4-6-2012By Eleanor Acer
Refugee Protection Program
In an April 2 editorial, the Los Angeles Times criticized the Obama administration for “stubbornly defending a policy that treats immigrants who are fleeing persecution unequally” and urged the administration “to allow judges to review detention decisions in the interests of fairness, reason and economy.” Human Rights First has detailed this problem repeatedly, including in reports issued in 2009 and 2011. Our letter to the editor was published in the LA Times this week.
The paper’s editorial followed a March 19, 2012 letter by the U.S. Department of Justice saying that regulations would not be revised to provide immigration court custody hearings for detained asylum seekers who are categorized as “arriving aliens” under U.S. immigration law after they arrive at U.S. airports or borders. That letter was a response to a petition for rulemaking filed by the National Immigration Justice Center (NIJC) and other non-governmental organizations requesting that U.S. regulations be revised to correct this policy.
In denying the petition for rulemaking, the Obama administration continues to leave the decision to detain or release these people entirely in the hands of the detaining authority itself, U.S. Immigration and Customs Enforcement (ICE). As the Los Angeles Times editorial noted, “[i]t would be as if accused criminals had their bail set by prosecutors rather than judges.”
A system that allows people to be detained without prompt court review by an independent court (or, in this case, by an immigration court) is not consistent with American values of fairness and due process. Nor is it consistent with U.S. commitments under human rights conventions. Article 9(4) of the International Covenant on Civil and Political Rights (ICCPR), which the United States ratified in 1992, provides that “anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court …..” The 1951 Refugee Convention and its Protocol, to which the United States has also committed, make clear that refugees should not be penalized for illegal entry. The 2008 report of the U.N Special Rapporteur on the Human Rights of Migrants and the 2010 report of the Inter-American Commission on Human Rights both raised concerns about the lack of prompt court review of detention decisions in the U.S. immigration system, and both recommended that the United States provide asylum seekers and other immigration detainees with access to immigration court custody hearings.
Human Rights First has urged the United States to revise these regulations given their inconsistency with U.S. commitments under human rights conventions, most recently in a November 2010 submission in connection with the review of U.S. human rights compliance in the Universal Periodic Review process. (For a detailed discussion of the legal requirement of prompt court review of detention for asylum seekers and other immigration law detainees, see this 2010 article by Eleanor Acer and Jake Goodman in the Georgetown Immigration Law Review.)
The U.S. Department of Justice, in its March 2012 letter, states that it “does not believe the current scheme raises concerns under international law.” The Department of Justice does not address the question of whether U.S. regulations should be revised to be consistent with the ICCPR and does not refer to Article 9’s requirement of prompt court review of detention. Instead, it merely repeats the kind of language typically used by U.S. government lawyers in individual litigations, stating that international authorities “are not self-executing and do not create any legally enforceable rights.” Either the Department of Justice does not understand the legal difference between a petition for rulemaking (requesting that U.S. officials revise U.S. regulations) and a federal law suit seeking enforcement of a treaty—or it chose to avoid the real question.
The Obama administration has often stressed the importance of U.S. leadership on human rights, noting just last month that “the Universal Periodic Review has the potential to effect real change in countries throughout the world.” But efforts to encourage other countries to comply with their human rights obligations – by, for example, not detaining human rights advocates or pro-democracy activists arbitrarily and without access to courts – is undermined when the United States itself does not abide by human rights standards at home.
The March 2012 letter from the Department of Justice left open the possibility that the United States might revisit its decision—and it should. Over the next year, the U.S. report on its compliance with the ICCPR will be reviewed by the UN Human Rights Committee, which monitors the implementation of the ICCPR by all states that are party to that convention. This review presents an opportunity for the United States to take a closer look at its commitments under the ICCPR – as well as the Refugee Convention and its Protocol – and to revise the U.S. position on this issue. So too do U.S. government mechanisms aimed at implementing recommendations made in connection with the Universal Periodic Review process.
In our October 2010 recommendations in connection with the ICCPR review, Human Rights First urged the administration to revise regulations that deprive detained arriving asylum seekers and others of access to immigration court custody hearings. The United States should revisit its recent decision and ensure access to these hearings. Not only would such a move be – in the words of the Los Angeles Times editorial – “in the interests of fairness, reason and economy,” but it would also send a signal that the U.S. is committed to practicing at home what it preaches abroad.