VIEWS: 24 PAGES: 159 POSTED ON: 10/18/2011
REFUGEES AFF DDW 2009 *REFUGEE AFF* *REFUGEE AFF* .................................................. 1 Asylum Law Subjective ........................................ 42 Refugee 1AC ........................................................... 4 Underfunded ......................................................... 43 1AC ......................................................................... 5 Underfunded ......................................................... 44 1AC ......................................................................... 6 Admissions Program Prolonged ........................... 45 1AC ......................................................................... 7 Admissions Program Fails .................................... 46 1AC ......................................................................... 8 Admission Program Fails ...................................... 47 1AC ......................................................................... 9 Low Acceptance Now ........................................... 48 1AC ....................................................................... 10 Low Acceptance Now - Iraqi ................................ 49 1AC ....................................................................... 11 Low Acceptance Now - Iraqi ................................ 50 1AC ....................................................................... 12 Muslims Rejected.................................................. 51 1AC ....................................................................... 13 Refugee Treatment Bad ........................................ 52 1AC ....................................................................... 14 Refugee Poverty .................................................... 53 1AC ....................................................................... 15 Refugee Poverty – Iraqis ....................................... 54 **T** .................................................................... 16 No Jobs/Poverty .................................................... 54 **INHERENCY** ............................................... 23 **SOFT POWER** .............................................. 55 Rights Needed ....................................................... 24 Leadership – Iraqi Refugees ................................. 56 No Rights Now ..................................................... 25 Leadership ............................................................. 57 Flawed Interpretations .......................................... 26 Regional Tension – Iraqi Visibility....................... 58 Interview Process Flawed ..................................... 27 Regional Tension .................................................. 59 Due Process Reform Needed ................................ 29 Resettlement K2 Stability ..................................... 60 Reform Needed ..................................................... 30 Iraqi Resettlement K2 Terror ................................ 61 Reform Needed ..................................................... 31 Iraqi Resettlement K2 Terror ................................ 62 Reform Needed ..................................................... 32 Rights K2 Humanitarian Aid ................................ 63 Reform Needed ..................................................... 33 Rights K2 Terror – Radical Refugees ................... 64 DHS Ineffective .................................................... 34 Rights K2 Terror – International Norms ............... 65 No Legal Counsel ................................................. 35 Soft Power K2 Terror - Moderates ....................... 66 No Asylee Services ............................................... 36 Soft Power K2 Terror – Moderates ....................... 67 No Asylee Services ............................................... 37 Soft Power K2 Terror – Democracy Perception ... 68 No Asylee Services ............................................... 38 Soft Power K2 Terror............................................ 69 No Asylee Counsel ............................................... 40 Soft Power K2 Terror & Coop .............................. 70 Asylum Law Complex .......................................... 41 Soft Power K2 Violent States ............................... 71 1 REFUGEES AFF DDW 2009 Hard Power Bad .................................................... 72 US Responsibility ............................................... 104 AT: Hard Power Key ............................................ 73 US Responsibility ............................................... 105 Soft Power > Hard Power ..................................... 74 Legal Counsel = Norms ...................................... 106 Soft Power Down .................................................. 75 International Norms ............................................ 107 WMD Coming ...................................................... 76 International Norms ............................................ 108 Bioterror Coming .................................................. 77 International Norms ............................................ 109 **UNACCOMPANIED MINORS ADV** ......... 78 Rights .................................................................. 110 Rights Violation .................................................... 79 Rights .................................................................. 111 Must Comply to Adult Standards ......................... 80 **SOLVENCY*** ............................................. 112 Right to Have Rights ............................................. 81 Fed Gov Key ....................................................... 113 Totalitarianism ...................................................... 82 Legal Counsel Key.............................................. 114 Trafficking ............................................................ 83 Legal Counsel Key.............................................. 115 Political Action Key.............................................. 84 Legal Counsel Key.............................................. 116 No Rights .............................................................. 85 Legal Counsel Key.............................................. 117 No Rights .............................................................. 86 Legal Services Key ............................................. 118 No Legal Rep ........................................................ 87 Legal Services Key ............................................. 119 No Legal Rep ........................................................ 88 Legal Services Key ............................................. 120 No Legal Rep ........................................................ 89 Legal Counsel K2 Due Process........................... 122 No Legal Rep ........................................................ 90 Modeling ............................................................. 123 No Legal Rep Bad ................................................. 91 **AT** ............................................................... 124 Legal Services Needed .......................................... 92 Plan Unpop – No Constituency for Funding....... 125 Fractured Citizenship ............................................ 93 Plan Unpop – Funding Cuts ................................ 127 US Legal Right Action Good – Unaccompanied Plan Unpop – Terrorist Threats........................... 128 Minors ................................................................... 94 Link Shield .......................................................... 129 Minor Rights Good ............................................... 95 Plan Pop - Obama ............................................... 131 Fed Responsibility ................................................ 96 Plan Pop – Senate Judiciary Commitee .............. 132 US Responsibility ................................................. 97 Plan Pop – War Provisions ................................. 133 Child Trauma ........................................................ 98 Plan Pop .............................................................. 134 **MORALITY** ................................................. 99 AT: Econ DA ...................................................... 135 Iraqi Responsibility ............................................. 100 AT: States............................................................ 136 UN Violation ....................................................... 101 AT: Refugee Threat ............................................ 137 UN Violation ....................................................... 102 AT: Terrorist Asylum ......................................... 138 US Responsibility ............................................... 103 2 REFUGEES AFF DDW 2009 AT: Terrorist Asylum ......................................... 140 No Solvency – Patchwork Agencies ................... 150 AT: Employment Solves Pov.............................. 141 Current Education Solves ................................... 151 AT: Fraud ............................................................ 142 RMA/CMA Solve ............................................... 153 AT: Refugees Kill Environment ......................... 143 Legal Rep Available In Squo .............................. 154 AT: Refugees Kill Environment Ext................... 144 Iraqi Refugees = Terrorists ................................. 155 **MISC** ........................................................... 145 Rights Undermine Sovereignty ........................... 156 Referred to Immigration Judges.......................... 146 UAC Protection Act Solves Children ................. 157 Asylum Seeker and Reception Stats – Iraq, US .. 147 No Humanitarian Interest .................................... 158 New Resettlement Patterns ................................. 148 T Def ................................................................... 159 ***NEG*** ........................................................ 149 3 Refugee Aff DDW 2009 Refugee 1AC Advantage One -- Refugee Leadership Subpoint A – Soft Power Soft Power is on the decline because of U.S exclusive policies Joseph S. Nye, Jr., is former Assistant Secretary of Defense and Dean of Harvard University's John F. Kennedy School of Government. He is author of Soft Power: The Means to Success in World Politics. January 21, 2009 (―The U.S. can reclaim 'smart power' http://www.latimes.com/news/opinion/commentary/la-oe-nye21-2009jan21,0,3381521.story) Smart power is the combination of hard and soft power. Soft power is the ability to get what you want through attraction rather than coercion or payments. Opinion polls show a serious decline in American attractiveness in Europe, Latin America and, most dramatically, the Muslim world. The resources that produce soft power for a country include its culture (when it is attractive to others), its values (when they are attractive and not undercut by inconsistent practices) and policies (when they are seen as inclusive and legitimate). When poll respondents are asked why they report a decline in American soft power, they cite American policies more than American culture or values. Because it is easier for a country to change its policies than its culture, this implies that Obama will be able to choose policies that could help to recover some of America's soft power. Refugees are a unique opportunity to provide soft power credibility and leadership. Loescher expert on international refugee policy, Professor at the Refugee Studies Centre, Queen Elizabeth House, University of Oxford, August 1996, Gil, Beyond Charity: International Cooperation And The Global Refugee Crisis A Twentieth Century Fund Book, pg. 105-106 The I990s present the United States with a new opportunity to abide by humanitarian standards that conform to the nation's image of itself The United States perceives itself as having responded positively throughout its history to the world's "tempest-tossed." Indeed the country became a great power by welcoming a continuous stream of immigrants and refugees. In recent years, however, this self-image of the United States as a land that welcomes indiscriminately the "huddled masses yearning to breathe free" has been increasingly challenged by resettlement programs that respond more to political and ethnic group pressures than to the need for protection of persecuted individuals around the world. Refugee admissions constitute one of the few opportunities the United States has to demonstrate concretely its commitment to international human rights. Indeed, more than a decade ago, Congress dearly outlined the direction that U.S. refugee policy should take: "the plight of the refugees themselves, as opposed to national origins or political considerations, should be paramount in determining which refugees are to be admitted to the United States."3 In a first step toward recognizing the need to protect the most vulnerable, the 1992 refugee admissions numbers included provision for 1,000 "high risk" cases. This special category needs to be greatly expanded to protect refugees who face the greatest danger, regardless of their ethnicity, politics, or national origin. 4 Refugee Aff DDW 2009 1AC Fair procedures are crucial for allied cooperation. Michele R. Pistone, Assistant Professor of Law and Director of Clinical Programs, Villanova University School of Law, and Philip G. Schrag, Professor of Law and Co-Director of the Center for Applied Legal Studies, Georgetown University Law Center, GEORGETOWN IMMIGRATION LAW JOURNAL, Fall 2001, p. 5-6 Second, increased refugee flows to Europe will prompt calls from our allies for the United States to accept its fair share of the new refugees, so fair refugee and asylum policies and procedures will reduce friction at a time when the United States most needs strong bonds with allied nations. Third, at a time when the United States is focusing attention on human rights abuses in Afghanistan and elsewhere, it should eliminate unnecessary sources of criticism of its own human rights policies. Finally, as we argue in this article, eliminating the most arbitrary and unfair features of IIRIRA, and particularly of the expedited removal system, may enable the United States to agree with Canada on joint and unified immigration and border controls, eliminating the need to control a northern U.S. border that is extremely difficult to police and strengthening the security of both countries. It should also be noted that humane asylum laws and procedures are fully consistent with immigration controls over suspected terrorists. Terrorists are ineligible for asylum, and an asylum seeker who is suspected of being a terrorist may be detained by the Department of Justice under laws that are applicable to asylum seekers as well as to other aliens. 5 Refugee Aff DDW 2009 1AC Soft power is key to global cooperation – global instability and wars are inevitable without U.S. soft power. REIFFEL 05 Visiting Fellow at the Global Economy and Development Center of the Brookings Institution (Lex, The Brookings Institution, Reaching Out: Americans Serving Overseas, 12-27-2005, www.brookings.edu/views/papers/20051207rieffel.pdf) I. Introduction: Overseas Service as a Soft Instrument of Power The United States is struggling to define a new role for itself in the post-Cold War world that protects its vital self interests without making the rest of the world uncomfortable. In retrospect, the decade of the 1990s was a cakewalk. Together with its Cold War allies Americans focused on helping the transition countries in Eastern and Central Europe and the former Soviet Union build functioning democratic political systems and growing market economies. The USA met this immense challenge successfully, by and large, and it gained friends in the process. By contrast, the first five years of the new millennium have been mostly downhill for the USA. The terrorist attacks on 9/11/01 changed the national mood in a matter of hours from gloating to a level of fear unknown since the Depression of the 1930s. They also pushed sympathy for the USA among people in the rest of the world to new heights. However, the feeling of global solidarity quickly dissipated after the military intervention in Iraq by a narrow US-led coalition. A major poll measuring the attitudes of foreigners toward the USA found a sharp shift in opinion in the negative direction between 2002 and 2003, which has only partially recovered since then.1 The devastation of New Orleans by Hurricane Katrina at the end of August 2005 was another blow to American self-confidence as well as to its image in the rest of the world. It cracked the veneer of the society reflected in the American movies and TV programs that flood the world. It exposed weaknesses in government institutions that had been promoted for decades as models for other countries. Internal pressure to turn America‘s back on the rest of the world is likely to intensify as the country focuses attention on domestic problems such as the growing number of Americans without health insurance, educational performance that is declining relative to other countries, deteriorating infrastructure, and increased dependence on foreign supplies of oil and gas. A more isolationist sentiment would reduce the ability of the USA to use its overwhelming military power to promote peaceful change in the developing countries that hold two-thirds of the world‘s population and pose the gravest threats to global stability. Isolationism might heighten the sense of security in the short run, but it would put the USA at the mercy of external forces in the long run. Accordingly, one of the great challenges for the USA today is to build a broad coalition of like-minded nations and a set of international institutions capable of maintaining order and addressing global problems such as nuclear proliferation, epidemics like HIV/AIDS and avian flu, failed states like Somalia and Myanmar, and environmental degradation. The costs of acting alone or in small coalitions are now more clearly seen to be unsustainable. The limitations of ―hard‖ instruments of foreign policy have been amply demonstrated in Iraq. Military power can dislodge a tyrant with great efficiency but cannot build stable and prosperous nations. Appropriately, the appointment of Karen Hughes as Under Secretary of State for Public Diplomacy and Public Affairs suggests that the Bush Administration is gearing up to rely more on ―soft‖ instruments.2 6 Refugee Aff DDW 2009 1AC American humanitarian involvement galvanizes allied action. Loescher expert on international refugee policy, Professor at the Refugee Studies Centre, Queen Elizabeth House, University of Oxford, August 1996, Gil, Beyond Charity: International Cooperation And The Global Refugee Crisis A Twentieth Century Fund Book, pg. 107 United States is still the only nation whose leadership most other nations are willing to follow, and it is the country most capable of setting up various measures to direct international efforts toward a constructive goal. Therefore, American leadership is vital in galvanizing collective efforts to resolve many of the complex humanitarian problems of the post-Cold War era. While addressing American domestic needs is important, governmental willingness to deal with regional and international instabilities, such as ethnic conflicts and mass refugee movements, is critical to America's prospects-particularly if the United States wants to play an effective role internationally. Moreover, without active American involvement, the international community will be limited to reactive, damage control measures in response to humanitarian crises. As we move toward the twenty-first century, the United States, along with other donor countries, must make every effort to provide the financing, commodities, and other resources that alone can enable the UN to meet the expectations invested in it. US refugee treatment modeled worldwide. Brenda Bowster Soder, Director of Alliance for Justice. ―World Refugee Day Must Spark Renewed Commitment to US Protection of Refugees.‖ Human Rights First, June 19, 2009. http://www.humanrightsfirst.org/media/asy/2009/alert/471/index.htm As refugees, the U.N. High Commissioner for Refugees and individuals around the world celebrate World Refugee Day, Human Rights First (HRF) is urging the United States to mark this occasion by strengthening its commitment to protect the rights of refugees who flee from persecution. HRF noted that the June 20th festivities provide an opportunity for U.S. leaders to reevaluate current refugee protection policies and take steps to ensure that the United States is living up to its moral and treaty commitments to refugees. ―It is ironic that, here in the United States - a country that has done so much to help refugees overseas – asylum seekers who have sought refuge from political, religious and other persecution will spend World Refugee Day detained in prison-like facilities.‖ said Eleanor Acer, director of Human Rights First‘s refugee protection program. ―Though the United States has certainly helped countless numbers of refugees, U.S. detention policies have made our nation a far less ‗welcoming‘ place for those seeking this country‘s protection from persecution and danger.‖ HRF recently issued a report documenting the ways in which U.S. detention of asylum seekers is inconsistent with international human rights standards. The report, "U.S. Detention of Asylum Seekers: Seeking Protection, Finding Prison," notes that since 2003, U.S. immigration authorities have spent more than $300 million to detain over 48,000 asylum seekers in jails and jail-like facilities, some of which are located in remote areas, far from legal representation. In its conclusion, the report outlines ways to improve this process in ways that are more cost-effective, just, and humane. ―World Refugee Day presents an opportunity for the Obama administration to commit to taking immediate steps to protect the rights of refugees – including those who are here in this country,‖ Acer noted, ―The United States should set the global standard for how refugees will be treated. When the United States falters in its protection obligations here at home, refugees worldwide suffer.‖ 7 Refugee Aff DDW 2009 1AC Fair refugee admissions policy key to US foreign relations and international stability. Loescher expert on international refugee policy, Professor at the Refugee Studies Centre, Queen Elizabeth House, University of Oxford, August 1996, Gil, Beyond Charity: International Cooperation And The Global Refugee Crisis A Twentieth Century Fund Book, pg. 103 Realistically, domestic politics and foreign policy considerations, as well as humanitarian sentiment, will continue to shape American responses to refugees in the future. However, the end of the communist threat to American security interests offers the United States an opportunity to move beyond politics and programs that reflect the East-West tensions of the past four decades and promote policies designed for the post-Cold War era. Major new security threats are already arising from political and social instability in the Third World and in Eastern Europe, as a result of ethnic, intercommunity, or religious tensions, or because of economic upheaval. A consequence of this instability is a rise in the number of refugee and migration movements. Containing forced population movements in regions of conflict is impossible, nor is it likely that such policies will promote stability in the Third World or the post-communist states of Europe. An important component of a new comprehensive strategy to defuse ethnic tension, contain violence, and contribute to the stabi1ization of state formation will consist of opening up at least some opportunities for emigration and refugee resettlement in the advanced industrial democracies, particularly to those fleeing political terror and ethnic cleansing. Thus, establishing a generous refugee admissions policy is not just a matter of adhering to international human rights standards; it is also an increasingly important foreign policy instrument in the post- Cold War era to advance international stability. 8 Refugee Aff DDW 2009 1AC SUBPOINT B – TERRORISM Fair asylum procedures prevent terrorist recruitment. Idean Salehyan* Assistant Professor Department of Political Science University of North Texas 4/30/08 (―US Refugee and Asylum Policy: Has Anything Changed After 9/11?‖ http://www.lse.ac.uk/collections/MSU/papers/LMRG-Salehyan%20Asylum%20911-.pdf) In the war on terror, the US‘s public image and its ―soft power‖ to persuade people with an appeal to values such as human rights and liberty are likely to be as important as hard military power, if not more so (Nye 2004). Protecting refugees and asylum seekers from the Muslim world, particularly when their own governments are not willing or able to do so, sends a powerful message to international audiences and discredits claims from groups such as Al-Qaeda that the West is at war with Islam. Muslim refugees from Bosnia, Somalia, Iran, Iraq, Afghanistan, along with many other nations, who come to the US in search of freedom demonstrate that democracy and human rights are not incompatible with Islamic traditions and that the protection of people from war and persecution is a common value. Terrorism risks extinction. Sid-Ahmed 04 Political Analyst [Mohamed, http://weekly.ahram.org.eg/2004/705/op5.htm] A nuclear attack by terrorists will be much more critical than Hiroshima and Nagazaki, even if -- and this is far from certain – the weapons used are less harmful than those used then, Japan, at the time, with no knowledge of nuclear technology, had no choice but to capitulate. Today, the technology is a secret for nobody. So far, except for the two bombs dropped on Japan, nuclear weapons have been used only to threaten. Now we are at a stage where they can be detonated. This completely changes the rules of the game. We have reached a point where anticipatory measures can determine the course of events. Allegations of a terrorist connection can be used to justify anticipatory measures, including the invasion of a sovereign state like Iraq. As it turned out, these allegations, as well as the allegation that Saddam was harbouring WMD, proved to be unfounded. What would be the consequences of a nuclear attack by terrorists? Even if it fails, it would further exacerbate the negative features of the new and frightening world in which we are now living. Societies would close in on themselves, police measures would be stepped up at the expense of human rights, tensions between civilisations and religions would rise and ethnic conflicts would proliferate. It would also speed up the arms race and develop the awareness that a different type of world order is imperative if humankind is to survive. But the still more critical scenario is if the attack succeeds. This could lead to a third world war, from which no one will emerge victorious. Unlike a conventional war which ends when one side triumphs over another, this war will be without winners and losers. When nuclear pollution infects the whole planet, we will all be losers. 9 Refugee Aff DDW 2009 1AC ADVANTAGE TWO -- UNACCOMPANIED MINORS Child asylum seekers suffer from exploitation and abuse because they receive no representation. Jacqueline Bhabha, Jr. Lecturer in Law at Harvard Law School, director of Harvard‘s University Committee on Human Rights Studies, 2009, Human Rights Quarterly, ―Arendt‘s Children: Do Today‘s Migrant Children Have a Right to Have Rights?‖ Project Muse. http://muse.jhu.edu/search/results?action=search&searchtype=author§ion1=author&search1=%22Bhabha%2C%20Jacq ueline.%22. A balance sheet of the right to have rights for Arendt‘s children caught up in asylum adjudication in developed states yields mixed outcomes. On the one hand, children‘s rights in international law have had some influence on the formulation of state policies and practices in some of the countries examined, for example, with respect to holistic age determination procedures or appointments of guardians. These rights also have found their way into the adjudication of children‘s asylum cases through the development of the notion of child-specific persecution—gang violence, child abuse, forced marriage, recruitment as child soldiers 91 —as a strategy for applying to children the more generic concept of ―well founded fear of persecution‖ that defines a refugee in international law. 92 Yet, the predictability and uniformity of treatment that one would expect of a rights-respecting regime is still largely absent. In addition to the lack of a comprehensive guardianship system for Arendt‘s children and the devastating consequences that brings for successful realization of legal rights or social acculturation, there is the more generalized and pervasive climate of suspicion that permeates developed states‘ approaches to Arendt‘s children. For example, in the United Kingdom, this climate of suspicion results in extraordinarily high refusal rates for child asylum applications—only 2 percent granted in 2004 and 5 percent in 2005. 93 The lack of a rights- respecting framework has also led to policies of forcibly returning children to their countries of origin, even when no best interest assessment has taken place. Plans to implement such a system in Albania are reported to be well advanced. 94 But the most serious and lingering problem is that many of Arendt‘s children end up in detention—whether, as in the United Kingdom, because their age is disputed or because this is the policy of the destination country. Detention has devastating effects on children, not only because of its harshness and inappropriately punitive impact but also because of the indeterminacy and isolation that accompany it. It is the clearest example of the consequences of functional statelessness and of the impact this status has on rights access. For some children, detention in developed destination states follows refugee camp life or the rigors of street life in their regions of origin. This is the experience of a child held in a US ―secure facility‖ who had a pending asylum claim: My first couple of days there, I didn‘t like it. . . . I couldn‘t sleep. At 5 a.m. when they opened the cells for us to take showers, there was a table with clothes assigned to us by name. It didn‘t take into account our size, so I got shoes that didn‘t even fit me. . . . The rights we had in this facility depended on what color our shirt was. After three days, I had a gray shirt and the right to sit and eat with others. . . . I asked if I could call my family, but they told me not until I had been there for 25 days was I allowed to make a call. . . . Sometimes at night when it became very hot—they left the lights on—we would take off our shirts. We would be yelled at because they wanted us to wear our shirts so they would know what color they were and what privileges we had. 95 Across the Atlantic, in the southern Mediterranean, pressures to rigidly enforce immigration control in a security driven political environment lead to similarly coercive situations. North African children trying to escape from the child immigration detention in Spain have reported being hit by the staff when caught, as described by a thirteen-year-old Moroccan boy to Human Rights Watch: One time we escaped, three of us, when a boy took a piece of metal and broke the door [of the punishment room]. One of the older boys caught us and hit us. They took us and put us in another room and locked the door and then [one of the educators] came and hit us with a baton like the police use. He hit me on the head and the face and leg. These arbitrary detention processes, apparently beyond the reach of domestic structures of accountability or the international oversight of monitoring bodies, such as the Committee on the Rights of the Child, function according to a completely different metric of ―rights.‖ The situation recalls Giorgio Agamben‘s provocative analogy between the treatment of refugees in camps and the archetypal experiment of encampment, the concentration camp: ―The paradoxical status of the camp as a space of exception must be considered. The camp is a piece of land placed outside the normal juridical order, but it is nevertheless not simply an external space. . . . The camp is thus the structure in which the state of exception—the possibility of deciding on which founds sovereign power—is realized normally.‖ 97 This is the extreme situation of rightlessness—the normalized state of exception—which governs the status of Arendt‘s children in detention centers at the periphery of Europe or in the heart of the US desert. Like children detained in airport facilities or border lockups, these children, though firmly within the confines of the state, nevertheless exist in a liminal space outside it. 10 Refugee Aff DDW 2009 1AC Stateless children‘s lack of protection undermines our commitment to human dignity. Jacqueline Bhabha, Jr. Lecturer in Law at Harvard Law School, director of Harvard‘s University Committee on Human Rights Studies, 2009, Human Rights Quarterly, ―Arendt‘s Children: Do Today‘s Migrant Children Have a Right to Have Rights?‖ Project Muse. http://muse.jhu.edu/search/results?action=search&searchtype=author§ion1=author&search1=%22Bhabha%2C%20Jacq ueline.