Friday, March 6, 2009

CAT's Double-Edged Sword

This week, the Supreme Court decided Negusie v. Holder, an asylum case that examines the availability of a duress exception to the persecutor bar. I discuss the administrative law and moral philosophy components of the decision over at Concurring Opinions, but I thought that IntLawGrrls readers might be more interested in the lurking role that the Convention Against Torture plays in the opinion.
Mr. Negusie, a dual national of Eritrea and Ethiopia, seeks asylum from the Eritrean government that tortured him and forced him to work guarding prisoners who themselves were persecuted. The crucial question is whether Negusie should be barred from asylum for working as a prison guard or exempted from this bar because his assistance in persecution was the product of duress. Justice Kennedy, writing for the majority, finds that the Board of Immigration Appeals (the administrative body responsible for hearing intermediate asylum appeals) should decide whether the Immigration and Nationality Act contains a duress exception to the persecutor bar, but he makes it fairly clear that he believes such an exception should exist. Scalia's concurrence defers more strongly to the Board, while Stevens' concurrence and dissent opines that the Court should determine whether a duress exception exists and that the Board's role should be limited to laying out the parameters of this exception.
Lurking in the background is the fact that Negusie has been granted deferral of removal under the Convention Against Torture (CAT) because the Immigration Judge found he was likely to be tortured if returned to Eritrea -- and the persecutor bar does not apply to CAT relief. The prospect of denying Negusie asylum might be less appealing if its result would be to return him to Eritrea; by the same token, the availability of CAT relief makes it easier to deny him asylum. It's important to note that deferral of removal is a highly temporary status that doesn't entitle its recipients to freedom from detention, let alone the path to citizenship that asylum offers. Moreover, while asylees can extend protection to their dependent family members in the United States and abroad, the family members of CAT recipients obtain no such benefit.
While it provides broader relief than the Refugee Convention, I worry that, as interpreted through U.S. immigration law, the Convention Against Torture may play a role in diluting not only the generosity of relief available but also standards for protection of those fleeing persecution and torture. Is a more universal but less permanent form of relief better than its more restricted but more generous counterpart? That's not clear to me, and more importantly, I don't think that's a choice that asylum seekers should have to make.


Naomi Norberg said...

Thanks, Jaya. Sounds like the US version of Europe's "subsidiary protection," a temporary status granted to those who don't qualify for refugee status but who can't be returned because they risk torture or other inhuman or degrading treatment if returned. A major problem is its "feminization": women seeking refuge from gender-based persecution are being granted subsidiary protection rather than asylum.

Isaias said...

What does this mean for other people? His family may be at risk!