04.24.19

The possibility of 1 day in jail guarantees legal representation. The possibility of death does not.

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Asylum seekers at the US/Mexico border. Will the U.S. provide a fair hearing, or send them away to their possible death? Image courtesy of the ACLU.

Under the U.S. Constitution’s 6th and 14th Amendments, and as interpreted over the years by the Supreme Court, a person has the right to an attorney if it is possible that they could be sentenced to even a single day in prison. So you would think if a court case could lead, in effect, to people being sentenced to torture (where is the 8th Amendment?) and death, they would have the right to an attorney. Tragically, they do not.

At least, they do not have a legal right to an attorney if they are seeking asylum in the United States, as their cases are considered civil, not criminal, matters. Yet an immigration judge’s decision to deny asylum means that asylum seekers must return to where they fled from (except in rare cases where they receive other forms of humanitarian legal protections) – where, they have asserted but not to the court’s satisfaction, they face a well-founded fear of persecution. If, despite the court’s judgment, they do in fact face the risk of persecution, the consequences can be – and have been – death and other grave harms (like kidnapping, extortion, and sexual assault). Like this transgender woman, murdered in El Salvador, or this Honduran father, murdered by gang members after being deported.  

Legal representation in asylum cases makes an enormous difference, and can quite literally be the difference between life and death. For while only about one in ten asylum applicants are granted asylum if they lack legal assistance, half of applicants represented by an attorney receive asylum.

Thankfully, most asylum seekers in the United States have legal representation; nearly 80% had an attorney in fiscal year (FY) 2017. But that leaves many thousands each year without one. And most asylum seekers who are detained are not represented. From FY 2007 through FY 2012 nationwide, a mere 14% of asylum seekers in detention had legal representation. With the current administration bent on detaining asylum seekers – though partially thwarted by a lack of detention space – along with an increase in the number of people seeking asylum, the number of asylum seekers with this added obstacle to accessing a lawyer seems sure to rise.

Without an attorney, detained asylum seekers have almost no chance of securing asylum – only 2% of such applicants succeeded in FY 2007 through FY 2012. The obstacles are immense. Excessive phone charges make it difficult for them to contact people who could provide vital evidence to collaborate their claims, such as community members or local officials. Law libraries at detention facilities have outdated material. And asylum seekers must file their court papers in English, finding translators or relying on fellow detainees. Then there is a basic knowledge gap. While many people currently arriving from Central America come to seek asylum, some detainees are not aware of the relief, whether asylum or another form, to which they may be entitled – much less the legal standard they must meet to receive asylum, and the most effective way to make their case in court.

A typical asylum package may run several hundred pages. Imagine not only putting that together yourself, but doing so from detention and without speaking English.

And it could get worse. Earlier this month, the administration issued new guidance (to take effect in 90 days) – which will be challenged in court – that continues its direction of treating people fleeing desperate situations as dangerous criminals. The guidelines require that even after passing credible fear interviews, which determines whether asylum seekers will have their day in court or be quickly deported, asylum seekers will be detained as their cases work their way through immigration courts. This takes, on average, more than 1,000 days. Many thousands more asylum seekers would be detained if the courts do not block this policy. And some may need to pursue their claims from tents; the administration is planning to create tent facilities to hold more detained migrants.

Asylum success rates are low even when detainees have an attorney; again, detention creates immense practical barriers. For example, detention centers are often located in relatively remote areas, far – even hundreds of miles – from an asylum seeker’s attorney. And detention facilities may limit the time that people can use the phone, time they need to talk to their attorney.

The Trump administration recently began to implement a policy – quite possibly in violation of U.S. law (which sought to codify international refugee law) to force asylum seekers who claim asylum at our southern border to wait in Mexico while their cases move through immigration courts. This would surely be another obstacle to asylum seekers receiving effective legal assistance – and to finding a lawyer at all. Given the obstacles that exist for immigrants detained within the United States, how much harder will it be when they are in another country? Fortunately, earlier this month, a federal judge issued a preliminary injunction that blocks the policy, at least for now, ruling that the policy likely violated U.S. law by returning asylum seekers to dangerous circumstances.

To meaningfully adjudicate asylum seekers’ claims, then, people seeking asylum must have the right to legal representation – and to effective legal representation, without the immense obstacles that come from detention, much less from being forced to wait in Mexico.

This is only one of the requirements for creating a fair legal system for asylum seekers. The credible fear interview must be fair too. Most pass the interview, but even those who do not may be at real risk. The American Civil Liberties Union reported in 2014 that, based on a survey of nearly 100 individuals who were deported without ever making it before an immigration judge, 55% were never asked whether they feared persecution or torture – and 40% who were asked and said they did hold such fears were sent back anyway. Border patrol agents must have clear guidance about these interviews, with decisions erring on the side of permitting asylum seekers to proceed with the process, because the consequences of a mistaken return could be irreparable harm. Regular, independent auditing could ensure the integrity of this process.

Even an asylum seeker with an effective lawyer may have little chance if they get before the wrong judge, as variation among judges’ rates of granting asylum is enormous. A politicized selection process and personal biases seem to be major reasons. Clear and humane guidelines are needed. So are more judges to address backlogs, rather than quotas for immigration judges, which undermine due process.

Along with a fair process, the legal grounds for asylum must be clarified based on present realities, where grave threats to people’s safety can come not only from their governments, but also from violent gangs and violence spouses. Yet only in 2014 did a Board of Immigration Appeals ruling recognize that a woman fleeing domestic violence qualified for asylum because she belonged to a particular a social group, as required by U.S. refugee law (among other grounds of persecution the law recognizes). Even since then, some courts have narrowly construed this basis for asylum. People fleeing gang violence have also received mixed decisions in the courts.

Moreover, Congress should clarify what qualifies as a “well-founded fear of persecution,” the legal standard for receiving asylum. According to the Supreme Court, it means a 10% likelihood of persecution. But this is too strict. Are we comfortable sending people back to where they face, say, a 5% of being tortured or murdered? Not if we intend to be a humane nation.

We hear often about our broken immigration system. Yes, it must be fixed. But unless we as a nation can discover within ourselves the basic human decency and compassion that is now tragically absent from our laws, policies, and actions, and commit that such fundamental values will undergird our immigration system, that system cannot be repaired. Granting a right to effective legal representation in asylum cases is a necessary part of repairing that system – one necessary step of many – and may indicate that we are beginning to find that basic humanity.

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The views reflected in this blog are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.

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