%22. A recent case illustrates the huge gap between rights guarantees and deliverables in practice. It highlights a critical, child- specific issue—the indispensability of adult intermediaries as conduits to children‘s rights—and the vacuum between international law mandates and domestic realization of effective access to such rights mediators. Amnesty International has spoken to ―John‖ who arrived in Italy as an unaccompanied minor fleeing a life as a child soldier . . . After arriving on Lampedusa, he was taken to a detention centre and ordered to get undressed for a body check. He told them that he was only 16 years old, yet he was detained at the Lampedusa centre for 2 days where he slept in a room with 6 adult men. He was later transferred to another centre in southern Italy where he had to share a room with 12 adults for a month. ―John‖ eventually found accommodation in a reception centre for minors. However, 5 months after his arrival in Italy, a guardian had still not been appointed to represent him. 61 This situation is not a small oversight. It is a pervasive institutional fact, the subject of general comments by the Committee on the Rights of he Child, of complaints and testimony before the US Congress, and of numerous advocacy reports and briefs. The absence of guardianship and representation neutralizes a child‘s claim to special treatment and obliterates social acknowledgment of his or her rights, including child asylum seekers‘ claims to international protection as a refugee. In other words, the absence of a person who acts ―in loco parentis‖ and of an advocate who is charged with unlocking the protective promises contained in statutes essentially fixes Arendt‘s children in their radical otherness. It guarantees functional statelessness across key dimensions of social and economic need. It also undermines the holistic scope of rights claims by reducing the ability of a class of rights bearers to exercise their formal entitlements. Indeed this radical otherness, this deracination from the ―normal‖ structures of a society, can even threaten one‘s basic claim to human dignity, and return one to the ―nakedness of being human,‖ a nakedness no longer abstract but frighteningly concrete. The world is sadly familiar with this scenario: in the refugee camps in Chad, the internally-displaced person camps in Darfur, the HIV/ AIDS orphanages in Ethiopia. But in the heart of Europe? In the middle of London? Global mobility and desperation are removing the comfortable distance of geographical separation and importing the challenge of translating children‘s rights into human rights onto our doorsteps. 62 Paraphrasing Arendt, one might want to argue that the ―heart of darkness‖ representing Europe‘s imperial plunder of Africa has now struck home, revealing the brutal hand of the imperial state toward noncitizens within its own borders. 63 The following is the experience of a young girl, interviewed in 2005, who found herself alone and unaccompanied in the United Kingdom. L was a female asylum seeker from Guinea who fled after being imprisoned and tortured with her mother and brother on account of her father‘s political activities. The Asylum Screening Unit disputed her age and her local authority told her that it would not support her until she obtained medical confirmation of her age and the Immigration and Nationality Directorate accepted that she was a minor. She commented, ―Social services treated me like a dog . . . because the Home Office said I was not under 18. They just told me to go away. I was so sad. They need to treat people as humans and give them food and shelter. 64 L is one of an estimated 100,000 separated children living in Europe, 65 all facing daily hardships in the struggle to survive. 11 Refugee Aff DDW 2009 1AC We have an obligation to act on behalf of the rights of refugees—without a commitment to preserve dignity we risk totalitarianism. Jeffrey ISAAC Poli Sci @ Indiana ‘96 ―A New Guarantee on Earth: Hannah Arendt on Human Dignity and the Politics of Human Rights‖ The American Political Science Review, Vol. 90, No. 1 (Mar., 1996), pp. 70-72 Such examples of political praxis illustrate two of the most important features of Arendt's vision of the politics of human dignity. The first is that the most important locus of such a politics is neither the nation-state nor the international covenant or tribunal. These are, of course, crucial loci of power. The nation-state is still the preeminent political actor on the world scene. Constitutional limitations on the exercise of state power, forms of federated authority, and international legal codes-- each a way of placing a kind of constraint upon state sovereignty--are all necessary if the rights of minorities, refugees, and dissenters are to be secured. But the primary impetus for such rights will always come from elsewhere, from the praxis of citizens who insist upon these rights and who are prepared to back up this insistence through political means. The words of Albert Camus are apposite: "Little is to be expected from present-day governments, since these live and act according to a murderous code. Hope remains only in the most difficult task of all: to reconsider everything from the ground up, so as to shape a living society inside a dying society. Men must therefore, as individuals, draw up among themselves, within frontiers and across them, a new social contract, which will unite them according to more reasonable principles" (1991, 135-36).Arendt's essays "Civil Disobedience" and On Revolution take up this very theme of a new social contract. Both deal with the subject of resistance to moribund and oppressive power and treat this resistance as a prefiguration of a new politics centered upon voluntary associations and council forms rather than formal or official state institutions. The "lost treasure" of the revolutionary tradition is, for Arendt, the model of an associational politics that exists beneath and across frontiers, shaking up the boundaries of the political and articulating alternative forms of allegiance, accountability, and citizenship (see Isaac 1994). Echoing Camus, Arendt writes that if there exists an alternative to national sovereignty, then it is such an associational politics, which works according to "a completely different principle of organization, which begins from below, continues upward, and finally leads to a parliament." She quickly adds that the details of such a politics are less important than its civic spirit, a spirit that resists the deracinating tendencies of modern political life (1972, 231-33).(29) That such a politics runs against the principle of sovereignty is for Arendt one of its strengths. As many commentators have observed, there is a deep pathos to Arendt's treatment of revolution, which is for her a glorious, empowering, and yet evanescent phenomenon, like a fire that burns brightly for only a moment (see Miller 1979). Arendt recognized the paradox of rebellion in the modern world, namely, that powerful associational impulses would be coopted by more official forms of politics. Yet, this can be viewed as the great virtue of this kind of politics- -that it challenges the status quo and calls attention to itself in ways which demand redress and incorporation. In other words, such forms of resistance invigorate formal politics and keep it true to the spirit of human dignity. Their vigilant insistence gives force to the support for human rights that is proclaimed, but often honored in the breach, by more authoritative domestic and international bodies. The second important feature of Arendt's vision of the politics of human dignity is that there is no single community, or single category of citizenship, that can once and for all solve the problem of human rights in the late modern world. One arena of human rights praxis is clearly the state itself, and one kind of citizenship appropriate to it is clearly what we think of as "domestic" citizenship--membership in the nation state as an American, or Italian, or Croatian. But i should be clear that the idea of "domestic" is simply an adjunct of the idea of sovereignty itself; it denotes those matters contained within the boundaries of sovereign power and subject to it. As such it encourages domesticity where vigor is also needed. For there is no reason to imagine that relevant human rights issues, or relevant communities, correspond to the boundaries of nation-states. Local, regional, and global forms of citizenship are equally possible and equally real. One can speak about the rights of aborigines, for example, as a Mohawk, as a Canadian, as a North American, as a human. In each case different forms of organization would be appropriate; in each case one would speak to a different, though not necessarily mutually exclusive, audience. How human rights claims are articulated and mobilized can and will vary from case to case and from time to time, as political identities are transformed and new alliances forged.(30) It would be equally mistaken to conflate ideas of community and citizenship with formal political organizations, be they states, nations, or confederations. In On Revolution Arendt writes about self-chosen "elites," groups of citizens distinguished by nothing but their deep interest and participation in specific public matters. She describes such elites as constituting, through their very own efforts, "elementary republics." In the Arendtian view it is possible to imagine a multiplicity of overlapping "republics," sometimes in tension with one another, sometimes in support of one another. The kinds of international legal institutions and federated state arrangements that she endorses would constitute ineffective security for human rights were they not authorized, empowered, and invigorated by a robust civil society of such "republics." The Helsinki Citizens' Assembly, formed in 1990 as an outgrowth of links formed between East European dissidents and West European peace activists after the Helsinki Accords in 1975, is an interesting example of what Arendt might have envisioned.(31) As Mary Kaldor, a co-founder, describes the assembly, "it is not addressed to governments except in so far as they are asked to guarantee freedom of travel and freedom of assembly so that citizens' groups can meet and communicate. It is a strategy of dialogue, an attempt to change society through the actions of citizens rather than governments...in short, to create a new political culture. In such a situation, the behavior of governments either changes or becomes less and less relevant" (Kaldor 1989, 15). The assembly has been described as a loose association of citizens acting together in self-organized associations, movements, and initiatives across national boundaries. It is hardly indifferent to the policies of governments; petitioning, demonstrating, and fostering debate about state policies regarding human rights have been central to its activities. But the power that its members have been able to constitute is an important force in its own right; indeed, it is only because of this power, an organizational and an ethical power, that it is capable of supporting more directly "political" efforts, such as legislation, and of influencing the course of state action. According to Kaldor, "we don't represent anyone except the movements and institutions in which we are involved. In many cases, we represent no one but ourselves. And our power rests not on whom we represent but in what we do--in what we say, in our ideas, in our quest for truth, in the 12 Refugee Aff DDW 2009 1AC projects we undertake. It rests on our energy and commitment" (Kaldor 1991, 215). Groups such as the Helsinki Citizens' Assembly and Amnesty International embody the kind of associational politics central to Arendt's conception of modern citizenship. They are forms of collective empowerment that might provide a new foundation for human dignity. They play an indispensable role in calling attention to human rights abuses, giving voice to the disenfranchised and persecuted, and empowering citizens to act in concert on behalf of the expansion of rights. They seek not only to alter state policies, for example, on matters such as minority and refugee rights, but also to offer their own, unofficial support for displaced or persecuted people. A group such as Spanish Refugee Aid, with which Arendt was involved, was no substitute for state policies hospitable to the rights of Spanish refugees, nor was it a substitute for diplomatic efforts to change a dictatorial regime; but the voluntary organization of relief efforts and forms of solidarity is itself an indispensable and preeminently political effort, without which more hospitable state policies would not be possible. Not a wholesale alternative to other, more inclusive or official, forms of political community, such endeavors themselves constitute vital forms of civic participation and empowerment. They can be viewed as "elementary republics" of citizens committed to human rights. Our world is in many ways different from the one Arendt described in her Preface to the first edition of The Origins of Totalitarianism. Writing in 1951, with the recent experiences of world war and Holocaust seared into her memory, and another world conflict dangerously imminent, she noted that "this moment of anticipation is like the calm that settles after all hopes have died" (1973, vii). From her perspective the world, still reeling after the traumatic shocks of totalitarianism and mass destruction, seemed to be hurtling toward other, no less disturbing, forms of violence and human suffering. In contrast, we are witnesses to the end of the Cold War. Our more optimistic contemporaries, invoking Hegel with apparent conviction, only yesterday proclaimed the end of history and the triumph of liberal democracy. Yet, few today are sanguine about the state of the world. As I write this essay millions of innocent civilians are starving in Rwanda and Kenya, the victims of brutal civil conflict. Kurds in Iraq and Turkey, Tamils in Sri Lanka, Palestinians in the West Bank and Gaza. Armenians in Nagorno-Karabakh, and countless other national minorities clamor for human rights. In the heart of Europe, Sarajevo is under Serbian siege, and Bosnian Muslims suffer a brutal, murderous campaign of "ethnic cleansing."(32) German neo-Nazi youth regularly vandalize and burn refugee hostels, to the cheers of large crowds of sympathetic bystanders. Throughout France, Italy, and Germany there are increasingly audible calls to exclude "foreigners" in the name of "real citizens," "true" French, or Italians, or Germans who do not wish to share their country with the others. Across the Atlantic Ocean things are no different, as the Clinton administration recently turned back Haitian refugees fleeing a brutal dictatorship, just as its predecessors had done before with refugees displaced by economic trauma and civil war in El Salvador and Guatemala (see United Nations 1993, Zolberg 1989). The 1992 Human Rights Watch World Report notes that in the wake of the Cold War "respect for human rights faces a dangerous challenge in the rise of exclusionary ideologies...the quest for ethnic, linguistic or religious purity, pursued by growing numbers, lies behind much of today's bloodshed. By closing the community to diversity and stripping outsiders of essential rights, these dangerous visions of enforced conformity nourish a climate of often brutal intolerance" (1992, 1). Arendt, writing more than forty years ago, observed that "under the most diverse conditions and disparate circumstances, we watch the development of the same phenomena--homelessness on an unprecedented scale, rootlessness to an unprecedented depth" (1973, vii). Such a vision sounds grimly familiar. While Arendt is not a theorist well known for her reflections on human rights, her writing is an indispensable resource for thinking about the threats to human dignity in the late modern world. As she recognized, human rights are not a given of human nature; they are the always tenuous results of a politics that seeks to establish them, a vigorous politics intent on constituting relatively secure spaces of human freedom and dignity. And as she saw, the nation-state, far from being the vehicle of the self-determination of individuals and peoples, is in many ways an obstacle to the dignity that individuals and communities seek. Those interested in human rights, who wish to provide a new guarantee for human dignity, have no alternative but to take responsibility upon themselves, to act politically as members of elementary republics, locally and globally, on behalf of a dignity that is in perpetual jeopardy in the world in which we live. As the Human Rights Watch Report makes chillingly clear, such a politics is hardly a matter of mere academic interest. 13 Refugee Aff DDW 2009 1AC THE UNITED STATES FEDERAL GOVERNMENT SHOULD GUARANTEE LEGAL REPRESENTATION FOR ASYLUM SEEKERS IN THE UNITED STATES. 14 Refugee Aff DDW 2009 1AC Contention 3 - Solvency Legal representation key – helps asylees navigate complex application process. Rachel D. Settlage, Clinical Fellow, University of Baltimore School of Law. J.D./M.S. (Foreign Service), Georgetown University, 1998. B.A., University of California, Berkeley, 1992., attorney at Asylum Program of Southern Arizona and foreign affairs officer in the Office of Country Reports and Asylum Affairs, US State Department. ―Affirmatively Denied: The Detrimental Effects of a Reduced Grant Rate for Affirmative Asylum Seekers.‖ Boston University International Law Journal, Spring 2009. Jm One of the most important factors in determining the success of an asylum claim is whether or not an applicant is represented by counsel. Studies have shown that asylum seekers represented by counsel are three times more likely to succeed. However, while asylum seekers at all stages in the process may be represented by an attorney, they must provide one at no cost to the government. 107 The government does not provide counsel for asylum seekers, including for those detained. 108 Only one in three asylum applicants in affirmative proceedings before USCIS [*82] is represented by counsel. 109 In EOIR immigration courts, approximately two-thirds of asylum seekers are represented. 110 The obstacles facing an asylum seeker filing an application pro se are enormous. An applicant must attempt to master a complex area of the law and navigate a convoluted application process. 111 The first step is to complete the application for asylum (I-589 Application for Asylum or Withholding), which is an incredibly dense and complicated 12-page document with 11 pages of instructions. 112 The USCIS Ombudsman, in his 2007 Annual Report, stated that " comprehending these instructions requires at minimum a reading ability at a high level... . Even more alarming is that Form I-589 specifically serves a population for whom English may be the second language, as a lack of English language ability is commonplace among asylum seekers." 113 In addition to asking for extensive background information and the details of the persecution, the application requires that applicants indicate the basis for their persecution. This is a requirement that cannot be accurately addressed without at least some understanding of asylum and refugee law. In his 2007 report, the USCIS Ombudsman recommended that the I-589 be redrafted "so that it is less complicated and more understandable by the intended audience - persons who have been persecuted." 11An application is more likely to be successful if supported by corroborating evidence, including personal documentation and country condition information. 115 Obtaining personal documents, such as birth [*83] certificates, marriage certificates, party membership cards, medical records, requires that the applicant either have left his home country with those documents, or is able to contact individuals in his home country who can find the documents and send them to the United States. Records such as arrest warrants or official government documents documenting persecution may not exist, and even if they do, may be impossible to obtain without putting friends and family members at risk. 116 Obtaining country condition information often requires access to a computer and the internet. Compounding the difficulty for applicants to prepare pro se applications is that applicants for asylum come from many different backgrounds and cultures, with different customs and laws. Applicants often do not speak English, 117 and some have very little education or even a basic level of literacy. Applicants may have no friends or family in the United States who can help them. 118 It is unreasonable to assume that asylum applicants can successfully navigate the incredibly complex asylum system on their own, given some of these constraints. Yet the importance of representation at the earliest stages of an asylum application cannot be underestimated. Even if a claim is valid, an incomplete affirmative application, or one that contains even innocent errors, can cause problems later during an asylum hearing before an immigration judge. 119 Incomplete or inaccurate applications have been used by immigration judges to support findings of adverse credibility, ultimately leading to a denial of asylum. 12Unfortunately, many asylum seekers cannot afford representation. 121 Those asylum-seekers who arrive with no money or resources must devote their time to finding shelter, food, and basic social services. This is compounded by the fact that asylum seekers cannot obtain work authorization until 180 days after filing an application for asylum. 122 While some free or low cost legal services for asylum seekers exist, the need for such services is greater than the availability. 15 Refugee Aff DDW 2009 **T** 16 Refugee Aff DDW 2009 1. Those who need the legal services are poor David J. Cord, Helsinki Times, June 18, 2009 (―Boom Time for Immigration Lawyers‖ http://www.amren.com/mtnews/archives/2009/06/boom_time_for_i.php The people most likely to need immigration assistance are the least likely to be able to afford it. Some asylum seekers are poor and desperate and the costs of legal aid may be beyond their reach. Streng explains that in some cases people can receive help from the state to pay for their legal costs. 2. No case meets- There is not a single case on the topic that would solely give social services to those in poverty, every case indirectly would give a social service to those out of poverty 3. Counter- interpretation- For is used to indicate a purpose. for (fôr; fr when unstressed) KEY PREPOSITION: Used to indicate the object, aim, or purpose of an action or activity: trained for the ministry; put the house up for sale; plans to run for senator. 4. We meet our counter interpretation- the sole purpose of plan is to give Asylum seekers in poverty legal services. 5. We don‘t explode the topic- under our interpretation you can still only claim advantages of those living in poverty because that has to be the purpose of your plan. 6. Burden of proof is on the neg- make them prove why our interpretation is bad for debate or you should just default to ours. 7. Make them prove in round abuse. Voting on potential abuse is like voting on a disads they could have run, but chose not too. 17 Refugee Aff DDW 2009 Asylum seekers are living in poverty Jewel Topsfield Reporter TheAge.com.au April 25, 2006 (―Asylum seekers 'forced into life of poverty'‖ http://www.theage.com.au/news/national/asylum-seekers-forced-into-life-of- poverty/2006/04/24/1145861286533.html MORE than 2000 asylum seekers are living in a state of forced destitution without the right to work or access Medicare, according to statistics obtained from the Immigration Department. Under a controversial rule introduced in 1997, asylum seekers on certain visas are provided with no medical or income support and are forbidden from working, forcing them to rely entirely on charities for their survival. Some have been on these visas for years. Critics claim the visa conditions are draconian and asylum seekers without a support network face poverty, homelessness and severe health problems if left untreated. 18 Refugee Aff DDW 2009 1. Plan text checks- It specifically says Asylum seekers in the U.S. 2. Asylum Seekers live in the United States USCIS US Citizenship and Immigration Services (USCIS) is the government agency that oversees lawful immigration to the United States of America. 10/14/2008 (―Obtaining Asylum in the United States: Two Paths‖ http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=e3f 26138f898d010VgnVCM10000048f3d6a1RCRD) Most asylum applicants are not authorized to work while their asylum application is pending. For more information on work authorization, click on ―Benefits and Responsibilities of Asylees‖ in the Related Links on the right. It is important to note that affirmative asylum applicants are rarely detained. They are free to live in the U.S. pending the completion of the asylum process with USCIS and, if found ineligible by USCIS, then with an Immigration Judge (see ―Defensive‖ Asylum Processing with EOIR below). For step-by-step information about the affirmative asylum process, please click on ―The Affirmative Asylum Process‖ link under Related Links. 3. Their definition is talking about being a citizen- there is no Resolutional basis for having to give social services to citizens. As long as they are currently residing the United states we are still topical. 4. Counter interpretation- In means within limits Merriam-Webster 2009 http://www.merriam-webster.com/dictionary/in Main Entry:1in Pronunciation: \'in, ?n, ?n\ Function: preposition Etymology: Middle English, from Old English; akin to Old High German in in, Latin in, Greek en Date: before 12th century 1 a —used as a function word to indicate inclusion, location, or position within limits <in the lake><wounded in the leg><in the summer 5. We don‘t explode the limit 6. Burden of proof is on the neg- make them prove why our interpretation is bad for debate or you should just default to ours. 7. Make them prove in round abuse. Voting on potential abuse is like voting on a disads they could have run, but chose not too. 19 Refugee Aff DDW 2009 1. Legal services are social services Mohabir Anil Nandlall MP Attorney-at-Law 2006 (―Legal Aid: a vital adjunct to Fundamental Rights and Freedoms‖ http://www.guyanachronicle.com/ARCHIVES/archive04-07-08.html Legal aid is a social service which is as fundamental to society as any, if there is to be social cohesion, peace and social justice. Its provision is but one joint enterprise in which the legal profession and the State must necessarily act in concert. I am reminded of the salutary words of P.A. Gajendragadhar, the former Chief Justice of India, in Law Liberty and Social Justice, when his Honour posited that: 2. Legal services provide a gateway to more social services because once they finish the Asylum seeking process they are eligible for social services such as welfare. 3. Counter interpretation- Social services are Word Web online 2008 http://www.wordwebonline.com/en/SOCIALSERVICE Noun: social service 'sow-shul 'sur-vis An organized activity to improve the condition of disadvantaged people in society 4. We meet our counter interpretation- we improve the conditions of Asylum seekers through legal council. 5. Something about limits. 6. Burden of proof is on the neg- make them prove why our interpretation is bad for debate or you should just default to ours. 7. Make them prove in round abuse. Voting on potential abuse is like voting on a disads they could have run, but chose not too. 20 Refugee Aff DDW 2009 Legal aid is a social service. Francis Regan s Associate Professor of Legal Studies1999 (―The transformation of legal aid‖http://books.google.com/books?id=khG_4Dk96J4C&pg=PA174&lpg=PA174&dq="Legal+aid+is+ a+social+service"&source=bl&ots=FgNRi708Zx&sig=DyFC4Hqh_1x44VUt6W3uRQf_XI8&hl=en& ei=vWdLSuTTFduntgeKxdibDQ&sa=X&oi=book_result&ct=result&resnum=1) IT is interesting to note that, in contrast, as long ago as 1977 the legal profession representatives on the Irish committee on civil legal Aid and Advice dissented from the Committee‘s recommendation that private practitioners should be prepared to accept a percentage reduction in their fees in recognition of the fact that legal aid is a social service and that they would be guaranteed payment of their fees. Social services include legal services and immigration assistance. (NAKASEC) The National Korean American Service & Education Consortium was founded as a consortium in 1994 by local community centers that realized that only by coming together can we build and contribute to a national movement for civil rights. 2005 (SOCIAL SERVICES‖ http://nakasec.org/blog/english/programs/social-services) For decades now, NAKASEC affiliates have served as a reliable place for community members to receive quality, culturally competent and bilingual services free of charge. The full-range of social services include: · Legal Services Clinics · Naturalization Clinic · Low Income Tax Clinic and EITC assistance · Health Access Project assisting children to seniors · Immigrant Assistance Services · Application Assistance for SSI, food stamps and other benefits · Application Assistance for Section 8 housing and renter‘s credit · Information and Referrals · Interpretation and Translation 21 Refugee Aff DDW 2009 See Bucci, supra note 23 at 275-304. While the CRC and the 14th amendment presumably apply to unaccompanied children because due process is granted to ―persons‖ rather than just ―citizens‖ of the United States, refugee children are often not protected due to technical requirements provided by the United States ―Entry Doctrine.‖ Id. The Entry Doctrine creates a loophole that often denies refugee children legal protections due to its strict language. Id. For example, if the INS finds that a refugee has not ―entered‖ the U.S. under the technical language of the doctrine, then that refugee may be detained and subject to exclusion proceedings where due process guarantees are not recognized 22 Refugee Aff DDW 2009 **INHERENCY** 23 Refugee Aff DDW 2009 Rights Needed Asylum seekers‘ rights necessary in face of uncertain state assistance. John Fredriksson, Associate Director of US Committee for Refugees, director of Immigration and Refugee services of America, lead NGO director of 1999 Humanitarian Evacuation Program. ―Bridging the Gap Between Rights and Responsibilities: Policy Changes Affecting Refugees and Immigrants in the United States Since 1996.‖ Georgetown Immigration Law Journal, Spring 2000. The social and economic rights of refugees and immigrants in the United States remain in evolution. While all of the negative impacts of the 1996 welfare and immigration reforms have yet to be felt, especially since economic conditions in the United States have created an expanding labor market in both the skilled and unskilled sectors, it is clear that refugees and immigrants face an uncertain future. Should the economy slow down, current eligibility criteria and perceived entitlements may change significantly: states and local communities could be faced with ever-increasing needs and a very limited federal response that no longer guarantees minimum standards of [*778] care and assistance. Refugees, immigrants and individuals granted other forms of temporary protection are likely to be first in line for restrictions from social benefits. The evolutionary changes in the role and function of the public and private sectors in the United States may retard the acceptance of international norms of social and economic rights for all persons, including nationals, citizens, residents, immigrants and refugees. Further research must be undertaken to more accurately measure successes and failures in the social and economic integration of refugees and immigrants in the United States. With no centralized systems collecting such information within each state, the data available currently is sparse and incomplete. Experimentation in the area of social welfare assistance and services must be accompanied by evaluation mechanisms to assess whether such changes are effective and humane.In particular, reassessment must be undertaken regarding the U.S. government's inattention to asylum seekers' needs for services and assistance. Regulations denying asylum seekers work authorization during their initial six months in the United States, the expedited removal procedure, stringent detention practices and policies denying asylum seekers government-funded legal representation make for very severe conditions. Since the abuses of the 1980s are no longer occurring and since the INS is able to adjudicate asylum applications more expeditiously, the time is ripe to either remove restrictions on asylum seekers' basic right to work and sustain a livelihood or to grant asylum seekers eligibility for social welfare assistance on the same terms as refugees and asylees. It is unreasonable to deny both the right to work and the right to access social benefits: this policy threatens to deter bona fide asylees with a well-founded fear of persecution from seeking protection in the United States. 24 Refugee Aff DDW 2009 No Rights Now Detention inhibits asylum claims and 60% of refugees are unrepresented (Susan F. Martin, Patricia Weiss Fagen, Kari Jorgensen, Lydia Mann-Bondat, Andrew Schoenholtz, Professor of International Migration at Institute for the Study of International Migration School of Foreign Service at Georgetown University, 2005, ―The Uprooted: Improving Humanitarian Responses to Forced Migration, pg41-42) Detention of asylum seekers has been adopted by some states purportedly to discourage arrivals and ensure compliance with legal proceedings. In general, it is used with respect to asylum seekers arriving in boats or at the border. Some European states, Australia, and the United States employ this policy, but not systematic study has evaluated the deterrence effects of detention. No doubt detention ensures compliance with legal proceedings, but a major study has shown that detention at the outset is not an effective or humane use of a limited resource except for those deemed security or public safety risks. For asylums seekers with legitimate claims, the study showed, supervised release, an approach more in keeping with the humanitarian nature of asylum, results in compliance at a much lower cost than detention. Detention has a deleterious effect on the ability of asylum seekers to assert a good claim for protection by making it very difficult to obtain effective representation. The asylum process in any state is very difficult to navigate for the untrained, let alone for individuals who often do not speak the language of the adjudicators, come from very different legal cultures, and are detained. Moreover, the law itself, with developments from gender-related claims to the Torture Convention, is complex. Expertise on human rights conditions in many of the world‘s countries is needed. In the United States, for example, claims are made annually bearing on conditions in some 175 countries. Given the complexity of asylum law and its proceedings as well as linguistic and cultural barriers for most asylum seekers, representation plays a major role in setting forth a good claim for protection. Asylum seekers are four to six times more likely to be granted asylum if they are represented. Two of every three asylum seekers in the United States are unrepresented in the first instance (before an Asylum Officer), and still one of every three lacks representation in formal proceedings before Immigration Judges. 