sanjula weerasinghe and andrew schoenholtz, georgetown university sarah bronstein, clinic december...

Sanjula Weerasinghe and Andrew Schoenholtz, Georgetown University

Sarah Bronstein, CLINIC

December 14, 2010

An International Human Right to Free Legal Counsel for UASC in

U.S. Immigration Proceedings1

In FY 2007 ORR placed 8,212 unaccompanied alien children in its various facilities. Most were from El Salvador, Guatemala or Honduras. 76% were male; 15 % were 13 or younger.

In FY 2009, over 6,000 unaccompanied alien children were apprehended by DHS and placed in ORR/DUCS care.

U.S. Context: Demographics

2

Government not required to provide funding for direct representation

Efforts to secure pro bono representation

Nonetheless, significant lack of representation for unaccompanied and separated children in U.S. immigration proceedings – i.e. only 19% represented between April 1, 2006 and March 31, 2008

U.S. Context: Unaccompanied Children in Immigration

Proceedings

3

Children not competent to represent themselves in any legal proceedings, let alone complex ones such as removal and asylum proceedings

Research shows much greater likelihood (3-6 times) of gaining asylum with legal representation

U.S. Context: Importance of Representation in Immigration

Proceedings

4

DEVELOP NEW ARGUMENTS TO SECURE COUNSEL FOR UNACCOMPANIED AND

SEPARATED CHILDREN

&

CHANGE THE STATUS QUO

Purpose of Research/Webinar

5

PART OF THE CAMPAIGN TO BRING HUMAN RIGHTS BACK

HOME

Purpose of Research/Webinar

6

DEFINITIONSUNDER

INTERNATIONAL LAW

Child: Every human being below the age of 18 years, unless under the law applicable to the child, majority is attained earlier

Separated children: Separated from both parents and other relatives and not cared for by an adult who, by law or custom, is responsible for doing so

Unaccompanied children: Separated from both parents, or previous legal or customary primary caregiver, but not necessarily from other relatives

Unaccompanied and separated children (UASC): Above 2 definitions

7

OVERVIEW OF

PRESENTATION

International human rights law and commentary on the right to counsel for UASC

Main sources of law and commentary Relevant principles, rules and commentary

Five potential areas for advocacy

Best interests of the child requires provision of free legal counsel to UASC

Children temporarily or permanently deprived of their family environment have a right to free legal counsel

Fairness/access to justice for UASC children necessarily requires free legal counsel

Detained UASC have right to free legal counsel

UASC seeking asylum have a right to free legal counsel

8

Main Sources of International Law and Guidance

9

Paramount international treaty on rights of children

Unparalleled ratification record

The United States signed the CRC but is not yet a party

Nonetheless, under international law, the United States is obliged to act in a manner consistent with CRC’s object and purpose

Convention on the Rights of the Child (CRC):

A Brief introduction

10

Until ratification, advocates can use the CRC for its persuasive value before policy makers and judges

Upon ratification, advocates can argue provisions of the CRC are binding in the United States (Note: implementation generally needed to enforce non-self-executing treaties)

Advocates can also argue that provisions of CRC are binding if such provisions develop into customary norms

CRC: A Brief Introduction

11

Body of independent experts established under Article 43 to monitor implementation of CRC by State Parties

Mandate pursued through reporting mechanism intended to engender dialogue with State Parties

Committee publishes non-binding yet authoritative “General Comments” which provide interpretative guidance on CRC provisions and thematic concerns

Committee on the Rights of the Child (Committee):

A Brief Introduction

12

Issued to: “…draw attention to the particularly vulnerable situation of unaccompanied and separated children…”

And to: “…provide guidance on the protection, care and proper treatment of unaccompanied and separated children based on the entire legal framework provided by the Convention on the Rights of the Child…”

General Comment 6: Treatment of Unaccompanied and Separated

Children Outside Their Country of Origin (GC6)

13

UNHCR established by the General Assembly

Mandated to lead and coordinate international action to protect refugees and resolve refugee problems worldwide

Primary purpose to safeguard rights of refugees

UN High Commissioner for Refugees (UNHCR):


14

UNHCR issues guidelines on various facets of international protection of asylum seekers and refugees

