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

An International Human Right to Free Legal Counsel for UASC in U.S. Immigration Proceedings. Sanjula Weerasinghe and Andrew Schoenholtz, Georgetown University Sarah Bronstein, CLINIC December 14, 2010. U.S. Context: Demographics.

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

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  1. An International Human Right to Free Legal Counsel for UASC in U.S. Immigration Proceedings Sanjula Weerasinghe and Andrew Schoenholtz, Georgetown University Sarah Bronstein, CLINIC December 14, 2010

  2. U.S. Context: Demographics 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.

  3. U.S. Context: Unaccompanied Children in Immigration Proceedings 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

  4. U.S. Context: Importance of Representation in Immigration Proceedings 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

  5. Purpose of Research/Webinar DEVELOP NEW ARGUMENTS TO SECURE COUNSEL FOR UNACCOMPANIED AND SEPARATED CHILDREN & CHANGE THE STATUS QUO

  6. Purpose of Research/Webinar PART OF THE CAMPAIGN TO BRING HUMAN RIGHTS BACK HOME

  7. 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 DEFINITIONSUNDER INTERNATIONAL LAW

  8. 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 OVERVIEW OF PRESENTATION

  9. Main Sources of International Law and Guidance

  10. Convention on the Rights of the Child (CRC): A Brief introduction 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

  11. CRC: A Brief Introduction 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

  12. Committee on the Rights of the Child (Committee): A Brief Introduction 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

  13. General Comment 6: Treatment of Unaccompanied and Separated Children Outside Their Country of Origin (GC6) 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…”

  14. UN High Commissioner for Refugees (UNHCR):A Brief Introduction 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

  15. UNHCR Guidelines:A Brief Introduction 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”)

  16. UNHCR Guidelines:A Brief Introduction 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))

  17. 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

  18. Conclusion No. 107: Children at Risk:A Brief Introduction • 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

  19. Relevant Principles and Rules

  20. 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

  21. Non-discrimination:Committee Interpretation: GC6: Paragraph 18ExCom 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

  22. 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

  23. 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

  24. 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

  25. 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

  26. Children Deprived of Liberty:CRC: Article 37(d) “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.”

  27. 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

  28. 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.”

  29. 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

  30. 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

  31. 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

  32. 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

  33. 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

  34. 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

  35. Potential Arguments

  36. Potential Arguments (General)

  37. Potential Arguments (Specific)

  38. (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

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

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

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

  42. (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 (Slide 45): Areas for further research

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

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

  45. (2) Special Protection for Children Deprived of Family Environment Includes Right to Free Legal Counsel Further research could be undertaken on interpretation of “special protection and assistance” and interpretation of “protection and assistance” through: • Review of relevant literature • Review of regional and national jurisprudence • Exhaustive review of Committee recommendations and reports

  46. (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)

  47. (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 (Slide 53): Areas for further research

  48. (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

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

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

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