25 Refugee Aff DDW 2009 Flawed Interpretations Reforms needed- flawed interpretations prevent refugee acceptance Human Rights First, December 2008, ―How to Repair the US Asylum System.‖ http://www.humanrightsfirst.org/pdf/081204-ASY-asylum-blueprint.pdf The quality of decision making by the immigration courts and the BIA has been widely criticized by federal court judges, the Government Accountability Office (GAO), members of Congress, legal scholars and other experts in recent years. Studies of the immigration court process have highlighted serious concerns related to the disparities that exist in asylum adjudications, both regionally between courts and amongst judges within the same court. This raises grave concerns about the quality of the decisions made by immigration judges, particularly since the appeals process provides few safeguards against wrongful denials. Procedures installed at the BIA by the Bush administration have streamlined appeals to the point of triviality, often rendering BIA decisions little more than a rubber stamp on the decision made by the immigration judge below. These ―streamlining‖ changes were made by the DOJ to speed up appeals by increasing the use of summary affirmances and single-member decisions. The effect has been a steep drop in the BIA‘s approval of asylum appeals, leading members to deny asylum claims and issue precedent decisions based on misinterpretations of long-standing precedent and international standards. These flawed interpretations have inappropriately narrowed eligibility for asylum for many with bona fide claims and a genuine need for protection. Critical reforms announced by the DOJ in August 2006 failed to ameliorate the problem – and have still not been fully implemented. 26 Refugee Aff DDW 2009 Interview Process Flawed The refugee interview process isn’t fair, it’s arbitrary Won Kidane, visiting assistant professor of law at Penn State Dickinson, 2006, ―AN INJURY TO THE CITIZEN, A PLEASURE TO THE STATE: A PECULIAR CHALLENGE TO THE ENFORCEMENT OF INTERNATIONAL REFUGEE LAW.‖ http://www.kentlaw.edu/jicl/articles/spring2006/s2006_Won_Kidane.pdf IV. BURDEN AND STANDARD OF PROOF IN REFUGEE STATUS DETERMINATIONS Almost all jurisdictions require that the claimant for refugee status prove that he or she is a refugee. In the United States, a person seeking asylum must prove that he or she is a refugee by proving past persecution or a well founded fear of future persecution because of race, religion, nationality, membership to a social group or political opinion. This burden requires proving each and every essential element of the claim. The difficulty associated with ascertaining the exact meanings of these elements has been discussed in Section III above. This section discusses the difficulty associated with proving the facts. The set of circumstances that often leads to a person‘s flight to safety almost invariably prevent the collection of evidence that may help prove facts. That makes refugee status adjudication a unique type of legal proceeding, which purports to determine the occurrence or non-occurrence of alleged events in some distant place based primarily on the claimant‘s own statement. As a result, credibility constitutes the most important factor in refugee status determination. It could fairly be said that asylum jurisprudence is by and large a credibility jurisprudence. Determining one‘s credibility is an exceedingly difficult task. The Immigration and Naturalization Service (INS, now called Bureau of Citizenship and Immigration Services, BCIS) regulations state: ―[t]he testimony of the applicant, if credible, may be sufficient to sustain the burden of proof without corroboration.‖ The various circuit courts generally have endorsed variations of the same proposition. For example, the Court of Appeals for the Seventh Circuit ruled that an asylum applicant‘s exclusive reliance on his own testimony to establish a well-founded fear of persecution ―in itself is not necessarily fatal to his petition, but it places a premium on the content of that testimony.‖ The Court of Appeals for the Ninth Circuit consistently disapproved any mandatory requirements for corroboration as long as the claimant‘s statement is credible. The Real ID Act maintained the rule that the applicant‘s credible testimony may be sufficient to sustain the burden of proof; however, it reversed the Ninth Circuit‘s ruling on corroboration. The Act states: [w]here the trier of fact determines, in the trier of fact‘s discretion, that the applicant should provide evidence which corroborates otherwise credible testimony, such evidence must be provided unless the applicant does not have the evidence and cannot reasonably obtain the evidence without departing the United States. The inability to obtain corroborating evidence does not excuse the applicant from meeting the applicant‘s burden of proof. According to this new law, even if the trier of fact is convinced that the applicant‘s testimony is credible, he or she may require additional evidence. The applicant‘s inability to obtain the evidence could be fatal to his or her case. This particular rule is a significant addition to the applicant‘s burden of proof. The Real ID Act makes it clear that ―there is no presumption of credibility,‖ and provides some guidance as to how credibility must be determined. It states: The trier of fact should consider all relevant factors and may, in the trier of fact‘s discretion, base the trier of fact‘s determination on any such factor, including the demeanor, candor, or responsiveness of the applicant or witness … the consistency of such statements with other evidence of record (including the reports of the Department of State on country conditions), and any inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant‘s claim. Precisely because of the obvious additions to the burden of proof on asylum applicants, the Act was a subject of widespread criticism by human rights and immigrant groups. 260 The provisions that attracted more intense criticism are the corroboration provision, indicated above, and the reliance on demeanor as indicative of credibility. For example, commenting on the inclusion of demeanor as an element of credibility, Human Rights First observed that ―[u]nder the Real ID Act, refugees will be denied asylum [b]ecause they do not look a judge in the eye … or [b]ecause they cannot talk about rape with a male immigration officer Human Rights First concludes that demeanor is a poor indicator of credibility because people from different cultures have different manners of communicating with authority figures. Even without cultural differences, 27 Refugee Aff DDW 2009 psychological studies have found that reliance on demeanor is a poor method of determining the truth or falsity of utterances. Other studies have shown that in criminal investigation cases, trained police officers performed slightly better than chance, but absolutely no better than untrained personnel. 28 Refugee Aff DDW 2009 Due Process Reform Needed Current detention process in violation of due process standards. Bridget Kessler, JD Candidate American University, Washington College of Law, cum laude Vassar College. ―In Jail, No Notice, No Hearing ... No Problem? A Closer Look at Immigration Detention and the Due Process Standards of the International Covenant on Civil and Political Rights.‖ American University International Law Review, Volume 24, 2009. Under international law, a state cannot deprive individuals of personal liberty without meeting basic standards of due process. 6 The International Covenant on Civil and Political Rights ("ICCPR") requires the United States to guarantee that an arrested individual receive "prompt" notice of the charges against him or her 7 and have the right to challenge the legality of the detention "without delay." 8 The problem for Carla is that although she has a right to an NTA eventually, the law does not establish a timeframe within which DHS must issue one. 9 The custody procedures regulation states only that [*575] DHS must decide within forty-eight hours of assuming custody whether it will issue an NTA. 10 The regulation does not, however, specify when DHS must issue the NTA or serve it on the detained individual or the Immigration Court. Since the former Immigration and Naturalization Service ("INS") 11 amended the custody procedures regulation several days after the 9/11 attacks, 12 scholars and advocates have advanced strong arguments that it violates both domestic and international standards of due process. 13 In spite of the [*576] harsh criticism, the custody procedures regulation remains in force today and influences the lives of the hundreds of thousands of people, like Carla, who pass through immigration detention each year. 14 Flawed asylee detention process – no legal counsel available. Donald Kerwin, Vice President of the Migration Policy Institute think tank, chief operating officer of the Catholic Legal Immigration Network (CLINIC). ―Looking for Asylum, Suffering in Detention.‖ Section of Individual Rights and Responsibilities, American Bar Association., Winter 2001. Most detained asylum seekers cannot obtain legal representation, although this can make all the difference in the outcome of their cases. In 1999, for example, 506 of 2,072 (almost 25 percent) represented detainees who applied were granted asylum. In contrast, only 40 of 1,172 (3.4 percent) unrepresented detainees received asylum. Immigrants in removal proceedings enjoy a statutory privilege of legal counsel, but it must be "at no expense to the government." (INA § 292, 8 U.S.C. § 1362.) Because representing detainees is time consuming and costly, private lawyers often charge more than their normal rates, and nonprofit agencies cannot accept significant numbers of these cases. As a result, large numbers of detainees go to court unrepresented. The problem is compounded for immigrants detained in remote locations. For example, the 1,000-bed Bureau of Prisons (BOP) facility used by INS in Oakdale, Louisiana, is two and a half-hours away from the nearest major city, Baton Rouge. No free legal services are currently available to detainees at Oakdale, and only one private immigration lawyer regularly goes to the facility. Detainees in remote county jails face the same dilemma. Some INS detainees try to represent themselves, but even if their prison happens to have an updated law library with immigration materials (and most local jails do not), few can master the complex legal procedures and standards that apply to their cases. 29 Refugee Aff DDW 2009 Reform Needed Asylum procedures are poorly structured and random with many lacking legal representation (United States Commission on International Religious Freedom, 2-08-05, ―Report on Asylum Seekers in Expedited Removal‖ , http://www.uscirf.gov/index.php?option=com_content&task=view&id=1892) The Study found mandatory procedures in place to ensure that asylum seekers are protected under Expedited Removal. Some procedures were applied with reasonable consistency, but compliance with others varied significantly, depending upon where the alien arrived, and which immigration judges or inspectors addressed the alien‘s claim. Most procedures lacked effective quality assurance measures to ensure that they were consistently followed. Consequently, the outcome of an asylum claim appears to depend not only on the strength of the claim, but also on which officials consider the claim, and whether or not the alien has an attorney. Similarly, while DHS has developed criteria relating to the release of detained asylum seekers, the implementation of these criteria also varies widely from place to place. There are a few areas, however, where the Study identified problems other than inconsistent practices. For example, with regard to detention, the Study found that asylum seekers are consistently detained in jails or jail-like facilities, which the experts found inappropriate for non-criminal asylum seekers. There were, however, a small number of exceptions to this rule, the most prominent being a contract facility in Broward Country, Florida, which represents a secure, but appropriate and non correctional, environment for non-criminal asylum seekers. The Study also found that asylum seekers without a lawyer had a much lower chance of being granted asylum (2%) than those with an attorney (25%). This difference was consistent whether the alien resided – or was detained – in an area with a high rate of representation, or a low rate of representation. The Study does, however, identify a number of locations where public-private initiatives involving DHS, the Executive Office for Immigration Review, and non-governmental organizations, have put legal assistance within reach of more detained asylum seekers. These programs, however, have also been implemented unevenly. With regard to credible fear determinations, the Study found that asylum officers screened-in more than 90% of credible fear applicants, and made a negative credible fear finding in only 1% of cases. Quality assurance procedures – requiring much more extensive documentation and review of negative claims than of positive ones, may have created a built-in bias in the credible fear screening, undermining the objectivity of the process. 30 Refugee Aff DDW 2009 Reform Needed Reforms are crucial to make process less arbitrary Human Rights First, December 2008, ―How to Repair the US Asylum System.‖ http://www.humanrightsfirst.org/pdf/081204-ASY-asylum-blueprint.pdf To improve the quality of asylum adjudications, the Obama administration should instruct DOJ and DHS to implement a series of reforms including: �� Ensure that asylum officers, immigration judges and members of the Board of Immigration Appeals (BIA) have adequate time to hear and evaluate each case and are not pressured into denying asylum cases due to ―case completion deadlines‖ at EOIR and ―productivity standards‖ for Asylum Officers. These reforms will help ensure that the United States does not send refugees back to persecution, and will help maintain the integrity of the asylum system by affording adjudicators the opportunity to assess credibility, safeguard against fraud, and ensure that they are accurately deciding cases whose decisions may have life or death consequences. �� Support appropriations to provide adequate staffing, training, and resources for the Asylum Office, the Immigration Courts and BIA. The number of immigration judges, law clerks, Board members and staff attorneys should be increased relative to case loads. Training programs should aim to ensure compliance with U.S. treaty obligations at all levels of the system by providing special training in international and U.S. refugee law standards to asylum officers, immigration judges, BIA members, DHS trial attorneys, and attorneys in the Office of Immigration Litigation. This training should emphasize that adjudicators and attorneys at all levels also bear responsibility to ensure that the United States does not deport a refugee in violation of the 1951 Refugee Convention and its 1967 Protocol. This training should also stress to DHS trial attorneys and attorneys in the Office of Immigration Litigation the role of prosecutorial discretion and provide guidance in identifying cases that merit a decision not to prosecute an individual or appeal a decision unfavorable to the government‘s position. �� Restore meaningful appellate review by implementing reforms at the BIA, including: • Restore decision-making by three member panels at the BIA, including for cases involving asylum, withholding of removal and relief under the Convention Against Torture. • Reinstate the requirement that precedent decisions be issued by the full Board and rescind the directive that such decisions can be issued by a panel. �� Require Board members to issue decisions that provide the legal basis for their decisions and address the arguments made by the parties. 31 Refugee Aff DDW 2009 Reform Needed Issues in the program prevent asylum-seekers from just legal treatment Human Rights First, December 2008, ―How to Repair the US Asylum System.‖ http://www.humanrightsfirst.org/pdf/081204-ASY-asylum-blueprint.pdf Those arriving at the border without proper documentation are subject to mandatory detention under the expedited removal process. In its February 2005 report, the USCIRF found that the overwhelming majority of asylum seekers subject to mandatory detention under expedited removal are inappropriately detained in jails or jail-like facilities. In many of these cases asylum-seekers are co-mingled with criminal inmates or immigrant detainees with criminal convictions. Asylum seekers held in these facilities are required to wear prison uniforms, even when they appear in front of a judge. They are handcuffed and sometimes strip searched when brought to these facilities and, in some locations, appear in immigration court in shackles and handcuffs. Furthermore, the remoteness of many facilities makes obtaining legal counsel extraordinarily difficult, leaving many asylum seekers without access to the necessary resources to prepare and present their asylum claims. The lack of due process protections for arriving asylum seekers renders their detention arbitrary and thus inconsistent with this country‘s commitments under the Refugee Convention, its Protocol, and Article 9 of the International Covenant on Civil and Political Rights.iii Refugees who seek asylum at U.S. airports and border entry points are considered ―arriving aliens‖ and are not provided access to immigration court custody hearings – a safeguard that is afforded to most other immigrant detainees. Instead, the decision of whether to release an asylum seeker on parole or detain him/her for months or longer is left to the discretion of local ICE deportation officers. These ICE officers act in essence as both jailer and judge in determining whether an arriving asylum seeker can be released from detention. Parole practices vary widely across the country, and asylum seekers in some parts of the country are rarely granted release. To remedy this situation, DHS should promulgate regulations codifying the parole criteria issued by INS in 1997. These criteria required that, in order to be eligible for parole, an asylum-seeker must prove his or her identity, that s/he had community ties (and was therefore not a flight risk), and that s/he was not a danger to the community. Rather than codifying this reasonable standard, ICE issued a new parole directive in 2007 that further restricted parole for asylum seekers by turning the previous parole criteria into a threshold requirement, allowing release of asylum seekers who met all those criteria only if they fit into specified categories (such as pregnant women, persons serving as a witnesses, detainees with medical conditions, cases where release would be for the public benefit, etc), and asserting that parole should be available only in ―limited circumstances.‖ DHS argues that detention is a necessary measure in protecting our borders and enforcing immigration law. In some instances, when identity cannot be established or there are concerns that the individual poses a danger to the community, the detention of an asylum seeker may be justified. However, once an asylum seeker establishes that s/he has a credible fear of persecution, provides evidence of his/her identity, and there is no reason to believe s/he poses a danger or risk of flight, the government interest in detaining the asylum seeker no longer outweighs the liberty restriction imposed upon the individual. 32 Refugee Aff DDW 2009 Reform Needed Asylee detention process reform needed – torture unacceptable. Human Rights First, December 2008, ―How to Repair the US Asylum System.‖ http://www.humanrightsfirst.org/pdf/081204-ASY-asylum-blueprint.pdf The United States must review and reform its detention framework for asylum seekers. The Obama administration should implement safeguards to minimize arbitrary detention, move away from the penal model used by the immigration detention system, and ensure that detention standards are legally enforceable and appropriate for asylum seekers. To accomplish this, the Obama administration should: Direct DHS and DOJ to revise regulations to provide asylum seekers with access to custody redetermination hearings before the immigration court. This regulatory reform would give arriving asylum seekers the same access as other detained immigrants to immigration court custody determination hearings and provide a check on local deportation officers who arbitrarily deny parole to eligible asylum seekers. Direct DHS to rescind ICE‘s November 2007 directive on the parole of asylum seekers. The ICE Parole Directive issued in November 2007 should be immediately rescinded and regulations should be issued in its place that: require parole assessments for all detained asylum seekers; reinstate the parole criteria (identity, community ties and no security or other risk) set forth in the December 30, 1997 Parole Guidelines; and eliminate the additional hurdles imposed by the November 2007 directive. Codifying this revised policy in regulation will help to ensure that it is consistently followed by deportation officers. Direct DHS to develop effective alternatives to detention programs. Instead of supporting the appropriation of more money for the expansion of a jail-like detention system, the President‘s Budget for FY 2010 should prioritize the development of less restrictive, more humane, and less costly methods of achieving the same government objective of monitoring immigrants in removal proceedings. These programs may include telephonic reporting and should be run by community-based, faith-based, or other non-governmental groups. Only in limited cases, when DHS can demonstrate a need for more restrictive measures, should alternatives to detention include the use of electronic monitoring. Likewise, these programs should only be used for individuals who would otherwise be subject to detention, not for those who should not be detained or who are eligible for release without conditions. Direct DHS to promulgate regulations that decrease its use of prisons and prison-like facilities and create legally enforceable detention standards. As recommended by the U.S. Commission on International Religious Freedom, DHS should establish detention standards appropriate for asylum seekers. When asylum seekers are awaiting custody hearings, or when they are found to be ineligible for parole or release to an alternative program, they should not be detained in a penal setting. In the limited circumstances in which detention is utilized, that detention should be at a facility that allows asylum seekers to wear their own clothes, have real outdoor access, move about within the facility, and visit with family and friends face-to-face rather than through a glass partition. These regulations should decrease the use of shackles, guarantee prompt medical care that complies with accreditation requirements, ensure unobstructed access to legal counsel, and limit the use of solitary confinement. 33 Refugee Aff DDW 2009 DHS Ineffective Asylum services eroding- DHS ineffective Human Rights First, December 2008, ―How to Repair the US Asylum System.‖ http://www.humanrightsfirst.org/pdf/081204-ASY-asylum-blueprint.pdf The competing mandates of the different bureaus within DHS make it exceedingly difficult to resolve inter-bureau issues relating to asylum within DHS, and the result has been an erosion in protection for refugees. In 2005 the bi-partisan, congressionally mandated U.S. Commission for International Religious Freedom (USCIRF) conducted an extensive study of the U.S. asylum and detention system and reached the same conclusion.ii USCIRF‘s report documented serious failings in U.S. treatment of refugees who seek asylum in the United States and recommended a series of specific policy reforms. Among those, USCIRF recommended that DHS create an office, headed by a high-level official, to address and coordinate cross-cutting asylum issues. Instead, DHS appointed a senior refugee coordinator, housed him in the DHS policy office, and then gave him the additional responsibility for handling broader immigration policy matters. Not surprisingly, given its mandate and structure, DHS has failed effectively to address a range of refugee and asylum matters. These failures have resulted in the exposure of shameful incidents of prolonged and unnecessary detention of asylum seekers, shockingly inadequate access to medical care in immigration detention facilities, and erroneous denials of asylum protection due to flawed legal interpretations. Such public revelations have led to critical congressional inquiries and stories in major media outlets that have humiliated DHS leadership and consumed significant agency resources. Despite this exposure, the Department has failed to address these problems with systematic solutions, such as those recommended by USCIRF. Instead, ICE issued an even more restrictive policy on the parole of asylum seekers from detention. CBP has failed to implement reforms needed to prevent the mistaken deportation of refugees. DHS has been slow to address the impact of the ―terrorism‖ bars on innocent asylum seekers and refugees in a timely and effective manner. If DHS is to continue to be the agency tasked with protecting refugees who seek asylum in the United States, genuine structural reforms are urgently needed. 34 Refugee Aff DDW 2009 No Legal Counsel Access to necessary legal counsel is nearly impossible when asylum seekers are detained Richard Peña, Chair Commission on Immigration, AMERICAN BAR ASSOCIATION, February 2006 http://www.abanet.org/intlaw/policy/humanrights/immigration2.06107A.pdf The unrepresented include thousands of indigent persons, many in detention, with viable claims to remain in the United States based on a fear of persecution, likelihood of torture, long-term lawful permanent residence in the United States, and family ties. As the ABA has recognized in developing immigration detention standards and in its past immigration resolutions, detention significantly impedes access to legal representation, making it far difficult for attorneys to offer representation, for immigrants to obtain counsel, and for pro se litigants to prepare their own cases. American Justice Through Immigrants’ Eyes describes some of the impediments as follows: The government‘s detention practices make it exceedingly difficult for detained persons to secure and communicate with counsel and pursue relief. Immigration authorities frequently transfer detainees to distant locations, often without notifying their lawyers and without regard for their need to prepare for a hearing or to be close to their families and support systems. Many of the more than 900 facilities used for immigration detention are in rural locations, far from private and pro bono lawyers and non-profit legal programs, making access to lawyers, families, and legal materials even more difficult. Without representation, detained persons often cannot access the extensive documentation and other information necessary to meet their burden of proof and apply for most forms of relief, including asylum.18 35 Refugee Aff DDW 2009 No Asylee Services Asylum seekers not eligible for services – time limitations and INS policy. John Fredriksson, Associate Director of US Committee for Refugees, director of Immigration and Refugee services of America, lead NGO director of 1999 Humanitarian Evacuation Program. ―Bridging the Gap Between Rights and Responsibilities: Policy Changes Affecting Refugees and Immigrants in the United States Since 1996.‖ Georgetown Immigration Law Journal, Spring 2000. Asylees are technically eligible for both jointly-funded federal and state programs and for private non-governmental schemes, but since asylum cases are rarely finalized before the four or eight month time limitation lapses, most cannot benefit from these programs. Asylees, like refugees, are exempt from the bar on mainstream welfare assistance that other legal immigrants face for seven years after admission. n77 In contrast to the European approach, none of the specialized services, including access to legal representation, is available to asylum seekers while their applications are pending. n78 Asylum seekers are ineligible for most social and assistance programs. In many cases, asylum seekers who have been tortured, raped or traumatized by violent events in their home countries are denied access to health care and other crisis counseling, both of which are crucial to treating the underlying distress and helpful in documenting the asylum seeker's fear of persecution at issue in the asylum application process itself. n79 Moreover, with administrative reforms enacted in 1995, the INS reversed its rather generous policy of granting work permits to asylum seekers during the pendency of their applications. Asylum seekers are now not permitted to work either until the INS adjudicates their application or six months have elapsed, whichever comes first. n80 Prior to the administrative reforms implemented in 1995, work permits were granted in non-frivolous cases three months after the application was filed. n81 36 Refugee Aff DDW 2009 No Asylee Services Prospective asylees not eligible for assistance or services. DPHHS. ―Refugee Resettlement Programs: Resettlement Program Definitions.‖ Montana Department of Public Health and Health Services. October 1, 2008. http://www.dphhs.mt.gov/hcsd/tanfmanual/tanf1000-1(1008).pdf Asylees: Individuals who, on their own, travel to the United States and apply for/receive a grant of asylum. These individuals do not enter the United States as refugees. They may enter as students, tourists, businessmen, or even in undocumented status. Once in the U.S., or at a land border or port of entry, they apply to DHS for asylum, a status that will acknowledge that they meet the definition of a refugee and that will allow them to remain in the United States. Individuals granted asylum are eligible for ORR assistance and services. Asylum applicants are not eligible for ORR assistance and services. The only exception is for certain Cuban and Haitian entrants. See definition of Cuban/Haitian Entrants. Asylees are eligible to receive ORR benefits and services from the date they are granted asylum in the United States. Inadequate rights for asylum seekers throughout application process. PRA. ―Refugee and Asylum Seekers‖. Political Research Associates, 2008. http://www.publiceye.org/ark/immigrants/AsylumSeekers.html In fact, many asylum seekers are never even given a chance to make their application. In the case of Cuban and Haitian migrants, the United States has interdicted boats in international waters and refused to allow them into the United States, effectively denying them a chance to seek asylum. Since 1996, asylum seekers who arrive to the United States are subject to expedited removal and a bar on returning to the country for five years, if they do not make their claim known to an officer. The result has been that 95 percent of immigrants are deported after speaking with low-level immigration officers. Language barriers, psychological trauma, socioeconomic status, country of origin, and gender have all been shown to affect migrants' chance of getting an asylum interview. For example, a Bosnian woman who has experienced a war-crime sexual assault might not feel able to speak about it with the first official she meets. If an asylum seeker is sentenced to expedited removal, there is only a 5 percent chance that he will have another opportunity to prove his case's validity.4 Asylum seekers who do have the opportunity to make their case often face years of detention, as they wait for their status to be determined. Detention of asylum seekers was made mandatory by the 1996 IIRIRA, which was a direct result of the Right's anti-immigrant organizing. Most detained asylum seekers are placed in prisons and jails and experience many of the same injustices as other inmates. These include physical abuse, substandard medical and dental care, and frequent transferals to regions far from family or friends.5 They have few of the civil rights of other prisoners and often experience added difficulty due to language barriers and restricted communication with INS officers. 