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 Evidence Supporting Human Rights Model: Can It Work?

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

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)

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…

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)

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

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)

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

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)

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

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?

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.

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

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

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)