The American Civil Liberties Union Immigrants’ Rights Project and the ACLU of Rhode Island have today filed a “friend of the court” brief in U.S. District Court in Rhode Island in an important immigration case in which the federal government is claiming that a person who will likely be tortured if he is extradited back to his home country cannot rely on that fact to prevent his return to that country. The ACLU brief calls that position “incorrect.”

The case arises in the context of a habeas corpus petition filed by the Federal Public Defender on behalf of Cristian Aguasvivas, who is from the Dominican Republic (DR). According to the petition, the DR is seeking to extradite him for allegedly shooting to death a DR drug police officer. Aguasvivas claims he is innocent and the victim of rampant police corruption in that country that includes kidnappings, torture and extrajudicial killings.

After being hunted by DR police, Aguasvivas fled to the United States and sought asylum. In 2016, the Board of Immigration Appeals (BIA), the federal administrative appellate body that applies the immigration laws, concluded that it was “more likely than not” that Aguasvivas would be tortured if sent back to the DR. The BIA came to this conclusion based on testimony from various witnesses who were themselves tortured by the police in an attempt to find him and the fact that Aguasvivas’ brother was later killed by DR police. The BIA granted Aguasvivas “withholding of removal” preventing his extradition, based on an international human rights treaty known as the Convention Against Torture (CAT), a treaty to which the United States is a signatory, and which prohibits the return of any individual to a country where he/she will face torture.

However, the State Department has taken the position that it remains free to extradite Aguasvivas notwithstanding the BIA decision. The ACLU brief notes that the “government does not attempt to contest the likelihood of torture,” but instead primarily argues that the Court has no jurisdiction to consider whether Aguasvivas will be tortured and killed in the DR. In calling on the Court to reject that argument, the ACLU brief cites the Suspension Clause of the U.S. Constitution – the provision guaranteeing all individuals the right to habeas corpus. The brief states that “habeas has always been available to test the lawfulness of Executive restraints on liberty, and in the Suspension Clause the Framers of the Constitution specifically enshrined the Writ as a critical safeguard to ensure individual liberty.”

ACLU Immigrants’ Rights Project Attorney Cody Wofsy said today: “Under our Constitution, courts are guaranteed the power to examine whether this kind of detention is legal—and here the stakes could not be higher for Mr. Aguasvivas.”

ACLU of Rhode Island volunteer attorney Roberto Gonzalez added:  “The Convention Against Torture is an extremely important treaty that needs to be enforced. We are fighting to prevent the extradition of a person who has shown in judicial proceedings that he is more likely than not to be tortured.”

ACLU of Rhode Island executive director Steven Brown stated: “If fundamental American values are to be upheld, the government’s position in this case must be soundly rejected. It is essential for an independent judiciary to have a role in evaluating claims like those of Mr. Aguasvivas in order to prevent facilitating the torture of a person who has sought asylum here.”

More information on the case, Aguasvivas v. Pompeo, can be found here.