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
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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)