Saturday, July 29, 2006

Toussaint: Criminals Not Social Group; Haiti Prison Conditions Not CAT Eligible

Toussaint v. Gonzales
No. 05-3311
July 26, 2006

A long-running issue with the courts is whether CAT relief is possible for people from Haiti who will be put into inhuman and deplorable conditions using an unacceptable practice of detaining deportees for an indeterminate period (unless they pay a bribe). CAT is the Convention Against Torture and it protects people who if deported would be in danger of being tortured. The problem that immigration advocates face is that courts have interpreted CAT as only protecting people where the painful and inhuman conditions are imposed with the specific intention of inflicting severe physical or mental pain or suffering. In this case, the immigration judge granted CAT relief and concluded the Haitian authorities had the specific intent of inflicting severe suffering. ICE appealed, though, and the BIA overturned that finding. The Third Circuit held that the BIA had enough reasoning listed in its decision that its hands were tied and it could not overturn the BIA's opinion.

So we have made progress enough to convince some immigration judges that the deplorable conditions in Haiti should provide CAT relief, but now we have to convince BIA judges about what really is happening in Haiti.

The Third Circuit rejected the attempt to argue that as a criminal being deported to Haiti, criminal deportees are a social group that deserves asylum protection if they can also prove a well-founded fear of persecution based on being a criminal deportee. This makes sense -- asyum law is intended to protect groups that will be persecuted. The Third Circuit, though, joined the First Circuit and the Seventh Circuit in refusing to allow any social group to be defined that includes criminals. It is unclear where the Third Circuit divines this harsh rule. After all, nobody would question that homosexuals who will be persecuted if returned deserve asylum, but technically speaking, in some states you could say that homosexuality arguably is punished as a crime. Asylum law is rooted in the international law fundamentals of not sending people to be persecuted. It is irrelevant that Congress has in other areas punished criminals. In fact, Congress's limits to asylum protection is specifically listed as extremely limited -- just particularly serious crimes. It seems illogical that the Third Circuit would impose a harsher crime-based limitation than what Congress explicitly listed in the law.


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