immigration law

Nationwide Class Action in the U.S. Protects the Right to Seek Asylum

/ Lindsay M. Harris / 1 Comment

A Seattle-based federal court has stepped in to protect the right to seek asylum, deciding in favor of a nationwide class constituting thousands of asylum-seekers in a case with important implications for the Trump administration’s recently-announced quota policy for U.S. Immigration Courts. On March 29, 2018, Chief U.S. District Judge for the Western District of Washington Ricardo S. Martinez issued an 18-page order granting the plaintiffs’ motion for summary judgment in the Mendez Rojas v. DHS case. Judge Martinez’s forceful decision shores up the due process rights of asylum-seekers under the Fifth Amendment to the U.S. Constitution and statutory rights grounded in the federal Immigration and Naturalization Act and Administrative Procedure Act, as well as protections enshrined in international refugee law more broadly.

The named plaintiffs in the suit are asylum seekers from Guatemala, Honduras, Mexico, and the Dominican Republic. Collectively, they stand in for two classes of individuals certified by the Court last year, those who declared a fear of return to their home countries and have undergone a credible fear interview and been released to pursue their asylum claims, and, second, those released without first undergoing the credible fear interview. None of the named plaintiffs received notice of the one-year filing deadline or a meaningful mechanism to timely file their asylum applications. Asylum seekers must file their asylum applications within one year in order to receive asylum protection.

The class action lawsuit, brought by counsel from the American Immigration Council, Northwest Immigrants Rights Project, and Dobrin & Han, PC, included asylum seekers released from detention who are in removal proceedings in immigration court and who have yet to be placed into removal proceedings and who were not given notice of the one-year filing deadline to apply for asylum.

The Court agreed with the plaintiffs that the lack of notice to asylum seekers violates the congressional intent behind the one-year filing deadline. Created by Congress in 1996, the one-year filing deadline was ostensibly designed to guard against fraudulent asylum claims. The law’s most ardent supporters, however, made clear that the implementation of the deadline should not impede protection for genuine asylum-seekers. During discussions on the Senate floor, for instance, Sen. Orrin Hatch (R-Utah) stated:

Like you, I am committed to ensuring that those with legitimate claims of asylum are not returned to persecution, particularly for technical deficiencies. If the time limit is not implemented fairly, or cannot be implemented fairly, I will be prepared to revisit this issue in a later Congress.

The Court also relied on U.S. Supreme Court precedent, specifically Mullane, noting that procedural due process requires that notice be “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” In this case, the Court found that the publically available DHS documents discussing the one-year filing deadline were not reasonably calculated to provide adequate notice to the asylum-seeking plaintiffs. The Court note that some of the asylum seekers in the class believed they had actually applied for asylum by virtue of undergoing a credible fear interview, in which they explained their fear of return to their home country in great detail to a USCIS asylum officer.

The Court also highlighted the problems caused by informing someone that they will be instructed on how to apply for asylum in court in the future, while the court dates referenced often take place well beyond the one-year filing deadline imposed. My 2016 article in the Wisconsin Law Reviewexamines the problems at the intersection of our burgeoning immigration court backlog and the one-year filing deadline in greater detail.

Judge Martinez signaled his sympathy regarding the extreme vulnerability of asylum-seekers, grounding his decision in the fact that “many class members have suffered severe trauma, do not speak English, are unfamiliar with the United States’ complicated immigration legal system, and do not have access to counsel.”He went on to conclude that DHS’ failure to provide adequate notice is a violation of the Due Process Clause of the U.S. Constitution.

Responding to DHS’ argument that the Court owed deference to agency “procedure,” the Court stated simply, “no deference is owed to procedures that violate a statute or the Constitution.” Currently, there is a ping pong back and forth between the agencies overseeing the asylum process. Until a Notice to Appear is filed with U.S. Immigration Court, the court will not accept an asylum application. If a case appears likely to be headed for a court appearance, however, USCIS, which includes the asylum office, routinely denies jurisdiction. There is currently no actual deadline for ICE to file a Notice to Appear with immigration court, leaving asylum-seekers and attorneys in limbo and unable to meet the deadline–a “technical deficiency” in the purest sense.

Importantly, while declining to reach the constitutional argument for a meaningful application mechanism, the Court found that defendants’ failure to provide a uniform mechanism by which an asylum-seeker could actually timely apply for asylum, assuming she gained knowledge of the deadline, violated the asylum statute and the Administrative Procedure Act. The Court concluded by ordering DHS to provide notice of the one-year filing deadline to class members who have already been released. Further, Judge Martinez ordered that DHS give notice to future asylum-seekers prior to or at the time of release them from detention. DHS is also required to adopt and publicize uniform procedural mechanisms to ensure class members can timely file their asylum applications. Implementation and the reception from immigration judges nationwide to the decision remains to be seen. Already, advocates shared a report of a judge at the Arlington immigration court refusing to enter the Mendez Rojas decision into the record because he stated that the Executive Office for Immigration Review is not bound by the Administrative Procedure Act.

Assuming implementation is successful, this decision represents a win for asylum-seekers and brings greater clarity and organization to an already-overwhelmed and backlogged immigration court system. Judge Martinez’s order represents yet another instance in which the federal courts have intervened in administrative confusion to ensure constitutional due process and justice for immigrants. The decision is a step forward in upholding American values and adhering to our domestic and international legal obligations to protect refugees from return to countries where they would face a threat to their life or freedom.

