CIMM Committee Meeting

MINUTES OF PROCEEDINGS

Meeting No. 6

Thursday, November 21, 2002

The Standing Committee on Citizenship and Immigration met in a televised session at 9:01 a.m. this day, in Room 237-C, Centre Block, the Vice Chair, Jerry Pickard, presiding.

Members of the Committee present: Diane Ablonczy, Mark Assad, Yvon Charbonneau, Madeleine Dalphond-Guiral, Steve Mahoney, Inky Mark, Anita Neville, Jerry Pickard, David Price, Judy Wasylycia-Leis, Lynne Yelich.

Acting Members present: John Bryden for Joe Peschisolido.

Other member present: Andrew Telegdi.

In attendance: From the Library of Parliament: Benjamin Dolin and Margaret Young; Researchers.

Appearing: From the House of Commons: The Hon. Denis Coderre, Minister of Citizenship and Immigration.

Witnesses: From the Department of Citizenship and Immigration: Michel Dorais, Deputy Minister; Alfred MacLeod, Assistant Deputy Minister, Strategic Directions and Communications; Rosaline Frith, Director General, Integration; Paul Yurack, Counsel, Legal Services; Terry Beitner, Director of the War Crime Section, Department of Justice; Luke Morton, Senior Counsel, Legal Services; Bruce Scoffield, Director, Policy Development and International Coordination, Refugees Branch; Patricia Birkett, Registrar, Citizenship.

The Order of Reference dated Friday, November 8, 2002, being now read as follows:

ORDERED, -- That Bill C-18, An Act respecting Canadian citizenship be now read a second time and referred to the Standing Committee on Citizenship and Immigration.

Pursuant to Standing Order 75(1), Clause 1 was allowed to stand

The Chair called Clause 2.

The Honourable Denis Coderre made an opening statement and with the other witnesses answered questions pertaining to C-18, Immigration and Refugee Protection Regulations (Safethird Country Agreement), Annual Report to Parliament on Immigration and on a National Identity Card.

At 10:01 the sitting was suspended.

At 10:06 the sitting resumed.

The Committee resumed consideration of Clause 2.

Rosaline Frith made an opening statement and with the other witnesses answered questions.

At 10:57 a.m., the Committee adjourned to the call of the Chair.

William Farrell

Clerk of the Committee

APPENDIX 1

UNHCR Comments on the

Draft Agreement between Canada and the United States of America for

"Cooperation in the Examination of Refugee Status Claims

from Nationals of Third Countries"

I. Introduction

The Office of the United Nations High Commissioner for Refugees (UNHCR) is very appreciative of the willingness of the Parties to consult with UNHCR on the draft Agreement between Canada and the United States of America "for cooperation in the examination of refugee status claims from nationals of third countries" (hereinafter "the Agreement").

Overall, UNHCR recognizes as positive the ultimate objective of this Agreement, which is to ensure an appropriate allocation of State responsibility for determining refugee status. UNHCR shares the concern of States to avoid situations where responsibilities in this regard are unclear and hence not assumed, often leading to “orbit” situations for the concerned individuals.  UNHCR also appreciates States' concerns to limit unwarranted “forum shopping".  At the same time, UNHCR Executive Committee Conclusion 15 (XXX) provides that the intentions of the asylum seeker should "as far as possible be taken into account". In this connection the Agreement's provisions for family reunification and for the exercise of discretion by the Parties are particularly important.

UNHCR's main interest is to ensure that persons seeking protection from persecution will have access to a full and fair procedure to assess their claims, either in Canada or the US, and that protection will be accorded to those in need of it. There are several scenarios which could arise under this Agreement which might put access to protection into question in the individual case.  Our observations and recommendations in this respect are set out below.

Also by way of general observation, UNHCR notes with concern that this Agreement may have the unintended effect of encouraging clandestine border crossings, which runs counter to the interests of all parties, including individuals in need of protection.  Because the Agreement applies only to persons making claims at land ports of entry, those who manage to cross the border (likely in an irregular manner) and make a claim inland will not be affected.  An increase in the number of illegal entrants/stayers is often accompanied by exploitation of vulnerable individuals and can have a detrimental effect on public attitudes toward refugees and asylum‑seekers, at a time when both UNHCR and States are endeavouring to ensure that public opinion remains favorable to refugees, and that public confidence and trust in the asylum system is maintained.

UNHCR does recognize that the impact of this Agreement will depend largely on the implementing regulations and policy guidance issued by the Parties.  UNHCR is grateful for the Parties’ willingness to provide texts of both to the Office for its review and comment, before they are finalized.

II.        Application of US Expedited Removal Procedures

Under current US law, "arriving aliens" with improper travel documents are placed in expedited removal proceedings. UNHCR has expressed concerns about how this expedited removal process functions, given the Office’s view of the need for greater procedural guarantees to ensure that bona fide refugees are not inadvertently removed to a country of feared persecution (refoulement), that they have all "necessary facilities" to present their asylum claim, and that they are treated in a humane manner while their applications are pending.[1]  It is unclear from the draft text of the Agreement to what extent persons subject to its provisions would be placed in expedited removal proceedings in the US.

Recommendation:  Given stated concerns about the expedited removal process, UNHCR recommends that such proceedings not apply to persons subject to this Agreement.

