Summary of the
Anti-Atrocity Alien Deportation Act
May 10, 2001
SUMMARY: This bill would make the following four changes in our country’s
enforcement capability against aliens who have committed atrocities abroad and
then try to enter or remain in the United States:
Amend the Immigration and Nationality Act (INA) to expand the grounds for
inadmissibility and deportation to cover aliens who have engaged in acts of
torture, as defined in 18 U.S.C. § 2340, and extrajudicial killing, as
defined in the Torture Victim Protection Act, abroad, as well as expand the
scope of the current prohibitions on aliens who have engaged in genocide and
particularly severe violations of religious freedom;
Amend the INA to make clear that aliens who have committed torture,
extrajudicial killing or particularly severe violations of religious freedom
abroad do not have "good moral character" and cannot qualify to
become U.S. citizens or for other immigration benefits;
Direct the Attorney General to establish the Office of Special
Investigations (OSI) within the Criminal Division and expand the OSI’s
authority to investigate, remove, denaturalize, prosecute, or extradite any
alien who participated in torture, genocide and extrajudicial killing abroad
-- not just Nazi war criminals; and
Direct the Attorney General, in consultation with the INS Commissioner,
to report to the Judiciary Committees of the Senate and House of
Representatives on implementation of procedures to refer matters to OSI,
revise INS forms, and procedures to obtain adequate evidence to develop
"watch lists" of aliens deemed inadmissible under the bill.
SEC. 1. SHORT TITLE.
The bill may be cited as the "Anti-Atrocity Alien Deportation Act of 2001."
SEC. 2. INADMISSABILITY AND REMOVABILITY OF ALIENS WHO HAVE COMMITTED ACTS OF
TORTURE OR EXTRAJUDICIAL KILLING ABROAD.
Currently, the Immigration and
Nationality Act (INA) provides that (i) participants in Nazi persecutions during
the time period from March 23, 1933 to May 8, 1945, and (ii) aliens who engaged
in genocide, are inadmissable to the United States. See 8 U.S.C. §
1182(a)(3)(E)(i)&(ii). Current law also provides that aliens who have
participated in Nazi persecutions or engaged in genocide are deportable. See
§1227(a)(4)(D). The bill would amend these sections of the Immigration and
Nationality Act by expanding the grounds for inadmissibility and deportation to
cover aliens who have committed, ordered, incited, assisted, or otherwise
participated in the commission of acts of torture or extrajudicial killing
abroad and clarify and expand the scope of the genocide bar.
Subsection (a) would first amend the definition of "genocide"
in clause (ii) of section 212(a)(3) of the INA, 8 U.S.C. 1182(a)(3)(E)(ii).
Currently, the ground of inadmissibility relating to genocide refers to the
definition in the Convention on the Prevention and Punishment of the Crime of
Genocide. Article III of that Convention punishes genocide, the conspiracy to
commit genocide, direct and public incitement to commit genocide, attempts to
commit genocide, and complicity in genocide. The bill would modify the
definition to refer instead to the "genocide" definition in section
1091(a) of title 18, United States Code, which was adopted to implement United
States obligations under the Convention and also prohibits attempts and
conspiracies to commit genocide.
Specifically, section 1091(a) defines genocide as "whoever, whether in
time of peace or in time of war, . . . with the specific intent to destroy, in
whole or in substantial part, a national, ethnic, racial or religious group as
such: (1) kills members of that group; (2) causes serious bodily injury to
members of that group; (3) causes the permanent impairment of the mental
faculties of members of the group through drugs, torture, or similar techniques;
(4) subjects the group to conditions of life that are intended to cause the
physical destruction of the group in whole or in part; (5) imposes measures
intended to prevent births within the group; or (6) transfers by force children
of the group to another group." This definition includes genocide by public
or private individuals in times of peace or war. While the federal criminal
statute is limited to those offenses committed within the United States or
offenders who are U.S. nationals, see 18 U.S.C. 1091(d), the grounds for
inadmissibility in the bill would apply to such offenses committed outside the
United States that would otherwise be a crime if committed within the United
States or by a U.S. national.
In addition, the bill would broaden the reach of the inadmissibility bar to
apply not only to those who "engaged in genocide," as in current law,
but also to cover any alien who has ordered, incited, assisted or otherwise
participated in genocide abroad. This broader scope will ensure that the
genocide provision addresses a more appropriate range of levels of complicity.
Second, subsection (a) would add a new clause to 8 U.S.C. § 1182(a)(3)(E)
that would trigger operation of the inadmissibility ground if an alien has
"committed, ordered, incited, assisted, or otherwise participated in"
acts of torture, as defined in section 2430 of title 18, United States Code, or
extrajudicial killings, as defined in section 3(a) the Torture Victim Protection
Act. The statutory language —"committed, ordered, incited, assisted, or
otherwise participated in"—is intended to reach the behavior of persons
directly or personally associated with the covered acts. Attempts and
conspiracies to commit these crimes are encompassed in the "otherwise
participated in" language. This language addresses an appropriate range of
levels of complicity for which aliens should be held accountable, and has been
the subject of extensive judicial interpretation and construction. See Fedorenko
v. United States, 449 U.S. 490, 514 (1981); Kalejs v.INS, 10 F.3d
441, 444 (7th Cir. 1993); U.S. v. Schmidt, 923 F. 2d 1253,
1257-59 (7th Cir. 1991); Kulle v. INS, 825 F. 2d 1188, 1192 (7th
Cir. 1987).
