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Building a Human Rights Model: Detention and Due Process for US Asylum Seekers

Building a Human Rights Model: Detention and Due Process for US Asylum Seekers. Mark Noferi Center for Migration Studies June 3, 2014. Overview. Overview : Current US Detention & DP for Asylum Seekers Human Rights Standards (UNHCR, etc .) Recommendations

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Building a Human Rights Model: Detention and Due Process for US Asylum Seekers

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  1. Building a Human Rights Model: Detention and Due Process for US Asylum Seekers Mark Noferi Center for Migration Studies June 3, 2014

  2. Overview • Overview: Current US Detention & DP for Asylum Seekers • Human Rights Standards (UNHCR, etc.) • Recommendations • Evidence Supporting Human Rights Model: CanItWork?

  3. US Asylum Procedures • Standard: • Affirmative applications (asylum interview) • Defensive applications (in-court proceedings) • Summary Processes – Rising(75+%) • Expedited Removal: FY ‘12: 163K, 39% • Reinstatement of Removal: 149K, 36% • Administrative Removal: ~3% • No Appointed Lawyer

  4. Summary Procedures:Detention and DP • Expedited Removal: • Manddet pending “credible fear” int’v (~27 days) • Case-by-case parole, post-credible fear, if arrived at port of entry (DHS ‘12: 80% paroled?) • But: 70% claiming credible fear arrived between ports since ‘07 (USCIS ’13) • Reinstatement of Removal: • Mandatory detention • “Reasonable fear” interview: • Regs 10 days, avg 113 days (NIJC suit)

  5. Detention Concerns • Retraumatizing detention • Persecuted arrive, jailed – shocked • Indefinite detention • Psychological trauma: hopelessness, PTSD • “Worse than prison” (Swedish detainees) • Abusive conditions • CBP: Las hielaras • ICE: “Civil” reforms in some facilities…

  6. Asylum Claims: Lost in Detention? Increased credible fear claims, increased detention, increased claims given up… • Mexico, El Sal, Honduras, Guatemala: • Highest increases: ‘13 credible fear claims • Most-represented among US detainees (90%) • Higher rates of withdrawal/abandonment (26% these 4 countries, 17% overall)

  7. Asylum Claims: Lost in Process? • While expedited removals increase… • 2005: CBP mistakenly denying 15% of credible fear referrals • Reports: Agents pressuring for withdrawal • “If you don’t sign, you’ll go someplace worse” • Post-credible fear denials on credibility grounds, “adding detail,” etc. • Latin American asylum seekers: “Hardest” cases in adjudicators’ eyes

  8. Human Rights Framework: Detention • UNHCR 2012 Detention Guidelines: • “Last resort,” with liberty “default” • Individual, reasonable, proportional, non-arbitrary • Detention for abscondmentlegitimate. But: • “Minimal periods” in detention, w/ strict timelimits • Review: “Ideally” w/in 48 hrs • Conditions: “Humane,” dignified (i.e. avoid jails)

  9. Human Rights Framework: Due Process • Minimum procedural safeguards • Free legal assistance where provided to “similarly situated” nationals • UNHCR: Access to legal counsel at “all stages” • Accelerated procedures: Only where “manifestly unfounded,” “clearly abusive” • Lack of papers alone not “manifestly unfounded” • Detention can’t be penalty for illegal entry

  10. The Human Rights Model • Custody and supervision, not detention • Detention: Not presumed, • Shorter, and • More humane conditions, tailored • Due Process: • Legal Assistance • Expedited Removal: Oversight, changes (refer seekers to asylum officer, pre-REAL ID credibility standards for asylum seekers)

  11. Recommendations: Detention • Formal in-court proceedings • S. 744: Individualized assessment, bond hearings, community supervision, conditions oversight • Time limits on detention? • Open facilities? NGO bail for detainees? • Summary Processes • Discretionary, not mandatory detention • Formalize parole guidance into regs • Parole between ports of entry • Shorten detention: Time limits, resources • CBP conditions, as well as ICE

  12. Recommendations:Due Process • Legal Representation & Assistance: • S. 744 but in expedited proceedings? • Assistance short of/addition to lawyers? • Benefits: • More accurate decisionmaking • Less detention • Credible fear: Lawyer involved at outset • Mitigates hopelessness, trauma • Do bond hrgs, review help w/o counsel?

  13. Human Rights Model:Can It Work? • Asylum Seekers: • Predisposed to comply… • If treated fairly upon arrival. • “Procedural Justice” – i.e. supervision and assistance, rather than detention alone: • Likely fosters robust compliance… • Even with adverse deportation orders.

  14. Evidence Supporting the Human Rights Model • Qualitative: • Asylum seekers want to follow the law, trust process as fair, avoid detention • Compliance if process seen “fair”: • Early, reliable legal advice (most important) • Suitable living conditions • Holistic life support • Quantitative: • Vera, 2000: 93% supervised appeared, vs. 78% detained but released

  15. Evidence Supporting the Human Rights Model • BUT: • If Govtstarts with detention, adversarial stance to immigrant… • Immigrant more likely not to comply later.

  16. More Research Needed • Does “procedural justice” apply to noncitizens, w/ less no ties to community? • Asylum seekers w/ only shirt on back? • Predicting flight, public safety risk: • Which factors? • How much supervision? • Declined asylum seekers, post-order? • Quantitative research (since Vera, 2000)

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