Ninth Circuit Rules that Severe Beatings Are Not Torture

by Roger Alford

The Ninth Circuit last month rendered a controversial decision interpreting the Convention Against Torture. In Ahmed v. Keisler, the court ruled on whether Ahmed should be deported to Bangladesh based on whether it was more likely than not that he would be tortured if removed to Bangladesh. (The panel consisted of Judge Pregerson, a Carter appointee, Judge Rawlinson, a Clinton appointee, and Judge Sandoval, a Bush II appointee sitting by designation). The facts indicate that Ahmed had been beaten by police during demonstrations against the government. Ahmed also reports that he received death threats from the police while in custody. Here are the key facts:

In 1972, Ahmed, his older brother, and uncle, were captured and detained by the Bengali army. The army suspected Ahmed’s uncle of having collaborated with Pakistan. During the detention, the army killed Ahmed’s uncle in front of Ahmed. They also beat Ahmed and his brother. Ahmed’s brother suffered a fractured hand and Ahmed has scars all over his body from the beating.

After moving to Geneva Camp, Ahmed became politically active. He joined the Bihari organization Stranded Pakistani General Repatriation Committee (“SPGRC”) in 1985, and became an assistant to Nassin Khan, the SPGRC’s chief leader. In 1990, Ahmed organized a hunger strike. During the strike, the police arrived, took Ahmed into custody overnight, beat him, and released him the next day.

In 1991, Ahmed participated in a demonstration in front of the Pakistan Embassy. The demonstrators sat in a circle around the embassy, and they tried to give the Ambassador a memorandum requesting that he make arrangements to send them to Pakistan. When they were not allowed to enter the embassy, the demonstrators screamed and threw rocks. The police were called, and they fired guns and threw tear gas at the demonstrators. The demonstrators tried to run away but they were caught by police. Many demonstrators, including Ahmed, were beaten by the police. The police forced Ahmed to sign a statement saying that he would not organize in the future.

On December 26, 1994, Ahmed, together with the Bihari community in Geneva camp, participated in a demonstration. The community protested that they wanted to go to Pakistan because they “cannot live with this kind of living.”The police arrived and tried to break up the demonstration. At one point, the demonstrators became angry with the police and started throwing stones. The police called for backup and fired guns and tear gas at the demonstrators. The police captured many demonstrators, including Ahmed, took them into custody, and beat them. The police released Ahmed the next day but threatened him with death should he ever protest again. Ahmed testified that, “if I ever try to say anything like this or try to speak then we will be killed in the police camp.”After he was released, Ahmed fled the camp, realizing that he was not safe and that he needed to leave the country. After four visits to the American Embassy, Ahmed succeeded in getting a visa. There is no evidence that Ahmed was violent or that he advocated violence at any of the three demonstrations….

In its legal analysis, the court distinguishes between persecution and torture and concludes that severe beatings are not torture:

Ahmed contends that he is entitled to relief under CAT. To qualify for CAT relief, Ahmed must establish that it is more likely than not that he would be tortured if removed to Bangladesh. “‘Torture is an extreme form of cruel and inhuman treatment and does not include lesser forms of cruel, inhuman or degrading treatment or punishment that do not amount to torture.’” Torture is defined as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or her or a third person information or a confession, punishing him or her for an act he or she or a third person has committed or is suspected of having committed, or intimidating or coercing him or her or a third person, or for any reason based on discrimination of any kind….” Kamalthas v. INS, 251 F.3d 1279, 1282 (9th Cir.2001) (quoting 8 C.F.R. § 208.18(a)(1) (2000)). Country conditions evidence can play a decisive role in determining eligibility for relief under CAT. Ahmed bears the burden of presenting evidence to establish “substantial grounds for believing that [he] would be in danger of being subjected to torture in the country of removal.”. We review the factual findings underlying the IJ’s denial of relief under the CAT for substantial evidence.

