STATEMENT OF INTEREST 1

INTRODUCTION AND SUMMARY OF ARGUMENT 4

ARGUMENT 9

A. In Passing the Refugee Act of 1980 Congress Unambiguously Intended To Ensure That U.S. Law Is In Conformity With The 1967 Protocol By Which the Is Bound.

CONCLUSION 30

Cases

Ali v. Ashcroft, 213 F.R.D. 390 (W.D. Wash. 2003) 13

Aquamar, S.A. v. Del Monte Fresh Produce, N.A., 179 F.3d 1279 (11th Cir. 1999) 15

Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) 9, 10, 12

Chew Heong v. United States, 112 U.S. 536 (1884) 13

Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980) 15

Flores v. Southern Peru Copper Corp., 414 F.2d 233 (2d Cir. 2003) 15

INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) passim

INS v. Stevic, 467 U.S. 407 (1984) 10, 12

Kim Ho Ma v. Ashcroft, 257 F.3d 1095 (9th Cir. 2001) 14 Lauritzen v. Larsen, 345 U.S. 571 (1953) 13

MacLeod v. United States, 229 U.S. 416 (1913) 13

Marincas v. Lewis, 92 F.3d 195 (3d Cir. 1996) 11

Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64 (1804) 10, 12

United States v. Schiffer, 836 F. Supp. 1164 (E.D.Pa. 1993), aff'd, 31 F.3d 1175 (3d Cir. 1994) 13

United States v. Smith, 18 U.S. (5 Wheat.) 153 (1820) 15

Weinberger v. Rossi, 456 U.S. 25 (1982) 13

Board of Immigration Appeals

In re A-H-, 23 I. & N. Dec. 774 (A.G. 2005) passim

Statutes

8 U.S.C. ? 1231(b)(3)(B)(iv) 6

International Court Decisions

Attorney General v. Zaoui, Dec. No. CA20/04 (N.Z. CA Sept. 30, 2004) 24, 25, 27, 28

Betkoshabeh v. Minister for Immigration & Multicultural Affairs, 157 A.L.R. 95 (Austl. FC, July 29, 1998), rev'd on grounds of mootness, (1999) 55 A.L.D. 609 (Austl. FFC, July 20, 1999) 27

“NSH” v. Home Sec'y, [1988] Imm. A.R. 389 (Eng. C.A.) 27, 28

Suresh v. Minister of Citizenship & Immigration, S.C.C. No. 27790 (Mar. 8, 2001) 18, 19, 23 Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1 (Can. 2002) 25, 27

Other Authorities

Atle Grahl-Madsen, Commentary on the Refugee Convention 1951 (UNHCR 1963) 24

D.J. Harris, Cases and Materials on Internation Law (Street & Maxwell 5th ed. 1998) 16

Deborah E. Anker, Law of Asylum in the United States (1999) 11

Handbook on Procedures and Criteria for Determining Refugee Status (UNHCR 1979) 16

Human Rights First (former Layers Committee for Human Rights), “Safeguarding the Rights of Refugees under the Exclusion Clauses: Summary Findings of the Project,” International Journal of Refugee Law, Special Supplementary Issue (2000) 20

James C. Hathaway, The Law of Refugee Status (rev. ed. 1998) 10

James C. Hathaway, The Rights of Refugees Under International Law (Cambridge Univ. Press 2005) 24

Paul Weis, The Refugee Convention, 1951: The Travaux Preparatoires Analysed with a Commentary by Dr. Paul Weis (Cambridge Univ. Press 1995) 24

Restatement (Third) of the Law of Foreign Relations ? 114 (1987) 10, 12

Sir Elihu Lauterpacht & Daniel Bethlehem, The Scope and Content of the Principle of Non-refoulement, Opinion (UNHCR June 20, 2001) 28

Sir Elihu Lauterpacht & Daniel Bethlehem, The Scope and Content of the Principle of Non-refoulement (UNHCR Feb. 2003) 23

Statute of the International Court of Justice, 59 Stat. 1031 (1945) 15

Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331; 8 I.L.M. 679 (1969) 16, 19

Wayne R. LeFave & Jerold H. Israel, Criminal Procedure (2d ed. 1992) 27

STATEMENT OF INTEREST

The Harvard Immigration and Refugee Clinic (“HIRC”) is a clinical program of Harvard Law School, operated in collaboration with Greater Boston Legal Services. HIRC represents victims of human rights abuses in applying for U.S. refugee and related protections. Its Women Refugees Project, an internationally recognized program, does groundbreaking work on women's international human rights and political asylum claims. HIRC has authored numerous federal court briefs on key issues of asylum protection, and written extensively in the area. Its faculty director, Deborah Anker, has written the leading treatise, Law of Asylum in the United States. HIRC has an interest in correct development and application of the law in the area of domestic and international refugee protection.

Human Rights First has worked since 1978 to protect and promote fundamental human rights and to ensure protection of the rights of refugees. The organization, which also operates one of the largest and most successful pro bono asylum representation programs in the country, bases its refugee protection work on the international standards of the 1951 Convention Relating to the Status of Refugees, the 1967 Protocol Relating to the Status of Refugees, and other international human rights instruments, and advocates adherence to these standards in U.S. law and policy.