37 Refugee Aff DDW 2009 No Asylee Services Asylum seekers lack rights to gov’t funded legal counsel and suffer trauma when placed in detention Bill Frelick director of Human Rights Watch's refugee policy program, monitors, investigates, and documents human rights abuses against refugees, asylum seekers, and internally displaced persons, and advocates for the rights and humanitarian needs of all categories of forcibly displaced persons around the world. Director of Amnesty International USA's refugee program and the US Committee for Refugees. Editor of USCR's annual World Refugee Survey and Refugee Reports. Frelick has traveled to refugee sites throughout the world and is widely published. He taught in the Middle East from 1979-1983 and was co-coordinator of the Asian Center of Clergy and Laity Concerned from 1976-1979. Frelick has a B.A. from Oberlin College and an M.A. from Columbia University. Amnesty International USA March 2005 http://www.migrationinformation.org/usfocus/display.cfm?ID=296 The issue of detaining asylum seekers has recently risen on the US political agenda. Terrorism-related security measures increasingly appear to infringe on the right of refugee claimants to pursue their asylum claims. Members of Congress have introduced legislation both to limit grounds for asylum, arguing that terrorists use the asylum system to gain a foothold in the United States, and to expand detention of aliens, including asylum seekers. In 2004, Congress passed the Intelligence Reform and Terrorist Prevention Act, which included authorization for the construction of up to 40,000 additional immigration detention bed spaces over the next five years. While the President's fiscal year (FY) 2006 budget request includes a seven percent increase generally for the Department of Homeland Security (DHS), the Detention and Removal Office (DRO) within DHS's Immigration and Customs Enforcement (ICE) saw a 19 percent increase, a boost of $176 million. The President's requested budget enhancements in his FY 2006 budget include $90 million for additional detention bed space and related personnel costs. Human rights advocates are particularly concerned about the likely expansion of detention of asylum seekers for two principal reasons. First, detention often has the effect of infringing on asylum seekers' ability to exercise their right to seek asylum, particularly since asylum seekers in the United States do not have the right to government- funded legal representation, and detention facilities are often located in remote areas where relatively few pro bono attorneys are available. Second, many asylum seekers are highly traumatized people who have survived torture and other severe abuses for whom detention, particularly prolonged detention in jails, is particularly harmful. ICE's primary justification for detaining asylum seekers is that they may escape into the US, joining the ranks of the undocumented. Human rights advocates counter that the number of asylum seekers who actually do not report for their hearings is quite low. Asylum is a right of last resort for people who cannot count on their own governments to protect them, and are forced to flee their homelands and seek the protection of other governments. The right to seek and enjoy asylum from persecution is enshrined in Article 14 of the Universal Declaration of Human Rights. The 1951 Convention relating to the Status of Refugees and the 1967 Protocol define who refugees are and establish their rights in their country of refuge. Altogether, 145 states, including the United States, have signed either one or both of these UN instruments. Human rights law, including Article 9 of the Covenant on Civil and Political Rights, prohibits arbitrary detention, requiring that any detention must be in accord with procedures established by law. Article 31(2) of the Refugee Convention limits "restrictions" on the movements of refugees who enter territories illegally to "those which are necessary." The Executive Committee of the UN High Commissioner for Refugees (UNHCR), comprised of State Parties to the Refugee Convention, issues formal conclusions that interpret the convention and confirm international consensus on state practice with respect to refugees. Executive Committee Conclusion 44 of 1986 set forth the agreed standards for detention of refugees and asylum seekers: Detention should normally be avoided. If necessary, detention may be resorted to only on grounds prescribed by law to verify identity; to determine the elements of which the claim to refugee status or asylum is based; to deal with cases where refugees or asylum seekers have destroyed their travel and/or identity documents or have used fraudulent documents in order to mislead the authorities of the State in which they intend to claim asylum; or to protect national security or public order. In addition to stressing that conditions of detention, when necessary, must be "humane," Conclusion 44 also recommended that detention of asylum seekers and refugees be subject to judicial or administrative review. Importantly, this means that international standards — and refugee and human rights advocates — do not insist that asylum seekers and refugees can never be detained. On the contrary, when necessary and on grounds 38 Refugee Aff DDW 2009 prescribed by law, detention of asylum seekers is permitted. However, international standards are clear that detention of asylum seekers is understood to be the exception, not the rule. 39 Refugee Aff DDW 2009 No Asylee Counsel Legal counsel not available now – complex waiver process and not pro bono. Mark T. Fennell, BA in Political Science, Boston College, magna cum laude, Juris Doctor Candidate, Notre Dame Law School. ―Preserving Process in the Wake of Policy: The Need for Appointed Counsel in Immigration Removal Proceedings.‖ University of Notre Dame Journal of Law, Ethics, and Public Policy Vol. 23, 2009. JM Section 292 of the 1952 Immigration and Nationality Act (INA) states that "in any removal proceedings before an immigration judge ... the person concerned shall have the privilege of being represented (at no expense to the Government) by such counsel ... as he shall choose." 34 In general, a noncitizen receives an attorney only if he or she can afford to hire an attorney, or if he or she can locate an attorney willing to take his or her case pro bono. 35 When a noncitizen proceeds pro se, there must be a "knowing and voluntary waiver" of the right to counsel. 36 An immigration judge must "inquire specifically" as to whether the noncitizen wishes to proceed without counsel and receive a "voluntary affirmative response" in order for such a waiver to be valid. 37 However, if a noncitizen cannot afford counsel and cannot obtain pro bono counsel, such an inquiry is substantively meaningless. Noncitizen access to legal counsel nonexistent – bureaucratic delays. Mark T. Fennell, BA in Political Science, Boston College, magna cum laude, Juris Doctor Candidate, Notre Dame Law School. ―Preserving Process in the Wake of Policy: The Need for Appointed Counsel in Immigration Removal Proceedings.‖ University of Notre Dame Journal of Law, Ethics, and Public Policy Vol. 23, 2009. JM INA § 239(b)(2) requires an immigration judge to provide a list of available lawyers or social service organizations that are willing to represent indigent noncitizens pro bono. 38 In 1982, however, Congress passed the Legal Services Corporation (LSC) appropriations bill restricting federal funding for certain types of legal services provided throughout the country. 39 The 1982 legislation prohibited LSC beneficiary organizations [*267] from maintaining immigration practices. 40 Furthermore, in 1996, Congress passed the Omnibus Consolidated Recessions and Appropriations Act, preventing LSC beneficiary organizations from representing most noncitizens even when all funds associated with the representation originated from non-government sources. 41 The list provided by immigration judges, therefore, includes significantly fewer organizations than it did twenty-five years ago. In addition to prohibiting many immigration lawyers from representing noncitizens pro bono, the government also maintains the power to transfer detained noncitizens to remote holding facilities - often in rural communities - where legal aid simply does not exist. 42 Therefore, an indigent noncitizen's statutory right to counsel is illusory at best since the government effectively limits the number of available lawyers. 40 Refugee Aff DDW 2009 Asylum Law Complex Asylum law more complex post 9/11 – slows process. Rachel D. Settlage, Clinical Fellow, University of Baltimore School of Law. J.D./M.S. (Foreign Service), Georgetown University, 1998. B.A., University of California, Berkeley, 1992., attorney at Asylum Program of Southern Arizona and foreign affairs officer in the Office of Country Reports and Asylum Affairs, US State Department. ―Affirmatively Denied: The Detrimental Effects of a Reduced Grant Rate for Affirmative Asylum Seekers.‖ Boston University International Law Journal, Spring 2009. JM Asylum law is increasingly complex. While some of the laws that raise bureaucratic obstacles to the granting of valid asylum claims were implemented prior to 9/11, in the wake of 9/11, the law became increasingly complicated and restrictive, leading to even greater uncertainty for asylum-seekers. As a result, asylum officers are now, more than ever, faced with cutting-edge issues or fine points of law. It stands to reason that asylum officers, who are not judges, or even lawyers in many cases, will choose to refer complicated questions of law to an immigration judge. In 1996, Congress implemented the Illegal Immigrant Reform and Immigrant Responsibility Act (IIRIRA), which introduced a number of new restrictions on asylum seekers. Two of these restrictions, in particular the one-year filing deadline 124 and the firm resettlement bar, have prevented scores of affirmative asylum-seekers from having their cases adjudicated on the merits by asylum officers. 41 Refugee Aff DDW 2009 Asylum Law Subjective Subjective legal standards rampant – no fair asylee trials. Rachel D. Settlage, Clinical Fellow, University of Baltimore School of Law. J.D./M.S. (Foreign Service), Georgetown University, 1998. B.A., University of California, Berkeley, 1992., attorney at Asylum Program of Southern Arizona and foreign affairs officer in the Office of Country Reports and Asylum Affairs, US State Department. ―Affirmatively Denied: The Detrimental Effects of a Reduced Grant Rate for Affirmative Asylum Seekers.‖ Boston University International Law Journal, Spring 2009. JM The Real ID Act also changed the credibility and corroboration standards applicable in asylum cases, and did so not to the benefit of an asylum seeker. Under the Real ID act, when determining credibility, an adjudicator can take into account the "totality of circumstances and all relevant factors," which can include "demeanor, candor, or responsiveness of the applicant or witness, the inherent plausibility of the applicant's or witness's account, the consistency between the applicant's or witness's written and oral statements ... with other evidence of record ... and any inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant's claim, or any other relevant factor." 173 This is a significant change; in the past, courts have held that inconsistencies in an applicant's testimony or application must be material or go to the heart of the claim. 174 Now, any inconsistency, no matter how insignificant or tangential, may result in a finding of incredibility. Even more disturbing is that the Real ID Act allows an immigration judge to deny asylum based on an applicant's demeanor. Allowing a judge to base a finding on credibility on an applicant's demeanor reflects a gross ignorance of the cultural norms of some applicants. Karen, 175 an asylee from Guinea, describes the difficulty is this way: The hardest for me, was to learn to look the [asylum] officer in his eyes. The first thing is that when you are speaking to a person higher than you - their social position, age, or importance - you must keep your head and eyes down. The second thing is that a woman talking to a man does not look him in the eyes, unless he is very close, family. No one looks a stranger in the eye - to do so shows you have no respect and that you are better than him or her, it is like issuing a challenge. Also, in our culture, when you are with a stranger, you cannot talk about your life - that is giving away your private parts. With a stranger, there is no trust, and we are taught to ask "will he repeat what I say to another?" You also worry that the stranger will mock you if you tell them the private parts of your life. 1Without assistance, asylum-seekers in Karen's position could find their claim denied because of their demeanor when appearing before an asylum officer or a judge.The Real ID Act also allows an immigration judge to demand corroborating evidence and to deny a claim if such evidence is not provided. 177 The testimony of the applicant may be sufficient by itself, but "only if the applicant satisfies the trier of fact that the applicant's testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee." 178 However, even under those circumstances the judge can require corroborating evidence, "unless the applicant does not have the evidence and cannot reasonably obtain the evidence." This corroboration requirement can be an insurmountable obstacle for some asylum seekers. 42 Refugee Aff DDW 2009 Underfunded The current Refugee admissions programs are dangerously under-funded IRC international rescue committee 16 Jun 2009 http://www.theirc.org/resources/2009/irc_report_iraqcommission.pdf In the present economic environment, however, employment opportunities are scarce and competition for jobs is intense. Such a situation is especially detrimental to the U.S. resettlement program because the program is currently premised on refugees being able to obtain employment and become self-supporting shortly after their arrival in the United States. While almost all refugees receive some state support in the form of cash and medical assistance, these resources are often insufficient to cover the cost of rent and basic necessities. Assistance rates for arriving refugees are established by state governments. The average assistance for a family of four across IRC offices nationwide is $575 per month, but the actual level can be as low as $309. Resettlement agencies such as the IRC receive a grant from the State Department‘s Bureau of Population, Refugees, and Migration. This Reception and Placement (or R&P) grant totals $900 per refugee. These grants are intended to cover immediate needs such as rent, security deposits, utilities, food and other expenses that refugees incur during their first 30 days. The R&P grant also funds many services provided by resettlement agencies, including arrangements for housing, reception at the airport, orientation to the community, facilitation of health screening, follow-up on health issues, enrollment of children in school, enrollment for public services, and assistance with employment and English language classes. Some refugees qualify for the Voluntary Agency Matching Grant program funded by the Office of Refugee Resettlement in the Department of Health and Human Services. This program is an alternative to public assistance. It provides up to four months of financial assistance and employment services to support refugees‘ job search efforts. Refugees who enter the program do not access other forms of state assistance. These funds are supplemented by resources raised by the resettlement agencies. However, funding for the program is limited. Only about 30 percent of resettled refugees benefit from the program. 43 Refugee Aff DDW 2009 Underfunded More resources will make refugee programs more effective Office of Inspector General. The US Department of State. 23 May 200 http://oig.state.gov/lbry/reporthighlights/67078.htm PRM (The Bureau of Population, Refugees and Migration) has a highly developed system for setting policy and funding priorities, allocating funds and approving program implementation proposals. But this system has grown increasingly cumbersome and excessively demanding on bureau staff, hampering the bureau's ability to give due attention to critical, core functions. The bureau receives high marks for both the effectiveness of its programs and the efficiency with which it manages its contributions, grants, and cooperative agreements. Nevertheless, the bureau has correctly identified a need to further strengthen its grants management, performance measurement, and monitoring and evaluation functions. To adjust to its changing roles and responsibilities, the bureau will need to make more efficient use of existing staff and consider some increases in administrative resources. 44 Refugee Aff DDW 2009 Admissions Program Prolonged Current asylum application process prolonged. Rachel D. Settlage, Clinical Fellow, University of Baltimore School of Law. J.D./M.S. (Foreign Service), Georgetown University, 1998. B.A., University of California, Berkeley, 1992., attorney at Asylum Program of Southern Arizona and foreign affairs officer in the Office of Country Reports and Asylum Affairs, US State Department. ―Affirmatively Denied: The Detrimental Effects of a Reduced Grant Rate for Affirmative Asylum Seekers.‖ Boston University International Law Journal, Spring 2009. JM Unfortunately, Mr. O's case is not unique. Once an application is affirmatively filed for asylum, the asylum seeker must wait for an interview, which, by law, is supposed to take place within 45 days. 198 Asylum applicants who reside far away from one of the eight local asylum offices are interviewed during "circuit rides," whereby asylum officers travel to USCIS District and Sub Offices for interviews. 199 A significant percentage of asylum applicants, more than 50 percent in some asylum offices, are interviewed via circuit rides. 200 DHS has noted that applicants interviewed during circuit rides are more likely to not have their case adjudicated within the legislative timeline because of the infrequency in which circuit rides are scheduled. 20Once an interview has been conducted, the applicant must wait for a decision. 202 If referred to an immigration judge, the applicant then must then wait for a master calendar hearing and then wait for a merits hearing. Again, depending on the docket of a particular immigration court, a merits hearing might not be scheduled for many months. Once the hearing has taken place, if the immigration judge does not immediately decide the case, the applicant must await a written decision or return to court at a later date to hear the decision. While under law this process is supposed to take place within 180 days, 203 in practice, for some asylum seekers the process may take years. Since the USCIS asylum grant rate dropped after 9/11, a greater percentage of affirmative asylum applicants are being referred by USCIS asylum officers to an immigration judges and, as a result, see their cases prolonged. This is particularly troublesome given that in 2007, 51 percent of all affirmative asylum cases referred by the USCIS were cases in which an immigration judge ultimately granted asylum. 204 In other words, slightly more than half of all affirmative asylum seekers referred to immigration judges have valid asylum claims, but have to expend significant additional time and resources before they are recognized as bona fide refugees and granted protection accordingly. In turn, this means that a greater proportion of legitimate asylum seekers must face the detrimental impact of a prolonged asylum process. 45 Refugee Aff DDW 2009 Admissions Program Fails U.S. refugee admissions program fails – underfunded and outdated. 16 Jun 2009 – The International Rescue Committee; www.theirc.org The U.S. Refugee Admissions Program is outdated and under-funded and is resettling Iraqi refugees into poverty rather than helping rebuild their lives in the country that offered them sanctuary, says the International Rescue Committee. In a new report, ―Iraqi Refugees in the United States: In Dire Straits,‖ the IRC‘s Commission on Iraqi Refugees says resettlement continues to be a critical and lifesaving intervention for thousands of at-risk Iraqi refugees who are living in precarious conditions in exile and unable to return home safely. Yet the federal program no longer meets the basic needs of today‘s newly arriving refugees and requires urgent reform. ―The resettlement program in the United States fails individuals with high levels of vulnerability, especially during difficult economic times,‖ the report states. In April 2009, the IRC Commission sent delegations to Atlanta and Phoenix to examine the bleak situation for Iraqi refugees and impediments to their successful assimilation. They interviewed dozens of Iraqi refugees, who expressed deep gratitude for their safety and freedom in the United States, but also painted a picture of intense anguish and frustration. Many Iraqi newcomers have been unable to secure jobs. In the meantime, they are exhausting available resources, seeing their benefits expire, struggling to get by and facing eviction and destitution. A large number are war widows with young children who arrive here grieving and alone, with little if any work experience. Many others are highly educated professionals who hope to find work in their areas of expertise, but discover that even entry-level jobs are elusive. High numbers suffer emotional trauma, war-related injuries or chronic illnesses. Unstable living conditions and uncertainty about the future compound their psychological distress. ―Nearly all of the Iraqis we surveyed had expectations that they would receive better care from a government whose policies had a hand in their upheaval, particularly those who put their lives on the line to work for the U.S. military and government and were targeted as a result,‖ says IRC president George Rupp. ―Few imagined that they would receive such short-term and limited assistance upon arrival or that they could become homeless in the country that offered them shelter. They deserve better.‖ The Commission report says the resettlement program is ―dangerously under- funded.‖ Under the current system, a one-time federal stipend of $900 is provided for each refugee arrival. The grant generally fails to cover immediate needs, including rent, clothing, household supplies and a range of vital services that aid agencies provide. Refugees may apply for other forms of state assistance, but it‘s rarely sufficient to cover basic necessities. That puts the burden on resettlement agencies to fill in the gaps with increasingly scarce private resources. ―The U.S. resettlement program was designed nearly 30 years ago and hasn‘t been seriously looked at since,‖ says Bob Carey, the IRC‘s vice president of resettlement policy. ―The success of the program is premised on refugees being able to find employment and become self-supporting in a short period of time. When that doesn‘t happen, the system doesn‘t work.‖ Carey says the economic downturn has brought into sharp relief the serious deficiencies in the U.S. Refugee Admissions program. The report concludes that the U.S. resettlement program is failing in its mandate to help refugees restart their lives in safety and dignity. ―Immediate measures must be taken to ensure that Iraqis, as well as all other refugees resettled in America, do not fall victim to homelessness and poverty. A thorough examination and reform of the U.S. refugee resettlement process are urgently needed.‖ 46 Refugee Aff DDW 2009 Admission Program Fails Asylum procedures are poorly structured and random with many lacking legal representation (United States Commission on International Religious Freedom, 2-08-05, ―Report on Asylum Seekers in Expedited Removal‖ , http://www.uscirf.gov/index.php?option=com_content&task=view&id=1892) The Study found mandatory procedures in place to ensure that asylum seekers are protected under Expedited Removal. Some procedures were applied with reasonable consistency, but compliance with others varied significantly, depending upon where the alien arrived, and which immigration judges or inspectors addressed the alien‘s claim. Most procedures lacked effective quality assurance measures to ensure that they were consistently followed. Consequently, the outcome of an asylum claim appears to depend not only on the strength of the claim, but also on which officials consider the claim, and whether or not the alien has an attorney. Similarly, while DHS has developed criteria relating to the release of detained asylum seekers, the implementation of these criteria also varies widely from place to place. There are a few areas, however, where the Study identified problems other than inconsistent practices. For example, with regard to detention, the Study found that asylum seekers are consistently detained in jails or jail-like facilities, which the experts found inappropriate for non-criminal asylum seekers. There were, however, a small number of exceptions to this rule, the most prominent being a contract facility in Broward Country, Florida, which represents a secure, but appropriate and non correctional, environment for non-criminal asylum seekers. The Study also found that asylum seekers without a lawyer had a much lower chance of being granted asylum (2%) than those with an attorney (25%). This difference was consistent whether the alien resided – or was detained – in an area with a high rate of representation, or a low rate of representation. The Study does, however, identify a number of locations where public-private initiatives involving DHS, the Executive Office for Immigration Review, and non-governmental organizations, have put legal assistance within reach of more detained asylum seekers. These programs, however, have also been implemented unevenly. With regard to credible fear determinations, the Study found that asylum officers screened-in more than 90% of credible fear applicants, and made a negative credible fear finding in only 1% of cases. Quality assurance procedures – requiring much more extensive documentation and review of negative claims than of positive ones, may have created a built-in bias in the credible fear screening, undermining the objectivity of the process. 47 Refugee Aff DDW 2009 Low Acceptance Now Refugee harboring critical – several reasons (Tim Irwin, senior media and communications officer in UNHCR, 6-16-09, The UN Refugee Agency News, http://www.unhcr.org/4a37c9076.html) The UN High Commissioner for Refugees António Guterres urged the international community on Tuesday not to allow the global economic crisis to adversely affect humanitarian aid. Speaking in Washington's National Press Club at the launch of his UN refugee agency's annual report on refugee trends, Guterres said the situation for humanitarian agencies was "worrisome," and called for greater support on the part of donor countries. "The amounts needed to rescue people," he said, "are less than what is needed to rescue banks." UNHCR's annual "2008 Global Trends" report shows the number of people forcibly uprooted by conflict and persecution worldwide stood at 42 million at the end of last year amid a sharp slowdown in repatriation and more prolonged conflicts resulting in protracted displacement. The total includes 16 million refugees and asylum seekers and 26 million people uprooted within their own countries. While highlighting the pressing need for greater funding of humanitarian organizations by wealthy nations, Guterres also cited the demands being placed on countries which are hosting large refugee populations, most of which are in the developing world. "The overwhelming burden of displacement is borne by developing countries," said Guterres. "Eighty percent of refugees are in the developing world. Generosity and wealth are not proportional to each other." Although the overall total of 42 million uprooted people at year's end represents a drop of about 700,000 over the previous year, new displacement in 2009 – not reflected in the annual report – has already more than offset the decline. Among recent and continuing displacement crises, Guterres cited Pakistan, where up to 2 million people have been uprooted by violence between the government and militant forces this year, as "the most challenging protection crisis since Rwanda [in the mid-1990s]." "The failure to deliver proper humanitarian assistance to the displaced in Pakistan," he said, could have serious security implications. About 2 million refugees and internally displaced people (IDPs) were able to return home in 2008, according to the UNHCR report, a decline from the previous year. It was the second-lowest repatriation total in 15 years and, in part, reflects the deteriorating security conditions in countries such as Afghanistan and Sudan. The UNHCR report shows that the number of people the agency cares for globally stood at 10.5 million refugees at the end of 2008 while an additional 14.4 million people were uprooted within their own countries. In recent years, UNHCR has increasingly been tasked under the UN's humanitarian reform process with providing help to the internally displaced, in addition to its traditional mandate of protecting and assisting refugees who have crossed international borders. Since 2005, the agency has seen the number of IDPs it cares for more than double. 48 Refugee Aff DDW 2009 Low Acceptance Now - Iraqi Very few Iraqi refugees have been accepted into the US compared to the number of them still in need of asylum Ruthie Epstein Master Degree of International Affairs from Columbia University. Project Coordinator, Lifeline for Iraqi Refugees, Refugee Protection Program. No Date Given. http://www.humanrightsfirst.org/asylum/lifeline/pages.asp?country=iq&id=28&misc1=landing_page_ne ws Five years into the war in Iraq, more than two million Iraqis are refugees outside of their country, and more than two million are displaced internally but unable to flee across the borders. Iraqis have been targeted for persecution and forced from their homes for virtually every reason imaginable. Women who encouraged their peers to participate in the constitutional referendum were threatened with death and driven out of the country. Sunni families searching for the bodies of their loved ones at the morgue in Baghdad have been kidnapped and brutalized. The churches, villages, and homes of Iraqi religious and ethnic minorities have been bombed and burned down. Doctors, dentists, hairdressers, members of parliament, professors, men, women, and children have fled, abandoning property, careers, and their communities in fear. Refugees in the region and internally displaced persons (IDPs) inside Iraq urgently need humanitarian assistance, but the U.N. refugee agency may have to start cutting its assistance programs in June because the international community has failed to respond to its appeal for $261 million. According to the United Nations, up to 100,000 of the most vulnerable refugees urgently need resettlement, but the United States—the global leader in refugee resettlement—has committed to taking only 12,000 this year. Few Iraqis have gained asylum in the US Brenda Bowser Soder Spokeswoman for Human Rights First. April 28, 2009 Human Rights First Estimates Nearly 150,000 Iraqis Have U.S. Ties Only 4,200 Iraqis with U.S. ties have made it to the United States since 2003, though at least 20,000 have applied, and the number of U.S.-affiliated Iraqis may be as high as 146,000, according to a new report issued today by a leading human rights group. The report,Promises to the Persecuted: The Refugee Crisis in Iraq Act of 2008, issued by Human Rights First, examines implementation of this critical legislation. It finds that, despite a Congressional mandate intended to expedite Iraqi refugee processing times, only a small portion of eligible Iraqis have been granted a safe haven in the United States. Based on its findings, Human Rights First urged the Obama administration to examine this issue and clear remaining bureaucratic obstacles to fulfilling America‘s promise to persecuted Iraqis who worked with the United States in Iraq, as well as to their families. 49 Refugee Aff DDW 2009 Low Acceptance Now - Iraqi 9/11 caused a sharp decline in the number of Iraqi refugees accepted in the US The New York Times 2009 (Saturday, June 27, 2009 ―Iraqi Refugees‖; http://topics.nytimes.com/top/news/international/countriesandterritories/iraq/iraqi_refugees/index.html) The American invasion of Iraq and the war to follow caused an estimated four million Iraqis to flee their homes within four years, the largest exodus since the mass migrations associated with the creation of the state of Israel in 1948. As of August, 2007, deepening violence has displaced some two million Iraqis inside Iraq, and has driven another two million out of the country, largely to Syria and Jordan, but also to Lebanon, Egypt, Turkey and the Gulf. The United Nations had prepared for an Iraqi refugee crisis in 2003, the year of the invasion, but scaled back efforts after it did not immediately happen, and most international aid flowed to reconstruction projects. Now, aid is beginning to be redirected to humanitarian needs, with the 2007 Iraq budget of the United Nations High Commission for Refugees at $223 million, an increase of almost 10-fold from the year before.Few western countries have accepted Iraqis. Sweden has been the most welcoming, granting asylum to almost 9,000 Iraqis in 2006, almost 20 times more than the United States and about half the total for all of Europe that year, according to UNHCR. The United States took several thousand Iraqis a year after the Gulf War, but the numbers it accepted fell precipitously after the attacks of Sept. 11 and the invasion of Iraq. In February, 2007, the State Department said it would take 7,000 Iraqis, but acknowledged delays in doing so. The US has accepted only a small fraction of the number of refugees in need of asylum Krista Minteer, Communications Associate Human Rights First. September 12, 2008 http://www.humanrightsfirst.org/media/etn/2007/statement/338/ Human Rights First welcomes today's announcement from the State Department that the United States has achieved its target of resettling 12,000 Iraqi refugees in FY 2008. But we are disappointed in the low admissions floor set for FY 2009 ―Just 17,000 Iraqi refugees. Four million Iraqis have been displaced since 2003 ―More than 2 million have fled the country, and nearly 2 million are internally displaced inside Iraq. "The number of Iraqi refugees we have welcomed to our shores is still just a fraction of those in need,"• says Amelia Templeton, refugee analyst at HRF. "The U.S. can and should do better."• The UN refugee agency estimates that 85,000 Iraqi refugees ―from the most vulnerable groups‖ will need resettlement in 2009. "The plight of Iraq's refugees is increasingly dire as food prices increase, savings are depleted, and refugees in exile struggle to feed and support their children,"• Templeton noted. 50 Refugee Aff DDW 2009 Muslims Rejected Current refugee programs unjustly turn away Muslims Idean Salehyan* Assistant Professor Department of Political Science University of North Texas 4/30/08 (―US Refugee and Asylum Policy: Has Anything Changed After 9/11?