal: 13-1676 Doc: 82-1 RESTRICTED Filed: 03/26/2015 Pg: 46 of 49 Counsel for Amici Curiae, Scholars of Human Rights Law Dated: March 26, 2015 34 Appeal: 13-1676 Doc: 82-1 RESTRICTED Filed: 03/26/2015 Pg: 47 of 49 STATEMENT OF AUTHORITY TO FILE Petitioners have consented to filing this brief. Amici curiae requested the Government’s consent to file this brief and the Government took no position on that request. Accordingly, concurrently with the filing of this brief, amici file a motion for permission to file an amicus brief pursuant to Federal Rule of Appellate Procedure 29(b). STATEMENT REGARDING PARTICIPATION BY PARTIES, THEIR ATTORNEYS, OR OTHER PERSONS Counsel for amici curiae states pursuant to Federal Rule of Appellate Procedure 29(c)(5) that no counsel for a party authored this brief in whole or in part, and no person other than amici curiae, its members, or its counsel made a monetary contribution to its preparation or submission. CERTIFICATE OF COMPLIANCE WITH RULE 32(a) This brief complies with the type-volume limitation of Federal Rule of Appellate Procedure 32(a) because it contains 6,923 words, excluding the parts of the brief exempted by Federal Rule of Appellate Procedure 32(a)(7)(B)(iii). This brief 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 35 Appeal: 13-1676 Doc: 82-1 RESTRICTED Filed: 03/26/2015 Pg: 48 of 49 proportionally spaced typeface (Times New Roman) using Microsoft Word 2010 in 14-point font. /s/ Jennifer B. Condon Jennifer B. Condon March 26, 2015 36 Appeal: 13-1676 Doc: 82-1 RESTRICTED Filed: 03/26/2015 Pg: 49 of 49 CERTIFICATE OF SERVICE I hereby certify that the foregoing brief was filed and served on all parties electronically through the Court’s CM/ECF system on March 26, 2015. /s/ Jennifer B. Condon Jennifer B. Condon March 26, 2015 37
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