Four years after the United States signed a global accord condemning torture, federal immigration authorities have finally granted protection to one of the scores of people seeking to use the agreement to avoid deportation, in this case an Iraqi army deserter who had been whipped, punched and hanged by his heels from a ceiling fan.
The case creates a potentially broad new class of newcomer for the U.S. Immigration and Naturalization Service, which has been trying to figure out how to deal with President Clinton's 1994 promise to the United Nations not to send foreigners back to places where they stand a good chance of being tortured.
The 28-year-old Iraqi national, an ethnic Kurd, likely will be freed next week after more than a year of custody at the INS detention center in Elizabeth, N.J., his lawyer, Mary McClenahan, said Thursday after she met with her client and told him the news.
"I'm hoping this is the start of other decisions," McClenahan said.
The INS made its decision to grant the Iraqi man protection on Wednesday.
Even though the agency has now invoked the U.N. Convention Against Torture, it remains vague on how it will apply it in the future, other than to say it will consider each case on individual merit. More than 80 such cases are pending.
"I think it's too soon to speculate what will happen down the road," said Kelly Ryan, the INS associate general counsel. "This is somewhat uncharted territory."
INS officials said that anybody, even somebody guilty of a serious crime like terrorism, could fall under the protection of the torture convention if there was sufficient proof that one would face torture in one's homeland.
But INS officials also said they would apply the torture convention as they see fit, not allow their decisions to be appealed and reserve the right to keep people in detention or even send them back to their native countries. The Iraqi granted protection Wednesday, for example, might be subject to deportation "if, for example, Iraq became a democracy," said Ryan. "This isn't a permanent sort of situation." Rights activists said the agency needs more oversight of its decisions.
"What are the individual's rights and remedies if the government makes a mistake?" asked Elisa Massimino of the Lawyers Committee on Human Rights, which has been pressing immigration authorities to come up with rules governing the convention.
The INS decision to finally act on one of its pending torture convention cases comes while both houses of Congress are considering legislation to make the U.N. accord part of U.S. law and compel immigration officials to take action.
INS officials said that if anybody qualifies for protection, it is the young man from Iraq, who tried to slash his wrists and throat after his earlier asylum claim was denied.
McClenahan said the Iraqi had asked that The Times only identify him by his first name, Hussein, to protect family members still in Iraq from persecution or worse. He has said that numerous relatives have disappear in Iraq and that his father was seized after Hussein deserted the army and may be dead.
In his application for protection, Hussein said he had been tortured numerous times after he was drafted into the Iraqi army because he was suspected of supporting the Kurdish rebels that have waged rebellions against the government of Saddam Hussein.
"The soldiers kicked me and beat me with thick cables and the backs of guns," he said in his statement. While in custody, he said he was hanged by his feet from a fan and spun around until he threw up, while guards pummeled his face.
He said he eventually escaped to Iran in 1994 after buying the identity papers of an army veteran. He said he stowed away on a Greek ship bound for Brazil, then hid on a second ship bound for the United States and arrived in March 1997.
McClenahan took the case after Hussein, defending himself before an immigration judge without a lawyer, lost his asylum case and then carelessly waived his right to appeal. His last resort was to seek protection under the U.N. Convention Against Torture.
Hussein will be paroled from detention and get work authorization, yet he will have hanging over his head an outstanding order of deportation that the INS can execute whenever it believes it is safe for Hussein to go home.
"The torture convention says we agree not to release or expel or extradite a person to another state [in which they face a likelihood of torture]," said INS spokesman Russ Bergeron. "It does not say we agree to give them some asylum or immigration status."
Bergeron said the INS may decide not to free people granted protection under the torture convention, particularly if they had criminal records.
The INS is in the process of writing the rules governing the torture convention, said Bergeron, and described the process that granted Hussein a stay of deportation "interim procedures."
INS lawyer Ryan said that the torture convention will be considered only after illegal immigrants and asylum-seekers have exhausted every other avenue for staying in the country.
However, the U.N. High Commissioner for Refugees office has been passing out how-to packets of information in the United States that are essentially starter kits for people to claim protection under the act.
"The torture convention absolutely prohibits that the signatories send people back if there are substantial grounds to believe people will be tortured," said UNHCR deputy representative Bemma Donkoh in Washington.
The convention has been a point of contention between immigrant advocates and the INS for years. The INS, in fact, has appealed in some instances decisions by immigration judges granting protection under the convention.
"Even immigration judges are confused how it should be implemented," Massimino said. "We'd like to see formal procedures put in place so that people who fear torture could have federal courts review these claims and decisions by Justice Department and State Department decisions to deport people."
The INS also has come under fire for taking too long to draft rules for the tough new immigration and asylum laws enacted by Congress in 1996.
Though huge numbers of asylum-seekers have been sent home, the torture convention in some ways illustrates a broadening of certain categories. Authorities in recent years have made exceptions for women fearing genital mutilation in countries where it is widely practiced, Chinese refugees escaping restrictive birth control practices and homosexuals citing oppression in their countries.