‖ http://www.lse.ac.uk/collections/MSU/papers/LMRG-Salehyan%20Asylum%20911-.pdf) One new provision since 9/11, dubbed ‗Operation Liberty Shield‘ and implemented in 2003, required that asylum seekers from certain countries, particularly Muslim nations, be automatically detained for the duration of their asylum proceedings. Human rights groups protested the detention of asylum seekers without parole as adding to the torment of people fleeing torture and persecution, and decried the discriminatory 13 nature of the policy.3 However, under pressure from NGOs, the program was terminated\ the same year. Although not specific to particular nationalities, other new asylum provisions have included automatic denial for persons providing ‗material support‘ to terrorist groups, which may be interpreted broadly to include persons who unknowingly assisted terrorist organizations—for example, through donations to charities—or who were coerced into doing so.4 Legislation proposed in 2006 would increase the grounds for detaining asylum seekers as well as increase the burden of proof that asylum applicants are faced with. 51 Refugee Aff DDW 2009 Refugee Treatment Bad Inhumane treatment of refugees now kills American freedom (The Herald News, 6-27-05, http://www.uscirf.gov/index.php?option=com_content&task=view&id=645) The inscription on the Statue of Liberty reads: "Give me your tired, your poor, your huddled masses yearning to breathe free... ." These words ring false in light of a report issued last February by the United States Commission on International Religious Freedom, a bipartisan agency created by Congress in 1998. The report condemned the conditions in which asylum seekers are held in this country. Since then, things haven't improved. Last Monday, a coalition of immigration-rights advocates gathered in front of the federal building in Newark to demand changes at the Elizabeth Detention Center, where conditions are among the worst in the nation. Change can't come soon enough. Along with the commission's report, negative publicity about abuses at the Guantanamo Bay detention center and Abu Ghraib prison have raised the public's consciousness about the treatment of detainees and put pressure on lawmakers to act. The commission's report called for the creation of a senior-level Department of Homeland Security position to coordinate detention policies around the country. Conditions - and chances of securing asylum - vary widely among centers and states. Last week, the Senate Appropriations Committee instructed the Department of Homeland Security to come up with a plan responding to the commission's report by Feb. 18, 2006. In the meantime, there are asylum seekers fleeing war-torn countries, political persecution and torture who are being held for up to four years, in conditions worse than those in most prisons: 24-hour lights, shackles, strip searches, no exercise or privacy, solitary confinement. Though they aren't suspected of committing a crime, they often are housed side by side with criminals. In the arbitrary asylum process, refugees with a lawyer are up to 30 times more likely to be granted asylum than those without one. The outcome also can be influenced by the refugees' country of origin, the state where they landed and the judge who heard their case. Since the 1993 bombing of the World Trade Center, refugees also have been subject to "expedited removal," which means they can be summarily sent back to their country of origin if a single airport inspector deems their asylum claim lacks merit. Before the regulations were changed, only asylum seekers with criminal records were detained. Now the detention center makes that call. Refugees' chances of being released while their asylum claim is being reviewed are 94 percent in San Antonio, but just 3.8 percent at the Elizabeth Detention Center. "We liken it to a board game - everything depends on where you land and whom you see," said Mark Hetfield, immigration counsel for the commission. It comes as no surprise that since the Sept. 11 terrorist attacks, asylum claims have dropped sharply. In fiscal year 2003, the number of people seeking asylum was 5,376, less than half the 12,320 who sought asylum in fiscal year 2001. The Real ID Act, signed last month by President Bush, will only fuel this trend. The law makes it harder to prove an asylum claim and easier to be deported. While heightened safeguards against terrorism are necessary, we must balance them against the need to treat those who come to these shores seeking refuge with respect and dignity. Nothing less than America's standing as a symbol of freedom is at stake. 52 Refugee Aff DDW 2009 Refugee Poverty Multiple deprivations of refugees leads to poverty Glenn Porter, Editor, 1979 Encyclopedia of American Economic History 1979, Page 1136-1137 ―Poverty‖ Eugene Smolensky and Michael M. Weinstein Restricting the definition of poverty to low income is, admittedly, arbitrary. An individual might also be considered poverty-stricken as the result of sociological, psychological, or cultural deprivations. Social scientists have argued that a lack of such things as status, social mobility, political power, or education should also be considered in discerning the existence of poverty. It may be that an individual‘s psychological characteristics prevent the translation of acquired consumption goods into personal satisfaction; gluttony might be necessary for even minimal satisfaction. It is especially important, for policy purposes, to be aware of the many dimensions of poverty, but specification and quantification would be far more difficult for noneconomic than for economic criteria. The distorted view imparted by surveying only economic poverty will be less serious id the noneconomic characteristics of poverty are highly correlated with the presence of income insufficiency, so that a poverty standard based on the latter will serve as a proxy for a more inclusive standard. An income measure will be even less misleading if the noneconomic characteristics of poverty are caused by low income. The report cited the case of a Brazilian woman who had come to the United States to escape domestic violence, but could not cope with the stress of eight months in jail. She withdrew her application and returned to her home country, even though she faced grave danger there. ''At one hearing, when she heard that the case was to be continued again -- meaning she would be detained longer -- she had a panic attack,'' her pro-bono lawyer, Kelleen Corrigan, recalled. ''An external psychological evaluation stated that she needed ongoing therapeutic treatment, but despite my repeated requests to ICE, the client was never seen by a mental-health specialist while detained.'' Immigration and Customs Enforcement would not answer questions about mental health services in detention. It said it could discuss specific cases if the individuals agreed to disclose their medical records, but the asylum seekers' lawyers advised against that. Though detention in America holds few of the horrors many asylum seekers experienced in their home countries, it has its own torments; detainees can be placed in solitary confinement, and are often prevented from communicating with relatives by lack of access to phones or by the high costs of jail phone service. 53 Refugee Aff DDW 2009 Refugee Poverty – Iraqis No Jobs/Poverty The recession is forcing already disadvantaged refugees into poverty Reuters 2009 (Tim Gaynor, June 16, 2009―Iraqi refugees face poverty, eviction in U.S.: study‖; http://www.reuters.com/article/topNews/idUSTRE55F62I20090616) Thousands of Iraqi refugees resettled in the United States are living in poverty and facing homelessness as they struggle to rebuild their lives amid the recession, a study by a humanitarian aid group found. More than 19,000 Iraqis have been resettled in the United States since 2007 under a program that prioritizes especially vulnerable refugees, including former U.S. government employees and religious minorities, according to the U.S. Citizenship and Immigration Services. The study by the International Rescue Committee, released on Tuesday, said the U.S. government refugee resettlement program is "dangerously underfunded," and no longer met the basic needs of newly arriving refugees. Under the current system, a one-time federal stipend of $900 is provided for each refugee, the IRC said. The grant generally fails to cover immediate needs, including rent, clothing and household supplies. The report, based in interviews with Iraqis, healthcare providers, employers, teachers and state officials in Phoenix and Atlanta in April, said refugees' problems were exacerbated by the economic slump, which made it more difficult for them to find jobs to support themselves."We're finding out with the downturn in the economy ... we're not able to find those entry-level jobs for refugees, or if we are, it's taking a longer time," said Bob Carey, the IRC's vice president for resettlement and migration policy. "Many are on the verge of homelessness. They have received eviction notices from their landlords, they are months behind in their rent," Carey told Reuters by telephone. More than 4 million Iraqis were displaced by the 2003 U.S.-led invasion. While many have returned home, the UNHCR said this month the country remains too fragile to absorb the 1.5 million refugees still living outside its borders. Earlier this year, President Barack Obama pledged to provide more assistance to countries hosting Iraqi refugees, and promised cooperation to resettle Iraqis facing great personal risk from the conflict. The IRC report urged Congress to provide emergency funds to refugees facing eviction and ensure that grants for new arrivals keep pace with the cost of living. It also called for cash assistance to be made available to more refugees, and for the time frame during which they can access services to be extended. 54 Refugee Aff DDW 2009 **SOFT POWER** 55 Refugee Aff DDW 2009 Leadership – Iraqi Refugees The United States is key to solving Iraqi refugee crisis to lead by example Refugees International 2008 ( 07/31/2008―NGO Statement: Addressing the Iraqi Humanitarian Challenge‖; http://www.refugeesinternational.org/policy/letter/ngo-statement-addressing- iraqi-humanitarian-challenge) Since the beginning of the 2003 war, millions of Iraqis have been displaced inside Iraq and throughout the region. The largest concentrations of refugees are in Jordan and Syria. These refugees were forced to flee targeted persecution because they practiced a disfavored religion, were born into a marginalized minority, or agreed to work in support of the U.S. government. Without the legal right to work, many of these refugees are struggling to survive on limited savings. Their stay in neighboring states remains extremely precarious, and many live in fear of being forcibly returned to Iraq, where they face death threats and further persecution. As their stay in neighboring countries drags on without any immediate solution in sight, the protection concerns facing these people continue to rise. The United States Government has since made some progress in addressing the crisis. To date around 10,000 refugees have been resettled into the U.S. The Government has also increased the level of humanitarian aid to the region. Still, the U.S. response is incommensurate with the scope of the need. Equally troubling is the fact that there seems to be no clear long-term strategy to address the crisis that is likely to become a protracted one. We, the undersigned organizations, endorse a bolder approach to helping vulnerable Iraqis, especially ones who are displaced. Current U.S. efforts to help Iraqis are a good start, but they don‘t go far enough. The U.S. has an opportunity to help resolve a difficult humanitarian problem that threatens the stability of an entire region. Dealing successfully with the Iraqi displacement challenge will demonstrate America‘s dedication to protecting the most vulnerable and our commitment to peace and security in the region. It is a moment for America to lead by vision and example. 56 Refugee Aff DDW 2009 Leadership Foreign policy will be advanced by resettling refugees Arthur Dewey (quoted from a hearing before the Subcommittee of Immigration) Assistant Secretary of State for the Bureau of Population, Refugees, and Migration 12 February 2002 http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=107_senate_hearings&docid=f:84502.wais In closing, I want to assure the Committee that the Bush Administration is committed to a refugee program that will be responsible as well as responsive and generous, maintaining U.S. leadership in this important humanitarian endeavor. Accepting refugees for permanent resettlement manifests the best traditions and the compassion of the American people, incidentally burnishing the image of this country in a way that also advances our foreign policy. Once the refugees are within our borders, it quickly becomes clear that their activities, and those of other immigrants who have made this country their own, contribute immensely to the cultural and economic vitality of this nation. There could scarcely be a better or more fitting reward for this exercise of the best of our American traditions and for the work of the State Department and all of the other agencies involved. Other countries will adopt US refugee policies US Department of State. ―US Department of State Dispatch.‖ Oct 15, 1990. http://findarticles.com/p/articles/mi_m1584/is_n7_v1/ai_9125076/ Another important aspect of US refugee policy is resettlement. Although the United States supports voluntary repatriation when conditions permit, we also assist in facilitating local resettlement in countries of asylum. When neither of these solutions is available and resettlement in the United States is the only viable alternative, we admit refugees who are of special humanitarian concern to the United States. Offering US resettlement to those who have no other options also strengthens our ability to obtain commitments from other countries to provide first asylum - this is especially true in Southeast Asia. 57 Refugee Aff DDW 2009 Regional Tension – Iraqi Visibility HRF calls for Obama Administration to address the Iraqi refugees issue Krista Minteer, Communications Associate Human Rights First. December 22, 2008 http://www.humanrightsfirst.org/media/asy/2008/alert/374/index.htm A leading human rights advocacy group is calling on President-elect Obama to fulfill his campaign's commitment to confront the Iraqi refugee crisis by strengthening oversight and effectiveness of refugee assistance, ensuring that the Iraqi government refrains from pressuring refugees to return home before they can do so in safety, and placing a coordinator for Iraqi refuges in the White House. Human Rights First today released a comprehensive blueprint - How to Confront the Iraqi Refugee Crisis - which puts forward a strategy for the incoming Obama administration to address the Iraqi refugee crisis as part of its pledge to withdraw from Iraq. Since the U.S. invasion of Iraq, millions of Iraqis have fled their homes. Today an estimated 750,000 to 2 million Iraqi refugees live in unstable situations in urban centers in the Middle East. Chief among Human Rights First's recommendations is the proposal that the President-elect place an Iraqi refugee coordinator in the White House, responsible for ensuring that appropriate policy toward Iraqi refugees is integrated into U.S. strategic and operational plans in Iraq. The position was first proposed by Senator Edward Kennedy and Vice President-elect Joseph Biden. In the past year, the Iraqi government has started a media campaign promoting refugee return and has organized return flights for refugees. Amelia Templeton, refugee policy analyst for Human Rights First, discussed the implications of the campaign with refugee families in Syria on a recent trip to the region in October. "Security has improved in Iraq today," says Templeton "but many refugees fear what might happen tomorrow. They're looking for some measure of political stability. Templeton also noted that many refugees view the current return campaign as propaganda. "The government of Iraq should focus on providing humanitarian aid and accurate information to refugees and the internally displaced," says Templeton. Human Rights First reports that many refugee families in Syria and Jordan are coping with impoverishment, family separation, untreated trauma, lack of opportunity, discrimination, and domestic violence. "If the new administration does not make it a priority to address these problems, the refugee crisis will exacerbate tensions in the Middle East and pose security risks," says Elisa Massimino, Executive Director of Human Rights First. "The United States is morally responsible for helping Iraqi refugees reestablish safe, secure lives. Doing so is also clearly in America's strategic interest." 58 Refugee Aff DDW 2009 Regional Tension Effective refugee policy deters regional tension. United States Department of State. ―Report to the Congress: Proposed Refugee Admissions for Fiscal Year 2009.‖ United States Department of Homeland Security, United States Department of Health and Human Services. 2009. http://www.state.gov/documents/organization/113507.pdf The overall foreign policy interests of the United States are often advanced by our willingness to work with first-asylum and resettlement countries to address refugee issues. In some locations, the prompt resettlement of politically sensitive cases has helped defuse regional tensions. During the past few years, U.S. resettlement efforts in Africa, the Middle East, and East Asia have helped energize efforts by UNHCR and other countries to ensure that resettlement is accorded to those in need and that first asylum is maintained for the larger population. 59 Refugee Aff DDW 2009 Resettlement K2 Stability Refugees create conflict; managing them brings stability and fosters alliances (Idean Salehyan, Professor of Political Science at the University of North Texas, 20 01, ―Safe Haven: International Norms, Strategic Interests,and U.S. Refugee Policy,‖ The Center for Comparative Immigration Studies) In the second part of this paper I will examine U.S. refugee and asylum policy during the post-WWII era. The United States is an interesting case to look at for several reasons. First, its position as a world superpower and an economic giant has spread the scope of U.S. foreign policy to all parts of the globe as well as making it an attractive destination for many migrants. Secondly, the United States is a country in which one would expect to see a great influence of international refugee protection norms, such as those found in the UN Convention Relating to the Status of Refugees. Human rights groups and refugee advocacy organizations are numerous very active in the United States and have frequently lobbied for their cause through democratic channels. Furthermore the United States, as the self-proclaimed "leader of the free world" and a liberal democracy, should be influenced by the actions and pronouncements of other liberal states. The UN Refugee Convention is one of the most widely accepted international legal documents in the world, therefore, prestige factors should affect U.S. refugee policies if Constructivist arguments are correct.6 Yet as I will demonstrate, human rights principles, advocacy groups, and international prestige, have failed to influence U.S. refugee policies in any meaningful way. International strategic considerations are, and for the foreseeable future will remain to be, the primary motivation for refugee admissions policies. The benefits of reducing migratory instability are non-excludable, meaning that all states benefit (though not necessarily equally) from the management of the crisis, regardless of their level of contribution. If countries believe that others will bear the costs of relieving the refugee burden, they may find it in their interests to do nothing and ―free-ride‖ off of the actions of others. As the free-rider problem and solutions to it have been dealt with at length by other authors, I will not address it again here (see Martin 1993, Olson 1971). Suffice it to say that problems associated with the provision of this public good do exist, and must be taken into account. Although all actors (with the possible exception of the sending states) – countries of first asylum, donor countries, countries of resettlement, and the refugees themselves – are worse off because of forced population movements, cooperation on the management of crises can lessen the impact borne by any one actor. Countries of first asylum benefit because they do not have to bear all of the costs of hosting the refugees. Importantly, the availability of international resources greatly affects the willingness of recipient countries to admit the migratory flow (see for example, Hartigan 1992). If such states can be certain that others will provide funding and agree to resettle a share of the refugees, they will be more amenable to accepting them. Donors and countries of resettlement benefit from helping their trading partners and allies in the region and reducing political instability in the region. They may further find it in their interests to provide resources and admit a pre- determined number of refugees so that an unwanted flow of asylum seekers does not turn up at their borders. The refugees – the most vulnerable group of all – also benefit from having a reliable source of assistance while coping with their tragedy. Thus, providing safe haven and emergency resources is not explained through "humanitarianism" or the influence of human rights norms. States have real interests in the orderly and predicable management of refugee crises. 60 Refugee Aff DDW 2009 Iraqi Resettlement K2 Terror Effective resettlement will reduce likelihood of refugees becoming insurgents Dan E. Stigall, US Army Judge Advocate General Rutgers Law Record, 10 April 2009 Refugees and Legal Reform in Iraq: The Iraqi Civil Code, International Standards for the Treatment of Displaced Persons, and the Art of Attainable Solutions A recent report by Refugees International notes that Iraq is currently faced with one of the most acute displacement crises in the world. There are over 5 million Iraqis displaced by violence―2.7 million of whom are internally displaced within Iraq. Such a situation creates not only a humanitarian crisis, but also a perverse opportunity for insurgents and militia groups to exploit the displacement crisis in order to legitimize themselves and achieve geo-political goals. Consequently, the issue of displacement and the search for a solution to the current crisis has become a salient issue for military commanders conducting counterinsurgency operations. As the U.S. Army Field Manual 3-24, Counterinsurgency, states: Long-term success in [counterinsurgency] depends on the people taking charge of their own affairs and consenting to the government‘s rule. Achieving this condition requires the government to eliminate as many causes of the insurgency as feasible. This can include eliminating those extremists whose beliefs prevent them from ever reconciling with the government. Over time, counterinsurgents aim to enable a country or regime to provide the security and rule of law that allow establishment of social services and growth of economic activity. [Counterinsurgency] thus involves the application of national power in the political, military, economic, social, information, and infrastructure fields and disciplines. Current reports indicate that large-scale displacement in Iraq is driving civilians to join militias (both the Mahdi Army and Sunni militias) because of the need for services and the desire to belong to ―new communities.‖ Displacement has become an engine of the insurgency. It is critical, therefore, to find adequate remedies for displaced persons and policies to effect property restitution and resettlement. The solutions forged in the heat of this conflict must be effective, durable, and―most importantly―they must be solutions that can be realistically attained. 61 Refugee Aff DDW 2009 Iraqi Resettlement K2 Terror to neighboring countries will escalate into a major security Iraqi refugee flood threat Senanayake 2007 (Sumedha Senanayake, July 19th, 2007, ―Iraq: Refugee Crisis Could Become Regional Security Threat‖; http://www.rferl.org/content/Article/1077719.html) While Iraq's neighbors struggle with the flood of refugees, humanitarian organizations bemoan the lack of funding from the international community to help them. The creation of a so-called "humanitarian assistance vacuum" potentially opens the door for armed groups to establish a foothold within the refugee populations. If the Gaza Strip is any indication, then these are legitimate concerns. The Islamist organization Hamas emerged as the preeminent movement among Palestinians in the Gaza Strip, not only for its vigor in fighting the Israeli occupation, but also for providing much needed social services that the Palestinian government did not or could not. In fact, Hamas's 2006 election victory may have had less to do with broader ideological goals of the movement than the basic services they provided to people on the ground. Although, Hamas has moved into the political mainstream, it is still considered a terrorist organization by many Western states, and it is currently in a power struggle with Palestinian Authority President Mahmud Abbas. Indeed, there are concerns that today's Iraqi refugees could end up like the Palestinians: a large population of displaced and disenfranchised people with the potential to become radicalized. And such a large and radicalized population would not only be potentially destabilizing force for the host country, but by extension the entire region. Human Rights Watch's U.K. director, Tom Porteous, described the refugee crisis as a security time bomb, Reuters reported on June 26. "Unless this crisis is addressed, we may well look back in 10 years' time and see the seeds of the next generation of terrorists," he warned. 62 Refugee Aff DDW 2009 Rights K2 Humanitarian Aid Refugee protection is a key component of humanitarianism. Idean Salehyan* Assistant Professor Department of Political Science University of North Texas 4/30/08 (―US Refugee and Asylum Policy: Has Anything Changed After 9/11?‖ http://www.lse.ac.uk/collections/MSU/papers/LMRG-Salehyan%20Asylum%20911-.pdf) This historical overview suggests that a number of factors have influenced humanitarian admissions policies. Broadly, there are two main dimensions to refugee and asylum policy: a normative/humanitarian dimension and an interest-based/strategic dimension (Rosenblum and Salehyan 2004). First, the very existence of humanitarian admissions criteria reflects concern with human rights. Martha Finnemore and Kathryn Sikkink 8 (1998: 907) argue that human rights norms involving the protection of innocents from bodily harm are especially likely to become salient among the international community. Refugee protection was one of the first international humanitarian regimes, as the League of Nations created an international refugee agency in 1921 under the leadership of Fridtjof Nansen. After World War II, refugee protection and assistance was one of the first international humanitarian initiatives of the newly formed United Nations and the UN High Commissioner for Refugees. Even as various levels of restriction are in place for labor migration, liberal democracies have all adopted special admissions categories for asylum seekers at their gates as well as a common refugee definition. Although the US has certainly not had a perfect track record in this regard, it is undeniable that the protection of human rights is a fundamental goal of asylum policy and enforcement procedures. 63 Refugee Aff DDW 2009 Rights K2 Terror – Radical Refugees Unfairly treated refugees turn to terrorism out of suffering H.E. Mr. Omar Zniber, Permanent Representative of Morocco to the United Nations, Vienna, 5/17/2007, ―Symposium on Advancing the Implementation of the United Nations Global Counter- Terrorism Strategy.‖ Lexis. http://www.coe.int/t/e/legal_affairs/legal_co%2Doperation/fight_against_terrorism/7_Cooperatio n/07-85692_Ebook.pdf In seeking to dissect the many conditions that contribute to the spread of terrorism, one necessarily has to acknowledge that the speed of socio-political change, brought on by rapid globalization, creates hardship which is exploited ideologically by groups and networks that advocate recourse to blinkered violence as a reaction to the rapid transformation undergone by the world and also to the dissemination of values and principles deemed inappropriate. Analysis of the phenomenon has also underlined the need for solutions to major political conflicts, some of which have existed for many decades and have destabilized entire regions, condemning large sectors of the population to misery, suffering and despair. This situation leads some small groups to turn to terrorism, because in their eyes it provides a response to the humiliation and victimization. Radicalism and religious extremism, as has occurred in many periods of history, are harnessed for exacerbated political and fanatical aims; The interconnections between terrorist networks and transnational crime and illicit activities are growing constantly in several regions of the world; The failure of the principles of democracy, freedom, openness and tolerance to take root; The misuse of freedom of expression and freedom of the press to incite violence and hatred; Difficult economic and social conditions; The worsening of forms of discrimination against immigrants, refugees or groups considered to be minorities; The spread of radical and intolerant ideologies, such as Islamophobia, anti-Semitism; Inadequate or no controls in geographically sensitive zones which are used by terrorists as a staging post for their criminal activities; 64 Refugee Aff DDW 2009 Rights K2 Terror – International Norms Protecting refugee rights is key to solve terrorism H.E. Ms. Cecilia Ruthström-Ruin, Counter-Terrorism Ambassador of Sweden, 5/17/2007, ―Symposium on Advancing the Implementation of the United Nations Global Counter- Terrorism Strategy.‖ Lexis. http://www.coe.int/t/e/legal_affairs/legal_co%2Doperation/fight_against_terrorism/7_Coop eration/07-85692_Ebook.pdf Human rights law is, in effect, key to all counter-terrorism. Measures against terrorism will be effective and perceived as legitimate only when they are taken within a framework of international law, in particular human rights law, refugee law and international humanitarian law. If we do not take this into account in our daily efforts to counter terrorism, we will become counter-productive. This means, for example, that our counter- terrorism measures must respect the global ban on torture, the right to a fair trial, the right to be heard and the right to be informed about the grounds for detention. This means that our crucial work to counter extremism and incitement to terrorism must respect the freedom of expression. I could go on, but time does not permit me to separately cite all the different human rights that are directly relevant in the fight against terrorism. Let me just underline what, in Sweden‘s view must be the key to the understanding of our obligations in this field. That is that there can be no legal gaps in the protection of the rights of individuals: there can be no instances where the protection applicable and guaranteed in human rights law and international humanitarian law can be set aside. We have all committed ourselves to the high principles of human rights. But what does it mean in practice? Declaring our support of principles will not be enough. We also need to discuss how to ensure and promote human rights in the everyday operative work. How do we combine the need for strong measures with the need to ensure that these measures comply with human rights obligations? That is a key question. It is my government‘s firm belief that we can and must translate these different needs into a coherent reality. Yet we must also acknowledge the challenges involved. So let me focus on some of these challenges. First, a few comments on human rights and radicalization. Terrorism thrives in environments where human rights are violated, where political and civil rights are curtailed. I think we are all aware of cases where terrorists have exploited human rights violations to gain support for their extremist causes. 65 Refugee Aff DDW 2009 Soft Power K2 Terror - Moderates Soft power is critical to winning the moderates in war on terror and solving terrorism (Joseph S. Nye Jr., dean of Harvard's Kennedy School of Government, 3-30-04, The Institute of Communications Studies, ―Why 'Soft Power' Matters in Fighting Terrorism‖, http://ics.leeds.ac.uk/papers/vp01.cfm?outfit=pmt&folder=1259&paper=1483) Last year's Iraq war was a dazzling display of America's hard military power. It removed a tyrant, but did little to reduce our vulnerability to terrorism. At the same time, it was costly in terms of our "soft power" to attract others. Long before the recent bombings in Madrid, polls showed a dramatic decline in the popularity of the United States, even in countries such as Britain, Italy and Spain, whose governments had supported us. And America's standing plummeted in Islamic countries from Morocco to Southeast Asia. In Indonesia, the world's largest Islamic nation, three-quarters of the public said they had a favorable opinion of the United States in 2000, but within three years that had shrunk to 15 percent. Yet we will need the help of such countries in the long term to track the flow of terrorists, tainted money and dangerous weapons. After the war in Iraq, I spoke about soft power to a conference co-sponsored by the Army. One of the speakers was Defense Secretary Donald H. Rumsfeld. When someone in the audience asked Rumsfeld for his opinion on soft power, he replied, "I don't know what it means." That is part of our problem. Some of our leaders don't understand the importance of soft power in our post-Sept. 11 world. Soft power is the ability to get what we want by attracting others rather than by threatening or paying them. It is based on our culture, our political ideals and our policies. Historically, Americans have been good at wielding soft power. Think of Franklin D. Roosevelt's Four Freedoms in Europe at the end of World War II; of young people behind the Iron Curtain listening to American music and news on Radio Free Europe; of Chinese students symbolizing their protests in Tiananmen Square with a replica of the Statue of Liberty. Seduction is always more effective than coercion, and many of our values, such as democracy, human rights and individual opportunity, are deeply seductive. But attraction can turn to repulsion when we are arrogant and destroy the real message of our deeper values. The United States is more powerful than any country since the Roman Empire, but like Rome, it is neither invincible nor invulnerable. Rome did not succumb to the rise of another empire but to the onslaught of waves of barbarians. Modern high-tech terrorists are the new barbarians. As we wend our way deeper into the struggle with terrorism, we are discovering that there are many things beyond U.S. control. The United States alone cannot hunt down every suspected al Qaeda leader hiding in remote regions of the globe. Nor can we launch a war whenever we wish without alienating other countries and losing the cooperation we need to win the peace. The war on terrorism is not a clash of civilizations -- Islam vs. the West -- but rather a civil war within Islamic civilization between extremists who use violence to enforce their vision and a moderate majority who want such things as jobs, education, health care and dignity as they practice their faith. We will not win unless the moderates win. Our soft power will never attract Osama bin Laden and the extremists. We need hard power to deal with them. But soft power will play a crucial role in our ability to attract the moderates and deny the extremists new recruits. With the end of the Cold War, Americans became more interested in budget savings than in investing in our soft power. Even after the Sept. 11, 2001, attacks, a bipartisan advisory group reported that the United States spent a paltry $150 million on public diplomacy in Muslim countries in 2002. The combined cost of the State Department's public diplomacy programs and all our international broadcasting that year was just over a billion dollars -- about the same amount spent by Britain or France, countries one-fifth our size. It is also equal to one-quarter of 1 percent of the military budget. No one would suggest that we spend as much to launch ideas as to launch bombs, but it does seem odd that we spend 400 times as much on hard power as on soft power. If we spent just 1 percent of the military budget, it would mean quadrupling our spending on soft power. If the United States is going to win the struggle against terrorism, our leaders are going to have to learn to better combine soft and hard power into "smart power," as we did in the Cold War. We have done it before; we can do it again. 