Monday, August 29, 2005

Kamara: CAT when threatened by two torturers; the state created danger doctrine

Filed 08/29/05, No. 04-2647
Kamara v. Atty Gen USA
Kamara v. Gonzales
Precedential Case

In this case, the Third Circuit had to overturn the BIA's decision and explain to the BIA that under the Convention Against Torture, someone cannot be deported if there is more than a 50% chance that he will be tortured upon his return. What if there is a substantial chance he will be tortured, combining the odds that two different groups will torture him? Logically, as long as the cumulative odds of torture are more than 50%, he deserves protection. The BIA , however, took the illogical position that he must prove that a particular group is more than 50% likely to torture him and did not allow him to add up the risks from different torturers.

For example, if it's 27% likely that the RUF will torture him and 28% likely that the Sierra Leone government will torture him, he deserves CAT protection (it's 55% likely he'll be tortured). The BIA illogically said that he needed to show the threat from the RUF or Sierra Leone was on its own greater than 50%.

On jurisdiction, the Third Circuit held it could review the appeal of a habeas decision in the district court as if it had arisen from a straightforward petition for review in the world that exists after Congress passed the Real ID Act.

The immigrant challenged whether the BIA's skimpy six-paragraph decision violated due process by not granting him an individualized decision. The Third Circuit, though, said the minimal indicia of individualized decisionmaking was satisfied in this case.

On the "state created danger" doctrine, the government can be sued if it directly and foreseeably puts a person in danger in willful disregard for his safety. The Third Circuit ruled that this doctrine does not apply to removal orders because the federal government meant to pre-empt other doctrines in the immigration area. Not sure whether the Third Circuit's ruling on this issue will survive the test of time. We shall see.


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