The Hebrew Immigrant Aid Society, the oldest international migration and refugee resettlement agency in the U.S. and the migration arm of the organized American Jewish community, advocates on behalf of refugees, asylum seekers, and immigrants, and for a strong United States government policy to offer safe haven to victims of persecution.

Kurdish Human Rights Watch, Inc. is a human rights non-governmental organization with community-based affiliates that is dedicated to assisting people with limited resources and accessibility to achieve self-sufficiency and greater integration in their communities and overall society.

The Washington Defender Association's Immigration Project's mission is to defend and advance the rights of non-citizens within the criminal justice system, non- citizens facing the immigration consequences of crimes, and non-citizens facing the detrimental impacts of selective state and federal enforcement policies post-9/11.

The Jesuit Refugee Service USA, in conjunction with Jesuit refugee agencies worldwide, is committed to serve and defend the cause of refugees, and so has a vested interest in the parameters of laws, regulations, and jurisprudence that place refugees, asylees, and migrants at risk.

The Lutheran Immigration and Refugee Service has been the U.S. Lutheran expression of service to refugees and migrants in America since 1939.

Jacqueline Bhabha is the Jeremiah Smith, Jr. Lecturer at Law and Executive Director of the University Committee on Human Rights Studies, Harvard University. Heather MacKenzie is a private immigration lawyer and Senior Lecturing Fellow, Duke University School of Law. Deborah M. Weissman is Professor of Law and Director of Clinical Programs, University of North Carolina School of Law. Shoba Sivaprasad Wadhia is a private immigration attorney and Adjunct Professor of Law at Washington College of Law, American University. Natsu Taylor Saito is Professor of Immigration and International Human Rights Law, Georgia State University. Lynne R. Feldman is Adjunct Professor, University of Illinois Law School, and a partner with Erwin, Martinkus, and Cole, Ltd., concentrating in immigration and naturalization matters. David B. Thronson is Associate Professor of Law and Immigration Clinic Co-Director, Boyd School of Law at University of Las Vegas. Anna Marie Gallagher is an international refugee and migration lawyer, a consultant to the Jesuit Refugee Service, and the author of the Immigration Law Service 2d, Thomson West's immigration and nationality treatise. Joseph A. Vail is Associate Clinical Professor and Director of the Immigration Clinic, University of Houston Law Center. Ann Benson is the Directing Attorney for the Washington Defender Association's Immigration Project. Bridgette Carr is Assistant Clinical Professor of Law, Asylum and Immigrant Rights Law Clinic, Ave Maria School of Law. James P. Eyster is Assistant Clinical Professor of Law, Ave Maria Law School. Professors Harvey Kaplan and Maureen Sullivan are former adjunct professors at Northeastern School of Law.

INTRODUCTION AND SUMMARY OF ARGUMENT

At issue in this case is a new, unprecedented, and legally unsustainable interpretation by the Attorney General of a federal statute setting out the legal rights of refugees. The Attorney General's interpretation effectively would empower United States immigration authorities to remove a refugee to a country in which it has been established he or she would likely face persecution, based solely on the speculative assertion that the refugee may present a non-substantial danger to the United States were he or she permitted to remain. The Attorney General's interpretation is inconsistent with the plain language of the statute and with the longstanding and uniform construction (domestically and in other common law countries) of the international treaty that the federal statute was intended to implement. The Attorney General's interpretation was, furthermore, arrived at through an interpretive process that is at odds with basic principles of statutory interpretation of treaty-implementing statutes. Amici submit this brief to urge the Court to reject the Attorney General's interpretation.

The provision at issue is Section 241(b)(3)(B)(iv) of the Immigration and Nationality Act (the “INA”), 8 U.S.C. ? 1231(b)(3)(B)(iv). That provision was enacted to conform domestic law to the Convention Relating to the Status of Refugees, 189 U.N.T.S. 150 (“the Convention”), a 1951 treaty whose obligations bind the United States through the 1967 Protocol Relating to the Status of Refugees, 606 U.N.T.S. 267 (“the 1967 Protocol”) to which the United States is a signatory, and through the domestic implementation of the Protocol. The Convention broadly protects the interests of refugees. Most important here, its central provision, known as the “non-refoulement” obligation, provides that a person whose life or freedom would be threatened on account of certain statuses or beliefs must not be removed from the country of refuge to a country where they would likely be exposed to persecution. See the Convention, Article 33(1). The Convention provides a very limited exception to this fundamental obligation for a refugee whom “there are reasonable grounds for regarding as a danger to the security of the country in which he is.” Id. at Article 33(2).

In language that tracks that of the Convention, Section 241(b)(3)(B)(iv) of the INA adopts the same exception to the ban on removing a refugee to a persecuting country. It provides that the Attorney General may deny withholding of removal if the Attorney General determines that, among other things, “there are reasonable grounds to believe that the alien is a danger to the security of the United States.” 8 U.S.C. ? 1231(b)(3)(B)(iv).