66 Refugee Aff DDW 2009 Soft Power K2 Terror – Moderates Soft power is key to preventing terrorism. Joseph S. Nye Jr. is distinguished service professor at Harvard University and author 1 March 2006 (―Think Again: Soft Power‖ http://yaleglobal.yale.edu/display.article?id=7059) False. There is a small likelihood that the West will ever attract such people as Mohammed Atta or Osama bin Laden. We need hard power to deal with people like them. But the current terrorist threat is not Samuel Huntington‘s clash of civilizations. It is a civil war within Islam between a majority of moderates and a small minority who want to coerce others into an extremist and oversimplified version of their religion. The United States cannot win unless the moderates win. We cannot win unless the number of people the extremists are recruiting is lower than the number we are killing and deterring. Rumsfeld himself asked in a 2003 memo: ―Are we capturing, killing, or deterring and dissuading more terrorists every day than the madrasas and the radical clerics are recruiting, training, and deploying against us?‖ That equation will be very hard to balance without a strategy to win hearts and minds. Soft power is more relevant than ever. 67 Refugee Aff DDW 2009 Soft Power K2 Terror – Democracy Perception Perception of US liberty and democracy key to deter terrorism. Michael Chertoff, US Secretary of Homeland Security, US Circuit Judge, Assistant Attorney General, federal prosecutor. ―Preventing terrorism: a case for soft power.‖ Harvard Law Review, Summer 2008. http://www.entrepreneur.com/tradejournals/article/184710761_2.html Consequently, it is imperative that over the next decade, the United States, in concert with its friends and allies, retain every option at its disposal and apply every available tool or strategy where appropriate against this threat. Certainly that includes the effective use of military options when necessary as well as other tools that may reduce the ability of terrorists to carry out attacks. Most importantly, however, in order to prevent the growth of terrorist groups themselves, the United States must pursue strategies to win nations and peoples to its side. Use of such "soft power"--a term coined by Harvard University professor Joseph Nye--can help the United States and its allies reduce the appeal of terrorist organizations and deter individuals from joining them. Given these two factors, the course ahead should be clear. The United States must fight not only the extremists, but the ideology of their extremism. It must stand firmly against malignant ideas which can only cause further poverty, degradation, and hopelessness by turning the clock back centuries. It must offer the alternative ideals of liberty and democracy, ideals which have brought more progress to more people over the past few centuries than in all the prior centuries combined. In other words, as during the Cold War, the situation must be seen as a war against an ideology, a contest of ideas, and a battle for the allegiance of men and women around the world. It is not a struggle that we began; it is, however, one that we must win. The security of the United States and the world depends on it. To stand on the sidelines would be to allow this extremist ideology to win by default. So what must we do to counter it? When proposing an alternative to radical ideology, the use of soft power becomes key. Part of this effort must involve providing immediate humanitarian aid to those who need it the most. Soft power is key to preventing terrorism Associated Press 2007 (Associated Press, Nov . 26, 2007―Defense chief: Fight terrorism with ‗soft power‘‖; http://www.msnbc.msn.com/id/21980961/ ) Defeating terrorism will require the use of more ―soft power,‖ with civilians contributing more in communication, economic assistance, political development and other non-military areas, Defense Secretary Robert Gates said Monday. Gates called for the creation of new government organizations, including a permanent group of civilian experts with a wide range of expertise who could be sent abroad on short notice as a supplement to U.S. military efforts. And he urged more involvement by university and other private experts.―We must focus our energies beyond the guns and steel of the military, beyond just our brave soldiers, sailors, Marines and airmen,‖ he said in a speech at Kansas State University in Manhattan, Kan. ―We must also focus our energies on the other elements of national power that will be so crucial in the coming years.‖ 68 Refugee Aff DDW 2009 Soft Power K2 Terror Soft power is key to good relations and preventing terrorism Nye 2004 ( Joseph Nye [Joseph S. Nye Jr., Dean, John F. Kennedy School of Government, Harvard University] April 22, 2004, ―Soft Power: The Means to Success in World Politics‖; http://www.japansociety.org/content.cfm/soft_power_the_means_to_success_in_world_politics) "American policy has undercut our soft power. The U.S. has lost an average of 30 points of attractiveness in all Western countries, including those that supported us in the Iraq war," Dr. Nye declared, adding that in the Islamic world, the impact has been far worse. In Indonesia, about 75 percent of the population was attracted by the U.S. in 2000; by May 2003, the number was less than 15 percent, and in Pakistan and Jordan, some research center polls said more people were attracted to Mr. Bin Laden than Mr. Bush, results Dr. Nye called "chilling." He criticized skeptics who say we shouldn't worry for their short-sightedness, reasoning that the inability to pay attention to soft power has undercut our hard power. A concrete example is our intention to move troops across Turkey during the Iraq war, and the negative response of the Turkish parliament, he said. Soft power also prevents moderates from being recruited by extremists. "In some ways we're seeing, in the 21st century, that it's no longer enough to say whose army wins but whose story wins. That requires a capacity to communicate, and we are not putting enough effort into that," he admonished. 69 Refugee Aff DDW 2009 Soft Power K2 Terror & Coop Soft power key to cooperation and solving terrorism Joseph S. Nye, Jr., is former Assistant Secretary of Defense and Dean of Harvard University's John F. Kennedy School of Government. He is author of Soft Power: The Means to Success in World Politics. May/June 2004 (―The Decline of America's Soft Power‖ http://www.foreignaffairs.com/articles/59888/joseph-s-nye-jr/the-decline-of-americas-soft-power) But the recent decline in U.S. attractiveness should not be so lightly dismissed. It is true that the United States has recovered from unpopular policies in the past (such as those regarding the Vietnam War), but that was often during the Cold War, when other countries still feared the Soviet Union as the greater evil. It is also true that the United States' sheer size and association with disruptive modernity make some resentment unavoidable today. But wise policies can reduce the antagonisms that these realities engender. Indeed, that is what Washington achieved after World War II: it used soft-power resources to draw others into a system of alliances and institutions that has lasted for 60 years. The Cold War was won with a strategy of containment that used soft power along with hard power. The United States cannot confront the new threat of terrorism without the cooperation of other countries. Of course, other governments will often cooperate out of self-interest. But the extent of their cooperation often depends on the attractiveness of the United States. 70 Refugee Aff DDW 2009 Soft Power K2 Violent States Soft power and human rights norms undermine violent states (Lisa Alfredson, Research Assistant Professor, 2006, Graduate School of Public and International Affairs, University of Pittsburgh, International Conference of the International Studies Association, ―Challenging The Human Rights Paradox: The Development of Inter-State Responsibility For Persecuted Non-Citizens‖ http://www.allacademic.com/meta/p99904_index.html) The human rights paradox refers to the situation whereby international human rights law, developed to protect individuals from abuses by the state, depends upon the abusing state for implementation and assumes victims‘ membership in that state. The principle of state sovereignty makes human rights enforcement extremely difficult if not impossible in countries that simply choose not to agree to, or abide by, human rights law, while foreign states and inter-governmental organizations remain (in the least) hesitant to intervene on foreign territory. At the same time, the implicit criteria of membership as a prerequisite for state protection excuses foreign states from providing protection even to those individuals who seek it on foreign soil; states may or may not choose to grant right of residence to persecuted nonnationals. As Arendt (1973) rightly observed, refugees‘ situation epitomizes the human rights paradox. Persecuted in one state, where the international community is ineffective or unwilling to intervene, they very often are excluded from protection by foreign states when they seek asylum. The gap in state protection from persecution, defined as serious chronic human rights abuse, is mirrored by the limitations of the inter-state human rights safety net. The dominant approach to addressing the human rights paradox is reflected in the mass of scholarship on the means of compelling violator states to protect their own members. For example, foreign policy, quiet diplomacy, sanctions and aid conditionality (Vincent 1986), the spread of international norms (Katzenstein 1996), advocacy by non-governmental organizations and transnational advocacy networks (Keck and Sikkink 1998; Risse, Ropp and Sikkink 1999), are believed to have a positive impact on violator states. A second approach, increasing more recently, focuses on the evolving norms and practices of humanitarian intervention and remains more controversial (e.g. Greenwood 1993; Wheeler 2000; Power 2002). The former embodies a more indirect approach (compelling violator states to comply), and the latter a more direct approach (forcing violator states to comply). Both support a clearly universalist conception of human rights - expressing moral universality and international consensus. They increasingly suggest that human rights are gaining international legitimacy and becoming entrenched, and quite significantly, attaining the means to undermine state sovereignty. As Donnelly (2004:1) explains: …[I]nternational human rights obligations are regularly presented as assaulting (Mills 1998: 10; Clapham 1999: 533; Cardenas 2002: 57), challenging (Aceves 2002; Butenhoff 2003: 215-216), besieging (Weiss and Chopra 1995), undermining (Schwab and Pollis Alfredson – ISA 2006 2 2000: 214), busting (Lutz 1997: 652), weakening (Jacobsen and Lawson 1999), chipping away at (Kearns 2001: 522), compromising (Krasner 1999b: 125), contradicting (Forsythe 1989: 6), breaking down (Bettati 1996: 92), breaching (Lyons and Mayall 2003: 9), perforating (van Hoof 1998: 51), or eroding (Ayoob 2002: 93; Henkin 1999: 3-4; Lapidoth 1995) state sovereignty, which is portrayed as giving way (Aceves 2002: 265), even surrendering (Lauterpacht 1968 : 304-311), to higher human rights norms that "provide legal and moral grounds for disregarding the sovereign rights of States." (Shen 2000: 435).TPD 1 DPT This is supported by research in other areas that suggests the traditional Westphalian system of sovereign states competing in a Realist global environment, is being transformed.TP PT A wide range of disciplines now engaging in globalization studies suggests global forces, particularly the global economy but also including global level institutions, global migration, and global communications and information technologies, are weakening, undermining or fundamentally transforming state sovereignty (see Held et al 2000, 2003). 71 Refugee Aff DDW 2009 Hard Power Bad The key to good relations is diplomacy, not military force Kristof 2009 ( Nicholas D. Kristof, 2009, ―Make diplomacy, not war‖; http://www.nytimes.com/2008/08/10/opinion/10iht-edkristof.1.15141397.html) Then there's the Middle East. Dennis Ross, the longtime Middle East peace negotiator, says he has been frustrated "beyond belief" to see resources showered on the military while diplomacy has to fight for scraps. Ross argues that an investment of just $1 billion - financing job creation and other grass- roots programs in the West Bank - could significantly increase the prospect of an Israeli-Palestinian peace. But that money isn't forthcoming. Our intuitive approach to fighting terrorists and insurgents is to blow things up. But one of the most cost-effective counter-terrorism methods in countries like Pakistan and Afghanistan may be to build things up, like schooling and micro-finance. Girls' education sometimes gets more bang for the buck than a missile. A new study from the RAND Corp. examined how 648 terror groups around the world ended between 1968 and 2006. It found that by far the most common way for them to disappear was to be absorbed by the political process. The second most common way was to be defeated by police work. In contrast, in only 7 percent of cases did military force destroy the terrorist group."There is no battlefield solution to terrorism," the report declares. "Military force usually has the opposite effect from what is intended. Use of hard power in Iraq only increased the number of terrorist Joseph S. Nye Jr., University Distinguished Service Professor and former dean at the Harvard University Kennedy School of Government, is also the Sultan of Oman Professor of International Relations. He has served as Assistant Secretary of Defense for International Security Affairs, Chair of the National Intelligence Council and Deputy Under Secretary of State for Security Assistance, Science and Technology. 2007 (―THE GLOBAL POLLUTION LOBBY‖ http://thepolitic.org/content/view/107/39/) I think it is now clear that the costs greatly exceeded the benefits. According to the president, the War in Iraq was part of the larger War on Terror. According to British and American intelligence estimates, the War in Iraq has actually increased the number of terrorists. So I think you can make the argument that we were set back in larger objectives by the tactics we took. Now, we‘re faced with a situation that has no good answers, and we should be trying to set a goal of getting out in terms of which would leave the least damage done to the region and to our interests in the region as a whole. 72 Refugee Aff DDW 2009 AT: Hard Power Key Soft power complements hard power- empirically proven sole use of hard power fails AJ Reibel, MIR program, New Zealand August 8, 2008 (―Is International law powerful‖ http://thesemblanceofstability.blogspot.com/2008/08/is-international-law-powerful.html) Joe Nye asserts that soft power – based on the attractiveness of a country‘s culture, political ideals, and policies – is indeed a form of power that, if used effectively, can supplement a country‘s overall ability to obtain desired outcomes. In fact, the claim that soft power complements hard power rests simply on the fact that soft power persuades countries to accept the potential use of hard power by a powerful state actor. It is, therefore, vital that a state – interested in maximising its power and achieving desired results on the world stage – employ both hard and soft power in different amounts. As it is preferable to strike with tremendous force and moral weight than to act unilaterally, international law still remains a power multiplier. This is especially necessary in a world of illicit nuclear testing and proliferation of ballistic missile technology. Unfortunately, some states have failed to understand the benefits that soft power and international law provide to an economically and militarily powerful state. The present American administration saw hard power as the only policy response to multiple terrorist attacks. Furthermore, by pursing an assertive and caustic policy, the Bush administration managed to marginalise some of its tentative allies (in addition to providing moral ammunition to its critics). Had Nye‘s explanation that hard military power is not suited to tackling varying transnational issues – such as international crime, infectious diseases, terrorism, and environmental concerns – been taken into account during the lead-up to the 2003 Iraq invasion, perhaps the Bush administration would have managed to persuade the international community to share the burden of toppling Saddam and rebuilding Iraq. Instead the US worked to downgrade ―...the legitimacy that comes from institutional processes in which other [states] are consulted... [thereby] squander[ing] soft power.‖ Condelezza Rice pointed out that ―America is a country that really does have to be committed to values... [and it‘s] not just the sword, it‘s the olive branch that speaks to those intentions.‖ War on terror proves- Hard power is not sufficient to solve terrorism Joseph S. Nye Jr is a professor at Harvard and author of The Powers to Lead. March 14–March 20, 2008 (―"Hard vs Soft Power: Contenders in the US Presidential Race Must Respond to a Changed World" http://belfercenter.ksg.harvard.edu/publication/18172/hard_vs_soft_power.html) Hard and soft power can reinforce or undermine each other. Certainly, the US‘s use of hard power with military and police force was necessary to counter al-Qaeda, but the indiscriminate use of hard power (the invasion of Iraq, the Abu Ghraib prison photos, detentions without trial) served to increase the number of terrorist recruits. The absence of an effective soft power component undercut the strategic response to terrorism.Joseph S. Nye Jr is a professor at Harvard and author of The Powers to Lead. March 14–March 20, 2008 (―"Hard vs Soft Power: Contenders in the US Presidential Race Must Respond to a Changed World" http://belfercenter.ksg.harvard.edu/publication/18172/hard_vs_soft_power.html) Hard and soft power can reinforce or undermine each other. Certainly, the US‘s use of hard power with military and police force was necessary to counter al-Qaeda, but the indiscriminate use of hard power (the invasion of Iraq, the Abu Ghraib prison photos, detentions without trial) served to increase the number of terrorist recruits. The absence of an effective soft power component undercut the strategic response to terrorism. 73 Refugee Aff DDW 2009 Soft Power > Hard Power Soft power is better then hard power in most instances Joseph S. Nye Jr is a professor at Harvard and author of The Powers to Lead. March 14–March 20, 2008 (―"Hard vs Soft Power: Contenders in the US Presidential Race Must Respond to a Changed World" http://belfercenter.ksg.harvard.edu/publication/18172/hard_vs_soft_power.html) Soft power is not good per se, and it is not always better than hard power. But it does allow followers more choice and leeway than hard power, because their views and choices matter more. Thus, in an age of flatter hierarchies and empowered knowledge workers, soft power is likely to increase in importance. 74 Refugee Aff DDW 2009 Soft Power Down US soft power has recently declined Nye 2008 (Joseph Nye,[Joseph S. Nye Jr., Dean, John F. Kennedy School of Government, Harvard University] June 12th, 2008 ―Barrack Obama and Soft Power‖; http://www.huffingtonpost.com/joseph-nye/barack- obama-and-soft-pow_b_106717.html) Polls show that American soft power has declined quite dramatically in much of the world over the past eight years. Some say this is structural, and resentment is the price we pay for being the biggest kid on the block. But it matters greatly whether the big kid is seen as a friend or a bully. In much of the world we have been seen as a bully as a result of the Bush Administration policies. 75 Refugee Aff DDW 2009 WMD Coming A WMD attack within the next 5 years is extremely probable Jeanne Meserve writer for CNN December 2, 2008 (―Biological terror attack likely by 2013, panel says‖ http://www.cnn.com/2008/US/12/02/terror.report/index.html) WASHINGTON (CNN) -- Terrorists are likely to use a weapon of mass destruction somewhere in the world in the next five years, a blue-ribbon panel assembled by Congress has concluded. Police watch over travelers at New York's Grand Central Terminal before Thanksgiving. They are more likely to use a biological weapon than a nuclear one -- and the results could be devastating, the chairman of the commission told CNN. "The consequences of a biological attack are almost beyond comprehension. It would be 9/11 times 10 or a hundred in terms of the number of people who would be killed," former Sen. Bob Graham said. He cited the flu virus that killed millions of people in 1918 as an example. "Today it is still in the laboratory, but if it should get out and into the hands of scientists who knew how to use it for a violent purpose, we could have multiple times the 40 million people who were killed 100 years ago," he said. Watch how officials worry about a biological terror attack » The U.S. government "needs to move more aggressively to limit" the spread of biological weapons, the commission said in its report. Graham warned that such measures would be costly, but were necessary. "The leadership of this country and the world will have to decide how much of a priority ... they place on avoiding the worst weapons in the world getting in the hands of the worst people in the world," he said. 76 Refugee Aff DDW 2009 Bioterror Coming Terrorists can gain access to bio-weapons and use new deadlier strains- new study proves Joby Warrick Washington Post Staff Writer Sunday, November 30, 2008; http://www.washingtonpost.com/wp- dyn/content/article/2008/11/29/AR2008112901921.html Seven years after the 2001 anthrax attacks, a congressionally ordered study finds a growing threat of biological terrorism and calls for aggressive defenses on par with those used to prevent a terrorist nuclear detonation. Due for release next week, a draft of the study warns that future bioterrorists may use new technology to make synthetic versions of killers such as Ebola, or genetically modified germs designed to resist ordinary vaccines and antibiotics. The bipartisan report faults the Bush administration for devoting insufficient resources to prevent an attack and says U.S. policies have at times impeded international biodefense efforts while promoting the rapid growth of a network of domestic laboratories possessing the world's most dangerous pathogens. The number of such "high-containment" labs in the United States has tripled since 2001, yet U.S. officials have not implemented adequate safeguards to prevent deadly germs from being stolen or accidentally released, it says. "The rapid growth in the number of such labs in recent years has created new safety and security risks which must be managed," the draft report states. The report is the product of a six-month study by the Commission on the Prevention of Weapons of Mass Destruction and Terrorism, which Congress created last spring in keeping with one of the recommendations of the 9/11 Commission. Drafts of chapters pertaining to bioterrorism were obtained by The Washington Post. The document cites progress in many areas of biodefense since the deadly anthrax attacks of 2001, including major investments in research, stockpiling of drugs and development of a network of sensors designed to detect airborne viruses and bacteria. The Bush administration has spent more than $20 billion on such countermeasures, far more than any of its predecessors. But the report says the next administration must do much more to prevent dangerous pathogens from falling into the wrong hands in the first place. While politicians often warn about the dangers of nuclear terrorism, a serious biological attack would be easier to accomplish and deserves a top priority, it says. "The more probable threat of bioterrorism should be put on equal footing with the more devastating threat of nuclear terrorism," the draft states. It calls on the Obama administration to develop a comprehensive approach to preventing bioterrorism and to "banish the 'too-hard-to-do' mentality that has hobbled previous efforts." Some bioweapons specialists have argued that it is practically impossible to prevent a biological attack, because lethal strains of anthrax bacteria and other deadly microbes can be found in nature. But the report argues that it would be far easier for bioterrorists to obtain the seeds of an attack from laboratories that have ready supplies of "hot" strains. U.S. officials think an Army biodefense lab was the source of the anthrax spores used in the 2001 attacks that killed five people. 77 Refugee Aff DDW 2009 **UNACCOMPANIED MINORS ADV** 78 Refugee Aff DDW 2009 Rights Violation Gross rights violations plague refugee children- need protection, access to resources Jacqueline Bhabha, Jr. Lecturer in Law at Harvard Law School, director of Harvard‘s University Committee on Human Rights Studies, 2009, Human Rights Quarterly, ―Arendt‘s Children: Do Today‘s Migrant Children Have a Right to Have Rights?‖ Project Muse. http://muse.jhu.edu/search/results?action=search&searchtype=author§ion1=author&search1= %22Bhabha%2C%20Jacqueline.%22. Access to basic shelter, subsistence level welfare payments, and in-kind benefits is as fundamental to modern conceptions of rights in general, and children‘s rights in particular, as is protection from physical violence. The same is true for access to such social and economic rights as education and health care, as the Committee on the Rights of the Child has frequently noted in its concluding observations on states parties‘ periodic reports. 38 Yet here too, public officials operate under personal codes of conduct that translate into dramatic rights denials. Sylvia da Lomba has remarked, ―Curtailments of social rights for irregular migrants in host countries have become essential components of restrictive immigration policies. . . . The threat of destitution as a deterrent against irregular migration generates acute tensions within host states between immigration laws and human rights protections.‖ 39 Consider this Spanish case: Sixteen-year-old ‗Abd al Samad R. has been in Ceuta [an autonomous Spanish city located on the Moroccan coast] for about five years, including two and a half years living at the San Antonio Center. While at San Antonio he was diagnosed as suffering from renal disease, a potentially life-threatening medical condition, and he received medical treatment. Then, in October 2001 he was told to leave San Antonio, apparently for disciplinary infractions. When we interviewed ‗Abd al Samad on November 8, 2001, he was living with a group of other children and youth in makeshift hovels squeezed between a breakwater and piles of ceramic tiles and other building supplies. He had received no medical treatment since leaving San Antonio, although he was frequently in severe pain. ―The pain comes often, when it is cold, or when someone hits me,‖ he said. ―I tried to go to the hospital when I was in pain but they wouldn‘t admit me. They won’t accept you at the hospital unless some one from San Antonio comes with you. When the pain comes I can‘t move so who will come to take me to the hospital?‖ 40 Without official confirmation of the child‘s social entitlements, he remained outside the categories established by the state—in effect not a person before the law. These exclusionary attitudes were translated directly into rightlessness. The acute risks to which this willful exclusion, combined with the fear of detection as an irregular migrant by state officials, can give rise were noted by the European Court of Human Rights in the case of Siliadin v. France. In this case, an unaccompanied child from Togo, ―unlawfully present in [France] and in fear of arrest by the police . . . was . . . subjected to forced labour . . . [and] held in servitude,‖ compelled to carry out housework and child care for fifteen hours a day without holidays. 41 The Court commented that the applicant ―was entirely at [her employers‘] mercy, since her papers had been confiscated . . . [S]he had no freedom of movement or free time. As she had not been sent to school . . . the appli- cant could not hope that her situation would improve.‖ 42 Irregular migration status increases the risk of invisibility and thus gross rights violations. As the Court pointed out, states parties must recognize this serious risk and act ―with greater firmness . . . in assessing the infringements of the fundamental values of democratic societies.‖ 43 In other words, according to the Court, states have an obligation to ―see‖ 44 Arendt‘s children—willful and selective blindness is not a legitimate option . 79 Refugee Aff DDW 2009 Must Comply to Adult Standards Minors must meet adult standards for asylum Joyce Koo Dalrymple, Symposium Editor, Boston College Third World Law Journal (2005-2006). 26 B.C. Third World L.J. 131 Boston College Third World Law Journal, winter 2006 Chocoy is not alone: his story underscores a defect in U.S. asylum law that fails to recognize the unique needs of children fleeing persecution [*133] in their home countries. n8 Children under eighteen make up about half of the world's refugee population. n9 Of these children refugees, approximately two to five percent are unaccompanied by a parent or guardian. n10 Each year about five thousand children under the age of eighteen enter the United States without legal guardians, and are forced to navigate a confusing legal system designed primarily for adults. n11 Unaccompanied children are arguably the most vulnerable population fleeing persecution because, not only are they children and refugees, but they also have no primary caretaker. n12 The United States continues to assess children's claims for asylum using the legal standard created for adult asylum seekers. n13 Asylum seekers must meet the legal standard contained in the definition of a "refugee." n14 The U.S. Refugee Act of 1980 incorporated the definition of "refugee" from the 1951 United Nations Convention relating to the Status of Refugees and its 1967 Protocol, neither of which specifically addressed the needs of children. n15 The 1980 Act is codified in the Immigration and Nationality Act (INA), which defines a "refugee" as a person who is "unable or unwilling . . . [to return to their] country because of persecution or a well-founded fear of persecution on account [*134] of race, religion, nationality, membership in a particular social group, or political opinion." n16 Since age is not included as a protected basis for persecution, a child must establish that his or her persecution is on account of one of the five enumerated grounds. n17 5 credible fear criteria harder to recognize for unaccompanied minors Joyce Koo Dalrymple, Symposium Editor, Boston College Third World Law Journal (2005-2006). 26 B.C. Third World L.J. 131 Boston College Third World Law Journal, winter 2006 The assumption that refugees are normally adults greatly disadvantages children seeking asylum. n51 By not distinguishing unaccompanied minors from adults, the law gives no consideration to children's unique difficulties in satisfying the same legal standards. n52 These minors, who usually have limited English skills, are not provided with government-appointed counsel and often cannot explain their experiences as persecution on account of one of the five enumerated asylum grounds. n53This "on account of" nexus is often more difficult for unaccompanied minors to satisfy because children may not understand the persecutor's intent, and furthermore, they may lack a complete understanding of the situation itself. n54 Additionally, they are not viewed as mature [*140] enough to have their own political or religious opinions, for which they would be persecuted. n55 Even children who are political activists in their own right or members of targeted families find that their persecution is not taken seriously. n56 Where the "on account of" nexus is established, the applicant must still demonstrate that the government was unable or unwilling to protect her from the alleged persecutor. n57 This requirement assumes that the child had the ability to seek protection from government officials. n58 To establish that a fear is well-founded, an asylum applicant must show that his or her fear is both subjectively genuine and objectively reasonable. n59 These two elements are different for children than for adults; what may amount to persecution when applied to children, might only be considered discrimination or harassment when directed at adults. n60 Therefore, the adult adjudicator must: (1) take into account the subjective impact of disturbing events on a child (which is likely to be far greater); and (2) determine what is objectively reasonable for a "reasonable" child of the applicant's age, experience, maturity, and cultural background. n61 80 Refugee Aff DDW 2009 Right to Have Rights Legal strategies provide refugee children a right to rights Jacqueline Bhabha, Jr. Lecturer in Law at Harvard Law School, director of Harvard‘s University Committee on Human Rights Studies, 2009, Human Rights Quarterly, ―Arendt‘s Children: Do Today‘s Migrant Children Have a Right to Have Rights?