Department of Justice Seal


FEBRUARY 17, 2000

Mr. Chairman, Congresswoman Jackson Lee, and Members of the Subcommittee, I am pleased to have the opportunity to talk to you today about H.R. 3058, the "Anti-Atrocity Alien Deportation Act," introduced by Congressman Mark Foley. The Department of Justice (the Department) supports efforts to enhance our ability to remove individuals who have committed acts of torture abroad. The Department also recognizes that our current immigration laws do not provide strong enough bars for human rights abusers. We very much appreciate Congressman Foley's initiative in this area, as well as this Subcommittee's willingness to hold this hearing on the matter.

The Immigration and Naturalization Service (INS) has long used its resources under its existing mandate in an attempt to deny human rights abusers safe haven in the United States. Until now, the legal tools necessary to hold human rights abusers accountable for their action have been limited. The Department welcomes the efforts of this bill to provide an additional tool to combat torturers present in the United States, but feels strongly that other forms of human rights abuse should also be included. In addition, the Department has concerns about removing jurisdiction over cases relating to human rights abuse from the INS. Mr. Chairman and Members of the Subcommittee, the Department is developing a draft legislative proposal to address our concerns that we hope to be able to share with you in the near future. We are ready and willing to work with the Subcommittee and with the sponsor of H.R. 3058 to address these issues and move forward with comprehensive legislation.

Human Rights Abusers In General

On December 10, 1998, in commemoration of the 50th anniversary of the Universal Declaration of Human Rights, the President signed an Executive Order declaring that "[a]ll executive departments ... shall maintain a current awareness of United States international human rights obligations that are relevant to their functions and shall perform such functions so as to respect and implement those obligations fully." Exec. Order No. 13107, 63 Fed. Reg. 68,991 (1998). This Executive Order established an Interagency Working Group (IWG), chaired by the National Security Council, in which the Departments of Justice, State, Labor and Defense participate. The order also asks each relevant cabinet official to designate in his or her Department "a single contact officer who will be responsible for overall coordination of the implementation of this order." The Attorney General has designated me to be the contact officer for the Department of Justice.

Early last year, the Department formed its own working group devoted to enhancing our ability to identify human rights abusers who have found their way into this country and to taking appropriate action against them. The INS is a key participant in this working group, which also includes the Criminal Division and the Federal Bureau of Investigation (FBI). Through this process, the Department has determined that its ability to uphold its commitment to human rights obligations could be improved through legislation targeting human rights abusers.

Let me begin by outlining what current law covers and then tell you about some of the improvements in our handling of these cases that have come about through our working group on human rights abusers. The Immigration and Nationality Act (INA) provides protections for aliens fleeing from human rights abuses. As you know, the granting of asylum status and the admission of refugees to this country are two of the many mechanisms used by the United States to provide individuals with protection. The goal of these protection regimes is to grant status to those who meet the legal standards, to deny those who are barred, and to exercise discretion appropriately. To preserve the integrity of these protection regimes, it is imperative that those committing human rights abuses not be afforded status that is designed to protect victims of human rights abuses.

To the extent feasible under current law, the INS does not knowingly extend legal immigration status to foreign nationals who are violators of human rights. In some cases, however, individuals conceal their identities and their pasts in order to acquire such immigration status. In the event information arises indicating that such individuals have been granted immigration status through fraud, misrepresentation, or otherwise illegal acts, thorough investigations are conducted and appropriate action is taken. The Department currently has a number of options. Depending upon the facts, these may include criminal prosecution, extradition, or removal from the United States.

With respect to removal, however, the present state of the immigration law often does not provide the INS with the necessary tools to remove individuals from the United States, even when they have allegedly committed acts considered to be atrocious human rights abuses. Right now, only three types of human rights abuse could prevent someone from entering or remaining in the United States. The types of prohibited conduct include: (1) genocide; (2) particularly severe violations of religious freedom; and (3) Nazi persecutions. Even these types of conduct are narrowly defined.

