First Impressions and Last Resorts: the Plenary Power Doctrine, the Convention Against Torture, and Credibility Determinations in Removal Proceedings

• Publication year: 2018

First Impressions and Last Resorts: The Plenary Power Doctrine, the Convention Against Torture, and Credibility Determinations in Removal Proceedings

D. Bruce Janzen Jr.

FIRST IMPRESSIONS AND LAST RESORTS: THE PLENARY POWER DOCTRINE, THE CONVENTION AGAINST TORTURE, AND CREDIBILITY DETERMINATIONS IN REMOVAL PROCEEDINGS

Abstract

The Convention Against Torture prohibits the exclusion or removal of any foreign national who is likely to be tortured upon returning to his homeland, without exception. In the United States, this absolute rule is the law of the land. Such universal applicability exists nowhere else in American immigration law, and for aliens convicted of serious crimes, its significance is difficult to overstate. But those seeking relief under the Convention are unlikely to receive it.

Many cases turn almost entirely on convincing the presiding immigration judge to believe the applicant's testimony—a task far easier said than done. The decision-making process in administrative removal proceedings is often unduly influenced by a number of problematic factors, and adverse credibility determinations are commonly accompanied by flawed logic and flimsy reasoning. These decisions are rarely second-guessed on appeal, and petitioning for judicial review generally does little more than delay the inevitable.

At the center of this troubling state of affairs is the plenary power doctrine, the extra-constitutional foundation upon which American immigration law rests. For the political branches, the doctrine is a wellspring of extensive and unparalleled authority; for the courts, it is a short leash of subdued and toothless deference. After establishing that the extraordinary degree of deference usually required by the plenary power doctrine is unwarranted when protection is sought under the Convention Against Torture, this Comment proposes an alternative standard of review for cases where such relief has been denied as a result of adverse credibility determinations.

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Introduction...........................................................................................1237

I. The Convention Against Torture............................................1238

A. Relief of "Last Resort" ........................................................... 1239
B. Seeking CAT Relief: Issues at Trial........................................ 1241

1. A Tortured Definition of "Torture".................................. 1241
2. Unlikely Success Under the "More Likely than Not" Standard ........................................................................... 1243

C. Credibility Determinations ..................................................... 1244

II. The Plenary Power Doctrine....................................................1246

A. The Plenary Power's Sovereign Roots ................................... 1247
B. "Civil" Removal and the Slow Growth of Procedural Rights 1250

III. Balancing Deference and Due Process..................................1254

A. Fuller v. Lynch: Judicial Inaction in Action .......................... 1254
B. The Private Interests at Stake for Individuals ........................ 1258
C. The Risk of an Erroneous Deprivation ................................... 1259

1. Impact of Trauma on Memory.......................................... 1260
2. Sexual Identity and Self-Presentation ............................... 1261
3. Implicit Bias ..................................................................... 1261
4. Law Displaced by Lottery................................................. 1263

D. The Government's Interest ..................................................... 1265

IV. A Deferential Compromise........................................................1268

Conclusion...............................................................................................1270

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Introduction

As part of a comprehensive effort "to make more effective the struggle against torture . . . throughout the world,"¹ the Convention Against Torture (CAT) prohibits the compulsory return of an individual to a homeland where he faces a dangerous likelihood of torture.² In accordance with the Convention's foundational premise that torture is never justifiable, the rule applies universally. This principle, known as non-refoulement, is reflected domestically in the United States through an assortment of federal statutes and regulations, and its lack of exceptions is unique under American law.³ However, because the CAT offers the only viable alternative to removal for foreign nationals with serious criminal records, applications for relief under its protection inevitably invite suspicion.⁴ Accompanying this unavoidable tinge of insincerity are a number of other, less obvious factors, which together bring about a deficit of impartiality in administrative removal proceedings.⁵

This tendency toward bias is particularly problematic when—as is often the case—hard evidence is wanting and eligibility for relief turns primarily on the presiding immigration judge's (IJ) impression of the applicant's trustworthiness. However, many IJs do not believe applicants because of irrelevant or tangential testimonial flaws,⁶ and in some cases, these adverse credibility determinations are colored by reasoning that can only be described as wrong.⁷ Yet little recourse exists when relief is denied. This is due, in part, to a regrettable tradition of judicial passivity.