III.        Statutory Bars to Refugee Protection

UNHCR has also raised questions about the consistency with international standards of certain statutory bars to the asylum procedure. Those at issue include the US bar for failure to meet a filing deadline and criminal and affiliation bars in both countries that are broad and automatic in nature. Refugee claimants subject to a US statutory bar that has no equivalent under Canadian law, and vice versa, may be required under the Agreement to make a claim in a jurisdiction where they would be ineligible for refugee protection. Under these circumstances, they may well be denied rights under the Convention and Protocol, which, except for the operation of this Agreement, would be available to them. To give one example, under US and Canadian law, persons who are ineligible for asylum/protected person status may still be eligible for protection from refoulement (withholding/stay of removal), but only if they satisfy a heightened legal standard. As a result, claimants who satisfy the refugee definition under the Convention and Protocol, but fail to meet this heightened legal standard, may be subject to refoulement.

Recommendation: UNHCR recommends that where one country would bar an individual access to the asylum procedure or protection from refoulement and the other country would not, this should be an important factor in determining when the Parties will exercise their discretion under Article 6 to review the claim and examine it on the merits.

IV.        Meaning of "to Adjudicate" a Refugee Claim

UNHCR understands that the purpose of the agreement is to guarantee that one of the two Parties will properly examine a refugee status claim on its merits.  Article 3 of the Agreement stipulates that one of the two countries must "adjudicate" the claim before removing the applicant to a third country.  However, it does not define the term "adjudicate." This could result in two problematic scenarios:

(1)       No clear responsibility to consider an applicant’s claim: Neither the US nor Canada at present has any other safe third country agreement in effect.  However, if “adjudicate” means “determine eligibility to apply for asylum”, then a future "safe third country" agreement concluded by Canada or the US with another country could possibly result in chain removals, without a consideration of the claim on the merits. The worst case result would be "refugees in orbit" and possible refoulement;

(2)       A claim on its merits is not considered: While the US or Canada might accept responsibility to “adjudicate” the claim of an applicant, a bar to asylum or non-refoulement protection might apply such that a full consideration of the claim, on the merits under an appropriate international legal standard, never occurs.

Recommendation: UNHCR recommends that the Parties include a definition of adjudication which ensures that the claim is considered properly on its merits by one of the two Parties.  This would clarify that the Agreement creates a "closed system."

V.        Detention

Detention of asylum‑seekers world-wide remains a serious concern. In the US, detention of asylum‑seekers, including children, is an issue on which UNHCR has frequently pronounced itself.  During the recent surge of asylum‑seekers at the US‑Canada border in June 2002, the US indicated that it would retain the right to detain any person in unlawful status who was “directed-back” from Canada to the US.  Presumably, the position will be the same for claimants returned to the US from Canada under this Agreement.

Recommendation:  As a general principle, asylum‑seekers should not be detained. Detention should be resorted to only in exceptional cases.  The fact that asylum‑seekers have often had traumatic experiences should be taken into account in determining any restrictions on freedom of movement based on illegal entry or presence.  UNHCR encourages both Parties to limit the detention of asylum‑seekers subject to this Agreement to the greatest extent possible, and to avoid the use of local, state or county

jails.

VI.         Family Unity

UNHCR welcomes the Parties' willingness to establish exceptions for asylum-seekers who have family connections already established in one of the two countries.

A.          Family Members

UNHCR appreciates the broad definition of “family member”, as it includes spouse, son, daughter, parent, legal guardian, sibling, grandparent, grandchild, aunt, uncle, niece and nephew.  Common law spouse, however, is not included in this definition, but rather is subject to national interpretation under Article 1(2).

For the exception in Article 4(2)(a) to be invoked, the person seeking entry must have at least one family member who has "lawful permission to remain indefinitely" in the receiving country, or who was granted refugee status there.  The term "lawful permission to remain indefinitely" is not defined.

The exception under Article 4(2)(b) takes a more narrow approach to family membership, and as a result would bar parents and grandparents from entering to join children under 18 who are asylum‑seekers.  It would also bar claimants from joining extended and "de facto" family members who serve or have served as their primary support mechanism.

Recommendations: UNHCR recommends that the Parties include common law spouses in the definition of "family member". It is also recommended that consideration be given to how extended and "de facto" family members can also be included, regardless of relationship to the refugee claimant, if they serve or have served as the claimant's primary source of emotional and/or material support.

UNHCR further recommends that the Parties define in the Agreement the phrase “lawful permission to remain indefinitely” to include those allowed to remain in the US or Canada under withholding of removal or relief under the UN Convention Against Torture (in the US) or a stay of removal after a Pre-Removal Risk Assessment (in Canada).

UNHCR also encourages the Parties to extend the scope of Article 4(2)(a) to include persons with lawful permission to remain for "humanitarian reasons." This would include, for example, beneficiaries of Temporary Protected Status (TPS) (in the US) and those from moratoria countries (in Canada) who may remain in either country for an extended period of time due to continued instability in their countries of origin.  These individuals can generally work and provide asylum‑seeking relatives with necessary support.

Consistent with the spirit of Articles 9 and 10 of the Convention on the Rights of the Child, UNHCR recommends that the 18‑year age limit for qualifying relatives be dropped from Article 4(2)(b).  Moreover, UNHCR recommends that extended and "de facto" family members also be included under this exception, if they serve or have served as the claimant's primary support mechanism.

B.           Unaccompanied Minors

UNHCR welcomes the generous exception to the Agreement for "unaccompanied minors."

