Guest Post: Maldonado v. Holder and the US’ “Understanding” of Its Convention Against Torture Obligations

by Gabor Rona

[Gabor Rona is a Visiting Professor of Law and Director, Law and Armed Conflict Project at Cardozo Law School.]

The 9th Circuit issued a revised Opinion on March 27th in Maldonado v. Holder, a case about non-refoulement (the obligation not to expel, return or extradite someone to a country where they would be in danger of being tortured) and deferral of removal under the UN Convention Against Torture. The En Banc panel said that the lower court erred in placing the burden on the petitioner to show that he could not relocate within Mexico in order to mitigate the risk that he would be subjected to torture. The Court also overruled several precedents that placed excessive burdens on petitioners seeking protection from torture abroad, saying they were incompatible with federal regulations designed to implement the non-refoulement obligation. This decision is a big deal in the realm of immigration law. Petitioner’s lawyer was quoted in the San Francisco Chronicle: “(The ruling) puts us in compliance with our international obligations and protects tortured people.”

Well, not exactly, counselor. It depends on what you mean by “obligations.”

The result is commendable, as far as it goes, but a US “understanding” upon ratification of the Convention Against Torture considers the non-refoulement obligation to be triggered only if torture is more likely than not. In other words, if the petitioner can only show a 49% chance that he will be tortured, he loses. The Convention is not nearly so demanding. It prohibits refoulement “where there are substantial grounds for believing that he would be in danger of being subjected to torture.” (Emphasis added). The Convention certainly doesn’t require proof that torture, or even the danger of torture, is more likely than not.

The US “understanding” is actually a “reservation” that significantly varies from the text of the Convention. One might say it tends to defeat the object and purpose of the treaty, and thus, is unacceptable. If so, the US is still some distance from compliance with its international obligation to protect people from torture.

http://opiniojuris.org/2015/04/07/guest-post-maldonado-v-holder-and-the-us-understanding-of-the-convention-against-torture/

2 Responses

  1. Thanks for the post . I support your opinion , it’s just that it needs more substantial literal analysis , here :

    The ” substantial grounds ” refers to the danger, but probability , in terms of quantity , has to do, not with the danger, but , as stated in clause 2 ( article 3 to the convention ) :

    consistent pattern of gross , and flagrant or mass violations of human rights .

    So , enough then, to prove that he can be in danger, and the last one, doesn’t need probability in terms of quantity. certain danger , is enough !! Since, the constituents of danger or estimation of such, are general, and not personal it seems from clause 2.

    Thanks

  2. Gabor: an “understanding” is just that — and in this case a misunderstanding. It does not attempt to change the obligation of the U.S., as a reservation or an attempted Declaration in the case of the U.S. ratification of the ICCPR.
    But you are absolutely correct regarding the deviance from the ordinary meaning of the CAT in light of its object and purpose and that an attempted reservation of such an ilk would be void ab initio as a matter of law.

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