St. Mary's Law Journal


The United States has never fully complied with international agreements concerning refugee’s rights to not be returned to a country where he or she faces certain threats of torture. This lack of compliance by the United States is exacerbated by two conflicting interests: the growing insistence on keeping aliens outside the nation’s borders and protecting international refugees who endure gross violations of their human rights. The recent amendments to the Immigration and Nationality Act (INA) provide a contemporary example of the volatility and inconsistency of the United States’ immigration policy. In April 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act (AEDPA) which removed the automatic bar to aliens convicted of aggravated felonies from obtaining “withholding of deportation.” Nearly six months later, Congress essentially repealed section 413(f) of the AEDPA by passing the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). Under the newly enacted IIRIRA, an alien convicted of an aggravated felony and sentenced to at least a five-year prison term is again automatically barred from having deportation withheld. The recent enactment of the IIRIRA has placed the United States in a position inconsistent with its obligations under the 1967 Protocol Relating to the Status of Refugees and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Both of these international treaties require contracting nation-states to withhold the deportation of individuals facing substantial threat of torture, execution or threat to liberty or freedom. According to international agreements to which the United States has acceded and is bound, individuals establishing they are likely to be subjected to torture cannot be denied withholding of deportation. Thus, Congress must take action to comply with the United States’ international obligation to protect basic human rights of those fearing persecution and torture.


St. Mary's University School of Law