Until recently, every authority to have considered the issue, whether domestic or foreign, had interpreted the language of Article 33(2) (and the national statutes codifying this language) as creating a highly limited exception. They have unanimously concluded that this exception is triggered only where there is specific evidence that, if permitted to remain, the refugee would present a serious danger to the host country's security. As these authorities recognized, this reading was necessary to effectuate the Convention's overarching goal of establishing an international legal obligation that nations not return refugees to places where they would be exposed to persecution except in strictly defined, exceptional circumstances. However, in a recent administrative ruling, the Attorney General, acting sua sponte, adopted a new, arbitrary, and virtually unconstrained interpretation of the treaty and statutory exception. See In re A-H-, 23 I. & N. Dec. 774, 788 (A.G. 2005). Intervening to overturn a Board of Immigration Appeals (BIA) decision that would have permitted a refugee to remain in the United States and thereby avoid persecution in his homeland, the Attorney General interpreted Section 241(b)(3)(B)(iv) to apply where there is any information potentially suggestive of any “nontrivial” danger to national security. Id. The Attorney General stated that the level of danger to the national security need not be “particularly high,” “serious,” “significant,” or “grave.” He further stated that the proof of this level of danger was sufficient if it “permits” a reasonable person to believe that the refugee “may pose a danger” to the national security. Id. at 789. The Attorney General's decision in In re A-H- was not appealed.

In the present case, the BIA -- which, as a subordinate body within the Department of Justice, was constrained to follow the construction that the Attorney General announced in In re A-H- -- applied that standard so as to deny withholding of removal to Respondent Bekhzod Baktiyarovich Yusupov. In re Bekhzod Baktiyarovich Yusupov (BIA Aug. 26, 2005). It thereby reversed the determination of the Immigration Judge who had ruled in favor of Mr. Yusupov. In re Bekhzod Baktiyarovich Yusupov (I.J. Nov. 19, 2004). Notably, in so ruling, the BIA held that the IJ had reasonably credited Mr. Yusupov's exculpatory explanations of the limited strands of evidence that underlay the claim that he posed a danger to national security. In re Yusupov, at 3. A review of the decision in Mr. Yusupov's case strongly indicates that, were it not for the Attorney General's newly unfettered construction of Section 241(b)(3)(B)(iv), the BIA would have found that statutory exception inapplicable. Id.

The Attorney General's interpretation of Section 241(b)(3)(B)(iv), unprecedented and never before reviewed in federal court, is unsustainable. That interpretation ignored entirely Congress's intent in adopting the statute, as well as the foundational principle of statutory construction that, where international law supplies an acceptable alternative construction to a treaty-implementing statute, the statute should be interpreted consistently with international law. Indeed, the Attorney General all together ignored international law and the interpretive materials that must be consulted when construing a statutory provision intended to give effect to an international treaty. Thus, the Attorney General ignored entirely the consensus among refugee law scholars, the United Nations High Commissioner for Refugees (“UNHCR”), and the appellate courts of other common law countries that the treaty exception demands specific evidence demonstrating a serious danger.

Taken together, the relevant materials make clear that Section 241(b)(3)(B)(iv) -- and the treaty provision it implements -- was intended as a limited exception for the highly unusual case in which there is tangible evidence that a refugee would present a serious danger to national security if permitted to remain in the United States. It was not intended to authorize the exclusion and repatriation of a refugee based solely on speculative assumptions about his potential future dangerousness. Amici therefore respectfully submit that the decision below should be vacated, and Mr. Yusupov's case remanded for a decision based on the proper construction of that provision.

ARGUMENT

In Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984), the Supreme Court directed federal courts to employ a two-step approach in reviewing agency interpretations of acts of Congress. “The judiciary is the final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear congressional intent. If a court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect.”; see Chevron, 467 U.S. at 843 n.9 (citations omitted); INS v. Cardoza-Fonseca, 480 U.S. 421, 447-48 (1987). Only “if the statute is silent or ambiguous with respect to the specific issue” does the reviewing court proceed to the second step, in which “the question for the court is whether the agency's answer is based on a permissible construction of the statute.” Chevron, 467 U.S. at 843.

This case is properly resolved on the first step of Chevron. Congress's intent was clear: to give domestic force to the Convention, which in turn clearly contemplated only a limited exception to the “non-refoulement obligation,” applicable only in cases with specific evidence of a serious danger to the national security, as opposed to instances of speculative proof. Notably, the Attorney General, in rendering his interpretation, failed to consider congressional intent at all. Even if considered under the second prong, the Attorney General's interpretation of the statute would be impermissible. That is because it violates the well-established principle of statutory construction that statutes must be construed consistent with international law unless no alternative construction thereof is “fairly possible.” Restatement (Third) of the Law of Foreign Relations ? 114 (1987); Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804).

A. In Passing the Refugee Act of 1980 Congress Unambiguously Intended To Ensure That U.S. Law Is In Conformity With The 1967 Protocol By Which the United States Is Bound.

In 1968, the United States acceded to the 1967 Protocol obligating it “to comply with the substantive provisions of Articles 2 through 34 of the [Convention].” INS v. Stevic, 467 U.S. 407, 416 (1984); see also James C. Hathaway, The Law of Refugee Status 7 (rev. ed. 1998). The Convention established legal protections for persons with a well-founded fear of being persecuted on account of certain statuses and beliefs, including the specific prohibition against return to persecution, embodied in Article 33, the non-refoulement provision. See Deborah E. Anker, Law of Asylum in the United States 2-3 (1999). These provisions were intended to address the world community's “profound concern for refugees” and “to assure refugees the widest possible exercise of [their] fundamental rights and freedoms.” Convention, Preamble ? 2.