‖ Project Muse. http://muse.jhu.edu/search/results?action=search&searchtype=author§ion1=author&search1= %22Bhabha%2C%20Jacqueline.%22. If human rights in general, and children‘s rights in particular, are essentially about redistributing political justice and social/economic resources in favor of the disadvantaged, then the most effective and visible positive outcome is a treaty that gives individuals the right to challenge state failure to implement their rights by bringing a case before a court. The CRC does not afford this opportunity, but other human rights treaties do, and in the process of using them, advocates make reference to the children‘s rights principles of the CRC. Of course, the Moroccan children in Ceuta, off the African Mediterranean coast, or the sub-Saharan children on Lampedusa, off the coast of Italy, have no access to effective legal representation. That is what the normalized state of exception is—a space outside the law. But some of Arendt‘s children have managed to capitalize on their rights by using human rights instruments and courts.These litigation successes provide some support for the general claim that these children can assert a right to rights. Retrospectively, at least, gross violations that come to light are recognized as such. Sometimes legal strategies do appear to deliver a right to rights. 81 Refugee Aff DDW 2009 Totalitarianism Statelessness is equal to losing the right to have rights- leads to totalitarianism Seyla Benhabib, professor of political science and philosophy at Yale, June 2004, ―The Rights of Others.‖ http://books.google.com/books?id=3cuUHAJNmuYC&dq=Seyla+Benhabib+―Rights+of+Others‖& printsec=frontcover&source=bl&ots=d-pqxd2bJq&sig=Oyb7-wKlE- 80M8AlnsdkH3bLD80&hl=en&ei=rqtKSqWVIYqmNurxjIoO&sa=X&oi=book_result&ct=result& resnum=1 The previous chapter analyzed Kant‘s formulation and defense of cosmopolitan right and argued that the text left unclear which of the following premises justified the cosmopolitan right to hospitality: the right to seek human association, which in fact, could be viewed as an extension of the human claim to freedom; or the premise of the sphericality of the earth‘s surface and the juridical fiction of the common possession of the earth. Kant‘s discussion of cosmopolitan right, whatever its shortcomings, delineates a new terrain in the history of political thought. In formulating a sphere of right - in the juridical and moral senses of the term — between domestic constitutional and customary international law, Kant charted a terrain onto which the nations of this world began to venture only at the end two world wars. Kant was concerned that the granting of the right to permanent residency (Gusrrecht) should remain a privilege of self-governing republican communities. Naturalization is a sovereign privilege. The obverse side of naturalization is "denationalization." or loss of citizenship status. After Kant, it was Hannah Arendt who turned to the ambiguous legacy of cosmopolitan law, and who dissected the paradoxes at the heart of the terminally based sovereign state system. One of the great political thinkers of the twentieth century, Hannah Arendt argued that the twin phenomena of "political evil" and ―statelessness‖ would remain the most daunting problems into the twenty-first century as well (Arendt 1349.;,134; 1968;seeBenhabib 21103). Arendt always insisted that among the root causes of totalitarianism was the collapse of the nation—state system in Europe during the two world wars. The totalitarian disregard for human life and the eventual treatment of human beings as "superfluous" entities began, for Hannah Arendt, when millions of human beings were rendered ―stateless" and denied the "right to have rights." Statelessness, or the loss of nationality status, she argued, was tantamount to the loss of all rights. The stateless were deprived not only of their citizenship rights; they were deprived of any human rights. The rights of man and the rights of the citizen, which the modem bourgeois revolutions had so clearly delineated were deeply imbricated. The loss of citizenship rights, therefore, contrary to all human rights declarations, was politically tantamount to the loss of human rights altogether. This chapter begins with an examination of Arendt contribution; thereafter, l develop a series of systematic considerations which are aimed to show why neither the right to naturalization nor the prerogative of denaturalization can be considered sovereign privileges alone; the airs: is a universal human right, while the second - denaturalization · is its abrogation. 82 Refugee Aff DDW 2009 Trafficking Legal barriers cause traffickers and smugglers to take advantage of stateless children Jacqueline Bhabha, Jr. Lecturer in Law at Harvard Law School, director of Harvard‘s University Committee on Human Rights Studies, 2001, ―Minors or Aliens? Inconsistent State Intervention and Separated Child Asylum-Seekers.‖ http://docserver.ingentaconnect.com/deliver/connect/mnp/1388364x/v3n3/s2.pdf?expires=12464070 61&id=51004477&titleid=5302&accname=Dartmouth+College&checksum=E4A5157612F1324DC8 5F5121FD2F4EEB. Second, the growing difﬁculty of claiming asylum in developed states because of stringent visa requirements, checks on carriers, militarized borders and other escalating immigration controls has led to increased dependence by asylum seekers on the professional travel services of smugglers and trafﬁckers.34 According to one expert, ‗[it] seems likely that a very large number – perhaps the majority – of asylum seekers arriving in Central or Western Europe have been smuggled or trafﬁcked‘.35 This certainly inﬂuences the demographic composition of the refugee pool and may well account for the increase in the proportion of separated children. A distinction needs to be made between the factors impinging on the numbers of separated children in the smuggling and in the trafﬁcking context.36 Smuggling services, where asylum seekers consensually contract to be transported to safety for a fee, are costly, sometimes exorbitantly so. The fee for transport from the Fujian province of China to the US currently stands at approximately $ 50,000. 37 Preliminary research carried out by the University of Chicago on the factors inﬂuencing families to send children alone to seek asylum suggests that families who are unable to afford smuggling fees for more than one member to seek asylum, may be increasingly choosing to send a child.38 There are various reasons for this: the child may be chosen as the preferred survivor, either because of his or her greater vulnerability or because of aspirations for a better future for the child:39 ‗When my Mom talked to me about coming to the United States, I disagreed with her very strongly, but then she started to cry. She begged me. I didn‘t want to disappoint her, so eventually I agreed to go. They want me to have a good future. They are my parents so I have to obey them‘.40 Or the child might represent the family‘s best choice because of the potential to get an education and eventually more remunerative employment: ‗When my parents decided I should come here . . . I knew I would have a hard time, and I wasn‘t sure I wanted to go. But then I changed my mind again and agreed to come here for the well being of my family . . . My parents said I can go to school for now. They want me to stay in school for a half year or longer, so I can learn English. But they also want me to start working, when I get used to life here. They also said that if I become more educated, I‘ll make more money, because I‘ll be able to get a good job‘. 41 There is also some evidence that a child‘s reduced likelihood of deportation from the receiving state compared to an adult enters into the calculation – smugglers may suggest to families that money spent on sending a child is a better and more secure investment:42 ‗The latest trend [in Fujian, China] is for people in the village to borrow money from their neighbours or relatives at a very high interest rate in order to send their kids away‘.43 By contrast with smuggling, trafﬁcking networks coerce or trick asylum seekers into travelling, in order to subject them to sexual or other forms of slavery-like exploitation, on arrival in the receiving state. Refugee popu- lations, dispossessed, unemployed, uprooted from family support systems, represent a fertile catchment area for trafﬁcking organizations because of their susceptibility to being tricked and induced to accept offers of transport and work elsewhere. Forced prostitution, bonded labour, forced marriage are increasingly common outcomes of such trafﬁcking arrangements.44 It is clear that refugee children, young girls in particular, are especially targeted by organised criminal networks specializing in trafﬁcking for sexual or labour exploitation.45 Children are sought after because they cater to a particular demand in the booming global sex trade, both because of special sexual proclivities and because of reduced AIDS risks. Often they are ensnared by drug offers that lead to dependency on a steady income, typically from crime or prostitution. As a result of this combination of factors, a growing number of refugee children are trafﬁcked into receiving states; it is likely that many apply for asylum, sometimes at the instigation of the trafﬁckers at the point of entry. So in both the smuggling and trafﬁcking contexts, there are reasons why the numbers of separated child asylum applicants might be growing disproportionately to the general pool of applicants. 46 83 Refugee Aff DDW 2009 Political Action Key Political action is crucial to secure the right to have rights Jeffrey ISAAC Poli Sci @ Indiana ‘96 ―A New Guarantee on Earth: Hannah Arendt on Human Dignity and the Politics of Human Rights‖ The American Political Science Review, Vol. 90, No. 1 (Mar., 1996), pp. 70-72 In The Origins Arendt uses the language of rights, the right to have rights, in order to speak about a new guarantee for human dignity. In some of her more philosophical works she develops a different vocabulary, of "praxis" or "public freedom," but she does so in order to confront the same problem-the need to redress the sightlessness prevalent in the late modern world. The theme of dignity remains constant, a reminder of the Kantian problem that grounds her political theorizing. Does this make Arendt a theorist of human rights? No. But it does make her a theorist of the politics made necessary by a world that despoils human rights. The "right to have rights," she believes, can only be secured by politics, by the civic initiative of those vulnerable to the vagaries of world politics and those in solidarity with them. Perhaps the reason Arendt refuses to articulate her constructive political theory in terms of human rights is that she believes such rights have been specified often enough. What has been lacking is an understanding of how such rights might be rendered valid. Arendt's principal point is that such rights do not speak for themselves; nor do weighty declarations of intent speak for them. Such rights are mute, and invisible, unless spoken for, unless made actionable.22 They cannot exist without a politics to back them up. Arendt's theory of politics-her conception of action, her emphasis on citizenship and the power that derives from concerted action-represents an effort to help back them up. It does so by emphasizing those generic features of human existence which make possible an elemental human dignity; which, paradoxically, can only be realized in partial communities, forms of national, ethnic, and other identity that are not all-encompassing; and which rest on political commitment and artifice rather than anything given in the human condition. 84 Refugee Aff DDW 2009 No Rights Rights are nonexistent for child refugees, they have no solid legal protection Jacqueline Bhabha, Jr. Lecturer in Law at Harvard Law School, director of Harvard‘s University Committee on Human Rights Studies, 2009, Human Rights Quarterly, ―Arendt‘s Children: Do Today‘s Migrant Children Have a Right to Have Rights?‖ Project Muse. http://muse.jhu.edu/search/results?action=search&searchtype=author§ion1=author&search1= %22Bhabha%2C%20Jacqueline.%22. As discussed, many states fail to provide comprehensive guardianship and effective legal representation to unaccompanied or separated child migrants, despite unambiguous calls for these protections by the Committee on the Rights of the Child. 78 In the United States, for example, neither publicly funded legal representation nor access to guardianship or any form of individualized and consistent mentorship exists. Even six-year-old Cuban survivor Elian Gonzalez, whose case provoked vigorous legal sparring between interested adult parties with divergent views of Elian‘s best interests, lacked legal representation or guardianship, independent from his adult interlocutors. 79 In the United Kingdom, Arendt‘s children are entitled to publicly funded legal representation, but no system of guardianship exists. By contrast, in other EU states, such as Germany, Belgium, Spain, and France, domestic legislation or regulations stipulate guardianship for these children, though the practical impact of these provisions is unequal and inconsistent. 80 Two other areas of policy that impinge on decision making regarding Arendt‘s children, age determination and child interviewing procedures, also reflect divergent state practice. An effective, reliable, and consistent mechanism for ascertaining the age of an applicant is obviously a necessary condition precedent for protecting children‘s rights; without it, child-specific protections will not reach their intended recipients. Yet despite years of advocacy, no such mechanism is uniformly in place. In the United States, the Netherlands, and Australia, for example, to establish whether the migrant applicant is under eighteen, and therefore entitled to child-specific procedures, the state relies on mechanistically implemented physical tests—dental, wrist, or clavicle X-rays, or rule of thumb personal assessments. Generally, these mechanisms yield results that ignore the physical variability of children from different social, economic, and ethnic backgrounds. 81 By contrast, in the United Kingdom, a holistic test has been developed (though not yet implemented) in response to persistent advocacy on the topic. 82 This is an example of a rights-respecting approach approved by the courts, 83 which takes into account the child‘s ―best interests‖ and his or her own views. 84 The holistic test creates a psychologically and socially nuanced tool for assessing age, which complements the raw indicators of physical development. Decision makers function with the social constructs embedded in their society—because childhood is one such construct, they need to unpack its elements to effectively map its categories and its relationship to chronological age onto subjects with novel backgrounds. As the UK Royal College of Paediatrics and Child Health points out: [A]ge determination is extremely difficult to do with certainty . . . [it] is an inexact science and the margin of error can sometimes be a much as 5 years either side. . . . Estimates of a child‘s physical age from his or her dental development are [only] accurate to within + or – 2 years for 95% of the population. 85 Until recently, government officials have frequently ignored this statistic. According to one study, 50 percent of asylum applicants who were age disputed turned out to be minors; as a result, they were denied the child- specific protections they should have been accorded during the investigative process. A child asylum seeker ―reported becoming very upset when immigration staff were rude and kept laughing at him when he showed them his birth certificate and said that he was 16.‖ 86 Others have endured prolonged periods in detention until authorities accepted their original claim to be children. A holistic policy obligates the state official undertaking the age assessment to not rely solely on the child‘s physical appearance, but instead to consider his or her demeanor, ability to interact with adults, cultural background, social history, life experiences, educational history, as well as the views of foster caregivers, residential workers, teachers, and interpreters. This approach is a good way to explore whether someone is a child and to afford him or her a meaningful right to have rights. Regrettably, despite the open opposition of the British Dental Association, the UK government still has not implemented a holistic test, and instead is considering the use of dental X-rays to ascertain the age of asylum seekers. 85 Refugee Aff DDW 2009 No Rights Stateless children lack the right to have rights due to ambiguity in their status Jacqueline Bhabha, Jr. Lecturer in Law at Harvard Law School, director of Harvard‘s University Committee on Human Rights Studies, 2009, Human Rights Quarterly, ―Arendt‘s Children: Do Today‘s Migrant Children Have a Right to Have Rights?‖ Project Muse. http://muse.jhu.edu/search/results?action=search&searchtype=author§ion1=author&search1= %22Bhabha%2C%20Jacqueline.%22. With characteristic foresight, Hannah Arendt recognized the fundamental human rights challenge of our age: supposedly ―inalienable‖ rights are unenforceable for individuals who ―lack . . . their own government.‖ To ―lack one‘s own government‖ is a status neither precise nor transparent. At a minimum, though, it includes the situation captured by the definition of statelessness in international law: a person is stateless if ―not considered as a national by any State under the operation of its law.‖ 2 The international community has acknowledged Arendt‘s insight about the perils of this situation by enshrining and widely supporting three interrelated principles: the right to a nationality, 3 the right to a legal identity, 4 and the obligation to reduce child statelessness. 5 Yet, over half a century since Arendt wrote about the unenforceability of human rights, and despite the proliferation of human rights institutions, regional agreements, diasporic identities, and celebrations of global citizenship, child statelessness appears to be a growing problem. In 2006, the United Nations High Commissioner for Refugees (UNHCR) announced that 5.8 million people were stateless. 6 Even though this figure is already more than double the number identified in any prior year, UNHCR emphasized that ―the real total is believed to be nearer 15 million.‖ 7 The disjuncture between the two figures is revealing.The first represents those who are technically stateless— people who do not have a nationality according to the international law definition cited above. But, those in the second group (nearly three times the size of the first according to UNHCR) also ―lack their own government‖ in Arendt‘s sense: they are de facto or functionally state- less, unable to enforce rights that are supposedly inalienable. A peculiarly disenfranchised population that clearly illustrates this functional statelessness and its dire consequences is the subset of child migrants who lack their own government. I will call this population Arendt‘s children. This article explores their ambiguous position between inalienable and unenforceable rights. It inquires what it means—to invoke Arendt again—to assert that these migrant children, like all children, have a right to have rights. First, it discusses what statelessness means for children today and how legal and functional statelessness impinge on their lives. It enquires into the rights that children are entitled to as a matter of law and contrasts this with the enforcement capabilities of states in practice. It also examines the effect of treaty ratifica- tion on rights realization and investigates particular areas of relevant policies such as age determination and information gathering. The discussion then turns to the consequences of rights denial, including detention and expul- sion, and the efficacy of litigation as a rights enforcement strategy. Migrant children‘s access to economic and social rights, particularly education and health care, is reviewed. Finally, the article investigates what is required to reduce the functional statelessness of migrant children, concluding with a discussion of whether Arendt‘s children can be considered citizens and the consequences of their compromised status . 86 Refugee Aff DDW 2009 No Legal Rep US Law doesn’t provide children with legal reps, driving refugees back to their home country (American Immigration Lawyers Association, No Date Given, but After 2005) Access to Guardians Ad Litem: In other areas of U.S. law, children who are confronting the legal system are appointed a guardian to assist them. U.S. asylum law, however, fails to provide unaccompanied children with child welfare professionals to ensure the children‘s best interests are addressed when decisions are made about their future. These children face severe psychological trauma related to their separation from family, disorientation in their new environment, and the legal process itself. It is imperative that these children have guardians ad litem with the training to act as their supporters and advisors during this lonely and confusing process. The UACPA would provide ORR with the discretion to appoint guardians ad litem when appropriate and would require implementation of a guardian ad litem pilot program. • Access to counsel: Children, even more than adults, have immense difficulty tackling the complexities of the asylum system without the assistance of counsel. Despite this reality, over fifty percent of children in Department of Homeland Security (DHS) detention are unrepresented. This, even though studies show that the chance of a positive ruling on immigration claims increases dramatically with proper representation. The status quo clearly and unnecessarily drives children with legitimate legal claims back to face the perils from which they originally fled. The UACPA would require the ORR to develop an infrastructure to facilitate and encourage pro bono representation of these children. This is an important first step in ensuring all unaccompanied children the access to counsel that international standards demand. Lack of legal services to unaccompanied minors results in deportation and increased trafficking (Maricela Garcia, executive director of Latinos United, a research and policy organization, M.D. from Kennedy School of Government at Harvard University, 2-27-09, ―Unaccompanied Children In The United States,‖ Latino Policy Forum, http://www.latinopolicyforum.org/assets/Unaccompanied%20Children%20Article.pdf) Compared to other unaccompanied children apprehended at the border, the Border Patrol returns Mexican children without a hearing before an immigration judge.9 In 1985, advocates brought a lawsuit that resulted in a nationwide injunction prohibiting the INS from getting ―voluntary departure‖ agreements from unaccompanied children unless they were first given notice of their rights and put in contact with a relative or a nonprofit organization (Perez-Funez v. District Director). Concerns remain among advocates that the low number of Mexican children that enter the system through DHS is most likely the result of ICE and the Border Patrol putting pressure on these unaccompanied children to sign for ―voluntary departure.‖ This practice is harmful for Mexican children who might otherwise qualify for immigration benefits in the U.S. if they actually had a hearing before an immigration judge. Also, the risks to child trafficking victims increase considerably when the standard practice is voluntary departure or expedited removal. 87 Refugee Aff DDW 2009 No Legal Rep Internationally, child asylum-seekers not only face more difficulties obtaining refugee status but are actually discriminated against Jacqueline Bhabha, Lecturer in Law at Harvard Law School, the Director of the Harvard University Committee on Human Rights Studies, and a Lecturer in Public Policy at the Kennedy School, she directed the Human Rights Program at the University of Chicago authored three reports entitled Seeking Asylum Alone about unaccompanied child asylum seekers, Seeking Asylum Alone: Treatment of Separated and Trafficked Children in Need of Refugee Protection, 20 04 Apart from providing a rigorous profile of this problem, the inquiry will contribute to a broader set of theoretical questions. First, granting asylum constitutes one of the most powerful and successful contemporary human rights remedies; yet available evidence (often anecdotal) suggests that separated children find it much more difficult than adults to gain asylum. They have difficulties getting adequate legal representation, their cases are more likely to be postponed and to drag on over time, and they have less chance of being granted refugee status. The outcome of an asylum application is often a troubling limbo of indeterminacy, rather than a reassuring guarantee of a permanent status (Amnesty International, 1999; Ruxton, 2000; Women‘s Commission for Refugee Women and Children, 2002). For example, according to estimates by Save the Children (UK) only 1 or 2 per cent of separated child asylum seekers receive full refugee status; the majority receives a humanitarian or exceptional ―leave to remain‖, a discretionary immigration status which can be withdrawn after a child is age 18. The central question is whether these children, burdened by the double jeopardy of alienage and minority, are discriminated against in the asylum process. If minority is a handicap rather than an advantage in securing human rights protection, how and why is this so? Is it because separated child asylum seekers have less valid asylum claims? Given the increasingly restrictive and adversarial climate-surrounding asylum in destination states, why is it that a growing number of children are travelling alone to seek protection? Is it because of the changing impact of war and ethnic strife on civilians, the dislocation of families by increased globalization, the impact of child trafficking? Are families choosing to send their children alone to seek asylum, or are children deciding to set off on their own to escape persecution? Second, the refugee protection regime derives its legal force and international legitimacy from the 1951 United Nations Convention Relating to the Status of Refugees (as amended by the 1967 Protocol). This international human rights treaty, as translated into domestic law, is the starting point for all non-citizens seeking asylum. Although age neutral on its face, some argue that there is a normative assumption that refugees are adults. Children are treated differently rather than equally. Threats facing child asylum seekers (as political activists in their own right or as members of targeted families) are ignored or trivialized. Child-specific forms of persecution – such as child abuse, child selling, or child trafficking – are not considered to fall within the ambit of the five ―grounds‖ for protection: race, religion, nationality, membership of a particular social group, and political opinion. Thus, according to the SCE project, when considering whether a child has a valid ground for fleeing his or her country of origin, responsible officials often pay insufficient attention to children‘s circumstances. There are virtually no examples … of cases where child-specific forms of human rights violations are taken into consideration in the refugee status determination. There is considerable evidence that some countries enroll children in armies or rebel groups, but there is often official disbelief that the problem exists. For example, in the Netherlands, a child who claims to be afraid of forced recruitment into the army is sometimes considered as no more than a draft dodger (Ruxton, 2000). The most straightforward explanation advanced is that, as in other areas of international law, children have tended to be invisible, their issues minimized by an adult-centred focus (Sadoway, 1997). A somewhat different interpretation is that child asylum seekers, like street children in some countries, are not ignored but excluded, targets of social hostility, fear, and exclusionary measures rather than of protective concern (Bhabha, 2001), ―runaways or throwaways‖ as a key US juvenile immigration official once described them in conversation with me. Save the Children (UK) notes the pervasive suspicion that dominates decision making in this field – according to a cited source, ―the younger you are, the more suspicious they are around you‖ (Save the Children, 2002). This study will test these interpretative frameworks against the data collected. We will ask whether equality rather than difference is a more effective basis for securing protection. 88 Refugee Aff DDW 2009 No Legal Rep US Law doesn’t provide children with legal reps, driving refugees back to their home country (American Immigration Lawyers Association, No Date Given, but After 2005) Access to Guardians Ad Litem: In other areas of U.S. law, children who are confronting the legal system are appointed a guardian to assist them. U.S. asylum law, however, fails to provide unaccompanied children with child welfare professionals to ensure the children‘s best interests are addressed when decisions are made about their future. These children face severe psychological trauma related to their separation from family, disorientation in their new environment, and the legal process itself. It is imperative that these children have guardians ad litem with the training to act as their supporters and advisors during this lonely and confusing process. The UACPA would provide ORR with the discretion to appoint guardians ad litem when appropriate and would require implementation of a guardian ad litem pilot program. • Access to counsel: Children, even more than adults, have immense difficulty tackling the complexities of the asylum system without the assistance of counsel. Despite this reality, over fifty percent of children in Department of Homeland Security (DHS) detention are unrepresented. This, even though studies show that the chance of a positive ruling on immigration claims increases dramatically with proper representation. The status quo clearly and unnecessarily drives children with legitimate legal claims back to face the perils from which they originally fled. The UACPA would require the ORR to develop an infrastructure to facilitate and encourage pro bono representation of these children. This is an important first step in ensuring all unaccompanied children the access to counsel that international standards demand. 89 Refugee Aff DDW 2009 No Legal Rep Children’s’ legality processes inapplicable to unaccompanied minors Joyce Koo Dalrymple, Symposium Editor, Boston College Third World Law Journal (2005-2006). 26 B.C. Third World L.J. 131 Boston College Third World Law Journal, winter 2006 In an immigration law framework that traditionally affords children no independent rights from their parents, unaccompanied minors are greatly disadvantaged in seeking asylum. n35 Since children do not have recognized rights of their own in immigration law, by default, unaccompanied minors are treated as adults and must meet the same substantive legal standards as adults. n36 Because no significant political force has traditionally spoken on their behalf, some argue, unaccompanied children have been an unrepresented, cloutless body in the political process. n37 A traditional focus upon adults minimizes children's issues so that substantive legal reforms for these children have not occurred. n38 In sum, unaccompanied minors remain a largely neglected group in immigration and asylum law. n39In U.S. immigration law, a "child" is defined in relation to a parent; thus the law does not recognize a child without a parent. n40 To be [*138] a "child," one must establish a recognized type of parent-child relationship such as birth in wedlock, creation of a stepchild relationship, bona fide relationship with a natural father, or adoption. n41 In family-sponsored immigration, a child can only immigrate on the basis of a parent-child relationship as a beneficiary or derivative of the parent. n42 As a beneficiary, a child must have a parent who is a legal permanent resident or citizen to sponsor her application. n43 She would have no right to force the filing of the petition on her behalf. n44 As a derivative, she can enter the United States only if her parent's petition to come to the country is granted. n45 Conceptions of children as beneficiaries or derivatives place them in a passive role, objectify them as family possessions, and mitigate their independent legal status. n46 Unaccompanied minors, on the other hand, are disadvantaged because they have no parent from which to gain legal status. n47 Persons under 18, who arrive unaccompanied in the United States, are not technically children since a "child" can only exist in relation to a parent according to the Immigration Nationality Act. n48 Instead, the government inconsistently substitutes the phrase unaccompanied "minors" or "juveniles" for the term "child" when referring to separated children. n49 Unaccompanied minors not only face a setback in terms of [*139] their marginalized place within the immigration law framework, but they also experience unique hurdles to gaining asylum because of adult misperceptions. n50 90 Refugee Aff DDW 2009 No Legal Rep Bad Lack of legal services to unaccompanied minors results in deportation and increased trafficking (Maricela Garcia, executive director of Latinos United, a research and policy organization, M.D. from Kennedy School of Government at Harvard University, 2-27-09, ―Unaccompanied Children In The United States,‖ Latino Policy Forum, http://www.latinopolicyforum.org/assets/Unaccompanied%20Children%20Article.pdf) Compared to other unaccompanied children apprehended at the border, the Border Patrol returns Mexican children without a hearing before an immigration judge.9 In 1985, advocates brought a lawsuit that resulted in a nationwide injunction prohibiting the INS from getting ―voluntary departure‖ agreements from unaccompanied children unless they were first given notice of their rights and put in contact with a relative or a nonprofit organization (Perez-Funez v. District Director). Concerns remain among advocates that the low number of Mexican children that enter the system through DHS is most likely the result of ICE and the Border Patrol putting pressure on these unaccompanied children to sign for ―voluntary departure.