Detention, Due Process and Internal Barriers to

Report
Building a Human Rights
Model: Detention and Due
Process for US Asylum
Seekers
Mark Noferi
Center for Migration Studies
June 3, 2014
Overview

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Overview: Current US Detention & DP
for Asylum Seekers
Human Rights Standards (UNHCR,
etc.)
Recommendations
Evidence Supporting Human Rights
Model: Can It Work?
US Asylum Procedures

Standard:
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Summary Processes – Rising (75+%)

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Affirmative applications (asylum interview)
Defensive applications (in-court
proceedings)
Expedited Removal: FY ‘12: 163K, 39%
Reinstatement of Removal: 149K, 36%
Administrative Removal: ~3%
No Appointed Lawyer
Summary Procedures:
Detention and DP
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Expedited Removal:
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Mand det 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:
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Mandatory detention
“Reasonable fear” interview:

Regs 10 days, avg 113 days (NIJC suit)
Detention Concerns
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Retraumatizing detention
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Indefinite detention
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Persecuted arrive, jailed – shocked
Psychological trauma: hopelessness, PTSD
“Worse than prison” (Swedish detainees)
Abusive conditions
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CBP: Las hielaras
ICE: “Civil” reforms in some facilities…
Asylum Claims:
Lost in Detention?
Increased credible fear claims, increased
detention, increased claims given up…
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Mexico, El Sal, Honduras, Guatemala:
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Highest increases: ‘13 credible fear claims
Most-represented among US detainees
(90%)
Higher rates of withdrawal/abandonment
(26% these 4 countries, 17% overall)
Asylum Claims:
Lost in Process?

While expedited removals increase…

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2005: CBP mistakenly denying 15% of
credible fear referrals
Reports: Agents pressuring for withdrawal
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“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
Human Rights Framework:
Detention
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UNHCR 2012 Detention Guidelines:
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“Last resort,” with liberty “default”
Individual, reasonable, proportional, non-arbitrary
Detention for abscondment legitimate. But:
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“Minimal periods” in detention, w/ strict time limits
Review: “Ideally” w/in 48 hrs
Conditions: “Humane,” dignified (i.e. avoid jails)
Human Rights Framework:
Due Process
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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”

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Lack of papers alone not “manifestly unfounded”
Detention can’t be penalty for illegal entry
The Human Rights Model
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Custody and supervision, not detention
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Detention: Not presumed,
Shorter, and
More humane conditions, tailored
Due Process:
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Legal Assistance
Expedited Removal: Oversight, changes
(refer seekers to asylum officer, pre-REAL
ID credibility standards for asylum seekers)
Recommendations:
Detention
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Formal in-court proceedings
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S. 744: Individualized assessment, bond hearings,
community supervision, conditions oversight
Time limits on detention?
Open facilities? NGO bail for detainees?
Summary Processes
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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
Recommendations:
Due Process
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Legal Representation & Assistance:
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S. 744 but in expedited proceedings?
Assistance short of/addition to lawyers?
Benefits:
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More accurate decisionmaking
Less detention
Credible fear: Lawyer involved at outset
Mitigates hopelessness, trauma
Do bond hrgs, review help w/o counsel?
Human Rights Model:
Can It Work?
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Asylum Seekers:
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Predisposed to comply…
If treated fairly upon arrival.
“Procedural Justice” – i.e. supervision and
assistance, rather than detention alone:
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Likely fosters robust compliance…
Even with adverse deportation orders.
Evidence Supporting the
Human Rights Model
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Qualitative:
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Asylum seekers want to follow the law,
trust process as fair, avoid detention
Compliance if process seen “fair”:
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Early, reliable legal advice (most important)
Suitable living conditions
Holistic life support
Quantitative:
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Vera, 2000: 93% supervised appeared, vs.
78% detained but released
Evidence Supporting the
Human Rights Model
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BUT:
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If Govt starts with detention, adversarial
stance to immigrant…
Immigrant more likely not to comply later.
More Research Needed
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Does “procedural justice” apply to
noncitizens, w/ less no ties to community?
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Predicting flight, public safety risk:
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Asylum seekers w/ only shirt on back?
Which factors?
How much supervision?
Declined asylum seekers, post-order?
Quantitative research (since Vera, 2000)

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