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The U.N. Convention Against Torture: Overview of U.S. Implementation Policy Concerning the Removal of Aliens

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The United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT) requires signatory parties to take measures to end torture within their territorial jurisdiction. For purposes of the Convention, torture is defined as an extreme form of cruel and unusual punishment committed under the color of law. The Convention allows for no circumstances or emergencies where torture could be permitted. Additionally, CAT Article 3 requires that no state party expel, return, or extradite a person to another country where there are substantial grounds to believe he would be subjected to torture.

The United States ratified the Convention, subject to certain declarations, reservations, and understandings, including that the Convention was not selfexecuting, and therefore required domestic implementing legislation to take effect. In accordance with CAT Article 3, the United States enacted statutes and regulations to prohibit the transfer of aliens to countries where they would be tortured, including the Foreign Affairs Reform and Restructuring Act of 1998, section 2340A of the United States Criminal Code, and certain regulations implemented and enforced by the Department of Homeland Security (DHS), the Department of Justice (DOJ), and the Department of State. These authorities, which require the withholding or deferral of the removal of an alien to a country where he is more likely than not to be tortured, generally provide aliens already residing within the United States a greater degree of protection than aliens arriving in the United States who are deemed inadmissible on security or related grounds such as terrorism. Further, in deciding whether or not to remove an alien to a particular country, these rules permit the consideration of diplomatic assurances that an alien will not be tortured there. Nevertheless, under U.S. law the removal or extradition of all aliens from the United States must be consistent with U.S. obligations under CAT.

CAT obligations concerning alien removal have additional implications in cases of criminal and other deportable aliens. The Supreme Court's ruling Zadvydas v. Davis suggests that certain aliens receiving protection under CAT cannot be indefinitely detained, suggesting the possibility that certain otherwise-deportable aliens could be released into the United States if CAT protections make their removal impossible. CAT obligations also have implications for any existing "extraordinary renditions" policy by the United States in which certain aliens suspected of terrorist activities are removed to countries that possibly employ torture as a means of interrogation. Maher Arar, a dual citizen of Canada and Syria, has recently filed suit against certain U.S. officials that he claims were responsible for transferring him to Syria, where he was allegedly tortured and interrogated for suspected terrorist activities with the acquiescence of the United States.


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