To give domestic force to the Convention, Congress -- in addition to acceding to the 1967 Protocol -- also passed the Refugee Act of 1980. The purpose of this legislation, which amended the INA, was to bring the domestic laws of the United States into full conformity with the 1967 Protocol, most specifically with respect to Articles 1 (asylum status) and 33 (non-refoulement) of the Convention. Cardoza-Fonseca, 480 U.S. at 426, 436. See also Marincas v. Lewis, 92 F.3d 195, 198 (3d Cir. 1996) (“the Refugee Act was enacted to fulfill our treaty obligations under the U.N. Protocol for the benefit of aliens … who claim to be fleeing persecution”). According to the House Judiciary Committee Report:

“The Committee wishes to insure a fair and workable asylum policy which is consistent with this country's tradition of welcoming the oppressed of other nations and with our obligations under international law, and feels it is both necessary and desirable that United States domestic law include the asylum provision [of Article 33 of the Convention] in the instant legislation. ... Although [the former Immigration and Nationality Act, ? 243(h)] has been held by court and administrative decisions to accord to aliens the protection required under Article 33, the Committee feels it is desirable, for the sake of clarity, to conform the language of that section to the [Refugee] Convention.

…

The Committee feels that the proposed change … is necessary so that U.S. statutory law clearly reflects our legal obligations under international agreements.”

Stevic, 467 U. S. at 426 n.20 (emphasis added), quoting H.R. Rep. No. 96-608, at 17-18 (1979). Thus, Congress's attempt to conform U.S. law to the Convention is clear, and, under Chevron, must provide the basis for determining the proper construction of the statute. Moreover, because Section 241(b)(3)(B)(iv) adopts the core language of Article 33(2) of the Convention, it is clear that Congress intended to adopt the legal standard set forth in Article 33(2).

B. A U.S. Statute Must Not Be Interpreted To Violate International Law Where An Alternative Construction Is “Fairly Possible.”

Separately, even if Congress had not made clear its intent to adopt the terms of the Convention, an interpretation of Section 241(b)(3)(B)(iv) inconsistent with the Convention would be impermissible, because U.S. courts are bound by the well-settled rule of statutory construction that “an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains.” Charming Betsy, 6 U.S. at 118; see also Restatement (Third) of the Law of Foreign Relations ? 114 (1987) (“Where fairly possible, a United States statute is to be construed so as not to conflict with international law or with an international agreement of the United States.”). This principle has been widely applied by the Supreme Court and federal appellate courts, including by this circuit. See, e.g., Weinberger v. Rossi, 456 U.S. 25, 29-30, 32-33 (1982) (looking to international law in interpreting statute prohibiting employment discrimination against U.S. citizens on military bases overseas unless permitted by treaty); Lauritzen v. Larsen, 345 U.S. 571, 578 (1953) (in maritime tort case, looking to law of nations in determining statutory construction of Jones Act); MacLeod v. United States, 229 U.S. 416, 434 (1913) (“it should not be assumed that Congress proposed to violate the obligations of this country to other nations”); Chew Heong v. United States, 112 U.S. 536, 539-40 (1884) (interpreting immigration statute so as to not conflict with treaty right of Chinese alien to enter the United States). This doctrine has been specifically applied in the context of asylum appeals, see, e.g., United States v. Schiffer, 836 F. Supp. 1164, 1170 n.4 (E.D.Pa. 1993) (“It has been a well-settled rule of statutory construction that `an act of Congress ought never to be construed to violate the law of nations, if any other possible construction remains....'”) (citations omitted), aff'd, 31 F.3d 1175 (3d Cir. 1994), and appeals relating to the Convention, see Ali v. Ashcroft, 213 F.R.D. 390, 405?(W.D. Wash. 2003) (“Because Respondents' proposed interpretation of the statute may result in persecution or deprivation of life in violation of international law, Petitioners' proposed construction is preferred as it reconciles the statute with the law of nations.”). See also Kim Ho Ma v. Ashcroft, 257 F.3d 1095, 1114 & n.30 (9th Cir. 2001) (“We have reaffirmed [the Charming Betsy] rule on several occasions … Although Congress may override international law in enacting a statute, we do not presume that Congress had such an intent when the statute can reasonably be reconciled with the law of nations.”) (emphasis in original).

Applying this principle, even if Congress had not clearly intended the statute to conform to international law, the asylum and non-refoulement provisions of the INA would have to be interpreted consistent with the 1967 Protocol and other sources of international refugee law unless no other construction were “fairly possible.” Here, as we demonstrate below, interpretation of Section 241(b)(2)(B)(iv) of the INA in a manner consistent with international law is not only “fairly possible” but required. However, despite the origin of the terms “reasonable grounds” and “danger to the security of the [United States]” in Article 33(2) of the Convention, and despite clear Congressional intent to implement Article 33 of the Convention via the 1967 Protocol in the 1980 Refugee Act, as discussed above, the Attorney General neither considered the relevant international legal standard nor acknowledged -- let alone justified -- his significant departure from it.