The definitions of "torture" and "extrajudicial killing"
are contained in the Torture Victim Protection Act, which served as the
implementing legislation when the United States joined the United Nations’
"Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment." This Convention entered into force with respect to the
United States on November 20, 1992 and imposes an affirmative duty on the United
States to prosecute torturers within its jurisdiction. The Torture Victim
Protection Act provides both criminal liability and civil liability for persons
who, acting outside the United States and under actual or apparent authority, or
color of law, of any foreign nation, commit torture or extrajudicial killing.
The criminal provision passed as part of the Torture Victim Protection Act
defines "torture" to mean "an act committed by a person acting
under the color of law specifically intended to inflict severe physical or
mental pain or suffering (other than pain or suffering incidental to lawful
sanctions) upon another person within his custody or physical control." 18
U.S.C. § 2340(1). "Severe mental pain or suffering" is further
defined to mean the "prolonged mental harm caused by or resulting from (A)
the intentional infliction or threatened infliction of severe physical pain or
suffering; (B) the administration or application, or threatened administration
or application, of mind-altering substances or other procedures calculated to
disrupt profoundly the senses or personality; and (C) the threat of imminent
death; or (D) the threat that another person will imminently be subjected to
death, severe physical pain or suffering, or the administration or application
of mind-altering substances or other procedures calculated to disrupt profoundly
the senses or personality." 18 U.S.C. § 2340(2).
The bill also incorporates the definition of "extrajudicial
killing" from section 3(a) of the Torture Victim Protection Act. This law
establishes civil liability for wrongful death against any person "who,
under actual or apparent authority, or color of law, of any foreign nation . . .
subjects an individual to extrajudicial killing," which is defined to mean
"a deliberated killing not authorized by a previous judgment pronounced by
a regularly constituted court affording all the judicial guarantees which are
recognized as indispensable by civilized peoples. Such term, however, does not
include any such killing that, under international law, is lawfully carried out
under the authority of a foreign nation."
Both definitions of "torture" and "extrajudicial killing"
require that the alien be acting under color of law. A criminal conviction,
criminal charge or a confession are not required for an alien to be inadmissible
or removable under the new grounds added in this subsection of the bill.
The final paragraph in subsection (a) would modify the subparagraph heading
to clarify the expansion of the grounds for in admissibility from
"participation in Nazi persecution or genocide" to cover "torture
or extrajudicial killing."
Subsection (b) would amend section 237(a)(4)(D) of the INA, 8 U.S.C.
§1227(a)(4)(D), which enumerates grounds for deporting aliens who have been
admitted into or are present in the United States. The same conduct that would
constitute a basis of inadmissibility under subsection (a) is a ground for
deportability under this subsection of the bill. Under current law, assisting in
Nazi persecution and engaging in genocide are already grounds for deportation.
The bill would provide that aliens who have committed any act of torture or
extrajudicial killing would also be subject to deportation. In any deportation
proceeding, the burden would remain on the government to prove by clear and
convincing evidence that the alien’s conduct brings the alien within a
particular ground of deportation.
Subsection (c) regarding the "effective date" clearly states
that these provisions apply to acts committed before, on, or after the date this
legislation is enacted. These provisions apply to all cases after enactment,
even where the acts in question occurred or where adjudication procedures within
the Immigration and Naturalization Service (INS) or the Executive Office of
Immigration Review were initiated prior to the time of enactment.
SEC. 3. INADMISSIBILITY AND REMOVABILITY OF FOREIGN GOVERNMENT OFFICIALS WHO
HAVE COMMITTED PARTICULARLY SEVERE VIOLATIONS OF RELIGIOUS FREEDOM.
This section of the bill would amend section 212(a)(2)(G) of the INA, 8 U.S.C.
§1182(a)(2)(G), which was added as part of the International Religious Freedom
Act of 1998 (IFRA), to expand the grounds for inadmissibility and removability
of aliens who commit particularly severe violations of religious freedom.
Current law bars the admission of an individual who, while serving as a foreign
government official, was responsible for or directly carried out particularly
severe violations of religious freedom within the last 24 months. 8 U.S.C. §
1182(c)(2)(G). The existing provision also bars from admission the individual's
spouse and children, if any. "Particularly severe violations of religious
freedom" is defined in section 3 of IFRA to mean "systematic, ongoing,
egregious violation of religious freedom, including violations such as (a)
torture or cruel, inhuman, or degrading treatment or punishment; (B) prolonged
detention without charges; (C) causing the disappearance of persons or
clandestine detention of those persons; or (D) other flagrant denial of the
right to life, liberty, or the security of persons. While IRFA contains numerous
provisions to promote religious freedom and to prevent violations of religious
freedom throughout the world, including a wide range of diplomatic sanctions and
other formal expressions of disapproval, section 212 (a)(2)(G) is the only
provision which specifically targets individual abusers.