Guidelines on Child Asylum Claims Under Articles 1(A)(2) and 1(F) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees (2009) (“Guidelines on Child Claimants”)

Guidelines on Policies and Procedures in Dealing with Unaccompanied Children Seeking Asylum (1997) (“Guidelines on Unaccompanied Child Claimants”)

UNHCR Guidelines:A Brief Introduction

15

Guidelines on Child Claimants intended to provide legal interpretative guidance for, inter alia, governments, legal practitioners, decision makers and the judiciary regarding asylum determinations

Guidelines on Unaccompanied Child Claimants intended to, inter alia, promote awareness of the special needs of unaccompanied children and the rights reflected in the CRC

UNHCR guidelines have been given persuasive value in U.S. case law (Cardozo-Fonseca (1987 SCOTUS decision interpreting well founded fear))

UNHCR Guidelines:A Brief Introduction

16

The Executive Committee (ExCom) of the High Commissioner’s

Program:A Brief Introduction

ExCom is the governing body of UNHCR

It consists of 79 members including the United States

It issues Conclusions on International Protection which contribute to development of international refugee law

17

Conclusion No. 107: Children at Risk:


Provides operational guidance to States, UNHCR and other relevant agencies and partners on the protection of children affected by forced displacement and statelessness

Outlines the main aspects of a comprehensive child protection system

18

Relevant Principles and Rules

19

Non-discrimination:CRC: Article 2(1)

One of four fundamental principles underlying the CRC

States Parties are required to respect and ensure the rights in the Convention to each child within its jurisdiction and subject to its territory without discrimination of any kind, including on the basis of the child’s immigration status

Endorsed in other international and regional instruments

20

Non-discrimination:Committee Interpretation: GC6: Paragraph 18

ExCom Interpretation: Conclusion 107: Paragraphs (b)(vii)

GC6: The principle of non-discrimination applies to all dealings with UASC

GC6: It prohibits discrimination on the basis of the status of a child being unaccompanied or separated, a refugee, asylum seeker or migrant

GC6: The principle of non-discrimination does not prevent but may call for differentiation on the basis of different protection needs such as those deriving from age

Conclusion 107: Non-discriminatory enjoyment of rights and each child’s right to life should be ensured

21

Best Interests of the Child:CRC: Article 3(1)

Another fundamental principle underlying the CRC

Article 3(1):“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”

Invoked 8 times in 7 other Articles of the CRC

Regional instruments also endorse best interests principle

Familiar concept in U.S. family law

22

Best Interests of the Child:Committee Interpretation: GC6: Paragraphs 19, 20

and 79

Not defined in the CRC. According to the Committee:

A determination of what is in the best interests of a child requires a clear and comprehensive assessment of a child’s identity, particular vulnerabilities and protection needs. This assessment process should encompass certain safeguards.

For displaced children, the principle must be respected throughout the displacement cycle so that durable solutions address the protection needs of such children

23

Best Interests of the Child:Committee Interpretation: GC6: Paragraphs 21 and

36ExCom Interpretation: Conclusion 107: Paragraphs

(b)(v)

GC6: States required to create the underlying legal framework and to take necessary measures to secure the proper representation of UASC’s best interests

GC6: Key procedural safeguards must be implemented in order to ensure respect for the best interests of UASC. These include:

The provision of a legal representative (in addition to a guardian) where UASC are in asylum, administrative or judicial proceedings

24

Special Protection and Assistance:

CRC: Article 20(1) and GC6: Paragraph 36

Article 20(1): A child temporarily or permanently deprived of his or her family environment… shall be entitled to special protection and assistance provided by the State

Committee guidance interpreting Article 20(1) indicates special protection and assistance encompasses provision of legal representation where children are involved in asylum, judicial or administrative proceedings

25

“Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.”

Children Deprived of Liberty:CRC: Article 37(d)

26

Children Deprived of Liberty:Committee Interpretation GC6: Paragraph

63

To secure rights provided under Article 37(d), UASC deprived of liberty shall be provided with prompt and free access to legal assistance including assignment of a legal representative

Children should have the opportunity to make regular contact and receive visits from their legal counsel

27

Children Deprived of Liberty:Committee Interpretation

Deprivation of liberty interpreted to include children in conflict with the law and “…children placed in institutions for the purposes of care, protection or treatment, including… immigration institutions.”