C. The Attorney General's Interpretation Conflicts With International Law And Therefore Must Be Rejected, Both Because Congress Intended Its Statute To Conform To International Law, And Because The Alternative Construction Supplied By International Law Is A Reasonable One. The generally recognized sources of international law are set out at Article 38 of the Statute of the International Court of Justice (“ICJ”). In addition to looking to international treaties ratified by the U.S., “`[t]he law of nations may be ascertained by consulting the works of jurists, writing professedly on public law; by the general usage and practice of nations; or by judicial decisions recognizing and enforcing that law.'” Fil iga v. Pena-Irala, 630 F.2d 876, 880 (2d Cir. 1980), citing United States v. Smith, 18 U.S. (5 Wheat.) 153, 160-61 (1820). In interpreting U.S. obligations under the 1967 Protocol, courts should therefore look to established principles of treaty interpretation and sources of customary international law such as the works of leading international refugee law scholars, jurisprudence from other state parties to the Convention and 1967 Protocol, and statements by the United Nations High Commissioner for Refugees (“UNHCR”), of whose Executive Committee the U.S. is a member.

1. The Convention Contemplates That The Exceptions To The Prohibition Against Refoulement To Persecution Will Be Strictly Construed and Limited to Highly Exceptional Circumstances.

Article 31(1) of the Vienna Convention on the Law of Treaties provides that a “treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its objects and purposes.” Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331; 8 I.L.M. 679 (1969). The Vienna Convention rules on treaty interpretation are now regularly applied by the International Court of Justice as customary international law. See D.J. Harris, Cases and Materials on International Law (Street & Maxwell 5th ed. 1998). One of the core provisions of the Convention (and international refugee law) is the prohibition against refoulement to persecution. UNHCR Advisory Opinion, pp. 2-3 [attached Addendum]. Article 33(1) of the Convention states that: “[n]o Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” Article 33(1) affirms that a person whose life or freedom would be threatened on account of certain statuses or beliefs must not be removed from the country of refuge to a country where they would likely be exposed to persecution. The Supreme Court, in holding that the Refugee Act of 1980 made withholding of deportation mandatory under Section 243(h), recognized that this was “in order to comply with Article 33.1” of the Convention. Cardoza-Fonseca, 480 U.S. at 439 n.25.

According to the Convention's preamble, its purpose is to ensure that refugees enjoy the widest possible exercise of the fundamental rights and freedoms guaranteed to all people. Convention, Preamble. The Canadian delegate to the treaty-drafting convention noted that the prohibition against refoulement is “of fundamental importance to the Convention as a whole.” Convention, travaux pr 鰡 ratoires. And, in the Preamble to the Declaration of State Parties to the Convention and/or its 1967 Protocol Relating to the Status of Refugees (Dec. 13, 2001) marking the 50th anniversary of the Convention, the signatory States acknowledged “the continuing relevance and resilience of this international regime of rights and principles including at its core the principle of non- refoulement whose applicability is embedded in customary international law.” HCR/MMSP/200l/10 ?4. It is abundantly clear that the Convention was intended to have a humanitarian purpose, with the object of safeguarding the rights of refugees to the greatest extent possible, including the fundamental right to non-refoulement to persecution.

Nevertheless, in seeking consensus of all states, the drafters of the Convention carved out extremely limited circumstances under which a person whose life or freedom would be threatened may nevertheless be denied protection. Article 33(2) of the Convention states that the benefit of non-refoulement may not “be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is or who, having been convicted by a final judgment of a particularly serious crime constitutes a danger to the community of that country.” The preparatory documents, or “travaux pr 鰡 ratoires,” respecting Article 33(2) make clear that the exceptions set out therein were intended to be interpreted restrictively. For example, the United States delegate stated that, “it would be highly undesirable to suggest in the text of [Article 33] that there might be cases, even highly exceptional cases, where a man might be sent to death or persecution.” Convention, travaux pr 鰡 ratoires.

See Factum of the Intervenor, United Nations High Commissioner for Refugees, Suresh v. Minister of Citizenship and Immigration, S.C.C. No. 27790 at ? 63. Similarly, the delegate stated that, “the authors of [Article 33(2)] had sought to restrict its scope so as not to prejudice the efficiency of the article as a whole.” Convention, travaux pr 鰡 ratoires. He noted that, “[t]he Government would take care that such extreme measures [as refoulement] were applied only in very rare circumstances.” Id.

It is therefore clear that, to interpret Article 33(2) consistent with the object and purpose of the Convention, it must be restrictively construed in a manner consistent with the treaty signatories' vision of a fundamental right to non-refoulement, subject only to limited exceptions for extreme circumstances. This interpretation is also consistent with the principle that exceptions to international human rights treaties must be interpreted narrowly. Eur. Ct. H.R. Klass case, judgment of 6 September 1978, A/28 at para. 42; Eur. Ct. H.R. Winterwerp case, judgment of 24 October 1979, A/33 at para. 37; Human Rights First (former Layers Committee for Human Rights), “Safeguarding the Rights of Refugees under the Exclusion Clauses: Summary Findings of the Project,” International Journal of Refugee Law, Special Supplementary Issue (2000), at 324.

2. The Attorney General's Interpretation Of The Terms “Danger To The Security Of The United States” And “Reasonable Grounds” Is Inconsistent With International Law.

i. The Treaty Term “Danger To The Security Of The United States” Is Understood To Entail A Very Serious Danger.

