International Human Rights Law and the Detention of Asylum Seekers

• Publication year: 2022

International Human Rights Law and the Detention of Asylum Seekers

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Curtis F.J. Doebbler and Elisa Fornalé ^*

Abstract: In this paper we provide an overview of the U.S. practice of detaining asylum seekers and compare the U.S. practice to the international human rights obligations applicable to the United States. This comparison is made in the context of the international movement toward cooperation on matters of migration and refugees evidenced by the Global Compacts on Migration and on Refugees recently adopted under the United Nations auspices. We conclude that the U.S. practice of detaining asylum seekers is inconsistent both with this general movement toward cooperation and with legal obligations that are applicable in respect of internationally protected human rights.

The U.S. and Relevant International Human Rights Law

The United States is a party to both UN and regional human rights instruments that provide rights for asylum seekers. Several UN human rights treaties create obligations for the United States. These include the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), ¹ the International Covenant on Civil and Political Rights (ICCPR), ² and the International Convention on the Elimination of All Forms of Racial Discrimination (CERD). ³ In addition, the United States is party to the Protocol to the United Nations Convention relating to the Status of Refugees (Refugee Protocol), ⁴ which incorporates articles 2 to 34 of the Convention relating to the Status of Refugees (Refugee Convention). ⁵ This latter treaty, in article 33, paragraph 1, obliges states not to refoul or return any person to a country from which they are seeking protection from persecution, and under article 31, paragraph 1, states that the signatories "shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened . . . enter or are present in their territory without authorization." ⁶

The United States has additional international legal obligations as a member state of the Organization of American States (OAS). The Inter-American Commission on Human Rights has held that the provisions of the American Declaration of the Rights and Duties of Man ⁷ (ADRDM) are part of the international law applicable to the United States. ⁸

The United States has justified the detention of noncitizens as a measure to be used if an "alien poses a danger to the community or is likely to abscond" and takes the position that the "current U.S. law fully satisfies the obligations the

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U.S. has assumed" under international human rights law. ⁹ The brief review of U.S. policy and practices that follows raises significant concerns about whether the United States is acting consistent with its international legal obligations.

The Right to Seek Asylum

Treaties and customary international law ¹⁰ as well as U.S. law ¹¹ provide for the right to seek asylum. This right requires the U.S. government to ensure that individuals claiming asylum are provided a fair hearing. ¹² The right to seek and receive asylum also requires that an asylum seeker be provided adequate means to present their claim for protection. At the very least, this means access to legal representation, access to necessary communications facilities, and humane treatment. Often the private companies that run the detention centers housing asylum seekers restrict or deny these necessities. In 2001, Erika Feller noted that "[i]ncreased detention, reduced welfare benefits and severe curtailment of self-sufficiency possibilities, coupled with restricted family reunification rights" were indicative of increasingly restrictive asylum policies among states (nation-states). ¹³ In recent years the United States significantly increased restrictions on asylum by practices that included separating young children from their parents ¹⁴ and detaining and prosecuting more entering migrants for illegal entry. ¹⁵ These practices made applying for asylum more difficult for many migrants. In addition, the United States implemented Migrant Protection Protocols, agreements signed with other states to allow asylum seekers to be sent abroad to await their hearings, which have restricted access to the right to request and be granted asylum. ¹⁶

Due Process Rights

The right to seek asylum requires a fair process, a human right that is included in numerous widely ratified human rights instruments. ¹⁷ Article XVIII of the ADRDM provides for "resort to the courts to ensure respect for . . . legal rights . . . [with] . . . a simple, brief procedure whereby the courts will protect [individuals] from acts of authority that, to [their] prejudice, violate any fundamental constitutional rights" and Article XXVI states that "[e]very person accused of an offense has the right to be given an impartial and public hearing . . ." ¹⁸ The Inter-American Commission on Human Rights (IACHR) has made it clear that it understands these fair trial provisions to apply to immigration proceedings. ¹⁹ It noted that to deny an alleged victim these protections "simply by virtue of the nature of immigration proceedings would contradict the very object of this provision and its purpose to scrutinize the proceedings under which the rights, freedoms and well-being of the persons under the state's jurisdiction are established." ²⁰ Furthermore, the right to due

