Due Process for Detainees in the USA

The United Nations Human Rights Council (UNHCR) will begin a review of human rights practices in the United States later this year.  Here is an excerpt from a report submitted this week to the UNHRC, by the National Immigrant Justice Center and 25 other organizations.  It highlights the primary concern of the Bond Fund:  it is difficult to have a fair hearing in immigration detention.

The Right to Due Process

Although U.S. law provides noncitizens a right to counsel in removal proceedings, the statute prohibits funding of counsel “at government expense.” Despite the efforts of NGOs and volunteer lawyers to fill this gap, 84 percent of noncitizens facing removal lack representation. Unrepresented noncitizens include vulnerable populations such as unaccompanied minors, asylum seekers, torture survivors, or trafficking victims. For example, studies have found that asylum seekers are almost three times more likely to be granted asylum if they are represented by counsel than if they appear pro se in immigration hearings. By allowing noncitizens representation but at no government expense, the United States effectively limits representation to noncitizens who have, or are capable of locating, the financial resources to secure counsel on their own.

For many noncitizens, isolation in immigrant detention facilities compounds their inability to locate legal counsel. Noncitizens apprehended by immigration authorities are often moved to facilities hundreds or thousands of miles from the location of their arrest, even if they have well-established family and community ties there. Most immigrant detention facilities are located in remote areas, prohibitively far from cities where most pro bono attorneys or even private attorneys work. Even detained immigrants who manage to obtain representation may be transferred to immigrant detention facilities so far from their attorneys that they are forced to terminate the representation. In some cases, the rapid transfer of detainees between facilities creates situations in which attorneys cannot track and locate their own clients.

Noncitizens must have competent representation to have a fair day in court. Immigrants without legal counsel who pursue their cases in immigration court often face lengthy and arbitrary detention. The complexity of the system and the fear of prolonged detention results in noncitizens unintentionally signing away their rights and unknowingly agreeing to deportation. For example, noncitizens routinely sign stipulated removal orders, waiving their right to see a judge, without understanding that the legal consequences include deportation. Of the 80,844 stipulated orders of removal signed between April 1997 and February 2008, 94 percent were signed by immigrants who spoke primarily Spanish, and most had not been charged with a crime.

For the full report, go to:  http://www.immigrantjustice.org/resourcespolicy/detention/upr.html