UNHCR is concerned that a child wishing to apply for asylum in the receiving country may be intercepted during outbound inspections in the country of last presence, and taken into custody.  Unless the country of last presence permits the child to proceed to the receiving country to lodge his/her refugee claim, the child would not benefit from this exception.

Under the Agreement's definition of “unaccompanied minor”, a child would not be considered "unaccompanied" if s/he had a parent in either Canada or the US.  In that case, and if the exceptions under Articles 4(2)(a) or 4(2)(b) did not apply, the child would not be able tojoin his or her parent.

Finally, the Agreement does not ensure that unaccompanied minors will not be detained in the receiving country, absent exceptional circumstances.

Recommendations: UNHCR recommends that the cases of unaccompanied minors beprocessed in a priority manner. Because age assessment is not an exact science, UNHCR hopes that separated children will receive the benefit of the doubt when age determinations are made.

UNHCR recommends that the Parties ensure that unaccompanied minors are permitted to apply for asylum in the receiving country if apprehended during an outbound inspection.

UNHCR urges that children be permitted to apply for asylum in the receiving country if a parent or legal guardian resides there.

UNHCR urges that separated children not be detained and proper care arrangements also be made pending determination of a claimant's age, if age assessment is deemed necessary.

VII.     Validly Issued Visas

For exception 4(2)(d) to operate, the individual must have a "validly issued visa" or other "valid admission document, other than for transit", issued by the receiving country, or be from a country for which only the receiving country does not impose visa requirements. However, the term "validly issued visa" is not defined.

UNHCR's understanding of current US law is that an "arriving alien" will be considered inadmissible and placed in expedited removal proceedings if s/he arrives at a port of entry with purportedly false documents or no documents. In this context, "false" documents would include tourist or business visas if the person's true intention was to apply for asylum. It is not clear in the draft Agreement if such a standard would also apply to "validly issued" documents under Article 4(2)(d).

This provision is silent with regard to refugee claimants from countries for which neither Party maintains a visa requirement, as well as claimants who obtained visas for travel to both the US and Canada.

Recommendations: UNHCR recommends that the Agreement or its regulations/rules, define "validly issued visa" in a manner which does not link validity of issue to the presumed subjective intentions of the asylum seeker.

UNHCR further recommends that claimants with visas for both countries, as well as claimants who do not need visas for either country, be allowed to choose where to lodge their claim.

VIII.    Status of Applicants Seeking Entry

Article 4(3) stipulates that the country of last presence is not required to take back a claimant until a final determination is made by the receiving country on whether one of the Agreement's exceptions apply.  Determination of family links may be difficult to establish at the port of entry.  Interviews may be lengthy and claimants may require many days to obtain proof of relationship.  It is not clear from the Agreement how claimants will be treated during this period -- will they be admitted, required to wait at ports of entry, asked to wait in the other country, or detained pending determination of family links?  In Canada, it is unclear whether the determination of relationship will be part of the eligibility decision, which, under the Immigration and Refugee Protection Act must be taken within 72 hours.

Recommendations: UNHCR urges the receiving country to admit an applicant into its territory while it determines whether s/he falls under one of the Agreement's exceptions. UNHCR further urges the Parties not to detain asylum‑seekers during this period.

IX.     Effective Review Procedures

In UNHCR's view, determinations under "safe third country" agreements must be reviewable, with such reviews having suspensive effect.

It is unclear if a review procedure will exist for decisions made under the Agreement (e.g., whether one of the exceptions applies to the applicant).

Recommendation: UNHCR encourages the Parties to include in the Agreement a provision for an effective review procedure.

X.       Discretion

UNHCR welcomes the language of Article 6, which allows each Party the discretion to examine a refugee claim when it is in its public interest to do so. However, issues regarding how claims will be made, how they will be adjudicated, and by whom, are not addressed.

Recommendation: UNHCR recommends that the exercise of discretion under Article 6 be approached broadly in cases of humanitarian concern, and that the process be delineated in regulations.  Gender‑based claims, which are currently assessed quite differently by the Parties, should be given particular consideration.

XI.    Exchange of Information

The intended scope of Article 7(a) is unclear. UNHCR is concerned that information about individual asylum‑seekers should not be disclosed to third parties, especially to the individual's country of origin.

Recommendation: UNHCR recommends that the Parties make clear that this article refers only to exchange of information between the Parties.

XII.   Implementation

In June 2002, there was a large surge in the number of asylum‑seekers approaching the Canadian border from the US, resulting in significant accommodation and public health concerns.  Some were seeking to enter Canada before the new immigration law (IRPA) went into effect on 28 June, but others were seeking entry due to unfounded rumors that the Agreement was due to go into effect that same day.  UNHCR anticipates that there may be a similar "rush to the border" after the final text of the Agreement is signed, but before it is implemented.

Recommendation: In anticipation of a possible surge of asylum applicants at the border once the final text is announced, UNHCR hopes adequate resources will be made available to process asylum claims in a timely and humane manner.

XIII.   Monitoring and Periodic Review

UNHCR welcomes the opportunity given in Article 8(3) to participate in reviews of the Agreement and its implementation, the first of which is to occur within 12 months of the Agreement's date of entry into force.  UNHCR notes that ongoing monitoring of the Agreement's implementation will be vital to make these periodic reviews meaningful. UNHCR is prepared to play a role in this monitoring, as part of its advisory responsibilities. NGOs could also have an important role to play in this regard. Involvement of NGOs would provide greater breadth of geographic coverage.  NGOs also have the most direct contact with the affected asylum-seekers.

