The Convention Against Torture and Non-refoulement in U.s. Courts

ARTICLES

THE CONVENTION AGAINST TORTURE AND

NON-REFOULEMENT IN U.S. COURTS

TRENT BUATTE*

ABSTRACT

In 1999, the United States implemented domestic regulations to fulfill its

non-refoulement obligations under Article 3 of the Convention Against

Torture (CAT). Since then, the U.S. domestic definition of torture may have

become one of the most litigated treaty provisions in U.S. courts. In 2019

alone, U.S. immigration judges adjudicated over 25,000 CAT claims and in

the past four years nearly every federal circuit court has grappled with the

CAT regulations. Yet, differences remain. Two circuit splits have emerged

regarding the CAT definition of torture: one examining government involve-

ment and an implied “rogue officer” exception and another considering the

“consent or acquiescence” required for non-State actors. Most recently, in

June 2020, the Trump administration proposed a significant alteration of the

CAT regulations that would require taking a side in both circuit splits.

This Article aims to recontextualize U.S. circuit court interpretation of

CAT provisions from what now exists as a merely domestic immigration pro-

cess to one that uses an international law framework. This Article examines

how U.S. application of CAT compares to the treaty’s drafting history and

the practice of international bodies and courts. This Article shows how the

CAT drafting history and interpretation by international bodies consistently

frame the public official nexus requirement contained in the CAT definition of

torture as part of a State responsibility analysis. Understanding this State

* Attorney-Adviser, U.S. Department of State Office of the Legal Adviser; Adjunct Professor of

Law, George Washington University Law School. The views expressed herein are solely my own and not

necessarily those of the U.S. government. This Article was selected for the American Society of

International Law’s 2020 Research Forum, and I am grateful to Professor Jaya Ramji-Nogales and fellow

participants for their insightful feedback. © 2021, Trent Buatte.

701

responsibility context and its application to refoulement cases can help U.S.

courts harmonize their divergent interpretations of torture under CAT.

TABLE OF CONTENTS

INTRODUCTION ......................................... 703

I. CAT AND NON-REFOULEMENT OBLIGATIONS IN U.S. LAW ........ 706

A. A Brief History of CAT in the United States. . . . . . . . . . . . 706

B. Implementing Non-refoulement Obligations . . . . . . . . . . . 709

1. Withholding and Deferral of Removal . . . . . . . . . . . . 709

2. Defining Torture........................... 710

3. How CAT Claims Come Before Federal Circuit Courts 711

II. TWO CIRCUIT SPLITS REGARDING PUBLIC ACTORS IN THE TORTURE

DEFINITION ....................................... 714

A. A Rogue Officer Exception?....................... 716

1. The First Circuit, BIA, and U.S. Attorney General . . . 716

2. The U.S. Attorney General (Again) and the Second,

Fourth, Fifth, and Eighth Circuits. . . . . . . . . . . . . . . 718

3. The Seventh and Ninth Circuits . . . . . . . . . . . . . . . . . 721

4. Coda: U.S. Proposed Regulations.............. . 723

B. Acquiescence When the State Takes Some Preventative

Steps ....................................... 724

1. The First, Fourth, Fifth, Eighth, and Eleventh Circuits . 724

2. The Second, Third, Seventh, and Ninth Circuits. . . . . 725

3. Coda: U.S. Proposed Regulations.............. . 726

III. CAT AS AN INCORPORATIVE TEXT: WHY U.S. COURTS SHOULD TURN

TO INTERNATIONAL LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 727

IV. INTERNATIONAL LAW RELEVANT TO CAT AND PUBLIC ACTORS . . . . . 730

A. Travaux Préparatoires . . . . . . . . . . . . . . . . . . . . . . . . . . 731

1. The Convention as a Whole . . . . . . . . . . . . . . . . . . . . 731

2. CAT Article 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 732

B. International Bodies and Courts . . . . . . . . . . . . . . . . . . . 735

1. The Committee Against Torture. . . . . . . . . . . . . . . . 735

2. ICCPR and the Human Rights Committee ......... 737

3. The Inter-American Human Rights System . . . . . . . . 738

702 GEORGETOWN IMMIGRATION LAW JOURNAL [Vol. 35:701

4. The European Human Rights System . . . . . . . . . . . . . 741

5. The African Human Rights System .............. 743

6. International Criminal Tribunals ................ 744

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 745

INTRODUCTION

In 2006, Raul Barajas-Romero was at his home in Santa Clara, Mexico

when he opened his door to find four off-duty police officers.

1

The officers

pushed him inside and demanded money.

2

When Raul refused, the officers

locked him in his own bathroom for two days, burned him with cigarettes,

beat him with the blunt side of a machete, sliced his leg with the same ma-

chete, and placed two scorpions down his pants, causing a fever, swelling,

and breathing problems.

3

The officers also rubbed a dried corncob on his

forehead in order to leave a scar where they threatened to place a bullet if

Raul ever reported them.

4

However, when the officers eventually left, Raul

reported the incident to other local police, but the officer immediately

stopped taking notes when Raul implicated other police officers.

5

Raul then

fled Mexico and sought refuge by unlawfully entering the United States.

6

When he was eventually detained by U.S. immigration authorities, Raul

applied for protection from being returned to Mexico under the Convention

Against Torture (CAT).

7

Because Raul was detained in California, he received relief under CAT.

But had he been detained in Texas, Maine, Georgia, or Missouri—for

example—he likely would have been denied CAT relief and immediately

returned to Mexico to face the same men who brutalized him for days and a

government that failed to protect him. Why did geography matter? Because a

significant circuit split exists among U.S. federal circuit courts as to how to

apply and interpret regulations implementing U.S. obligations under the

Convention Against Torture. As a State Party to the Convention, the United

States is both bound by the definition of torture in Article 1 and the obligation

under Article 3 not to return (refouler) a migrant to a country where there are

substantial grounds for believing he or she would be subjected to torture.

8

However, two major cleavages have emerged among federal circuit courts

over the years concerning the “public official” requirement in the CAT

Article 1 definition of torture: (1) whether a “rogue officer” exception exists

1. See Barajas-Romero v. Lynch, 846 F.3d 351, 354 (9th Cir. 2017).

2. See id.

3. See id. at 354–55.

4. See id. at 355.

5. See id.

6. See id.

7. See id.

8. See Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment. art. 1, 3, Dec. 10, 1984, 1465 U.N.T.S. 113, 113–114 [hereinafter CAT].

2021] CAT AND NON-REFOULEMENT IN U.S. COURTS 703