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process requires that the government respect the special protections, including the rights agreed to in the Flores Settlement in federal court. ²¹

The IACHR has reiterated that due process protections apply to migrants, stating that "[w]hile many of these guarantees are articulated in a language that is more germane to criminal proceedings, they must be strictly enforced in immigration proceedings as well, given the circumstances of such proceedings and their consequences." ²² Similarly, the United Nations Human Rights Committee (HRC) has held that articles 14 and 26 of the ICCPR require that detention should not continue beyond the period for which a state party can provide appropriate justification; otherwise, it becomes arbitrary. ²³

Although domestic law can never serve as justification for a state's failure to satisfy its international legal obligations, ²⁴ the U.S. government has argued that the length of detention of aliens was reasonable because it has been approved by its Supreme Court. ²⁵ The United States effort to justify action inconsistent with its international legal obligations has been criticized by the U.S. nongovernmental organization (NGO) Human Rights Watch, which points out that the United States subjects immigrants to "prolonged periods of immigration detention" in violation of international law. ²⁶

Arbitrary Detention

Both the ADRDM in article XXV and the ICCPR in article 9 prohibit arbitrary detention. Detention is arbitrary when there is no legitimate basis for it, including when it occurs after an unfair procedure. ²⁷ Moreover, "'arbitrariness' is not to be equated with 'against the law,' but must be interpreted more broadly to include elements of inappropriateness, injustice and lack of predictability." ²⁸ The IACHR has also determined that a reasonable length of time is determined based on the facts of each case and that the right to due process requires that individuals are not "unnecessarily" deprived of their liberty. ²⁹

The HRC has developed substantial jurisprudence on cases concerning arbitrary detention that is based on the understanding that "the fact that detention is lawful under domestic law does not necessarily mean that it is not arbitrary; the notion of arbitrariness includes elements relating to reasonableness, necessity and proportionality, as well as predictability and due process of law." ³⁰ In the case Baban v. Australia, ³¹ which concerned the detention for two years of an Iraqi Kurdish father and his two-year-old son in Australia after they claimed asylum upon arrival, the HRC found their detention arbitrary because the government did not provide sufficient evidence to justify their prolonged detention, nor did the government make any effort to explore alternative measures. ³² The HRC has consistently followed this reasoning. ³³ In the HRC's jurisprudence, detention is not considered a proper instrument of migration control unless it is reasonable, proportionate, and serves a legitimate interest of the state. ³⁴

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The UN Working Group on Arbitrary Detention (WGAD), in reviewing the case of a Honduran asylum seeker who was detained for more than five years in the United States without access to legal counsel or adequate means of preparing his case, found the detention to be arbitrary. ³⁵ The WGAD determined that the detention was neither proportionate nor reasonable and that the asylum seeker had not been granted a hearing before an independent tribunal. In a previous report on a country visit to the United States, the WGAD criticized the U.S. policy of mandatory detention of asylum seekers as constituting arbitrary detention. ³⁶ The IACHR has also found the United States' mass detention and deportation of Cuban asylum seekers to be contrary to article XXV of the ADRDM. Although the Commission considered the discretion states have in maintaining their borders, it determined that the detention of the Cuban asylum seekers was not "reasonable and proportionate to the objective sought in the circumstances." ³⁷ The Commission also found that providing access to habeas corpus was not a sufficient safeguard as "any relief available from the courts has been predicated upon the absence of any right to liberty on the part of the petitioners." ³⁸

The Right to Life

The right to life is among the paramount human rights recognized today in article I of the ADRDM and article 6 of the ICCPR. ³⁹ Asylum seekers' right to life may be threatened in several ways. The most obvious is...