Recommendation: UNHCR recommends that the Parties include in the Agreement a provision for the monitoring of its implementation, which could involve both UNHCR and NGOs in the two countries.

XIV.   Resettlement

In Article 9, the Parties agree to "endeavor to assist" each other in the resettlement of persons determined "to require protection in appropriate circumstances."  It is unclear how this relates to the subject of the Agreement, i.e., cross-border asylum applications.

Recommendation: UNHCR recommends that this article be omitted from the Agreement, given that it does not deal with cross-border applications for asylum.  In any case, in view of UNHCR’s overall statutory responsibility for helping governments to provide refugees with durable solutions, UNHCR hopes to be kept informed of the actions of the two governments under this provision.

UNHCR

26 July 2002

APPENDIX 2

David A. Martin

Doherty Professor of Law and Weber Research Professor of

Civil Liberties and Human Rights, University of Virginia

July 15, 2002

Canada and the United States have announced preliminary consensus on a draft Agreement for Cooperation in the Examination of Refugee Status Claims from Nationals of Third Countries.  Both countries are undertaking further consultations within their own systems, notably with interested nongovernmental organizations (NGOs) before concluding a final agreement.  The proposal has encountered significant NGO criticism on both sides of the border, as well as some expressions of concern by the office of the United Nations High Commissioner for Refugees (UNHCR).  This memorandum evaluates those criticisms and concerns.

Based on a review of the press accounts, memoranda, and correspondence received, it appears that the main complaints focus on the United States’ alleged failures to live up to international standards (or at least to levels of desired practice) in the following areas: (1) the use of expedited removal for arriving aliens who lack documents or present fraudulent documents, (2) detention of asylum seekers, (3) treatment of juveniles, and (4) the doctrine governing gender-based asylum claims.  This memorandum addresses each of these questions in some detail below, and then gives shorter treatment to certain other issues raised, at least in passing, by the NGOs.  It does not cover issues in the materials that were apparently voiced by critics while the draft Agreement was being prepared but which have been provided for in the Agreement itself. These include UNHCR’s concerns that persons returned under the Agreement not be transferred on to yet another state without a decision on the merits (addressed in Art. 3), and that family links in the receiving country be taken into account before returning someone to the other country (addressed in Art. 4(2)).

I.  Expedited Removal

Amendments adopted by the U.S. Congress in 1996 provide for the expedited removal of persons who arrive at U.S. borders without required documents or with fraudulent documents.  Immigration and Nationality Act (INA) § 235(b)(1).  Under this provision an immigration inspector at the border is authorized, in specified circumstances, to issue a fully enforceable removal order without further review by an immigration judge or a federal court.  The procedure has drawn considerable criticism from NGOs, in both Canada and the United States, principally based on concerns about how it would affect asylum applicants.  But many of the criticisms reflect a misunderstanding of the actual operation of the procedure, and in some instances apply standards that cannot be said to reflect international law.[2]

A detailed description of the procedure, along with an analysis of criticisms very much like those now being made in the Canadian debate, appears in the memorandum containing my responses to Point 16 of the questions posed in the Salas litigation in the United Kingdom (pp. 38-52 of the memorandum relating to the 17 March 2000 letter).  This memorandum has been previously supplied, and I will not repeat that description here.  Instead I will highlight only a few points that seem to bear major emphasis in light of criticism from the Canadian press and NGOs. 

Expedited removal does not allow final rejection of an asylum claim by an immigration inspector at the border.  Any minimal indication of an asylum claim or a fear of return by the individual during the questioning by the inspector triggers a mandatory referral to an experienced asylum officer.  Moreover, the inspector must give specific advice about asylum claims and must ask about any fear of return during the detailed interview, which is required before any expedited removal order can be issued. If the case is referred, the asylum officer interviews the individual no sooner than 48 hours later, with interpreter service provided at government expense (if necessary).  During the intervening time, the individual has a specific statutory right to consult with persons of his or her choosing, which may include counsel.  The asylum officer decides only  a limited threshold question after the interview: Does the individual possess a “credible fear of persecution”?  This is a standard far easier to satisfy than the full test for refugee status; over 90 percent of persons in this setting pass credible-fear screening.  Negative decisions by the asylum officer are reconsidered by an immigration judge on request, in a special procedure that must be completed within 7 days. 

Those who pass credible-fear screening go on for a full adversarial hearing of the asylum claim before an immigration judge weeks or months later.  That merits hearing does not differ from those given other asylum claimants.  Most who pass credible-fear screening are released pending the full hearing; the statute’s mandate of detention with regard to expedited removal applies only through the credible-fear screening stage, and the individual is considered for release according to normal standards thereafter. Though steps are taken to help facilitate contact with pro bono attorneys, there is no right to government-paid counsel (here or in the ordinary asylum or removal procedure), but the relevant international standards do not mandate counsel.  See UNHCR Executive Committee (EXCOM) Conclusions No. 8 (Determination of Refugee Status) and No. 30 (The Problem of Manifestly Unfounded or Abusive Applications for Refugee Status or Asylum).[3]  Conclusion No. 30 specifically countenances “expeditious” procedures for dealing with obviously unfounded claims, and the US procedure is not greatly different from comparable procedures used by some European countries.  Further development of these themes may be found in David A. Martin, Two Cheers for Expedited Removal in the New Immigration Laws, 40 Va. J. Int’l L. 673 (2000). 

