Academic journal article Emory Law Journal

First Impressions and Last Resorts: The Plenary Power Doctrine, the Convention against Torture, and Credibility Determinations in Removal Proceedings

Academic journal article Emory Law Journal

First Impressions and Last Resorts: The Plenary Power Doctrine, the Convention against Torture, and Credibility Determinations in Removal Proceedings

Article excerpt


As part of a comprehensive effort "to make more effective the struggle against torture . . . throughout the world,"1 the Convention Against Torture (CAT) prohibits the compulsory return of an individual to a homeland where he faces a dangerous likelihood of torture.2 In accordance with the Convention's foundational premise that torture is never justifiable, the rule applies universally. This principle, known as non-refoulement, is reflected domestically in the United States through an assortment of federal statutes and regulations, and its lack of exceptions is unique under American law.3 However, because the CAT offers the only viable alternative to removal for foreign nationals with serious criminal records, applications for relief under its protection inevitably invite suspicion.4 Accompanying this unavoidable tinge of insincerity are a number of other, less obvious factors, which together bring about a deficit of impartiality in administrative removal proceedings.5

This tendency toward bias is particularly problematic when-as is often the case-hard evidence is wanting and eligibility for relief turns primarily on the presiding immigration judge's (IJ) impression of the applicant's trustworthiness. However, many IJs do not believe applicants because of irrelevant or tangential testimonial flaws,6 and in some cases, these adverse credibility determinations are colored by reasoning that can only be described as wrong.7 Yet little recourse exists when relief is denied. This is due, in part, to a regrettable tradition of judicial passivity.

Unlike the rest of American law, the federal government's authority to control immigration derives not from the Constitution but from international law.8 Known as the plenary power doctrine, this deeply engrained jurisprudential fixture mandates an unmatched degree of judicial restraint.9 Consequently, removal proceedings occupy a unique legal locality, situated between competing guarantees of sovereign autonomy and individual liberty. The end result is a process in which judicial deference is at its peak and petitioners may only challenge administrative decisions on procedural grounds. Federal courts, bound by statute and precedent, deny almost every petition for review.10

This Comment will show that, where withholding or deferral of removal under the CAT is involved, such an extraordinary degree of deference is improper. While immigration law is, by nature, concerned primarily with geopolitical boundaries, claims for relief under the CAT center on a different, far more significant type of border-that is, the one separating safety from fear, peace from pain, and life from death. Those seeking to avoid torture should not be on the same footing as lottery contestants. Furthermore, unlike other aspects of immigration law, the CAT's protections reflect the political branches' desire to constrict the United States' otherwise absolute sovereign autonomy. This selfimposed limitation should, in turn, serve to restrain the plenary power's influence over judicial review of denied applications for CAT-based relief. Therefore, courts in this context should apply a deferential compromise reflecting the Constitution's guarantees of procedural due process while balancing domestic statutory constraints with the United States' international obligations.

This Comment proceeds in four parts. Part I addresses the CAT's implementation in the United States. Part II explains the plenary power doctrine, with a focus on national sovereignty and the doctrine's gradual limitation vis-avis procedural due process. Part III provides an illustrative case study, and then frames the CAT within the Mathews v. Eldridge balancing test. Part IV, in turn, proposes a way in which reviewing courts can take a more active role in preventing erroneous denials without straying outside the legal boundaries imposed under the political branches' plenary powers.

I. The Convention Against Torture

In addition to requiring State Parties to take active steps toward preventing torture internally, Article 3 of the CAT prohibits the expulsion, return, or extradition of "a person to another State where there are substantial grounds for believing that he [or she] would be in danger of being subjected to torture. …

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