If returned to the Dominican Republic, Cristian Aguasvivas is “more likely than not” to be tortured. Secretary of State Mike Pompeo maintains that he has sole discretion to make that decision…
United States District Court Judge John McConnell Jr heard briefs today concerning Cristian Aguasvivas, who is from the Dominican Republic. Lawyers have filed a habeas corpus petition on behalf of Aguasvivas because the Dominican Republic is seeking to extradite him for the killing a police officer and the wounding of two others. Aguasvivas says he is innocent.
See also: Arguments heard in extradition case of Dominican national by Kevon Andrade in The Providence Journal.
After fleeing to the United States and seeking asylum, the Board of Immigration Appeals (BIA) determined, under the Convention Against Torture (CAT), “that it is more likely than not that [Aguasvivas] w[ould] be tortured at the instigation of or with the consent or acquiescence of public official[s] in the Dominican Republic” if he were returned to his home country. “The BIA reached this conclusion based on the credible and uncontroverted testimony of multiple witnesses who were tortured by the [Dominican Republic Police], in its attempt to find Mr Aguasvivas. The [Dominican Republic Police] also killed Mr Aguasvivas’ brother, who was also suspected in this shooting.”
Hence the hearing in court today, Cristian Aguasvivas v Secretary of State Mike Pompeo.
Aguasvivas was in court, his legs chained, wearing the prison jumpsuit provided to him by the Wyatt Detention Center, where he has been held since his arrest in Lawrence, Massachusetts four years ago. He listened to the court discussion with the aid of a translator. Aguasvivas was represented by Amy Barsky and ACLU Immigrants’ Rights Project attorney Cody Wofsy.
The Convention Against Torture is a United Nations Treaty and the United States is a signatory. Under this treaty, the United States cannot send a person to a country if they know or believe that that person is going to be tortured. However, the position of Secretary of State Mike Pompeo is that under the current law on extradition, the judiciary has a role only in determining whether or not “each of the charged offenses is supported by probable cause.” The determination of whether or not the person to be extradited will face torture is left left to the Secretary of State, and that the Secretary is not bound by any determinations made by BIA.
“Is the BIA decision somehow binding on the Secretary?” asked State Department Attorney Ted Heinrich, rhetorically, before answering, “There is no law that the BIA decision is binding on the Secretary of State.”
Judge McConnell pushed back on this. “We are asking that the executive be allowed to ignore a determination that it has made,” said McConnell, adding, “How can any court or executive branch hold that BIA is not binding?”
The attorney for Aguasvivas, Amy Barsky, pressed that point. “It can’t be that just because they are out of different departments, the government can speak with different voices.”
Judge McConnell told the court that he would make a ruling soon.
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