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Report of the Special Rapporteur on torture, A/HRC/31/57/Add.1, 24 February 2016: United States of America

(k) JUA 10/07/2015 Case No. USA 15/2015 State Reply: 11/09/2015

Allegations concerning the deportation of Haitians, and in particular persons suffering from serious mental and physical illnesses and requiring appropriated specialized psychological and medical attention, to post-earthquake Haiti.

666. The Rapporteur takes note of the information provided by the Government concerning proceedings and treatment of deportees under U.S. law and policies. However, the Rapporteur finds that the Government, in its reply, does not sufficiently address some of the concerns, legal obligations, and questions raised in the initial communication. In particular, the reply fails to adequately address the risk that certain categories of deportees, particularly women, persons with nonconforming gender identities, and persons suffering from chronic mental or physical illnesses, are vulnerable to physical abuse and/or imprisonment or institutionalization in unsafe conditions upon return to Haiti; and that persons with serious health conditions are unable to access adequate medical treatment and facilities, specialized care, medications, nutrition, and stable and safe living conditions.

667. The Special Rapporteur further notes that the Government provided no information in its response to the present communication to ensure that the deportees were asked specific questions during their immigration proceedings to determine whether they risked torture or cruel and unusual treatment. Moreover, the Government does not specify that deportees are advised of their right to seek CAT relief, or that access to legal representation is provided.

668. The Special Rapporteur reminds the Government that the Committee against Torture has found that State decisions to expel individuals to places where they face a real risk of ill-treatment breaches the Convention (P. E. v. France). The Special Rapporteur in his interim report to the General Assembly found that “non-refoulement under the Convention against Torture must be assessed independently of refugee or asylee status determinations, so as to ensure that the fundamental right to be free from torture or other ill-treatment is respected even in cases where non-refoulement under refugee law may be circumscribed” (A/70/303, para 41).

669. The Special Rapporteur concludes that the State’s immigration review procedures place it at risk of violating its non-refoulement obligation under Article 3 of the Convention Against Torture (CAT), and strongly urges the Government to refrain from carrying out further deportations in the absence of independent determinations under the CAT.

Link to full text of the report: Report-SRTorture-Communications and replies-2016-eng-fra-esp

Link to Special Rapporteur’s correspondence with the State: Correspondence-SR-USA-15-2015-eng

Link to the State’s reply: Correspondence-SR-USA-15-reply-2015-eng