For example, genocide applies only to actions committed against a national, ethnic, racial or religious group. To constitute genocide, those actions also have to be committed with the specific intent of destroying a protected group in whole or in part. Further, the genocide bar applies only to those "engaged" in genocide, which arguably does not include those who may have incited, assisted, conspired or attempted to engage in genocide. Similarly, to be barred for particularly severe violations of religious freedom, the individual must be a foreign official who has engaged in those violations in the last twenty-four months. Those who have "ordered, incited, assisted or otherwise participated in" persecution are statutorily barred from admission as a refugee and from obtaining asylum status or withholding of removal, but they are eligible to enter the United States, to adjust their status to lawful permanent residence, and to obtain United States citizenship.

Even with the limitations in the current immigration laws, the Department continues to fight against human rights abusers and has taken actions to improve the handling of cases involving allegations of serious human rights abuse. In the regular course of its work, INS continues to screen applicants for admission to this country to identify possible human rights abusers. In addition, INS has defeated immigration claims of a significant number of human rights abusers and has additional cases under investigation for possible action against aliens in this country on the basis of past human rights abuse. To strengthen its existing efforts, INS has taken additional steps in the past year which I would like to highlight.

First, INS has designated two specialized units at the Headquarters level to handle cases involving alleged human rights abusers. The National Security Unit of the Office of Field Operations (formerly known as the "Office of Counterterrorism") is responsible for coordinating field office investigations of national security cases, including those involving alleged human rights abusers. Most of the field agents handling these cases work under the auspices of the Joint Terrorism Task Forces (JTTF's), which are local interagency task forces devoted to the detection and investigation of international terrorism. The FBI has the lead and directs all JTTF activity, but INS, the Customs Service, and state and local law enforcement agencies also play key roles. Thus, the INS and FBI are able to use their collective resources for the preemption and investigation of these cases.

Recently, after months of discussion, the INS and the FBI signed a Memorandum of Understanding (MOU) regarding the investigation and prosecution of human rights abuse crimes. The MOU promotes the effective and efficient investigation and prosecution of human rights abuses by setting out the procedures to be followed and the respective responsibilities of each agency. This coordination between the FBI and the INS will conserve investigative resources and improve communications in connection with these cases.

The INS Office of General Counsel also recently created the National Security Law Division. This Division is responsible for cases involving national security, including those relating to alleged human rights abusers. This Division assists in the investigation and administrative prosecution of these cases. Previously, these cases were being handled among the other divisions of the office. The consolidation of these cases in a distinct unit will facilitate coordination in handling these cases both within and outside of the INS.

In September 1999, the INS held a comprehensive training conference for the special agents assigned to investigate these cases. The INS Office of General Counsel participated in the training and provided guidance on the legal issues surrounding human rights abusers present in the United States. Presentations were also made by three individuals from the Center for Justice and Accountability (CJA), a non-profit organization established to respond to the problem of human rights abuse by combining victim outreach and rehabilitation with legal advocacy and representation. CJA representatives discussed their experiences with victims of human rights abuse and their attempts to file domestic civil lawsuits against abusers. Such training reinforces that these cases are a priority for the INS and ensures that the agents handling them have the most up-to-date information available.

The Department's working group has also been charged with improving the acquisition and exchange of information and evidence on human rights abuse cases. Valuable information relevant to human rights abuse originates from many sources, both within the government or from outside sources. INS and the Department of State have accordingly signed a Statement of Mutual Understanding with Canada setting out the policies and procedures for the exchange of information between the two countries. This allows the United States Government to detect, apprehend and remove human rights abusers who may have come to the attention of the Canadian government. The Department has also met with representatives from Amnesty International and CJA to discuss common efforts, the parameters of a working relationship, and the type of information necessary for appropriate action to be taken.

H.R. 3058

Now let me turn to the bill under consideration today, H.R. 3058, which is entitled, the "Anti-Atrocity Alien Deportation Act." The Department welcomes the efforts of Congressman Foley and others in strengthening our immigration laws as they relate to torturers. Clearly, there is a need for legislative action to make human rights abusers inadmissible to and removable from the United States. We do, however, have concerns about the legislation.

