In the judge
In the judge's
words, Posada stays
In his ruling of Sept. 26
in the case of Luis Posada Carriles, immigration judge William Lee Abbott
summarized the circumstances and rendered his opinion. What follows are the
document's final pages, which contain that opinion. [Words in brackets] are
clarifications made by Progreso Weekly's transcriber. The word 'respondent'
identifies Posada Carriles.
... 3. Credibility
The Court has listened to
the respondent's testimony and observed his demeanor. His testimony is basically
consistent with his application and affidavit. There are no significant
discrepancies. The Court has also listened to and observed the testimony of
respondent's witness, Mr. [Joaquín F.] Chaffardet [a Venezuelan attorney.]
Based upon the totality of
the circumstances, the Court finds the respondent's testimony to be direct,
plausible, and credible. There is no substantial evidence to suggest
respondent's testimony is not credible. The Court also find's Mr. Chaffardet's
testimony to be direct, plausible, and credible.
4. Withholding of Removal (and
Deferral of Removal) -- Convention Against Torture
A. The Law
Respondent must establish
that is more likely than not that he would be tortured in the proposed country
of removal. All evidence relative to the possibility of future torture shall be
considered, included but not limited to (i) evidence of past torture inflicted
upon the respondent; (ii) evidence that the respondent could relocate to another
part of the country of removal, where he is not likely to be tortured; (iii)
evidence of gross, flagrant or mass violations of human rights within the
country of removal; and (iv) other relevant information regarding conditions in
the country of removal.
B. Deferral of Removal
As mentioned above,
respondent and the DHS [Department of Homeland Security] agree that he is not
statutorily eligible for Withholding of Removal because of his conviction for a
serious nonpolitical crime committed outside the United States before he arrived.
[...] However, under the Convention Against Torture, an alternative form of
protection exists if the respondent can meet the burden of proof: Deferral of
Removal, under 8 C.F.R., Part 1208.17.
Under this section of the
Code of Federal Regulations, implementing Art. III of the Convention Against
Torture, anyone who meets the burden of proof regarding the probability of
torture shall be granted Deferral of Removal so long as that threat exists.
Deferral of Removal is
available to terrorists, aggravated felons, persecutors and torturers alike if
the burden of proof is established. Consideration of their past is not relevant
to whether they qualify or not.
C. Respondent's case
Respondent's case reads
like a character of one of Robert Ludlum's espionage thrillers, with all the
plot twists and turns Ludlum is famous for. By all accounts (other than the
respondent's) he was a Cold War warrior working on behalf of the United States
in the early days of the Cuban problem. After leaving the CIA, the respondent
began working in Venezuela, in the internal and external security field.
Respondent is also reported
to have worked with the United States government in Central America during the
time when the United States supported the Contras in their fight against the
Sandinista government of Nicaragua.
Respondent is currently the
subject of an extradition request by the government of Venezuela for his alleged
role in the 1976 bombing of a Cubana Airlines flight, which resulted in the
deaths of 73 people on board. Respondent previously stood trial for this offense
and was acquitted by the court. Prosecutors appealed to an appeals court, which
overturned this acquittal on procedural grounds (the trial court was the wrong
court to try the case). Responding was pending retrial on the case when he
escaped from prison.
Respondent is suspected in
the 1997 bombing of tourist hotels in Cuba that killed one Italian tourist and
respondent was arrested in 2000 in Panama, regarding an alleged plot to
assassinate Fidel Castro. He was subsequently convicted of other charges, for
which respondent was later granted a pardon by the President of Panama.
None of these events, even
if true and proven in a court of law, is a statutory bar to Deferral of Removal.
In fact, there are no statutory bars to Deferral of Removal under existing law.
Therefore, the most heinous terrorist or mass murderer would qualify for
Deferral of Removal if he or she could establish the necessary burden of proof
regarding the probability of torture in the future.
It is our collective
position as a nation that no one, no matter what their past, will be deported to
a country where there is a clear probability of torture.
In the regard, the DHS
stipulates that there is a clear probability that the respondent would face
torture in Cuba. As such, respondent's application for Deferral of Removal to
Cuba must be granted.
With regard to Venezuela,
the DHS is not so clear on their position. After presentation of the
respondent's case, the Court indicated that, based upon a review of the evidence
submitted by respondent, a prima facie
case under the Torture Convention had been established. The DHS was
given a continuance to submit rebuttal evidence. However, at the resumed merit
hearing, the DHS had nothing to submit.
During a closing statement,
the DHS attorney indicated that the United States government had serious
concerns about the respondent being deported to Venezuela. The DHS stated that,
while the government did not have any specific information that would indicate
any plans to torture the respondent, the growing political and economic ties
between Venezuela and Cuba might foster a climate where Cuban agents might be
allowed to travel to Venezuela to interrogate the respondent.
Based upon all country
reports, both the Department of State (DOS) and other nongovernmental
organizations (NGO) indicate that Cuba, as a matter of state policy, engages in
the systematic torture of detainees in order to extract information,
intelligence and confessions. While it is not so clear in the DOS and NGO
reports that Venezuela systematically engages in torture as a matter of policy,
incidents of torture by Venezuelan security officials do exist.
The testimony of Mr.
Chaffardet indicated that he observed the effects of torture upon other criminal
cases which, by their notoriety, should have been protected by the publicity.
However, this was not the case.
In the absence of evidence
to the contrary, the Court finds:
• that torture exists in
Venezuela, although not on a widespread scale;
• that the notoriety of a
case does not immunize the detainee from possible torture;
• that Cuban authorities,
as a matter of official policy, engage in the systematic torture of detainees
for the purpose of extracting information, intelligence and confessions;
• that existing cultural,
political and economic ties between Cuba and Venezuela make the case of the
respondent problematic, in that it appears plausible that Cuban agents may be
allowed to interrogate the respondent while in the custody of Venezuelan
authorities;
• that it is more likely
than not that the Cuban agents would subject the respondent to torture, as this
is part of their interrogation technique;
• that there is nothing in
the record to suggest that the Venezuelan authorities would prohibit this
practice and thus acquiesce in the torture of the respondent by Cuban agents.
Under these circumstances,
the Court finds that the respondent has established that it is more likely than
not that he would be subjected to torture if removed from the United States to
Venezuela.
ORDER:
Respondent's application for Withholding of Removal under Art. III of the
Convention Against Torture is denied as statutorily barred.
FURTHER ORDER:
Respondent is granted Deferral of Removal under 8 C.F.R., Part 1208.17, to Cuba
and Venezuela.
Sept. 26, 2005
/signed/ William Lee Abbott,
United States Immigration Judge
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