28

Asylum Seeking Children:CRC: Article 22(1)

States are required to ensure that children seeking asylum or considered refugees receive appropriate protection in the enjoyment of applicable rights in the CRC and in other international human rights or humanitarian instruments to which the State is a party

29

Asylum Seeking Children:Committee Interpretation: GC6: Paragraphs 21, 36, 68-70 and 72

UASC referred to asylum procedures should be provided with qualified, free legal representation

Every effort should be made to render a decision promptly and fairly

Legal representative should be present during all interviews

30

Asylum Seeking Children:UNHCR Interpretation: Guidelines on Child

Claimants:Paragraph 5

Principles of non-discrimination and best interests of the child inform both the substantive and procedural aspects of the determination of a child’s application for refugee status

31

Asylum Seeking Children:UNHCR Interpretation:

Guidelines on Child Claimants: Paragraphs 65 and 69 and Guidelines on Unaccompanied Child Claimants:

Paragraph 4.2

Because of their age, dependency and relative immaturity, children should enjoy specific procedural and evidentiary safeguards to ensure fair determinations

Children who are the principal applicants in an asylum procedure are also entitled to a legal representative

32

Asylum Seeking Children:ExCom Interpretation:

Conclusion 107: Paragraphs (a) and (c)

Provides operational guidance for States (and other actors) including through identification of components of a comprehensive child protection system

Aims to strengthen protection of children at risk

Children at heightened risk include UASC and children who do not have access to child-sensitive asylum procedures

33

Asylum Seeking Children:ExCom Interpretation: Conclusion 107: Paragraph

(g)(viii)

Conclusion 107 recommends that States (and other actors) prevent children being put at heightened risk by providing qualified free legal representation to UASC

34

Potential Arguments35

Potential Arguments (General)

36

Potential Arguments (Specific)

37

(1) Best Interests of the Child Support A Right to Free Legal Counsel

Step 1 (Slide 39): Non-discrimination principle requires that best interests of the child is a primary consideration in all actions concerning UASC

Step 2 (Slide 40): Respect for best interests of UASC requires substantive and procedural safeguards

Step 3 (Slide40): Where UASC are referred to administrative, judicial or asylum proceedings, key procedural safeguards include provision of a legal representative

(Slide 41): Areas for further research

38


39


According to Committee guidance:

Respect for best interests requires substantive and procedural safeguards

Where UASC are referred to administrative, judicial or asylum proceedings, key safeguards include the provision of a legal representative

40


Further research could be undertaken on application of best interests concept to procedural safeguards in civil proceedings through:

Review of relevant literature

Review of regional and national jurisprudence

Exhaustive review of Committee recommendations and reports

41

(2) Special Protection for Children Deprived of Family Environment Includes Right to Free Legal

Counsel

Step 1 (Slide 43): Article 20(1) provides an entitlement to special protection and assistance for children temporarily or permanently deprived of their family environment

Step 2 (Slide 44): UASC fall within Article 20(1)

Step 3 (Slide 44): Article 20(1) encompasses provision of legal representation, according to the Committee


42


Counsel

Article 20(1) recognizes heightened vulnerability of children temporarily or permanently deprived of family environment

Article 20(1) provides an entitlement to special protection and assistance for such children

Article 20(1) requires special protection and assistance to be provided by the State

43


Counsel

As children temporarily or permanently deprived of their family environment, UASC fall within the protection afforded under Article 20(1) of CRC

Committee guidance in paragraph 36 interpreting Article 20(1) indicates that children involved in asylum, administrative or judicial proceedings should be provided with legal representation

44


Counsel

Further research could be undertaken on interpretation of “special protection and assistance” and interpretation of “protection and assistance” through:



Exhaustive review of Committee recommendations and reports

45

(3) Fairness/Access to Justice Requires Provision of Free Legal Representation

Step 1 (Slide 48): Article 20(1) and Article 22 (1) require the provision of special protection and assistance to children temporarily and permanently deprived of their family environment and appropriate protection and humanitarian assistance to asylum seeking children, respectively