Subsection (a) would delete the 24-month restriction in section 212
(a)(2)(G) since it limits the accountability, for purposes of admission, to a
two-year period. This limitation is not consistent with the strong stance of the
United States to promote religious freedom throughout the world. Individuals who
have committed particularly severe violations of religious freedom should be
held accountable for their actions and should not be admissible to the United
States regardless of when the conduct occurred.
In addition, this subsection would amend the law to remove the current bar to
admission for the spouse or children of a foreign government official who has
been involved in particularly severe violations of religious freedom. The bar of
inadmissibility is a serious sanction that should not apply to individuals
because of familial relationships that are not within an individual's control.
None of the other grounds relating to serious human rights abuse prevent the
spouse or child of an abuser from entering or remaining lawfully in the United
States. Moreover, the purpose of these amendments is to make those who have
participated in atrocities accountable for their actions. That purpose is not
served by holding the family members of such individuals accountable for the
offensive conduct over which they had no control.
Subsection (b) would amend section 237(a)(4) of the INA, 8 U.S.C.
§1227(a)(4), which enumerates grounds for deporting aliens who have been
admitted into or are present in the United States, to add a new clause (E),
which provides for the deportation of aliens described in subsection (a) of the
bill.
The bill does not change the effective date for this provision set forth in
the original IFRA, which applies the operation of the amendment to aliens
"seeking to enter the United States on or after the date of the enactment
of this Act."
SEC. 4. BAR TO GOOD MORAL CHARACTER FOR ALIENS WHO HAVE COMMITTED ACTS OF
TORTURE, EXTRAJUDICIAL KILLINGS, OR SEVERE VIOLATIONS OF RELIGIOUS FREEDOM.
This section of the bill would amend section 101(f) of the INA, 8 U.S.C. §
1101(f), which provides the current definition of "good moral
character," to make clear that aliens who have committed torture,
extrajudicial killing – severe violation of religious freedom abroad do not
qualify. Good moral character is a prerequisite for certain forms of immigration
relief, including naturalization, cancellation of removal for nonpermanent
residents, and voluntary departure at the conclusion of removal proceedings.
Aliens who have committed torture or extrajudicial killing, or severe violations
of religious freedom abroad cannot establish good moral character. Accordingly,
this amendment prevents aliens covered by the amendments made in sections 2 and
3 of the bill from becoming United States citizens or benefitting from
cancellation of removal or voluntary departure. Absent such an amendment there
is no statutory bar to naturalization for aliens covered by the proposed new
grounds for inadmissibility and deportation.
SEC. 5. ESTABLISHMENT OF THE OFFICE OF SPECIAL INVESTIGATIONS.
Attorney General Civiletti established OSI in 1979 within the Criminal
Division of the Department of Justice, consolidating within it all
"investigative and litigation activities involving individuals, who prior
to and during World War II, under the supervision of or in association with the
Nazi government of Germany, its allies, and other affiliatated [sic]
governments, are alleged to have ordered, incited, assisted, or otherwise
participated in the persecution of any person because of race, religion,
national origin, or political opinion." (Att’y Gen. Order No. 851-79).
The OSI’s mission continues to be limited by that Attorney General Order.
This section would amend the Immigration and Nationality Act, 8 U.S.C. §
1103, by directing the Attorney General to establish an Office of Special
Investigations within the Department of Justice with authorization to
investigate, remove, denaturalize, prosecute or extradite any alien who has
participated in Nazi persecution, genocide, torture or extrajudicial killing
abroad. This would expand OSI’s current authorized mission. In order to
fulfill the United States’ obligation under the "Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment" to
hold accountable torturers found in this country, the bill expressly directs the
Department of Justice to consider the availability of prosecution under United
States laws for any conduct that forms the basis for removal and
denaturalization. In addition, the Department is directed to consider
deportation to foreign jurisdictions that are prepared to undertake such a
prosecution. Statutory and regulatory provisions to implement Article 3 of that
Convention Against Torture, which prohibits the removal of any person to a
country where he or she would be tortured, may also be part of this
consideration. Additional funds are authorized for these expanded duties to
ensure that OSI fulfills its continuing obligations regarding Nazi war
criminals.
SEC. 6. REPORT ON IMPLEMENTATION OF THE ACT.
This section of the bill would direct the Attorney General, in consultation
with the INS Commissioner to report within six months on implementation of the
Act, including procedures for referral of matters to OSI, any revisions made to
INS forms to reflect amendments made by the bill, and the procedures developed,
with adequate due process protection, to obtain sufficient evidence and
determine whether an alien is deemed inadmissible under the bill.