Unlike the rest of American law, the federal government's authority to control immigration derives not from the Constitution but from international law.⁸ Known as the plenary power doctrine, this deeply engrained jurisprudential fixture mandates an unmatched degree of judicial restraint.⁹ Consequently, removal proceedings occupy a unique legal locality, situated between competing guarantees of sovereign autonomy and individual liberty. The end result is a process in which judicial deference is at its peak and

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petitioners may only challenge administrative decisions on procedural grounds. Federal courts, bound by statute and precedent, deny almost every petition for review.¹⁰

This Comment will show that, where withholding or deferral of removal under the CAT is involved, such an extraordinary degree of deference is improper. While immigration law is, by nature, concerned primarily with geopolitical boundaries, claims for relief under the CAT center on a different, far more significant type of border—that is, the one separating safety from fear, peace from pain, and life from death. Those seeking to avoid torture should not be on the same footing as lottery contestants. Furthermore, unlike other aspects of immigration law, the CAT's protections reflect the political branches' desire to constrict the United States' otherwise absolute sovereign autonomy. This self-imposed limitation should, in turn, serve to restrain the plenary power's influence over judicial review of denied applications for CAT-based relief. Therefore, courts in this context should apply a deferential compromise reflecting the Constitution's guarantees of procedural due process while balancing domestic statutory constraints with the United States' international obligations.

This Comment proceeds in four parts. Part I addresses the CAT's implementation in the United States. Part II explains the plenary power doctrine, with a focus on national sovereignty and the doctrine's gradual limitation vis-à-vis procedural due process. Part III provides an illustrative case study, and then frames the CAT within the Mathews v. Eldridge balancing test. Part IV, in turn, proposes a way in which reviewing courts can take a more active role in preventing erroneous denials without straying outside the legal boundaries imposed under the political branches' plenary powers.

I. The Convention Against Torture

In addition to requiring State Parties to take active steps toward preventing torture internally, Article 3 of the CAT prohibits the expulsion, return, or extradition of "a person to another State where there are substantial grounds for believing that he [or she] would be in danger of being subjected to torture."¹¹ Reflecting this principle of non-refoulement, American immigration law allows

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aliens who qualify for CAT relief to avoid removal in circumstances where such relief would otherwise be unavailable.¹²

This Part proceeds in three sections. Section A addresses the unique implications of CAT relief as a "last resort" in American immigration law. Section B highlights the hurdles that applicants face at trial, focusing on the government's narrow definition of "torture" and the applicant's deceptively high burden of proof under the "more likely than not" standard. Section C introduces the problem of adverse credibility determinations and the judicial deference accorded thereto on petition for review.

A. Relief of Last Resort

The CAT went into force on June 26, 1987,¹³ was signed by the United States on April 18, 1988, ratified by the Senate on October 27, 1990,¹⁴ and as a non-self-executing treaty, took effect domestically eight years later when the Foreign Affairs Reform and Restructuring Act (FARRA) became law.¹⁵ Adopting Article 3 as the federal government's official policy,¹⁶ FARRA delegated the CAT's implementation to the Executive Branch, subject to the Senate's "reservations, understandings, declarations, and provisos."¹⁷ Significantly, Congress instructed the Administration to exclude from protection aliens "described in section 241(b)(3)(B) of the Immigration and Nationality Act" (INA).¹⁸ Under the INA, certain aliens threatened with persecution in their home countries are eligible for withholding of removal,¹⁹ but the provision cited in FARRA lists four exceptions: (1) aliens who have persecuted others; (2) aliens

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who, "having been convicted . . . of a particularly serious crime [and are] a danger to the community"; (3) aliens who are reasonably believed to have...