Convention Against Torture 2nd Circuit Amicus Brief

(Reply to David Shahoulian, [log in to unmask], or Rebecca Sharpless,
[log in to unmask])

The Florida Immigrant Advocacy Center, in cooperation with Holland & Knight
LLP, is authoring an amicus brief to the 2nd Circuit in an important case
involving the interpretation of the "lawful sanctions" limitation on the
definition of torture under Article I of the Convention Against Torture
(CAT).  The petitioner is from Ghana and fears being detained and tortured
at the hands of government authorities while in detention.  The police
suspect him of being a "landguard," a member of a group that violently
opposes the police's control over land and he is sought after as a suspect
in a case involving the deaths of two police officers.  He was detained and
tortured by the police in the past and fears that it will happen again.

The very cursory BIA opinion denied the petitioner's CAT on the ground that,
"[a]ssuming that the respondent is a suspect in the deaths of two policemen,
actions taken against the respondent would be 'inherent in or incidental to
lawful sanctions.'"  Apparently, the BIA's position is that, once someone is
in legal custody, any and all mistreatment of the detainee--no matter how
brutal--falls outside the scope of the Convention's definition of torture.

This is a plainly erroneous reading of the definition of torture that would
entirely gut the protection of the Convention.  Governments seeking to
torture people would simply have to lawfully detain them in order to torture
them.

The amicus brief demonstrates how the BIA's interpretation of the "lawful
sanctions" definition runs contrary to the language of the Convention, the
regulations, and the legislative history behind the ratification of the
Convention.

If your organization is interested in signing onto the brief, please contact
me as soon as possible.  A near-final draft of the brief will be available
by request on Friday.  Because the brief is due the following Friday, I will
need to finalize the sign-ons very soon.  If your organization is interested
in signing-on, please send me a paragraph describing your organization and
its interest in the case.

Thanks.

David Shahoulian
Holland & Knight LLP
701 Brickell Avenue, Suite 3000
Miami, FL 33131
Office: (305) 789-7671
FIAC: (305) 573-1106 ext 1280
[log in to unmask]

&

Becky Sharpless
Florida Immigrant Advocacy Center
3000 Biscayne Boulevard, Suite 400
Miami, FL 33137
(305) 573-1106 ext 1080
(305) 576-6273, fax
[log in to unmask]

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