Human Rights

• Author: International Law Group
• Pages: 108-111

Page 108

Federal authorities admitted Kesner Francois (Applicant), a native and citizen of Haiti, to the United States as a lawful permanent resident on March 8, 1979. Between 1992 and 1997, an American court had convicted him of possessing a controlled substance along with aggravated assault and had sentenced him to six years in prison. During 2003, Applicant returned to Haiti three times.

On August 10, 2003, however, U.S. officials denied him entry into the U. S. and handed him over to the Bureau of Immigration and Customs Affairs because his criminal convictions made him inadmissible. The Department of Homeland Security (DHS) appealed this decision to the Board of Immigration Appeals and the BIA reversed. Applicant then fi led a habeas corpus petition in the district court but the court denied relief. He next appealed to the U. S. Court of Appeals for the Third Circuit. As of May 19, that Court vacates the district court's opinion and denies Applicant's petition for review of the BIA's decision.

The Court reviews the BIA's legal decisions de novo while deferring to the BIA's reasonable interpretations of law. The Foreign Affairs Reform and Restructuring Act of 1998 implemented Article 3 of the CAT and allowed relevant agencies to promulgate regulations. Under certain circumstances, the Department of Justice's regulations allow aliens to obtain relief under the CAT.

They provide that "(a)(1) Torture is defined as any act by which severe pain or suffering, whether physical or mental, is intentionally infl icted 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, when such pain or suffering is infl icted by, or at the instigation of, or with the consent or acquiescence of, a public official or other person acting in an official capacity."

Page 109

"(a)(2) 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 does not amount to torture."

"(a)(3) Torture does not include pain or suffering arising only from, inherent in, or incidental to, lawful sanctions."

"(a)(4) In order to constitute torture, mental pain or suffering must be prolonged mental harm caused by or...