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U.S. Compliance with the International Covenant on Civil and Political Rights
NGO Intervention on March 17, 2006
 
RIGHTS RELATED TO THE TREATMENT OF NON-CITIZENS
 
My name is Jennifer Prestholdt and I am an attorney and the Deputy Director of Minnesota Advocates for Human Rights, an NGO which has provided legal representation to asylum seekers for 21 years.  My comments today reflect the concerns of a number of U.S. NGOs working on immigration issues throughout the country.  While we believe that the U.S. improperly denies or fails to ensure the rights of non-citizens in violation of Articles 2, 8, 10, 13, 14, and 22 of the ICCPR, in the interest of time I will focus my comments on Article 13 violations of due process and access to counsel.
 
Article 13:  Violations of due process and access to counsel
 
A.                 Increasing Limitations on Judicial Review
 
In its 1995 Concluding Observations, the Human Rights Committee expressed concern that excludable aliens in the U.S. enjoyed a lower standard of due process.  Unfortunately, through a combination of regulatory and statutory jurisdictional changes over the past 10 years, the U.S. has further restricted judicial review of immigration decisions.  As a result, access to due process and effective remedy has been significantly curtailed for aliens who are in the process of being expelled from the U.S.
 
The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA), which is implemented in Section 1225 of the United States Code, establishes the Expedited Removal system, including the creation of the credible fear screening process for asylum seekers. The U.S. Commission on International Religious Freedom, charged by the U.S. Congress with assessing the Expedited Removal system’s impact on asylum-seekers, concluded in its 2005 Annual Report, “…serious problems were identified which place some asylum seekers at risk of improper return (refoulement).”  The Commission also found that most asylum seekers in Expedited Removal are detained under conditions which may be suitable in the criminal justice system, but are entirely inappropriate for asylum seekers fleeing persecution.”[1]
These changes were compounded by Board of Immigration Appeals (BIA) Streamlining, by which the U.S. drastically cut back the number of appeals allowed for non-citizens (including those lawfully present).  The BIA, the administrative body charged with reviewing decisions by federal immigration judges,  implemented its current “affirmance without opinion” regulations in August 2002.[2]  Since that time, thousands of summary decisions without legal opinions have been issued by the BIA.
 
In October 2003, the law firm of Dorsey & Whitney, LLP conducted a study for the American Bar Association on the Board of Immigration Appeals.  They noted, “In many instances the federal courts are finding Immigration Judge opinions that are ‘sheer speculation,’ or ‘based upon a fundamental misunderstanding of the law,’ or ‘arbitrary and capricious,’ or ‘clear error.’”  The U.S. Commission on International Religious Freedom, in its report assessing the Expedited Removal process and its impact on asylum seekers, found that prior to the BIA streamlining regulations the BIA sustained 24% of appeals in which the immigration judge had denied asylum, but following the regulatory changes only 2-4% of appeals have been granted.[3]  On December 26, 2005 The New York Times reported that, “Federal appeals court judges around the nation have repeatedly excoriated immigration judges this year for what they call a pattern of biased and incoherent decisions in asylum cases.”[4]
In 2005, Congress passed the REAL ID Act, further curtailing judicial review of many issues relevant to deportation decisions. As a result of these changes, most immigrants challenging deportation now find appeal to a higher authority impossible to obtain, and those whose cases are reviewed are not sufficiently protected against removal.    Restriction or elimination of the habeas corpus remedy removes one of the most effective methods for challenging the legality of government action in the courts, and for preventing arbitrary detentions and removals
In December 2005, the U.S. House of Representatives passed the Border Security, Antiterrorism, and Illegal Immigration Control Act of 2005 (H.R. 4437). There was very little debate on H.R. 4437, which is punitive, extreme, and ultimately unworkable. This bill threatens the United States' ability to provide protection to asylum-seekers.  Now under consideration in the U.S. Senate, the Comprehensive Immigration Reform Act of 2006 (Chairman’s Mark) will:
  • make unauthorized presence in the U. S. a felony, which would make a person ineligible for future legal immigration such as asylum;
  • expand the criminal code to create new passport and document-related offenses;
  • criminalize organizations/individuals who assist or provide support to undocumented persons;
  • deny all nonimmigrants – from temporary workers to victims of domestic violence – their right to an impartial removal hearing if charged with an immigration violation;
  • limit judicial review of cases and access to federal courts; and 
  • expand mandatory detention and long-term detention for asylum-seekers and others.
In addition, alternative immigration reform legislation has been introduced by Senators McCain and Kennedy “Secure American and Orderly Immigration Act (S. 1033).
 
Conclusion:  Ten years of legislative and regulatory changes, combined with removal proceedings that often lack fundamental due process guarantees and the low quality of adjudications by immigration judges, have eroded meaningful access to the protections guaranteed under Art. 13 of the treaty.   All non-US citizens are affected, including asylum seekers, but those with criminal convictions have been most affected; for those with criminal convictions – including refugees and asylees -  access to review has been almost completely removed. 
 
B.                 Access to Counsel
 
While the right to counsel at no expense to the government is available in removal proceedings (8 USC 1362), in both policy and practice, the U.S.:
 
  • Denies access to counsel in expedited removal.  Counsel is prohibited from participating in secondary inspections at airport/port of entry.  If referred for a credible fear hearing, an individual in detention may contact an attorney.
 
  • Provides no actual counsel for individuals in removal proceedings.  The US does provide a list of local free legal service providers to most detainees, but the system is ad hoc and reliant upon the capacity of charitable organizations.  The list is generally not available in translated form in most languages.
 