Step 2 (Slide 49):States required to provide legal counsel, according to Committee’s interpretation of Articles 20(1) and 22(1)

46

(3) Fairness/Access to Justice Requires Provision of Free Legal Representation

Step 3 (Slide 50): Articles 20(1) and 22(1) and GC6 interpretations together arguably reflect attempt to incorporate notions of fairness and access to justice by accommodating specific protection needs of UASC

Step 4 (Slide 51): UNHCR Guidelines also correlate provision of legal counsel with notions of fairness

Step 5 (Slide 52): Fairness/access to justice requires provision of legal representation for UASC in asylum, administrative and judicial proceedings


47

(3) Fairness/Access to Justice Requires Provision of Free Legal

Representation

Article 20(1): Children temporarily or permanently deprived of their family environment shall be entitled to special protection and assistance from the State

Article 22(1): States must take appropriate measures to ensure that asylum-seeking children receive appropriate protection and humanitarian assistance

48


Representation

GC6 36 (re Article 20(1)): Children should be provided with legal representation where they are involved in administrative, judicial or asylum procedures

GC6 68-69 (re Article 22(1)): UASC should, in all cases, be given access, free of charge, to a qualified legal representative

GC6 70 (re Article 22(1)): Refugee status applications filed by UASC shall be given priority and every effort should be made to render a decision promptly and fairly

49


Representation

Arguably, Articles 20(1) and 22(1) and the Committee interpretation implicitly incorporate notions of fairness and equity by:

Recognizing specific protection needs of UASC in circumstances where they are navigating asylum, judicial or administrative proceedings

Attempting to ensure that UASC who by nature of their age do not have the capacity to represent themselves have a fair opportunity to defend and enjoy their rights

Highlighting the inadequacy of mere guardianship where UASC navigating asylum, administrative or judicial proceedings

50


Representation

In its Guidelines on Child Claimants (65 and 69), UNCHR also correlates provision of legal representation with notions of fairness

Because of their age, dependency and relative immaturity, children should enjoy specific procedural safeguards, including legal representation, to ensure fair refugee status determination decisions

51


Representation

Fair asylum, judicial or administrative proceedings are necessary to identify durable solutions that address all the protection needs of UASC, which according to the Committee, is the ultimate aim of addressing the fate of UASC

Fairness requires that individuals who do not have the capacity to protect their legal rights be provided with legal counsel in asylum, judicial and administrative proceedings

52


Representation

Further research should be undertaken on the scope and content of “special protection and assistance”, “appropriate measures” and “appropriate protection and assistance” as well as on procedural safeguards for UASC consistent with notions of fairness and access to justice:



Exhaustive review of Committee documents including its recommendations to State Parties

53

Specific Arguments

Final two arguments apply to limited categories of UASC:

Detained UASC

Asylum-seeking UASC

54

(4) Detained UASC Have a Right to Free Legal Counsel

Step 1 (Slide 56): UASC deprived of liberty shall be provided with prompt and free access to legal assistance including the assignment of a legal representative, according to Article 37(d) and GC6 63

Step 2 (Slide 57): Committee’s broad interpretation of deprivation of liberty expands scope of protection

Step 3 (Slide 58): Applies to UASC in DHS and DHS-contracted detention facilities and UASC placed in facilities contracted by ORR


55


56


Committee’s broad interpretation of deprivation of liberty:

“…the rights of a child deprived of his/her liberty, as recognized in the Convention, apply with respect to children… placed in institutions for the purposes of care, protection or treatment, including… immigration institutions”

57


Applies to children in:

DHS and DHS-contracted detention facilities; and

UASC placed in facilities contracted by ORR/HHS for the purposes of care and protection

58


Areas for further research include:

Examination of State practice re Article 37(d) (including as interpreted by Committee) and determination of customary status:

Review of State Party reports submitted to Committee Review of national laws and policies

Research on efforts leading to implementation of national laws consistent with Article 37(d) to determine advocacy and campaign lessons for U.S.-based advocates

59

(5) UASC Seeking Asylum Have a Right to Free Legal Representation

(Slide 61): Importance of legal counsel for UASC seeking asylum

Step 1: (Slide 62): Under Article 22(1), States required to ensure that asylum seeking children receive appropriate protection

