Later this year, the U.S. Court of Appeals for the Fourth Circuit will hear argument in one of the more quietly important torture cases to come before the federal courts in the past seven years (if not longer). At issue in Bimenyimana v. Holder is the role of “diplomatic assurances”–promises from a country that specific individuals will not be subject to torture or other forms of persecution if they are transferred there. Although the Third Circuit held in its 2008 decision in Khouzam v. Attorney General that due process requires the government to provide a non-citizen in removal proceedings with at least some opportunity to “test the reliability” of diplomatic assurances prior to his transfer, the government in Bimenyimana is seeking to send home three Rwandan nationals who were previously tortured by the Rwandan government (and whose criminal prosecution in the United States was thrown out largely because the only evidence was obtained through that torture), without providing the opportunity Khouzam held the Due Process Clause to require, largely (if not entirely) on the basis of diplomatic assurances from Rwanda. Although an immigration judge ruled that the three petitioners were entitled to “deferral of removal” because it was “more likely than not” that they would be tortured if returned to Rwanda, the Department of Homeland Security unilaterally terminated the deferrals–prompting the present appeal to the Fourth Circuit.
Last week, the ACLU Immigrants’ Rights Project, which represents the petitioners, filed its opening brief on the merits. The brief argues that (1) the petitioners’ claims are justiciable; (2) removal solely on the basis of diplomatic assurances would violate the U.N. Convention Against Torture, the Foreign Affairs Reform and Restructuring Act of 1998 (FARRA), and the Due Process Clause of the Fifth Amendment; and (3) even if individuals could legally be removed solely on the basis of untested diplomatic assurances in the abstract, such removal would have to include significant procedural safeguards that have not been provided in the petitioners’ case.
Yesterday, a host of amicus briefs were filed on behalf of the petitioners, including separate briefs on behalf of (1) the current (and one prior) U.N. Special Rapporteur on Torture; (2) experts on the current legal and political situation in Rwanda; (3) an array of human rights NGOs (including Amnesty International, the Center for Constitutional Rights, Human Rights Watch, the International Commission of Jurists, and the World Organization Against Torture); and (4) 29 scholars of human rights law (a brief that I both signed and co-authored). [N.B.: I’ll add links to the briefs once the Fourth Circuit allows them to be publicly distributed.]
We’ll see what position the government takes in its response… But if it’s anything short of a concession that the petitioners are entitled to at least some opportunity to test the reliability (if not the accuracy) of Rwanda’s diplomatic assurances (that is, if it’s anything other than a full-throated endorsement of the Third Circuit’s reasoning in Khouzam), then this will become a major test case on the relationship between diplomatic assurances and judicial review–and one that could quite easily attract the attention of the Supreme Court, almost no matter how the Fourth Circuit rules. And even if the government endorses the process required by Khouzam, the larger question whether diplomatic assurances can ever provide the basis to remove individuals such as the petitioners–even with some modicum of process–is a terribly significant one in its own right.