The evidence in the record compels a finding that it is more likely than not that Ahmed will be persecuted if returned to Bangladesh, and Ahmed has offered evidence, if less pronounced, suggesting the likelihood of future harm. While in Bangladesh, Ahmed was taken into custody and beaten on four occasions (once while with his brother and uncle, and three times after participating in protests). Though certainly forms of persecution, it is not clear that these actions would rise to the level of torture.

Because the evidence does not demonstrate that it is more likely than not that Ahmed will be tortured if returned to Bangladesh, we find that CAT relief is not appropriate. Accordingly, we find that substantial evidence supports the IJ’s determination that Ahmed is not eligible for CAT relief.

The conduct of “beating” someone has a range of possible meanings, from corporal punishment in school to beating someone to a pulp. Have I ever been beaten in my life? Well, yes and no, depending on the definition. But this case does not seem to be a particularly difficult one to find torture. The analysis is somewhat unusual in that most of the decision discusses his treatment as having been beaten when he was an adult, although on two occasions it states that he was severely beaten during the incident of 1972 when he was a teenager. So if someone is severely beaten in such a way that it leaves permanent scars all over your body, why does that not qualify as the intentional infliction of severe physical pain and suffering? Severe beatings do not equal severe pain? On what basis can the court rule that this conduct did not “rise to the level of torture.”

As for the death threat, I frankly am a little surprised that the court makes no mention of it in its torture analysis. I would think that if the police threaten you with death (and actually killed your uncle before your eyes when you were thirteen years old) that would cause extreme emotional trauma for many people. But then again, is the test an objective or subjective one? Do we look to see if it actually caused severe emotional pain to Ahmed or do we consider it from the perspective of the typical person standing in the shoes of Ahmed? I don’t think it is clear from the rule which standard to apply.

Of course, the strict legal question is whether Ahmed has factually established that it is more likely than not that he would be tortured if removed to Bangladesh. The fact that he was “severely beaten” in 1972 and “beaten” in the 1990s, does not automatically establish the likelihood of future torture if he is returned to Bangladesh. But the court also emphasized the country conditions in Bangladesh play a decisive role in determining eligibility under the Torture Convention. It appears (see this Amnesty report) that Bangladesh continues to have a serious problem with police killings and beatings.

Fortunately for Ahmed the asylum standard of well-founded fear of persecution was satisfied, even if the torture standard was not.

One Response

  1. On the question of whether the test is sibjective or objective, I just had a brief discussion with another reader of this blog, in comments to a post by Duncan Hollis. I feel I should restate my views, and the criticism addressed to me by a reader called 18 USC 2340.

    My initial statement, in the context of an OLC official trying out waterboarding (on the victim side, as it were) for himself, was that the definition of torture and of inhuman and degrading treatment necessarily took into account the vulnerability of the victim. To that end, I cited the judgment of the ECtHR in Menesheva v. Russia, where the Court repeated its classic statement (Soering v. UK, para. 100) under which ‘[t]o assess the severity of the “pain or suffering” inflicted on the applicant, the Court has regard to all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, as in some cases, the sex, age and state of health of the victim’. (The exact wording is from Menesheva, but does not differ in any material way from Soering, or from most, if not all, Article 3 cases.) The Court in Menesheva then went on to apply the test stated to the facts of the case by noting that the applicant had been ‘particularly vulnerable’. It found a violation of Article 3, also on the grounds of the purpose, duration and severity of the treatment complained of.

    I was criticized on the point by 18 USC 2340, in the following terms, which I cannot put any more succinctly:

    your citation does not say that the definition of torture “necessarily takes into account” the victim’s state of vulnerability.

    The court observes that the victim was “particularly vulnerable,” but only as a function of — and in relation to — her age and sex.

    “To assess the severity of the “pain or suffering” inflicted on the applicant, the Court has regard to all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, as in some cases, the sex, age and state of health of the victim. The Court observes that at the material time the applicant was only 19 years old and, being a female confronted with several male policemen, she was particularly vulnerable.”

    The ECHR does not say that “vulnerability” is a self-standing definitional prong of what constitutes “severe mental pain and suffering.” And as the omitted citation to Bati makes clear, purpose and duration – along with sex, age, and state of health – are the relevant elements to adduce. Not “vulnerability.”