II.  Detention of Asylum Seekers

Amnesty International is incorrect in stating that “US detention practices violate international law.”  Immigration detention is applied only to those who are prima facie illegally in the United States, and only up to the point at which asylum is granted.  The overwhelming majority of asylum claimants are not detained at all. Among those who are initially detained, the fact that a claim passes a preliminary screening for validity (usually the “credible fear” standard discussed above in connection with expedited removal) counts as a favorable factor that supports a decision to release.  But such factors are balanced against other features of the person’s case that might indicate either dangerousness if released or a flight risk (including doubts about the person’s identity).  A substantial number of asylum applicants lack reliable identity documents, and U.S. statistics suggest that a sizable percentage of asylum claimants do not appear for their hearings or, if unsuccessful in their claims, for deportation when summoned.[4]

International law does not forbid detention of asylum seekers.  Although Article 26 of the 1951 Convention relating to the Status of Refugees guarantees freedom of movement to refugees in a contracting state, it quite pointedly limits this protection to “refugees lawfully in the territory.”  The U.S. is in full compliance with that provision, because immigration detention applies only to those viewed as illegally present, and is in any event only applied to a small minority of applicants.  Article 31 of the Convention provides with regard to refugees unlawfully in the country of refuge that restrictions on their movement shall be limited to “those which are necessary and such restrictions shall only be applied until their status in the country is regularized or they obtain admission into another country.”  The treaty does not expand on the criteria for judging necessity; this rather vague term thus leaves a margin of discretion to states. Commentators sometimes resort to UNHCR Executive Committee (EXCOM) Conclusions for guidance in resolving interpretive uncertainty of this sort, but it must be borne in mind that the EXCOM has not been given the authority to issue legal interpretations of the Convention.  Its Conclusions are worthy of respect as guidance regarding advisable state practice, but cannot be taken as authoritative statements of international law.[5] 

Nonetheless, EXCOM Conclusion No. 44, Detention of Refugees and Asylum Seekers, that body’s principal pronouncement on this field of practice, is consistent with U.S. practice.  That Conclusion (appropriately) expresses concern about excessive use of detention, and goes on to provide:

If necessary, detention may be resorted to only on grounds prescribed by law to verify identity; to determine the elements on which the claim to refugee status or asylum is based; to deal with cases where refugees or asylum-seekers have destroyed their travel and/or identity documents or have used fraudulent documents in order to mislead authorities of the State in which they intend to claim asylum; or to protect national security or public order.

These are consistent with the grounds employed in U.S. law.

The UNHCR letter to Minister Coderre of 2 May 2002, expresses further concern about the detention of  asylum seekers in the United States.  It urges that Canada seek an undertaking that returned asylum seekers not be detained “except on serious security grounds or in the event that they do not co-operate with the authorities in ascertaining their identity.”  The vast majority of decisions to detain asylum seekers in the United States would conform to that description.  But the requested limitation clearly goes beyond what is required by the Convention and indeed by Conclusion No. 44, which recognizes a wider range of grounds for detention and does not limit security-based detention in the manner stated in the letter.  Some greater margin for action with regard to security concerns is reasonable in view of recent experiences with terrorist threats. The letter should probably be seen as UNHCR urging that states go beyond the minimum requirements of international law to adopt what that office regards as progressive practice -- a legitimate stance for the UNHCR to take.  But the standards suggested in the letter cannot be taken as a statement of what international law currently requires.

It is of course fair and often appropriate to criticize particular detention decisions, taking issue with the assessment of the facts in the particular case, or urging that decisionmakers lean more toward release in cases of doubt.  But such disagreements over particular decisions do not indicate a violation of international standards.  Furthermore, there are always further forums in the United States in which to air such disagreements.  Decisions on detention are all subject to further review, at least in court on a petition for habeas corpus.  Although the court’s standard of review is deferential to the administrative decision, habeas corpus provides a genuine check against abuse of the detention power.   Furthermore, except in border cases (involving what the Immigration and Nationality Act now terms “arriving aliens”), INS decisions on the terms of release are also subject to somewhat more demanding review by an immigration judge in what is called a “bond redetermination” proceeding.  The judge’s decision is further subject to appeal to the Board of Immigration Appeals (BIA).

A few further charges made by Amnesty International merit comment.  Its memorandum complains of both mandatory and long-term or indefinite detention.  Mandatory detention of categories that may include asylum seekers arises only in two circumstances:[6] (1) if the person has been convicted of an aggravated felony (a circumstance that generally triggers the exclusion clauses of the Convention and in any event is quite consistent with Conclusion No. 44 as a ground for detention), or (2) if the person’s case is treated under the expedited removal provisions of the INA, described in more detail above.  It is essential to recall that detention under the expedited removal provisions is mandated only during the initial period of a few days, until the credible fear screening is concluded.  If the person passes credible fear, he or she is considered for release based on a full review of the relevant factors, including flight risk and dangerousness.  A strong majority are released after this review.[7]

Indefinite detention under the U.S. system results only from circumstances where no other country would receive someone who is subject to a final order of removal, and in the last half-century’s practice it has occurred only in cases involving individuals with serious criminal records.[8]  The U.S. Supreme Court placed significant restrictions (normally a limit of approximately six months) on such detention in a landmark decision last summer.  Zadvydas v. Davis, 121 S.Ct. 2491 (2001).

