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Anti-Atrocity Alien
Deportation Act Of
2003
Section-By-Section Analysis
SEC. 1. SHORT TITLE.
The bill may be cited as the
“Anti-Atrocity Alien Deportation Act of 2003.”
SEC. 2.
INADMISSIBILITY AND DEPORTABILITY 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 INA 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 killings 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, including those with command responsibility.
Command responsibility holds a commander responsible for unlawful acts
when (1) the forces who committed the abuses were subordinates of the
commander (i.e., the forces were under his control either as a matter
of law or as a matter of fact); (2) the commander knew, or, in light
of the circumstances at the time, should have known, that subordinates
had committed, were committing, or were about to commit unlawful acts;
and (3) the commander failed to prove that he had taken the necessary
and reasonable measures to (a) prevent or stop subordinates from
committing such acts, or (b) investigate the acts committed by
subordinates in a genuine effort to punish the perpetrators. 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 Department of Homeland Security, 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 DEPORTABILITY 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 deportability 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 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 beyond their
control. 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 section.
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.
WAIVER OF INADMISSIBILITY.
Under current
law, INA section 212(d)(3) provides for a general waiver of
inadmissibility, upon the recommendation of the Secretary of State and
the approval of the Attorney General. The inadmissibility of
participants in Nazi persecutions and aliens who have engaged in
genocide, however, may not be waived under that section. This section
preserves existing law in both respects, but clarifies that those who
commit acts of torture or extradjudicial killings, or who are involved
in violations of religious freedom, are eligible for waivers under
212(d)(3).
SEC. 5. 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, or severe violations 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 killings, 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. 6.
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.
Subsection (a)
would first amend the INA, 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 denaturalize any alien who
has participated in Nazi persecution, genocide, torture or
extrajudicial killing abroad. This would not only provide statutory
authorization for OSI, but also expand OSI’s current authorized
mission beyond Nazi war criminals.
The second part
of this subsection directs the Attorney General to consult with the
Secretary of the Department of Homeland Security before making
determinations concerning criminal prosecution or extradition of
aliens, in light of the DHS’ new responsibilities for immigration.
The third part of
this subsection sets forth specific considerations in determining the
appropriate legal action to take against an alien who has participated
in Nazi persecution, genocide, torture or extrajudicial killing
abroad. Significantly, 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 extradition to foreign jurisdictions that are prepared to
undertake such a prosecution. Statutory and regulatory provisions to
implement Article 3 of the Convention Against Torture, which prohibits
the removal of any person to a country where he or she would be
tortured, must also be part of this consideration.
Subsection (b)
authorizes additional funds for these expanded duties to ensure that
OSI fulfills its continuing obligations regarding Nazi war criminals.
SEC. 7. REPORT
ON IMPLEMENTATION OF THE ACT.
This section of
the bill would direct the Attorney General, in consultation with the
Secretary of Homeland Security, to report within six months on
implementation of the Act, including procedures for referral of
matters to OSI, any revisions made to immigration forms to reflect
amendments to the Immigration and Nationality Act 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.
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