In his decision in In re A-H-, the Attorney General declared that, under Section 241(b)(3)(B)(iv) of the INA, “[a]ny level of danger to national security is deemed unacceptable; it need not be `serious', `significant', or `grave' danger.” 23 I. & N. Dec. 774, 788 (A.G. 2005). The Attorney General reasoned simply that Congress did not qualify the phrase “a danger to the security of the United States” in this section of the INA with any modifying adjective intended to connote a heightened level of danger, “in contrast to other parallel provisions in [the predecessor section to Section 241(b)(3)(B)(iv)] -- which provide, for example, that a crime be `serious; or `particularly serious' to constitute ineligibility for withholding of deportation.” Id. In addition, the Attorney General interpreted “security to the United States” broadly, as encompassing “the national defense, foreign relations, or economic interests of the United States.” Id. He did so by simply adopting the definition of “national security” used in another section of the INA, Section 219(c)(2). Because his statutory interpretation began and ended with a parsing of the provision's literal language in a contextual vacuum, the Attorney General failed to honor Congress's clear intent in enacting Section 241(b)(3)(B)(iv) of the INA.

To deduce Congress's intent in using the words of Section 241, the Attorney General should have consulted interpretations of Article 33(2) of the Convention. Congress, by enacting language that tracked that of Article 33(2), meant to adopt the well-established meaning that those words had in international law. Moreover, the Attorney General's comparison of the language in Section 241(b)(3)(B)(iv) with the language in 219(c)(2), 8 U.S.C. ? 1189(c)(2)(2000) is inapposite. Id. The definition of “national security” provided in Section 219(c)(2) explicitly applies solely to Section 219, and in that context it serves the very different purpose of identifying which known, foreign terrorist organizations the U.S. should care about. This broad notion of national security, while appropriate in a provision aimed at identifying which known terrorist groups pose a threat to the United States, is radically inconsistent with the Convention and with Section 241(b)(3)(B)(iv), because it would deny protection against refoulement to a refugee not known to be part of any terrorist group whenever recognizing the refugee (or group of refugees) was inconvenient on foreign policy grounds or imposed any economic cost on the U.S. Apart from his failure to consider the international-law construction of this treaty-implementing provision, the Attorney General's analysis misreads the language of the statute itself. The Attorney General contrasts the portion of the provision dealing with national security with the portion dealing with crimes, but in fact, the word “danger” is equally unqualified in the two provisions. The provision dealing with crimes, Section 241(b)(3)(B)(ii), creates an exception for withholding removal where “the alien, having been convicted by a final judgment of a particularly serious crime is a danger to the community of the United States.” Significantly, in this provision, it is the nature of the crime that is qualified, not the level of “danger.” Indeed, if anything, the restrictive language of Section 241(b)(3)(B)(ii) -- limiting the exception not just to crimes, or felonies, but to “particularly serious crimes” -- suggests that the scope of conduct constituting a danger to national security was intended -- in the parallel provision relating to national security -- to be similarly cabined to unusually hazardous activity

Consistent with this, there is wide consensus among refugee scholars, the UNHCR and the appellate courts of other state parties to the Convention and 1967 Protocol that the risk to the national security of a host country must be high in order to justify the exception that Article 33(2) creates to the treaty prohibition upon refoulement to persecution. For example: • The UNHCR interprets Article 33(2) as requiring “a very serious danger.” UNHCR Advisory Opinion, p. 5 [attached Addendum]. Acting as intervenor in the Canadian case of Suresh v. Minister of Citizenship and Immigration, the UNHCR advised the Supreme Court of Canada that, “[t]he travaux pr 鰡 ratoires make clear that

the drafters were concerned only with significant threats to national security.” Factum of the Intervenor, United Nations High Commissioner for Refugees, Suresh v. Minister of Citizenship and Immigration, S.C.C. No. 27790 at ? 72.

• The leading refugee scholar Atle Grahl-Madsen similarly defines “danger” as “acts of a rather serious nature.” Atle Grahl-Madsen, Commentary on the Refugee Convention 1951 236 (UNHCR 1963).

• Paul Weis, another leading refugee law scholar and a delegate for the International Refugee Organization during the drafting of Article 33(2) notes that the article “constitutes an exception to the general principle embodied in paragraph 1 and has, like all exceptions, to be interpreted restrictively. Not every reason of national security may be invoked.” Paul Weis, The Refugee Convention, 1951: The Travaux Preparatoires Analysed with a Commentary by Dr. Paul Weis 1-4 (Cambridge Univ. Press 1995).

• More recently, the preeminent refugee scholar James C. Hathaway noted that the national security exception under Article 33(2) applies only “where a refugee's presence or actions give rise to an objectively reasonable, real possibility of directly or indirectly inflicted substantial harm to the host state's most basic interests. James C. Hathaway, The Rights of Refugees Under International Law 346 (Cambridge Univ. Press 2005) (emphasis added).

Furthermore, the language of Article 33(2) has been adopted in the national legislation of a number of other states, and its scope has been restrictively construed by higher courts in other common law jurisdictions that are parties to the Convention and 1967 Protocol. For example:

• In a recent decision by the Court of Appeal, Madame Justice Glazebrook stated that, “it is clear that the art 33.2 exception must be interpreted restrictively. In my view, this means that the danger to security must be serious enough to justify frustrating the whole purpose of the Convention by sending a person back to persecution.” Attorney General v. Zaoui, Dec. No. CA20/04 (N.Z. CA, Sept. 30, 2004) at ? 136.