Those who meet the refugee definition provided in the 1951 Convention (thus the only persons covered by the protections against detention set forth in Arts. 26 and 31 of that treaty) are highly unlikely to encounter detention in the United States of any significant length.  Even if not released at the time of filing the claim, they are entitled to release once asylum has been finally granted.  Determination of the claim normally consumes only a limited period of time.  As a result of reforms implemented in 1995, the U.S. system completes first-instance consideration of the vast majority of asylum claims within 180 days.  (Often during this period, depending on the precise procedural stage at the time the asylum claim is filed, the individual’s claim will have been heard both by an asylum officer in a nonadversarial setting and by an immigration judge).  Appeals can consume additional lengthy periods, but the Board of Immigration Appeals places a priority on detained cases, accelerating their resolution.

Amnesty International also complains about conditions of confinement, in a sentence of the memorandum that makes it sound as though severe practices (such as physical abuse) are quite common.  This is a distortion of actual practice.  Over the past five years, INS, in close consultation with the American Bar Association and other advocacy groups, has adopted detailed Detention Standards, hundreds of pages in length.  They are now operative in all INS facilities and most other detention units employed (such as local jails or private facilities under contract with INS to furnish detention space).  INS also has reorganized its detention function to assure more complete monitoring of compliance with the standards.  The Standards cover 37 different areas of treatment, setting forth realistic but protective standards, for which facilities managers are accountable, and detailing a grievance procedure for complaints.[9]  Physical abuse is strictly forbidden and extensive provisions cover medical care for detainees. Amnesty’s memorandum states that “[m]any [detainees] are denied access to their families, lawyers, and non-governmental organizations (NGOs) who could help them.”  To the contrary, the lengthiest chapter of the Standards provides for visitation, with extensive provisions for access of the kind described -- and particularly broad rights for attorney access, including during late hours and on weekends.  A separate chapter provides for rights presentations to detainees by outside groups (NGOs).  By statute and regulation, all detainees must be given current lists of organizations in the area that provide pro bono legal services.  Amnesty’s charges appear to derive from a few instances where a detention facility violated the Standards (or predecessor statements of policy).  There have been such occasions, some involving asylum seekers, and all such failures deserve condemnation.  But INS has taken action when such failures come to light, disciplining the officers involved or even closing a noncompliant facility (such as the immediate closure of an Elizabeth, N.J., contract facility in 1995 after detainee disturbances).  The Standards were developed, and the Detention and Removal function restructured, in an effort to provide greater assurance against any such violations of policy.  Continued vigilance over implementation is of course required, but the basic provisions governing detention, including detention of asylum seekers, are in accord with international standards.

III. Treatment of Juveniles 

The Amnesty International memorandum expresses particular concern about the detention of children seeking refugee status.  (This concern appears inapplicable to the proposed Canada-U.S. Agreement, because the Agreement expressly excludes unaccompanied minors from return to the country of last presence.  Art. 4(2)(c).  Nonetheless the assertions paint such a misleading picture of US practice that they should be addressed.)  The memorandum asserts that in 2000, INS “detained nearly 4700 children” who arrived at US borders, “many” of them “in juvenile and county jails.”  This statement grossly distorts the actual practice.  To begin with, it uses a highly misleading concept of detention -- almost a play on words.  As the U.S. Supreme Court has noted, “the INS cannot simply send [juveniles] off into the night on bond or recognizance.” Reno v. Flores, 507 U.S. 292, 295 (1993).  Moreover, there have been instances of juveniles who have disappeared from foster families or other placements and have been discovered in the custody of the trafficker or smuggler who brought them, working under exploitative conditions.  For these reasons, INS does assume a form of custody in order to take responsibility for unaccompanied juveniles encountered in the course of its enforcement activities (roughly 4700 juveniles in 2000).  But the vast majority are released to parents, legal guardians, other adult relatives, or to licensed juvenile facilities, including an expanding array of highly professional shelter-care facilities.  Many juveniles thus remain in INS’s formal custody until their cases are resolved or they are reunited with family, but they are not “detained” in any reasonable sense of that term.

Over most of the last decade, a settlement agreement in the case of Reno v. Flores, cited above,[10] has provided the governing framework for INS treatment of juveniles.  (A settlement agreement is enforceable through the full coercive powers of the court in which the litigation occurred.) Some 24 pages in length, it expressly  requires INS to place juveniles in the least restrictive setting possible (para. 11), and it goes on to flesh out that requirement and to detail other guarantees of treatment and procedures for implementation.  INS proposed regulations in 1998 to codify the basic points of the settlement agreement, for permanent application even after the agreement itself expires.  63 Federal Register 39759 (1998).  Final rules were not completed before the change of presidential administrations, but a new request for comments on the proposal appeared in January 2002, signaling the Bush Administration’s intent to push this project along, as part of a reexamination of “the appropriate infrastructure and policies for managing and developing its programs relating to unaccompanied minors.”  67 Federal Register 1670 (2002).  In the meantime, INS has stated that it will continue to adhere to the Flores settlement even after it expires, until the new regulations are in place.

