Four texts govern the use of an assurance in the United States: a treaty article, a statute, and two regulations. They are short, and they are quoted here in the words the courts have used, so that a reader can see for himself how little the law actually says about the practice.
The treaty
Article 3(1) of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment provides:
No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.
One point about this text controls much of what follows. The D.C. Circuit has held that the Convention is not self-executing, and therefore “does not itself create any rights enforceable in U.S. courts,” citing the Supreme Court’s decision in Medellin v. Texas. Whatever the treaty requires of the United States as a matter of international law, a person cannot go into a federal court and sue on the treaty itself. He must find a statute.
The statute
That statute is section 2242 of the Foreign Affairs Reform and Restructuring Act of 1998, codified as a note to 8 U.S.C. section 1231. Its policy provision reads:
It shall be the policy of the United States not to expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture, regardless of whether the person is physically present in the United States.
The reach of that sentence is wide. It covers expulsion, extradition, and any other means of effecting an involuntary return, and it applies whether or not the person is in the United States. But the Act also contains a review provision, and the D.C. Circuit has read the two together to a narrow result: “By its terms, the FARR Act provides a right to judicial review of conditions in the receiving country only in the immigration context, for aliens seeking review of a final order of removal.” On that reading, a person facing extradition or a military transfer has the benefit of the policy but no way to enforce it in court.
The regulations
The mechanism itself is regulatory. Section 1208.18(c) of title 8 of the Code of Federal Regulations, headed “Diplomatic assurances against torture obtained by the Secretary of State,” provides in full:
(1) The Secretary of State may forward to the Attorney General assurances that the Secretary has obtained from the government of a specific country that an alien would not be tortured there if the alien were removed to that country.
(2) If the Secretary of State forwards assurances described in paragraph (c)(1) of this section to the Attorney General for consideration by the Attorney General or her delegates under this paragraph, the Attorney General shall determine, in consultation with the Secretary of State, whether the assurances are sufficiently reliable to allow the alien’s removal to that country consistent with Article 3 of the Convention Against Torture. The Attorney General’s authority under this paragraph may be exercised by the Deputy Attorney General or by the Commissioner, Immigration and Naturalization Service, but may not be further delegated.
(3) Once assurances are provided under paragraph (c)(2) of this section, the alien’s claim for protection under the Convention Against Torture shall not be considered further by an immigration judge, the Board of Immigration Appeals, or an asylum officer.
The companion provision, section 1208.17(f), is headed “Termination pursuant to section 1208.18(c)” and provides that at any time while deferral of removal is in effect, the Attorney General may determine whether the deferral should be terminated on the basis of diplomatic assurances forwarded by the Secretary of State under those procedures.
What the regulations do not say
Three silences in that text are the whole of the litigation.
| The question | What the regulation says |
|---|---|
| When may an assurance be sought and used? | Nothing. As the Third Circuit put it, section 1208.18 “provides no limitations on when diplomatic assurances may be invoked, either in terms of particular categories of aliens, or the status of an alien’s CAT claims in the adjudicatory process.” |
| What makes an assurance sufficiently reliable? | Nothing. The standard is stated but not defined, and no factors are listed. |
| What process is the person given? | Nothing. The Third Circuit found “nothing in the diplomatic assurance regulations themselves that we could fairly construe as providing an alien with any process whatsoever, let alone the right to a hearing.” |
Paragraph (c)(3) is the sharpest of the three. Once the assurance is credited, the immigration judge, the Board, and the asylum officer are all removed from the matter by operation of the regulation. The finding of a probability of torture, which those adjudicators made, is displaced by a determination they play no part in and cannot revisit.
What the courts have done about that silence is the subject of the next section.