Committee against Torture Weighs in on U.S. Immigration Policy

/ Lia Lindsey / 3 Comments
U.S. Presentation Before the Committee Against Torture (US Mission Photo / Eric Bridiers)

U.S. Presentation Before the Committee Against Torture (U.S. Mission Photo / Eric Bridiers)

 

By  Kelleen Corrigan and Lia Lindsey

Last month the Committee against Torture (“Committee”) reviewed the United States’ compliance with its obligations under the Convention against Torture (“Convention”).  Over the course of three days in Geneva, the Committee consulted with key stakeholders—including affected individuals, civil society representatives, and the U.S. government delegation—to gain insight into the United States’ adherence to its responsibilities under the Convention.  The Committee raised many issues of concern, including police brutality, applicability of the Convention to individuals at Guantanamo Bay and other detention sites, and prison conditions, as well as asylum procedures and the detention of immigrants.

As co-chairs of the Immigration Detention and Deportation Working Group with the U.S. Human Rights Network Convention against Torture Taskforce, we attended the sessions in Geneva to ensure the Committee was fully briefed on the intersection of Convention obligations and treatment of immigrants in the United States.  Prior to the review, our working group coordinated a joint shadow report.  The report, submitted to the Committee and the U.S. government, provided significant background information and case examples, as well as recommendations and questions for the Committee to pose to the U.S. delegates.

Our working group also delivered an oral statement to the Committee highlighting the most distressing abuses, specifically the increased reliance on expedited removal procedures which may result in refoulement and other rights violations; the lack of codified and binding regulations for detention facilities; serious conditions issues and abuse in detention; as well as concerns about the general overuse of detention and the lack of utilization of community-based alternatives.  We also provided additional information and examples to members of the Committee during subsequent informal gatherings.

The Concluding Observations released on November 28, two weeks after the review, reflect the Committee’s awareness and concerns about the serious shortcomings of the United States in regards to its treatment of non-citizens.  In the Concluding Observations, the Committee generally categorized its main concerns about issues affecting non-citizens into two areas:  (1) the use of expedited removal procedures and other summary processes; and (2) immigration detention.

Regarding expedited processes, the members addressed apprehension about the United States’ treatment of non-citizens along the southern U.S. border.  The Committee noted increasing reports that Customs and Border Protection personnel are not identifying or referring immigrants for asylum screening interviews as required.

As a result of inadequate screening and expedited removal processes, some asylum seekers are returned to their country of origin without access to asylum procedures.  Thus, the Committee took a critical eye to the potential of non-refoulment and made recommendations in line with assuring international protection.  These included that the United States should “review the use of expedited removals,” “guarantee access to attorneys,” and to increase its risk assessment particularly regarding individuals from Mexico and northern Central America. Continue reading →

Possible U.S. Policy Change on Unaccompanied Minors and the International Legal Obligation of Non-refoulement

/ Uzma S. Burney / Leave a comment

The last few weeks have seen numerous reports on the growing number of unaccompanied minors seeking entry to the United States through the Mexican border. The reasons for the uptick in crossings are numerous and complex, and, like the question of whether the children meet the definition of refugees, are not the focus of this post. My question here is a simpler one: whether the adjudication mechanisms under consideration in response to this crisis afford these children a fair hearing focused on a determination of credible fear and other harm which, if identified, would trigger international protection. If the contemplated changes do not comport with a good faith application of the principle of non-refoulement, we run the risk that the U.S. will be in breach of its international obligations.

A “fast-track” process eases the short-term administrative and resource burden at the risk of returning children in need of protection, and would violate the principle of non-refoulement. Non-refoulement, or a prohibition on forcible return, compels States to ensure that no person is forcibly returned to a place where they face persecution, torture or inhuman treatment. In the context of refugee law, States have an obligation of non-refoulement until a negative refugee status determination has been made and States have a good faith obligation to ensure that this takes place. Refoulement can be explicit or it can be constructive, but the UNHCR has stated that it applies at the border, even before an entry is made.

While U.S. law does not explicitly recognize the obligation of non-refoulement, U.S. Immigration Law has a number of built-in protections to prevent the return of individuals to countries where they may face persecution, inhuman treatment or torture, including “withholding from removal” (where removal proceedings are ongoing and there is a high probability that life or freedom would be threatened upon return) and “asylum” for refugees physically present within the US.

There are also multiple mechanisms specific to minors in the immigration system under U.S. law. The Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA), created a two-tiered system that separates arrivals into two groups: citizens of contiguous countries (mainly Mexico) and citizens of non-contiguous countries.  Children from non-contiguous countries or children who are found to be vulnerable to trafficking, who express a credible fear, or who are deemed unable to make a determination on voluntary return, are turned over to the Office of Refugee Resettlement for formal deportation proceedings. During this time, they are able to make an asylum claim and seek relief under the withholding provision, in addition to other forms of relief. As immigration courts remain backlogged, the children are placed with families while proceedings are pending. This takes anywhere from a year and half to five years to resolve. Minors arriving from contiguous countries (Mexico or Canada) who are deemed capable of requesting voluntary return and do not fit the risk criteria are processed within 48 hours and returned “home.”

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