    I replied to this as follows (I add some explanations now):

    what, if not vulnerability, do ‘sex, age and state of health of the victim’ go to? Purpose and duration?

    [I read the criteria of the victim’s ‘sex, age and state of health’ as subcategories of a more general ‘vulnerability’ point.]

    And why does the Court apply the test you quote by adverting to the applicant’s vulnerability?

    [If the applicant’s vulnerability was unimportant, then any mention of it would be neither here nor there. In saying that the applicant’s age and sex made her particularly vulnerable, I think the Court said fairly clearly that these two criteria were important as relevant to her vulnerability.]

    In any event, if you are assessing the severity of pain and suffering – not, you will note, of the treatment – surely it is self-evident to have regard to the personal condition of the victim? Remember, the Court is not talking about the level of pain and suffering that the victim could reasonably have felt, or any such utter nonsense, but about the level of pain of suffering that was in fact inflicted.

    [That bit could be regarded as somewhat conclusory in nature in our present debate. But it does refer to the basic definition of the European Court, the CAT, and the American cases and legislation (the ‘pain and suffering’ bit), and tries to draw conclusions from it.]

    Let’s try and think what the Court may have meant, shall we? ECtHR judgments in particular do not lend themselves to such a strict, literalist reading. I doubt if any do.

    Mind you, we aren’t talking about ‘elements of the definition’ anyway. The definition is ‘treatment occasioning severe pain and suffering’. That naturally directs one’s mind at all the circumstances of the case (see above). The rest is a matter of judgment.

    Beyond these points, it might be argued that there is a relevant distinction between torture and inhuman and degrading treatment. The latter may have a subjective element, the former, it might be argued, does not. I don’t think that’s accurate.

    As I understand it, there are two partly competing formulations of the distinction between torture and inhuman and degrading treatment. The first, employed by the ECtHR, is that torture is ‘deliberate inhuman treatment causing very serious and cruel suffering’ (Menesheva, para. 58). The difference, then, is one of degree, and torture, unlike inhuman treatment, must be deliberate. Much the same appears from the quotes from Ahmed v. Keisler, quoting Kamalthas v. INS – although there the word used is ‘intentional’, rather than ‘deliberate’.

    The second definition of the two concepts is that the only difference between them is in the purpose of the treatment. ‘Torture’ and ‘inhuman and degrading treatment’ therefore describe the same level of suffering, but the former description is engaged if the State actors committing the act do so in furtherance of some form of official purpose or State policy. Article 1 CAT lends some support to this in including in its definition of torture an open-ended list of such purposes.

    I would prefer the latter definition, because the furtherance of some more or less stated purpose underlines that the victim is used much like a tool in the external interests of the State, and thus treated ‘as a thing and not a person’, contrary to the basic intendment of the prohibition of torture ( see Limbuela v. Secretary of State for the Home Department [2004] EWCA Civ 540, [2004] QB 1440, para. 71, per Laws LJ).

    But this does not matter. Neither of the definitions of the two concepts lends support to the idea that ‘torture’ might have to be judged objectively.

    Of course, it is also beside the point that torture may be a criminal act. Of course, convicting someone of the crime of torture will require finding the requisite mens rea, and in that sense, objectively recognizable factors making the treatment torture may be more telling. They may more readily show that the perpetrator knew what he was doing (supposing for a moment that he would have to know that his acts qualified as torture). But subjective factors may also be readily apparent, and then serve the same (evidentiary) purpose.

    On the case of Ahmed v. Keisler, I would agree that the Court’s conclusion was puzzling. In the end, I cannot put it better than Lord Justice Laws did in Limbuela, supra, at para. 71:

    ‘Anyone suffering unlawful violence is degraded by it, and if it is meted out at the hands of the State, it is all the more degrading: the State, which should look after the citizen, treats him instead with contempt. It is what vile tyrannies do.’

    (Not all aspects of his analysis in that case are convincing, and rightly did not fare well on appeal: [2005] UKHL 66, [2006] 1 AC 396, paras. 49-55, 77.)

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