• Similarly, the Supreme Court of Canada has held that, “a person constitutes a `danger to the security of Canada' if he or she poses a serious threat to the security of Canada … in the sense that the threatened harm must be substantial rather than negligible.” Suresh v. Canada (Minister of Citizenship & Immigration), 2002 SCC 1 at ? 90.

Amici are not aware of any exceptions to this overwhelming consensus. The Attorney General's notion that the statutory term “danger” encompasses any danger is thus at odds with the international understanding of that treaty term and with the goal of the treaty signatories to create only a narrow exception to be utilized under highly exceptional circumstances. There is no reasonable construction of U.S. and international law under which a refugee could be returned to persecution where he or she presents a non-significant danger to the United States.

i. The Statutory Requirement That There Be “Reasonable Grounds For Regarding” The Refugee As A Danger To National Security Requires Particularized Evidence Supporting A Conclusion Of Actual Risk.

In his decision in In re A-H-, the Attorney General stated that, “as used in the national security-related provisions of the Immigration and Nationality Act … [t]he `reasonable grounds for regarding' standard is satisfied if there is information that would permit a reasonable person to believe that the alien may pose a danger to the national security.” 23 I. & N. Dec. 774 (emphasis added). This permissive standard does not follow from the language of Section 241(b)(3)(B)(iv) or the Convention, both of which require reasonable grounds to believe that a refugee is a danger to the security of the United States (rather than that a refugee “may pose a danger”), and does not accord with the accepted understanding of this treaty language under international law (including as applied by appellate courts of other state parties to the Convention and Protocol such as Canada, the United Kingdom, New Zealand and ).

Moreover, instead of requiring particularized evidence that would warrant the belief that the specific refugee is a danger, the Attorney General's reformulated standard merely requires “information” that would permit reasonable belief that a person “may pose” a danger to the U.S. in order to deny a refugee non-refoulement. In re A-H-, 23 I. & N. Dec. at 789. This reformulation conflicts with the standard adopted by the UNHCR, international scholars and the higher courts of other common law state parties to the Convention and 1967 Protocol, which instead require particularized evidence. For example, the Canadian Supreme Court interpreted the same provision under Canadian immigration legislation as requiring “objectively reasonable suspicion based on evidence” (emphasis added). Id. at ? 90. In reaching this conclusion, the court sought to ensure that “law enforcement discretion” was “adequately limit[ed]” in determining “danger to the security of Canada.” Id. at ? 92. The English Court of Appeal ruled that the demanding standard of proof under Article 33(2) means that the assertion of risk must be “sufficiently particularised” to substantiate the reasonableness of exclusion. “NSH” v. Home Sec'y, [1988] Imm. A.R. 389, 393, 395-396 (Eng. C.A.). Madame Justice Glazebrook of the New Zealand Court of Appeal similarly notes that “the State concerned cannot act either arbitrarily or capriciously and that it must specifically address the question of whether there is a future risk and the conclusion on the matter must be supported by evidence.” Attorney General v. Zaoui, Dec. No. CA20/04 (N.Z. CA, Sept. 30, 2004).

The UNHCR also requires more due process than does the Attorney General. According to the UNHCR, “strict observance of due process safeguards” is required by Article 33(2) and by general principles of human rights law. United Nations High Commissioner for Refugees, The Scope and Content of the Principle of Non-Refoulement, Opinion, authored by Sir Elihu Lauterpacht, CBE QC and Daniel Bethlehem, Barrister (June 20, 2001). While the UNHCR acknowledges that states are entitled to some deference in making this determination, states may not act “arbitrarily or capriciously” and a state's determination that a refugee poses a sufficient risk “can only be reasonable if it is adequately supported by reliable and credible evidence.” UNHCR Advisory Opinion, p. 6 [attached Addendum]. The Attorney General's reformulation is thus clearly out of step with the consensus construction of the treaty and statutory language, and should not stand.

CONCLUSION For the reasons stated herein, the Attorney General's construction of the predecessor statute to current Section 241(b)(3)(B)(iv) is unsustainable. It does not follow from the language of that provision, and conflicts with the international-law construction of the treaty language from which it is drawn. Under established principles of statutory construction involving treaty-implementing statutes, the Attorney General's construction of this provision should be rejected, and this case remanded so that Mr. Yusupov's case can be evaluated against the standards set by section 241(b)(3)(B)(iv) as properly construed.

Paul A. Engelmayer

Wilmer Cutler Pickering Hale and Dorr LLP

399 Park Avenue

New York, NY 10022

(212) 230-8800

(212) 230-8888

Prior to 1996, this statutory provision was codified at Section 243(h)(2)(D) of the INA, 8 U.S.C. ? 1182(a)(7)(A)(i)(I) (1994). Various sources cited or quoted in this brief, including the Attorney General's decision in In re A-H-, cite this provision by its earlier code section. In the interest of convenience, amici refer to this provision by its current name. Amici note a minor difference in wording between the prior and current provisions; Section 243(h)(2)(D) provides that refugees may be denied withholding of removal if “there are reasonable grounds for regarding the alien as a danger to the security of the United States.” (Emphasis added). Amici have reviewed the legislative history surrounding the implementation of the new provision and have found no indication that the change in wording was intended to substantively modify the statute, and no authority of which amici are aware has so concluded.