  • Has instituted summary procedures that circumvent the access to counsel. Increasingly, in ICE districts where there is a practice of stipulating orders for removal, individuals in removal proceedings are given the option of stipulation of removal or reinstatement of removal as an alternative to detention. 
 
Vulnerable Individuals and Access to Counsel. Further, no mechanism/procedural safeguards exist outside of charitable organizations to ensure that vulnerable individuals, including children and the mentally ill, have access to counsel.  Children are the most telling example of the way we treat aliens.  Unaccompanied minors suspected of being present in the U.S. without immigration authorization, like adults, are subject to removal from the U.S.  The U.S. has made significant improvements in the system of providing shelter care to unaccompanied alien children, transferring responsibility for the physical custody of such children from the Department of Homeland Security to the Department of Health and Human Services.  This development is welcome. 
 
Nonetheless, U.S. immigration law makes no provision for the representation of unaccompanied juveniles in removal proceedings, either through a guardian ad litem system or through the provision of legal counsel by the United States.  Like adults, children, regardless of age, must locate and retain private representation in removal proceedings or speak for themselves.  While some charitable organizations attempt to provide free legal counsel to alien children in removal proceedings, not all children have access to attorneys. Even where there have been efforts from non-profits, the U.S. government has failed to provide direction to ensure kids have access; one example is that immigration courts often refuse requests for changes of venue.  There are no clear policy guidelines in immigration courts to meet special needs of children.
 
In addition, the entitlement of women fleeing persecution based on domestic or other gender-based violence where the state of origin is not willing or able to protect them is in limbo, pending issuance of guidelines by the Justice Department.  As a consequence, decisions on such claims vary throughout the country and women are being returned to extremely dangerous conditions. 
 
Conclusion:   Indigent asylum applicants and other non-citizens in removal proceedings do not have a right to free legal counsel and many do not have access to legal services provided by charitable organizations.  The US completely fails in its obligation under Article 13 to provide representation in any immigration proceedings. 
 
C.                 Other Issues Related to Article 13 Raised in the U.S. Report
D.                  
Detention:  ICE detention standards have been implemented but only in ICE service processing centers.  In the majority of jurisdictions, asylum seekers who are awaiting adjudication of their applications for asylum and immigrants who are in civil deportation proceedings are often held in state and county prisons and jails, where they are subjected to harsh detention conditions.  They are often co-mingled with the criminal population.  This practice is in clear violation of Article 10, as well as the U.N. Standard Minimum Rules for the Treatment of Prisoners.  
 
The U.S. Supreme Court’s Zayvedez decision, which limits post-order detention, is a significant improvement on the previous system of indefinite detention.  The U.S. Congress is, however, currently threatening to pass legislation that would overturn that decision.
 
Thank you for the opportunity to address the Committee and we look forward to providing you more detailed information in the form of a shadow report.
 
Contact information: 
 
Jennifer Prestholdt
Deputy Director
Minnesota Advocates for Human Rights
650 Third Ave. So., Suite 550
Minneapolis, MN  55402
(612) 341-3302 ext. 111
mnadvocates.org
 


 
            C.        Other Issues Related to Article 13 Raised in the U.S. Report:
 
Detention:  ICE detention standards have been but are only in ICE service processing centers.  But in majority of jurisdictions, political asylum seekers who are awaiting adjudication of their applications for asylum and immigrants who are in civil deportation proceedings are often held in state and county prisons and jails, where they are subjected to harsh detention conditions.  They are often co-mingled with the criminal population.  This practice is in clear violation of Article 10, as well as the U.N. Standard Minimum Rules for the Treatment of Prisoners.  
 
The U.S. Supreme Court’s Zayvedez decision, which limits post-order detention is good, but Congress is currently threatening to pass legislation that would overturn
 
CAT:  The Convention Against Torture has been implemented in the most restrictive way possible.  In effect, CAT is the non-refoulement remedy of last resort for people barred from other forms of protection.
 
Material Support:  (Para 233) Intelligence Reform and Terrorism Act of 2004 expanded bars to admissibility for human rights abusers (good, implements intent of refugee convention).  But material support has been a problem (expanded by USA PATRIOT ACT)    No exceptions (for minors, unknowing support,) Doesn’t strike appropriate balance b/t obligations of refugee convention and national security.
 
Changed country conditions (para 245-263):  move to terminate asylum status for people with changed country conditions (in addition to fraud) 
 
Rights of asylees and  refugees (para 266)  While we applaud improvements made on processing times, refugees and asylees continue to be treated differently in the U.S.
 
TPS: doesn’t lead to permanent status.  Some have been in TPS status 15 years.
 
 
 


 
 
 

[1] U.S. Commission on International Religious Freedom, U.S. Commission on International Freedom 2005 Annual Report, available at http://www.state.gov/g/drl/rls/irf/2005/.
[2] Procedural Reforms to Improve Case Management, 67 Fed. Reg. 54878 (Aug. 26, 2002).
[3] U.S. Commission on International Religious Freedom, “Asylum Seekers in Expedited Removal: A Study Authorized by Section 605 of the International Religious Freedom Act of 1998,” available at http://www.uscirf.gov/countries/global/asylum_refugees/2005/february/execsum.pdf.
[4] Adam Liptak, Courts Criticize Judges’ Handling of Asylum Cases, N.Y. Times, Dec. 26, 2005,
available at http://www.nytimes.com/2005/12/26/national/26immigration.html?emc=eta1