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Building a Human Rights Model: Detention and Due Process fo Building a Human Rights Model: Detention and Due Process fo

Building a Human Rights Model: Detention and Due Process fo - PowerPoint Presentation

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Building a Human Rights Model: Detention and Due Process fo - PPT Presentation

Mark Noferi Center for Migration Studies June 3 2014 Overview Overview Current US Detention amp DP for Asylum Seekers Human Rights Standards UNHCR etc Recommendations Evidence Supporting Human Rights ID: 263104

asylum detention rights human detention asylum human rights seekers credible fear process model removal conditions claims expedited legal assistance

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Slide1

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

Mark Noferi

Center for Migration Studies

June 3, 2014Slide2

Overview

Overview

: Current US Detention & DP for Asylum Seekers

Human Rights Standards

(UNHCR, etc

.)

Recommendations

Evidence

Supporting Human Rights

Model:

Can

It

Work

?Slide3

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 LawyerSlide4

Summary Procedures:Detention and DP

Expedited Removal

:

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

:

Mandatory detention

“Reasonable fear” interview:

Regs

10 days,

avg

113 days (NIJC suit)Slide5

Detention Concerns

Retraumatizing

detention

Persecuted arrive, jailed – shocked

Indefinite detention

P

sychological trauma: hopelessness, PTSD

“Worse than prison” (Swedish detainees)

Abusive conditions

CBP:

Las

hielaras

ICE: “Civil” reforms in some facilities…Slide6

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)Slide7

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’ eyesSlide8

Human Rights Framework: Detention

UNHCR 2012 Detention Guidelines:

“Last resort,” with liberty “default”

Individual, reasonable, proportional, non-arbitrary

Detention for

abscondment

legitimate

.

But

:

Minimal

periods” in detention, w/ strict

time

limits

Review: “Ideally” w/in 48

hrs

Conditions: “Humane,” dignified (i.e. avoid

jails

)Slide9

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 entrySlide10

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)Slide11

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 ICESlide12

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?Slide13

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:

L

ikely fosters robust compliance…

Even with adverse deportation orders. Slide14

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 releasedSlide15

Evidence Supporting the Human Rights Model

BUT:

If

Govt

starts

with detention, adversarial stance to immigrant…

Immigrant more likely

not

to comply later. Slide16

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)