Article 38(1) lists these sources as: “a. international conventions, whether general or particular …; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.” Statute of the International Court of Justice, 59 Stat. 1031, 1060 (1945). See Flores v. Southern Peru Copper Corp., 414 F.2d 233, 250-52 (2d Cir. 2003) (citing Article 38 of the ICJ to identify relevant sources of international law); Aquamar, S.A. v. Del Monte Fresh Produce, N.A., 179 F.3d 1279, 1295 (11th Cir. 1999) (same).

In interpreting the Convention as applied to asylum provisions of the INA, the Supreme Court has given weight to “the conclusions of many scholars who have studied the matter.” Cardoza-Fonseca, 480 U.S. at 439-40.

The UNHCR is the international agency mandated by the United Nations General Assembly to provide international protection to refugees and, in particular, to supervise the application of treaties relating to refugees. See Convention, Article 35; 1967 Protocol, Article 2; Statute of the Office of the United Nations High Commissioner for Refugees, General Assembly Resolution 428(V) (Dec. 14, 1950). The Supreme Court has looked to UNHCR publications as a source bearing on the interpretation of U.S. obligations under the Convention. See Cardoza-Fonseca, 480 U.S. at 439 n.22 (holding that although the UNHCR's Handbook on Procedures and Criteria for Determining Refugee Status (1979) does not “ha[ve] the force of law or in any way bind[ ] the INS,” it nevertheless “provides significant guidance in construing the Protocol, to which Congress sought to conform”). See also UNHCR Advisory Opinion, p. 2 [Attached Addendum].

The prohibition against refoulement is also found in a number of other human rights treaties to which the United States is a party: Article 3(1) of the Torture Convention deals specifically with refoulement when there is a risk that a person will face torture upon refoulement. Article 3(1) states: “No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.”

The travaux pr 鰡 ratoires reveal that the paragraph that later became article 33(2) was not included in the original version of the Convention drafted by the ad hoc Committee, despite discussions of such considerations during the preliminary meetings. It was later introduced in response to concerns by some states about refugees at a time of increasing Cold War tension. See Factum of the Intervenor, United Nations High Commissioner for Refugees, Suresh v. Minister of Citizenship & Immigration, S.C.C. No. 27790 at ?? 60-62 (Mar. 8, 2001).

The travaux preparatoires are the minutes of the meetings that resulted in the Convention. Article 32 of the Vienna Convention on the Law of Treaties provides that, “the preparatory work of the treaty and the circumstances of its conclusion” may be used as a supplementary means of treaty interpretation. Vienna Convention on the Law of Treaties, art. 32, May 23, 1969, 1155 U.N.T.S. 331; 8 I.L.M. 679 (1969).

See also UNHCR (authored by Sir Elihu Lauterpacht & Daniel Bethlehem), The Scope and Content of the Principle of Non-refoulement, para. 169, Feb. 2003, available at http://www.unhcr.ch/cgi- bin/texis/vtx/home/opendoc.pdf?tbl+PROTECTION&id=3B33574d1; Factum of the Intervenor, UNHCR, Suresh v. Minister of Citizenship and Immigration, S.C.C. No. 27790, at ? 66. Professor Grahl-Madsen's commentary was written during the 18 months he spent as a Special Consultant in the office of the UNHCR. It is considered a seminal study on the Convention. Attorney General v. Zaoui, Dec. No. CA20/04 (NZ CA Sept. 30, 2004) at ? 36, per Madam Justice Glazebrook (N.Z.C.A.).

Suresh v. Canada (Minister of Citizenship and Immigration) 2002 SCC1 at ? 15 (“declaring him to be a danger”), ? 16 (“constituted a danger”), ? 18 (“danger that Suresh posed), ? 21 (“who is a danger”), etc. (emphasis added).

See “NSH” v. Home Sec'y, [1988] Imm. A.R. 389, 395 (Eng. C.A.) (“there must in fact have been reasonable grounds for the Home Secretary to have regarded H as a danger”) (emphasis added)..

Attorney General v. Zaoui, Dec. No. CA20/04 (N.Z. CA Sept. 30, 2004) at ? 7 (“is a danger to the security of New Zealand”), ? 26 (“constitutes a danger”) etc., per Madam Justice Glazebrook (N.Z.C.A.) (emphasis added).

Betkoshabeh v. Minister for Immigration & Multicultural Affairs (1998) 157 A.L.R. 95 (Austl. FC, July 29, 1998), rev'd on grounds of mootness, (1999) 55 A.L.D. 609 (Austl. FFC, July 20, 1999) (“was a danger to the Australian community”), (“is a danger to the community”), (“will be a danger to the community”), etc.

In A-H-, the Attorney General equates the “reasonable grounds for regarding” standard to probable cause, which requires that “the facts must be such as would warrant a belief by a reasonable man”. In re A-H-, 23 I. & N. Dec. at 789, quoting Wayne R. LaFave & Jerold H. Israel, Criminal Procedure ? 3.3, at 140 (2d ed. 1992).

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