First, by targeting only those human rights abusers who have committed torture, the bill is too limited. The Department believes that additional grounds of inadmissibility and removability relating to other types of human rights abuse should be added to the bill. Other types of conduct that should be included are persecution, war crimes, and crimes against humanity. As I mentioned earlier, the Department has been drafting more comprehensive legislation that would cover these additional forms of abuse. We hope to forward this draft bill for the Subcommittee's consideration by the end of this month.

Second, the bill would expand the jurisdiction of the Office of Special Investigations (OSI) in the Criminal Division of the Department to investigate and take enforcement action against aliens who have committed acts of torture and genocide abroad. OSI's jurisdiction generally pertains to locating, investigating, and, when appropriate, denaturalizing and removing Nazis from the World War II period who are present in the United States. (OSI also conducts these activities in connection with Axis-sponsored persecution perpetrated by Nazi Germany's European allies, as well as acts of persecution carried out by the forces of Imperial Japan.) The Department opposes this proposed reallocation of responsibilities. While OSI has done a commendable job of carrying out its important mission, the Department believes that authority to pursue criminal prosecution of torture and genocide cases should remain with the Criminal Division's Terrorism and Violent Crime Section. Moreover, we believe that the INS should continue to bear responsibility for immigration cases involving human rights abuses.

The INS is the Department's immigration expert. As a result, the INS already has extensive experience in making determinations about persecution and torture. In FY 1998, the INS adjudicated 85,737 affirmative asylum claims. In FY 1999, the INS adjudicated 55,316 affirmative asylum claims. For those fiscal years, The Executive Office for Immigration Review (EOIR) heard 25,058 and 24,261 claims, respectively. When INS adjudicates refugee, asylum and withholding claims, its officers must determine not only whether the alien has been or will be subject to persecution, but also whether the alien participated in persecution. In determining whether an alien has committed human rights abuses many of the same issues and factors, such as country conditions, would arise and need to be resolved. The INS Resource Information Center (RIC) is devoted to researching country conditions and preparing materials for INS officers adjudicating applications and for INS attorneys representing the agency position before EMIR. The RIC provides country conditions information on virtually all countries from which aliens claim asylum, withholding of removal or protection under the Convention Against Torture.

Present day human rights abusers can be encountered at any point in their immigration history. For example, information that an individual may have engaged in human rights abuse may be discovered when INS adjudicates an application for admission to the United States, or when a defensive application for immigration relief is made during removal proceedings. Or the abuse may only come to light when an alien pursues a further benefit, such as permanent residence or naturalization. Many times allegations of human rights abuse may be reported by another individual or may be uncovered in an unrelated investigation. The INS is best situated to continue with responsibility for these cases, including the identification, arrest, charging, detention and eventual removal of present day human rights abusers.

Further, the INS already has the investigative experience and resources to take responsibility for human rights abusers. The Department anticipates that some of the evidence used against modern human rights abusers will derive from the nation's intelligence and law-enforcement agencies. In the course of litigating over 300,000 cases in immigration court each year, particularly in cases involving alien terrorists, the INS has developed communication and procedural protocols with those agencies that permit the review of classified and otherwise sensitive information. Again, as I said earlier, the INS and the FBI have signed an MOU relating to the investigation and prosecution of these cases.

The INS has a large network of agents and inspectors that provides the flexibility to investigate human rights abuse throughout the world. Immigration Inspectors are trained to admit admissible aliens to the United States and to deny those barred from entering. Also, there is a corps of asylum and refugee officers available to adjudicate relief applications for protection in the United States. These human resources allow the INS to respond to humanitarian crises as they occur, as was the case last year in Kosovo and in the early 1990's in Haiti. Many of these cases, however, against human rights abusers will be litigated in immigration courts. INS's National Security Law Division can draw on more than 600 attorneys, who represent the United States government daily in immigration court. In the course of this representation, INS trial attorneys have acquired a wide knowledge of international treaty obligations and a vast understanding of the country conditions that spawn human rights abuses all over the world.

Mr. Chairman and Members of the Subcommittee, that concludes my prepared statement. I would be pleased to attempt to answer your questions at this time.