Only a small minority of aliens in INS custody are detained in secure facilities (which might fit Amnesty’s description of “juvenile jails”), but there the settlement agreement requires separation from delinquent offenders.  No juveniles may be placed in county jails, contrary to the memorandum’s assertion.  Some such detention in secure juvenile facilities is consistent with the standards of Flores and the proposed regulations -- such as juveniles who have committed crimes or threatened others, or those who cannot be protected in any other setting from, e.g., the trafficker who expects the juvenile to work off a debt.  Other minors are released to parents, legal guardians or, under specified conditions, to other adult relatives.  See 8 C.F.R. § 236.3 (2001).  And the rest are placed in licensed shelter-care facilities or, in some instances, in medium security facilities.  The governing standards provide considerable protections for unaccompanied minors picked up by INS.

Nevertheless, INS field staff have sometimes lapsed in the implementation of these standards (including a few egregiously erroneous placements or other mistreatment).  Some juveniles have been placed in facilities where they did not belong or kept in secure facilities for longer than they should have.  These incidents have received wide publicity and have (quite properly) triggered internal and external steps to assure that they are not repeated.  Legislation proposed in Congress would create additional safeguards, including paid counsel and a guardian ad litem, and also restructure the offices responsible for unaccompanied alien minors.  It is not clear whether that legislation, although it has wide support,  will be enacted, in part because of initiatives taken by INS.  The current Commissioner, James Ziglar, has placed a high personal priority on improving performance regarding juveniles.  He created an Office of Juvenile Affairs in November 2001 reporting directly to him, and by regulation he has given that office direct line authority over all field officers carrying out functions relating to juveniles.  Many key decisions affecting custody and release of juveniles are now made directly by the Director of the Office of Juvenile Affairs.[11]  This new priority, especially because of the striking change in the chain of command, has already resulted in considerable improvement in field implementation of long-established policies. 

Beyond the detention question, in December 1998 INS adopted a progressive set of guidelines for the consideration of asylum claims filed by minors. They were modeled on the Canadian guidelines and have generally been welcomed by the NGOs and the UNHCR.  Guidelines for Children’s Asylum Claims, 76 Interpreter Releases 1 (1999).

IV.  Gender-based Asylum Claims

Both the Amnesty International and particularly the Hastings College of the Law memorandum base much of their criticism of the Agreement on an alleged failure of the United States to protect persons who have experienced gender-based persecution in their home countries.  But in fact the United States has been prominent in adopting a variety of protections for female asylum seekers and in pioneering progressive doctrine on such claims.  Eight years before the Supreme Court of Canada decided the Ward case,[12] the U.S. Board of Immigration Appeals issued a widely cited and internationally influential decision interpreting the Convention concept of persecution on account of membership in a “particular social group” to include persecution on account of sex.[13] Matter of Acosta, 19 I & N Dec. 211, 233 (1985), modified on other grounds, Matter of Mogharrabi, 19 I&N Dec. 439 (1987) .  In 1995 INS issued a set of guidelines on women’s asylum claims, generally quite well-received by NGOs and UNHCR.  72 Interpreter Releases 771, 781 (1995).  The United States has played a significant activist role in international conferences on protecting women against violence, and has adopted two major statutes to address violence against women.  Both contain special provisions easing immigration requirements for spouses who have been subjected to abuse, including a right for those married to U.S. citizens or permanent residents to self-petition for permanent resident status without the spouse’s involvement, a provision allowing relief from deportation on favorable terms to those who have been victims of abuse, and new “T” and “U” visas that can provide permanent resident status for those who have been the victims of trafficking and other forms of criminal mistreatment.  In 1993, the BIA granted asylum to a Haitian woman who had been gang-raped by members of the Haitian military, recognizing rape as a form of persecution.  Matter of D-V-, 21 I&N Dec. 77 (BIA 1993).  In 1996 the BIA decided the highly publicized Kasinga case, granting asylum to an 18-year-old woman who faced female genital mutilation (FGM) if returned to Togo.  Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996).  This case has become an international landmark in the recognition of FGM as the basis for an asylum claim.  More recently the BIA granted asylum to a young woman repeatedly abused by her father, finding that his acts amounted to persecution on account of religion.  Matter of S‑A-, Interim Dec. 3433 (BIA 2000).

Most of the concern about U.S. treatment of gender-based asylum claims seems to focus on one especially difficult and controversial area of doctrine, that having to do with refugee status claims based on domestic abuse, and on one particular BIA decision, Matter of R-A-, Int. Dec. 3403 (BIA 1999).  Many other nations are also wrestling with these legal issues, and it is far from clear that Matter of R-A- was inconsistent with international law and practice, although the decision does take a restrictive view of the definition of “particular social group” and of the required nexus between the persecution and one of the five grounds specified in the Convention.  In any event, that decision by the BIA triggered a reconsideration of position by INS, which then asked the Attorney General to use her statutory authority and review the BIA’s decision.  (See the description of this sparingly used procedure for “referral” of a case to the Attorney General in the answer to Point 14 of the Salas memorandum previously supplied.)  Attorney General Reno vacated the BIA’s decision in January 2001, and remanded it to the BIA for further proceedings after new regulations on these issues have been promulgated.  78 Interpreter Releases 256, 335 (2001).  The draft regulations, which were designed to be far more receptive to claims like those presented in R-A-, had been published in December 2000.  65 Federal Register 76588 (2000).  They attracted considerable comment from the public, and INS is now working on final regulations.  Although the Hastings memorandum contains many points of criticism of the proposed regulations, such points were presented in the public comment period, and will have to be addressed in some fashion -- possibly through amendment of the proposal -- before final enactment.

