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September 19, 2007

Eleventh Circuit talks about law of torture

Though not technically a sentencing case, a helpful reader suggested that other readers of this blog might be interested in today's immigration ruling from the Eleventh Circuit in Jean Pierre v. US AG, No. No. 06-13359 (11th Cir. Sept. 19, 2007) (available here). Here is how the opinion begins:

More than fifty years ago, Justice Frankfurter wrote that, when it comes to torture, “there comes a point where this Court should not be ignorant as judges of what we know as men.” Watts v. Indiana, 338 U.S. 49, 52 (1949). Today, we decide not whether our humanity should inform our understanding of torture, but whether, in the context of this claim, Congress has eliminated the jurisdiction of the federal courts to address this issue in the first place. We conclude that the question at the heart of this appeal -- whether a particular course of conduct amounts to torture under the Convention Against Torture1 and the accompanying legislation -- is a legal one, and accordingly falls squarely within our limited jurisdiction under the REAL ID Act of 2005.

Petitioner Jean Herold Jean Pierre (“Jean Pierre”), a gravely ill AIDS patient, claims that he will be tortured in jail if he is removed to Haiti as a criminal alien. H e has consistently said, without any dispute, that he will be beaten with metal rods, confined for weeks in a tiny crawl space, and subjected to the Haitian practice of “kalot marassa” (severe boxing of the ears). This conduct, he argues, is torture.  Because the Board of Immigration Appeals failed to consider the heart of these claims, we grant his petition for review, vacate the BIA’s decision, and remand for further proceedings.

September 19, 2007 at 02:46 PM | Permalink


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The decisions with respect to torture claims of Haitians in immigration court have been politically motivated over the past few years. I have consistently argued that facts similar to these in a number of cases qualified for relief from removal under the Convention Against Torture. Consistently these cases have been denied, usually at the BIA level.

Posted by: rob | Sep 20, 2007 9:58:06 AM

Please post resolution by COA's of similar CAT torture claims from Haiti.

Posted by: S.cotus | Sep 20, 2007 10:16:59 AM

This is going to sound harsh, but the reality is that a criminal does not have the right to dictate to our society that he must stay, simply because he may be tortured when he gets back to his society. Yes, what may (or most likely will) happen to this guy is appalling, but so is the inevitable victimization of innocent people if principles from this case are applied to others (and to say nothing of the additional resources expended to deal with the inevitable multiplicity of claims). Gang members have made CAT claims to avoid deportation. And maybe it is true that gangbangers would suffer if they go back to their Central American country under a Mano Dura regime. The response, for the benefit of Americans, has got to be "So what?". If we cannot deport gangbangers, how many innocent Americans will suffer? And, fundamentally, why should innocent people bear the risk of these ingrates' presence here? Someone's child will suffer.

This guy should be deported to Haiti. He should be on the next flight.

Posted by: federalist | Sep 20, 2007 12:01:18 PM

Federalist, You raise an interesting issue, but the political branches have already committed to the Convention Against Torture, and the courts should not take their place by abrogating their actions.

Luckily the courts have rejected your pleas for judicial activism, where it comes to the executive and legislative branch’s foreign policy decisions, and this decision simply is continuing in that tradition.

I would urge you to write your Congressperson to urge the abrogation of the CAT. They might be a little busy dealing with their plans to end gay marriage, but I am sure they will get to your complaints.

Posted by: S.cotus | Sep 20, 2007 1:30:16 PM

Interesting how a "question of law" is expanded in that opinion . . . .

He should be deported.

Posted by: federalist | Sep 20, 2007 1:38:00 PM

Well, it is too bad that you were able to convince the courts (and Congress and the Executive) of the merits of your position. You should, like, run for Congress or something.

Posted by: S.cotus | Sep 20, 2007 2:11:35 PM

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