Step 2: (Slide 63): UASC seeking asylum should be given free access to legal representative, according to the Committee

Step 3: (Slide 64): UNHCR Guidelines buttress argument

(Slides 65-67): Areas for further research

60

(5) Importance of Legal Representation for UASC in U.S. Asylum Proceedings

Asylum proceedings in the United States are complex

Research shows respondents in immigration court have significantly increased chance of gaining asylum if represented

Chance of gaining asylum impacted by real risk that children may not be able to articulate subjective fear and relevant experiences necessary to fall within the definition of a refugee

Chance of gaining asylum could also be impacted where adjudicators are unfamiliar with forms and manifestation of persecution experienced by children (e.g., under-age recruitment, trafficking, sexual exploitation, female genital mutilation, forced marriage, persecution of kin)

61


Article 22(1): State Parties must take appropriate measures to ensure that asylum-seeking children receive appropriate protection in the enjoyment of rights in the CRC and rights in other human rights and humanitarian instruments to which the State is a party

62


GC6 69: UASC seeking asylum should, in all cases, be given access, free of charge, to a qualified legal representative

GC6 70: Refugee status applications filed by UASC shall be given priority and every effort should be made to render a decision promptly and fairly

GC6 72: The legal representative should be present at all interviews with the child

63


UNHCR Guidelines on Child Claimants:

Non-discrimination and best interests inform procedural aspects of determination of a child’s refugee status

Qualified legal representation for children who are principle applicants in asylum proceedings is a minimum procedural safeguard

64


Further research includes staying abreast of developments in Europe regarding the proposed recast of the Council Directive on Minimum Standards on Procedures in Members States for Granting and Withdrawing Refugee Status.

Article 21(4) of proposed recast: Subject to limited exceptions, “unaccompanied minors shall be granted free legal assistance with respect to all procedures provided for in this directive”

Could provide lessons for advocacy in the United States

65


Further research should also be undertaken on current practice in national jurisdictions regarding legal representation to UASC in asylum proceedings

Government funded legal aid schemes in the United Kingdom, Canada and New Zealand provide legal representation to UASC in certain circumstances - research could also be undertaken on the advocacy strategies which resulted in the provision of legal aid to determine lessons for advocacy in the United States

66


Additional areas for research include national/regional case law to determine existence of persuasive pronouncements on the right to counsel for UASC in asylum proceedings

67

PRACTITIONERS CAN PLAY A KEY ROLE IN RAISING ARGUMENTS

BEFORE KEY POLICYMAKERS REGARDING THE

INTERNATIONAL HUMAN RIGHT TO COUNSEL FOR UASC IN U.S. IMMIGRATION PROCEEDINGS

Where to from Here?

68

WHAT ELSE CAN WE DO NOW TO MAKE THESE ARGUMENTS BETTER

AND ASSIST YOU TO RAISE THEM BEFORE POLICY MAKERS?

ONE WAY YOU CAN HELP ANSWER THIS QUESTION IS TO RESPOND TO THE FOLLOWING

FEEDBACK SURVEY

How can we help you in this task?

69

Feedback Survey

1. Which of these potential arguments did you find most persuasive and why?

2. Which of these potential arguments would you prioritize in terms of (a) further research, and (b) advocacy campaigns and strategies?

3. Do you have thoughts on how any of the potential arguments could be improved?

4. Do you know of additional sources of international human rights law on these issues?

5. Do you have thoughts on any additional arguments that could be utilized to support the right to counsel for UASC in U.S. immigration proceedings based on (a) the international legal materials presented in this webinar or (b) any other international or regional materials?

6. Do you have any other feedback regarding the potential arguments or on how we can improve this webinar?

70

•Sanjula Weerasinghe: [email protected]•Andrew Schoenholtz: [email protected]•Sarah Bronstein: [email protected]

An International Human Right to Free Legal Counsel for UASC in U.S. Immigration Proceedings

71

sanjula weerasinghe and andrew schoenholtz, georgetown university sarah bronstein, clinic december...

Documents

uasc children

legal proceedings

separated children uasc

free legal counsel uasc

unaccompanied alien

sounaccompanied children

earlierseparated children

legal representationu