In sum, the BIA’s R-A- decision does not set forth governing U.S. doctrine, precisely because it has been vacated on order of the Attorney General.  Although some real uncertainty about current standards exists (an uncertainty that will likely persist until the new regulations appear), there is no reason to think that lower tribunals are applying a severe rule to such claims.  One study of the period following Attorney General Reno’s order found that the INS Asylum Office has issued 22 grants in domestic abuse cases (and similar gender-related cases), as against

7 denials, while immigration judges had granted 33 and denied 7.[14]  The Hastings memorandum’s assertion that “the unsettled state of U.S. law is leading to denials of protection to victims of gender persecution in a manner that is not consistent with international law” thus seems unduly alarmist.   Even under a highly generous reading of the governing standards as applied to domestic abuse, some cases will still be denied on credibility grounds or for other failures of proof.  And even the most ambitious readings of protections in this field do not call for asylum grants to all who have suffered abuse.  Under those readings, the refugee definition fits only when the country of origin provides systematically inadequate protection for victims.

V.  Other Issues

Other issues raised in the NGO and UNHCR materials received deserve brief comment.

Bars to asylum applications, including the one-year deadline.  The UNHCR memorandum expresses the view that “some of the U.S. bars [to access to the asylum procedure] are contrary to international standards.”  This is a highly arguable reading of the bars, which were enacted in 1996, and does not adequately reflect the state of U.S. practice.  The statute bars access (1) if the person may be removed to a safe third country pursuant to a bilateral or multilateral agreement; (2) if the person fails to apply within one year of arrival in the United States; or (3) if the person was previously denied asylum in the United States.  INA § 208(a)(2).  The UNHCR’s own memorandum indicates acceptance of the first bar, provided the agreement is sufficiently protective; hence the concern must be the other two.  (The CCR release also objects to the one-year deadline.)

Both of the latter bars, however, are subject to override, under the statute, if the individual proves “changed circumstances which materially affect the applicant’s eligibility for asylum or extraordinary circumstances relating to the delay in filing.”  The implementing regulations give a generous interpretation to the override provisions.  For example, they provide that the one-year deadline is calculated from “the date of the alien’s last arrival in the United States.” INA § 208.4(a)(2)(ii) (emphasis added).  Any returns under the proposed Canada-United States Agreement that are seen as creating a new arrival will therefore start the clock running anew. The term “extraordinary circumstances” includes, inter alia, serious illness or disability, presence as an unaccompanied minor, ineffective assistance of counsel, or presence in the United States in some other recognized status.  INA § 208.4(a)(4), (5) (2001). 

Importantly, the nonrefoulement provision of the U.S. statute, which is commonly called withholding of removal, INA § 241(b)(3), is not limited by any temporal deadline. The 1951 Convention does not require asylum for someone who is not lawfully present on the territory.  It requires only nonrefoulement in that circumstance.  Therefore the United States is within its technical legal authority to deny asylum to late filers, so long as it honors the principle of nonrefoulement.  Although there could conceivably be objection to the outcome of particular cases affected by the one-year deadline, based on the U.S. use of different threshold standards for asylum and for withholding (as explained in my memorandum in the Salas case, previously provided, see pp. 9-10, 17-20), I am not aware of any case where the United States has actually deported a late-filer to a country where he or she has a well-founded fear of persecution.

Foreign policy considerations.  The Canadian Council for Refugees (CCR) press release of June 20, 2002, claims that the United States allows foreign policy criteria to influence its treatment of refugees. This is incorrect.  The training of asylum officers explicitly instructs against such a practice, and both they and the immigration judges take their independence from foreign policy considerations quite seriously.  Further, the role of the State Department (historically limited to an advisory role in any case) has been reduced in recent years to help assure against any possibility of such an influence.  Moreover, the U.S. government reinforced its commitment to these principles in an agreement settling a major lawsuit in 1991.[15]

Alleged right to choose one’s country of asylum.  The CCR release states: “International law endorses the right of asylum-seekers to choose their country of asylum.”  This is incorrect.  The Convention makes a significant inroad into sovereignty in the form of the nonrefoulement guarantee.  It goes no further.  Professor Hathaway has pointedly noted “the failure to include in the Convention any obligation beyond ‘non-refoulement,’ that is, the duty to avoid the return of a refugee to a country where she faces a genuine risk of serious harm.  While willing to provide emergency protection against return to persecution, the states that participated in the drafting of the Convention insisted that they be allowed to decide who should be admitted to their territory, who should be allowed to remain there, and ultimately who should be permanently resettled.”[16]  Perhaps CCR is referring to UNHCR EXCOM Conclusion No. 15, which includes the following: “The intentions of the asylum-seeker as regards the country in which he wishes to request asylum should as far as possible be taken into account.”  Even if this could be seen as a statement of governing international law (contestable in view of the limitations on the EXCOM’s legal authority), the very language of the Conclusion designedly gives states considerable latitude in deciding under what circumstances the intentions of the claimant should be considered, and if so, how much weight they should be given.  The proposed Agreement in fact does take such intentions into account in the circumstances set forth in Article 4(2) (primarily involving family ties or previous visa issuance). There is no right under international law to choose one’s country of asylum.