‖ This practice is harmful for Mexican children who might otherwise qualify for immigration benefits in the U.S. if they actually had a hearing before an immigration judge. Also, the risks to child trafficking victims increase considerably when the standard practice is voluntary departure or expedited removal. 91 Refugee Aff DDW 2009 Legal Services Needed The USFG should increase legal rep for unaccompanied minors, unfair and deportation otherwise (Maricela Garcia, executive director of Latinos United, a research and policy organization, M.D. from Kennedy School of Government at Harvard University, 2-27-09, ―Unaccompanied Children In The United States,‖ Latino Policy Forum, http://www.latinopolicyforum.org/assets/Unaccompanied%20Children%20Article.pdf) The majority of children apprehended at the U.S.-Mexico border are Mexican nationals who flee their country for similar reasons as other children. However, unlike other children, U.S. officials pressure Mexican children to sign voluntary departure and then return them to Mexico without a hearing before an immigration judge or without fully knowing their rights.25 Opportunities for Impact 3. The Department of Justice should examine the repatriation policies and processes and the effectiveness of the agencies involved.26 4. NGOs should create a regional unaccompanied child support network that provides housing, counseling, advocacy and legal services to children migrating to the U.S.27 5. The U.S. Congress should commission a thorough report of what happens to children who are repatriated to Mexico to better understand the impact of the current policies.\ Unaccompanied Children in the United States Maricela Garcia 5 Lack of Compliance with Existing Law and Procedures Advocates criticize the DHS for not adequately implementing the Flores Agreement including holding children in harsh detention conditions, not accurately determining their ages and not apprising them of their rights. Additionally, accurate data on the ages and numbers of unaccompanied children is either difficult to obtain or nonexistent making it harder to develop good policies. Opportunities for Impact 6. Via congressional oversight, the U.S. government must ensure that all agencies dealing with unaccompanied children comply with all relevant national laws, regulations, and international standards concerning the detention conditions of these children.28 7. All employees whose duties bring them into contact with juveniles should receive training on the special needs and rights of unaccompanied children, including the requirements of the Flores Agreement, the Perez-Funez v. District Director and international standards.29 8. The DHS should ensure that all facilities used to house children prior to transfer of custody to ORR meet the requirements of the Flores Agreement. 9. Federal agencies should improve service coordination, data gathering, data management and tracking of unaccompanied and separated children served by the federal government.30 Inadequate Legal Access Even if given a hearing, the vast majority of unaccompanied children do not have legal counsel and are confronted with language barriers and complex legal proceedings. Unaccompanied children in removal hearings have a statutory right to legal counsel according to section 292 of the Immigration and Nationality Act but not a right to government funded legal counsel. This means that they either hire an attorney or obtain pro bono assistance. Lack of legal representation nearly dooms the child to deportation. The Transactional Records Access Clearinghouse determined that 93 percent of asylum claims are denied when the asylum seeker does not have legal representation.31 Lack of legal representation also stems from the remote geographic locations of ORR detention facilities and the related unavailability of qualified pro bono attorneys. Opportunities for Impact 10. Designate a Guardian ad litem32 to advocate for the best interest of the child.33 11. The U.S. government should guarantee that all unaccompanied children are provided with legal representation. If a child cannot afford legal representation, and meaningful pro bono legal representation cannot be secured, it should be provided at the government‘s expense.34 12. Create a national network of geographically dispersed pro bono attorneys to provide legal representation and provide expert training for them.35 92 Refugee Aff DDW 2009 Fractured Citizenship Stateless children’s vulnerability leaves them fractured citizenship Jacqueline Bhabha, Jr. Lecturer in Law at Harvard Law School, director of Harvard‘s University Committee on Human Rights Studies, 2009, Human Rights Quarterly, ―Arendt‘s Children: Do Today‘s Migrant Children Have a Right to Have Rights?‖ Project Muse. http://muse.jhu.edu/search/results?action=search&searchtype=author§ion1=author&search1= %22Bhabha%2C%20Jacqueline.%22. When combined, each of the three characteristics that define Arendt‘s children brings with it the potential for some kind of rightlessness. First, children are disproportionately represented among the world‘s poor. 20 Second, children who are separated or unaccompanied face a far greater risk of abuse, exploitation, or neglect than their accompanied counterparts. 21 Finally, being functionally stateless, whether by virtue of ―alienage‖ or familial noncitizen status, also brings with it economic, social, and psychological dangers. 22 For Arendt‘s children, burdened with this triple disadvantage, the risk of some form of rightlessness is stark and the effect is marked, even in wealthy, industrialized, democratic states that generally celebrate children‘s rights to protection and autonomy. Consider, for example, the 1.8 million unauthorized 23 children currently living in the United States. 24 They live with the daily threat of raids by the immigration authorities. Contact with state authorities in schools or hospitals may lead to unwanted inquiries into their status. Educational aspirations for college and university are forcibly truncated at the end of high school, irrespective of academic performance. They enjoy, at best, a partial or fractured citizenship; they may perceive their situation as living between rather than within states, despite the seamless division of the earth‘s territory into states—they can never fully belong where they are. The same is true of the thousands of Roma children living and working on the streets of Europe‘s capitals. Despite their EU citizenship, they are effectively disenfranchised, sometimes even confined to destitution in segregated ―nomad camps.‖ Sixty years after the signing of the 1948 Universal Declaration of Human Rights (UDHR), nearly twenty years after the near universal ratification of the 1989 UN Convention on the Rights of the Child (CRC), and several generations into what Louis Henkin has memorably called an ―age of rights,‖ 25 these children‘s right to have rights is tenuous at best and frequently unenforce- able in practice. An inquiry into what their ―right to have rights‖ consists of can be broken down into two more specific questions. First, to what social protections and services are these children entitled as a matter of public policy and law? Or, phrased differently, when do they have a right to have rights? Second, what does their social membership deliver to them in practice? What indicators do states use to define social membership, and what are the consequences of these choices? For states to act like states, they have to see and categorize like states. 26 In other words, they have to establish workable classifications among a diverse population. But historically, most states have overlooked or looked away from the needs of this group. \ 93 Refugee Aff DDW 2009 US Legal Right Action Good – Unaccompanied Minors US protection of legal rights of unaccompanied minors will galvanize action from others (Maricela Garcia, executive director of Latinos United, a research and policy organization, M.D. from Kennedy School of Government at Harvard University, 2-27-09, ―Unaccompanied Children In The United States,‖ Latino Policy Forum, http://www.latinopolicyforum.org/assets/Unaccompanied%20Children%20Article.pdf) The United Nations 1989 Convention on the Rights of the Child (CRC) provides the international framework for the protection of child refugees. Every nation in the world ratified the CRC except the failed state of Somalia and the U.S. Therefore, the U.S. is not required to enforce those provisions in domestic law but, since they signed the convention, Congress cannot pass laws in contradiction to it.36 The CRC is founded on the principle of the ―best interests of the child,‖ a legal standard that seeks to ensure the protection and welfare of children. While the best interest principle has been incorporated into U.S. child welfare laws, it has not been included in immigration laws. Some government agencies, however, have issued procedural guidelines that do include the principle. The Executive Office for Immigration Review (EOIR) issued Guidelines for Immigration Court Cases Involving Unaccompanied Alien Children, provide enhanced due process procedural safeguards for unaccompanied children appearing before Immigration Judges, but well-defined and binding criteria for assessing a child‘s best interest are seriously lacking.37 Opportunities for Impact 13. Advocate for the U.S. Senate to ratify the UN convention of the Rights of Children.38 14. The U.S. government should ensure that no child is returned to a country where he or she would be at risk of serious human rights abuses.39 15. The ―best interests of the child‖ should be incorporated into existing and future immigration policy and legislation.40 Framework for Action: The U.S. Congress needs to pass new legislation, enforce existing policies and procedures protecting unaccompanied children and incorporate international standards into national law. Achieving these changes will require a regional education, advocacy and action campaign to protect the rights of this vulnerable population. In the U.S., a campaign showing the human face of this tragedy and appealing to societal moral and political responsibility toward children could galvanize the interest of the nation and mobilize the actions of human rights, legal, social service and faith-based organizations. 94 Refugee Aff DDW 2009 Minor Rights Good Universal rights of adults are the rights of minors Joyce Koo Dalrymple, Symposium Editor, Boston College Third World Law Journal (2005-2006). 26 B.C. Third World L.J. 131 Boston College Third World Law Journal, winter 2006 The United Nations Convention on the Rights of the Child, the most widely ratified human rights treaty, mandates that "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 the primary consideration." n103 Therefore, according to the CRC, the best interests standard is not only relevant when determining procedural questions but also when considering substantive issues pertinent to child asylum claims. n104 Furthermore, the CRC states in Article 22 that a child seeking refugee status shall receive appropriate protection and humanitarian [*148] assistance, and enjoy the rights set forth in the Convention and other international human rights instruments. n105 The Convention formally recognizes children's rights as human rights because they are fundamental rights inherent to the human dignity of all people, regardless of age. n106 This notion means that children are rights-holders, whose views must be taken into consideration. n107 For this purpose, Article 12(2) states that "the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child either directly, or through a representative or an appropriate body. . . ." n108 Parents and the community are fiduciaries, entrusted with helping the child exercise her rights rather than substituting their voice for the child's. n109 Therefore, this "views of the child" approach turns children from passive objects of the law into active agents. n110 95 Refugee Aff DDW 2009 Fed Responsibility Moral obligation – federal government has responsibility to safeguard vulnerable unaccompanied alien children. Julianne Duncan, Ph.D. Director, Office of Children's Services Migration and Refugee Services/U.S. Conference of Catholic Bishops. Joint Testimony of Migration and Refugee Services/U.S. Conference of Catholic Bishops and Lutheran Immigration and Refugee Service before The Senate Subcommittee on Immigration February 28, 2002. http://www.usccb.org/mrs/duncantestimony.shtml Because of our long experience in caring for and advocating on behalf of unaccompanied minors, Mr. Chairman, our testimony today will point out changes in law we believe are required, as laid out in Senator Feinstein's bill, to reform the current system. In the view of MRS/USCCB and LIRS, our government's treatment of unaccompanied alien children should be governed by the following principles: The Federal government has a special responsibility to ensure that unaccompanied alien children are treated with dignity and care. Children are our most precious gifts. Their youthfulness, lack of maturity, and inexperience make them inherently vulnerable and in the need of the protection of adults. Unaccompanied alien children are among the most vulnerable of this vulnerable population. They are separated from both their families and their communities of origin, they are often escaping persecution and exploitation, they often find themselves in a land in which the language and culture are alien to them, and they are thrust into complex legal proceedings that even adults have great difficulty navigating and understanding. Unaccompanied minors should be held in the least restrictive setting as possible, preferably with family members or with a foster family. Secure facilities should be used on a very limited basis and only when absolutely necessary to protect a child's immediate safety or the safety of the community. Minors should be reunited with parents, guardians, or other family members within the United States as soon as possible. While a family is in temporary detention, they should not be separated unless it is in the best interest of the child. Because of their special vulnerability and inability to represent themselves, unaccompanied children should be provided with legal representation and guardians ad litem to assist them in immigration proceedings and to see that care and placement decisions are made with a child's best interest in mind. Mr. Chairman, these principles are not currently governing U.S. policy toward unaccompanied alien children in the United States. Instead, thousands of children each year are held in detention, some with juvenile criminal offenders, with little or no access to legal assistance and with decreasing ability to reunite with family members. Some children are detained for months awaiting their asylum hearing, while others are deported immediately back to their country-of-origin without substantial attempts to locate their parents or immediate family members. Moreover, as a child welfare expert with knowledge of the foster care and juvenile justice systems, I find it shocking to see how children in INS custody are treated. Equally disturbing is that children in immigration proceedings are not ensured legal representation, a practice which is not accepted in other types of court proceedings. 96 Refugee Aff DDW 2009 US Responsibility International consensus – US must fulfill moral responsibility to protect child asylee seekers. Rachel Bien an associate at Outten & Golden LLP, clerked for Judge Thomas G. Nelson on the United States Court of Appeals for the Ninth Circuit, ‗03. ―NOTHING TO DECLARE BUT THEIR CHILDHOOD: REFORMING U.S. ASYLUM LAW TO PROTECT THE RIGHTS OF CHILDREN‖ Journal of Law and Policy 12 pg. 840-841 The growing international consensus that child asylum seekers require special protections has important implications for U.S. asylum laws. Although the U.S. asylum system currently does not differentiate between adult and child applicants, the United States should build on recent proposals to afford greater procedural protections to child asylum seekers with substantive provisions that address the forms of persecution unique to children. With millions of children suffering from the consequences of armed conflicts around the world, the international community has a special legal and moral obligation to ensure that child asylum seekers receive adequate care and protection. As this record of violence makes clear, a world unwilling to protect children is one in which ―children are slaughtered, raped, and maimed . . . exploited as soldiers . . . starved and exposed to extreme brutality.‖ 202 In short, it is a world devoid of the most basic of human values. The United States has an important role to play in ensuring that children who escape such turmoil are properly protected. 97 Refugee Aff DDW 2009 Child Trauma Refugee children suffer trauma and often do not receive the help they need National Child Traumatic Stress Network and Refugee Trauma Task Force, Established by Congress in 2000 is a collaboration of academic and community-based service centers whose mission is to raise the standard of care and increase access to services for traumatized children and their families across the United States. Combining knowledge of child development, expertise in the full range of child traumatic experiences, and attention to cultural perspectives, the NCTSN serves as a national resource for developing and disseminating evidence-based interventions, trauma-informed services, and public and professional education. 2005 <http://126.96.36.199/search?q=cache:8wvH_mjc7L0J:www.nctsnet.org/nctsn_assets/pdfs/promising_practices/MH_Interventi ons_for_Refugee_Children.pdf+social+services+available+for+refugee+children&cd=11&hl=en&ct=clnk&gl=us> As discussed extensively in the White Paper I, refugee children experience a great number of stressors throughout their pre- migration, flight, and resettlement experiences that impact on their psychological well being. Refugee children experience trauma resulting from war and political violence in their countries of origin prior to migration, as well as during flight or in refugee camps. These multiple stressors include direct exposure to war time violence and combat experience, displacement and loss of home, malnutrition, separation from caregivers, detention and torture and a multitude of other traumatic circumstances affecting the children‘s health, mental health and general well being. A large number of studies have documented a wide range of symptoms experienced by refugee children, including anxiety, recurring nightmares, insomnia, secondary enuresis, introversion, anxiety and depressive symptoms, relationship problems, behavioral problems, academic difficulties, anorexia, and somatic problems (Allodi, 1980; Almqvist & Brandell-Forsberg, 1997; Angel, Hjern, & Ingleby, 2001; Arroyo & Eth, 1985; Boothby, 1994; Cohn, Holzer, Koch, & Severin, 1980; Felsman, Leong, Johnson, & Felsman, 1990; Gibson, 1989; Goldstein, Wampler, & Wise, 1997; Hjern, Angel, & Hoejer, 1991; Hodes, 2000; Kinzie, Sack, Angell, Manson, & Roth, 1986; Krener & Sabin, 1985; Macksoud & Aber, 1996; Masser, 1992; McCloskey & Southwick, 1996; McCloskey, Southwick, Fernandez-Esquer, & Locke, 1995; Mollica, Poole, Son, Murray, & Tor, 1997; Muecke & Sassi, 1992; Paaredekooper, de Jong, & Hermanns, 1999; Papageorgiou et al., 2000; Weine, Becker, Levy, & McGlashan, 1997; C. Williams & Westermeyer, 1983), and linked the presence of these symptoms to exposure to trauma prior to migration. With high prevalence of posttraumatic stress symptoms among refugee children reported to be between 50-90% (Lustig et al., 2004), many refugee children are in need of trauma-informed treatment and services. Despite evidence for the need for such treatment, refugee children in resettlement are unlikely to benefit from mental health services because they rarely use them. This problem is not unique to refugee children, as many recent reviews have observed that few U.S. children in need of mental health services receive care (Collins & Collins, 1994; Kataoka, Zhang, & Wells, 2002; Stephenson, 2000; Surgeon General's Report, 1999). Epidemiological studies report that fewer than 20% of children who need mental health care actually receive services (Lahey, Flagg, Bird, & Schwab-Stone, 1996). In addition, of those children who do receive services, fewer than 50% receive the appropriate service relative to their need (Kazdin, 1996). Because refugee children face additional barriers to receiving care, experts suspect that most refugee children in need of mental health services do not find their way into the existing mental health care system (Geltman, Augustyn, Barnett, Klass, & Groves, 2000; Westermeyer & Wahmanholm, 1996). One survey of refugee health programs in nine metropolitan areas in the U.S. found that while 78% of the sites offered mental health care, only 33% of the sites carried out mental health status examinations (Vergara, Miller, Martin, & Cookson, 2003). This suggests that refugees with mental health problems are unlikely to be identified, and thus unlikely to receive treatment. Overall, these findings suggest that interventions that facilitate access and engagement in mental health services for refugee children are needed. 98 Refugee Aff DDW 2009 **MORALITY** 99 Refugee Aff DDW 2009 Iraqi Responsibility The United States can and should be doing more to help (the Iraqi) Refugees but isn’t Shirmila N. Cooray, worked with two Iraqi refugees this past fall while studying in Denmark. Jason Opal is an assistant professor at Colby who specializes in early American history and the history of international law. Kennebec Journal Morning Sentinel 04/03/2008 http://kennebecjournal.mainetoday.com Among the least-acknowledged results of the Iraq War is a refugee crisis of enormous proportions. According to the aid organization Refugees International, since 2003 -- and especially since the outbreak of sectarian bloodshed in 2005 and 2006 -- at least two million Iraqis have escaped their country. Two million more have been displaced within Iraq's fragile borders. Some fled because they helped the American military (or were rumored to have done so) and now face reprisals as collaborators. Many sought refuge from the brutal struggle between and among Sunnis and Shiites for power and influence, or from the sheer lawlessness that has crippled much of post-Saddam Iraq. For the most part, they cannot work in their adopted countries, nor enroll their children in schools. So they draw on family savings and scrape by, sinking into poverty far from home. With important exceptions, no one in the United States -- not our president, not our Congress, not our religious or cultural leaders -- has taken much notice of this crisis. During a recent debate in the House of Representatives, for example, one congressman flatly denied that the United States should "subsidize the existence or living standards of refugees in Jordan or anywhere else if they have the option of going home." Citing the tactical successes of the U.S. "surge" in Baghdad, he argued that the best option was to ensure that the Iraqi government "continues on a path of stability," by encouraging the displaced people to return home. He even suggested that some refugees were "not interested in leaving the refugee camp, because there was a subsidy situation going on." The implication is that Americans have already done all they can for this troublesome country, whose suffering is no concern of ours. Given the economic worries of Maine and the United States, this line of thinking is very appealing. It is also wrong, in every sense of the word. The fact that violence has declined in much of Iraq over the past several months (with recent flare-ups, it appears) does not mean that many or most of the refugees can return home. The fact that the war is no longer a popular subject of debate or discussion, if indeed it ever was, does not mean that we can avoid its results or ignore its victims. At the very least, the United States has a moral obligation to resettle those Iraqis who helped the American military and to increase aid to those nations now harboring the great majority of refugees, Jordan and Syria. At the very least, the United States must do a better job admitting these vulnerable people than it did in 2007, when Refugees International says only 1,600 of a promised 7,000 Iraqis were resettled. Last fall, one of us met two Iraqi refugees while studying in Denmark. Although these refugees received public housing and health care from the Danish government, the two men wanted nothing more than to live and work as they once had, and to command the respect of friends and neighbors. Despite the suffering of their countrymen, they were not bitter or angry, and their gentleness and generosity reminded us of the human cost of war -- and the obligations that come with it. If a small and homogenous nation like Denmark can offer shelter, surely a nation as large, open, and diverse as the United States can do the same. Shirmila N. Cooray is a junior at Colby who worked with two Iraqi refugees this past fall while studying in Denmark. Jason Opal is an assistant professor at Colby who specializes in early American history and the history of international law. 100 Refugee Aff DDW 2009 UN Violation Current treatment of Iraqi refugees in violation of UN refugee protocol. Dana R. Green, 2009 J.D. candidate at Columbia Law School and Articles Editor of the Columbia Human Rights Law Review. ―Navigating North: How the Canadian Approach to Firm Resettlement should Guide US Implementation of the Refugee Conventions.‖ Columbia Human Rights Law Review, Spring, 2009. JM Modern international commitments to protecting refugees were established by the 1951 United Nations Convention Relating to the Status of Refugees and the 1967 United Nations Protocol Relating to the Status of Refugees (collectively, the Refugee Conventions). The 1951 Convention was intended to be a short-term 22 solution, limited to addressing the vast refugee crisis in Europe following World War II. It was the 1967 23 Protocol that expanded these temporal and geographical limits, creating the international system that exists today. The Refugee Conventions set forth the basic principles of asylum law, some of which are so 24 fundamental that reservations cannot be made to them. One such principle is non-refoulement: "that no 25 Contracting State shall expel or return ("refouler") a refugee, against his or her will, in any manner whatsoever, to a territory where he or she fears persecution." Additional protections against refoulement were also 26 established by the United Nations Convention Against Torture (CAT), which specifically protects victims of torture. The CAT is less important to the issue of firm resettlement than the Refugee Conventions, and is 27 [*708] primarily discussed in this Note because it has shaped the legal options available to refugees within the U.S. asylum system US has obligation to satisfy legal and moral requirements of Iraqi refugees – UN refugee convention. Hana Al-Bayaty, Film-maker and Journalist, Al Ahram Global Policy Forum, 6 January 2008 Oil for Iraqi Citizens While Iraqi refugees cannot safely return home, they cannot wait until violence ends in Iraq for their needs to be met. The key hosting countries bearing the millions of displaced Iraqis are home already to large refugee populations and are developing economies. With their own citizens suffering unemployment, Iraqi refugees are denied work permits and permanent residency. In addition, these key hosting states are not signatories to the 1951 UN Refugee Convention, and therefore not bound by its principles -- even in instances denying the customary international legal obligation of non-refoulement (prohibition on the expulsion of refugees to an area where they may face persecution). As a consequence, Iraqis are denied status, considered tourists with no recognised passport or residence, and left economically and socially vulnerable. All indicators of social desperation are present while reports of increasing resort to degrading means of survival keep arising. According to international humanitarian and human rights law, the international community, the occupying powers, and the government in Iraq are legally bound to support and protect Iraqi refugees. Neither the occupation with the governments it has installed nor individual states and the international community have met their legal and moral obligations towards displaced Iraqis or the countries hosting them. Iraqi refugees are temporarily displaced Iraqi citizens who have a full right to live in dignity, the right to benefit from national resources, and the right to return to their homes. They are protected persons under The Hague Regulations and the Geneva Conventions, as well as several instruments of international law that relate to refugees. 101 Refugee Aff DDW 2009 UN Violation UN guidelines require legal counsel for asylum seekers. UN Refugee Agency. ―Iraqi Refugees, Asylum Seekers, and Displaced Persons: Current Conditions and Concerns in the Event of War.‖ Refworld, Refugee Decision Support, February 13, 2003. http://www.unhcr.org/refworld/publisher,HRW,,IRQ,45d168c12,0.html UNHCR guidelines state that asylum seekers should only be detained in exceptional circumstances and that refugee children should never be detained. The right to liberty and security of person is guaranteed under the International Covenant on Civil and Political Rights (ICCPR). Article 9 of the ICCPR provides that everyone "has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention." To ensure freedom from arbitrary detention, Article 9 further requires that detention must be examined for its lawfulness by an impartial adjudicator. The U.N. Human Rights Committee has expressly stated that the guarantees of Article 9 apply to aliens. UNHCR guidelines on the detention of asylum seekers also stipulate that minimal procedural safeguards must be guaranteed. These include the right to an automatic independent judicial review of all decisions to detain followed by periodic reviews of the necessity to continue to detain, and the right of all asylum seekers to be informed of their right to legal counsel and to be provided free legal assistance where possible. Policies of Australia, the United States, and other governments in Europe to detain asylum-seekers with severely limited access to review by an impartial adjudicator violates the prohibition against arbitrary detention. UN norms require resettlement countries to provide immediate and regular access to legal counsel for Iraqi refugees. UN Refugee Agency. ―Iraqi Refugees, Asylum Seekers, and Displaced Persons: Current Conditions and Concerns in the Event of War.‖ Refworld, Refugee Decision Support, February 13, 2003. http://www.unhcr.org/refworld/publisher,HRW,,IRQ,45d168c12,0.html Recommendations to governments outside the region Allow Iraqi and other asylum seekers access to fair and efficient asylum determination procedures. Immigration controls, including visa restrictions, anti-terrorist and anti-smuggling measures, should not infringe on the rights of all asylum seekers to access fair and efficient asylum determination procedures, and should in no way undermine governments‘ international obligations prohibiting arbitrary and indefinite detention or the return of refugees and asylum seekers to territories where their lives or freedom may be threatened. Prepare emergency and additional resettlement possibilities for Iraqi refugees. Ensure that Iraqi refugees are given full access to resettlement referrals, and that they are accepted for resettlement. Ensure that immigration control measures include procedural safeguards in conformity with international standards for migrants, refugees, and asylum seekers who are arrested, detained, or in the process of deportation. At a minimum, those safeguards must include the rights to judicial review; an explanation of rights and the reasons for their detention in their own language or a language that they understand; immediate and regular access to family, legal counsel, and a medical officer; communication with representatives of international humanitarian agencies; an effective legal remedy to challenge the lawfulness of detention and obtain release if the detention is arbitrary or unlawful; access to a judicial authority to complain about possible mistreatment; and the right to seek and obtain compensation for arbitrary detention or other abuse. 102 Refugee Aff DDW 2009 US Responsibility US has moral obligation to resettle Iraqi refugees. Amnesty International. Document - Iraq: Millions in flight: the Iraqi refugee crisis September 2007 http://www.amnesty.org/en/library/asset/MDE14/041/2007/en/a2989197-d368-11dd-a329- 2f46302a8cc6/mde140412007en.html More than four years after the US-led invasion of Iraq, stability and peace remain out of reach for the people of Iraq. The increasingly desperate humanitarian situation of Iraqis who have been displaced inside and outside their country has been largely ignored by the rest of the world, including states whose military involvement in Iraq has played a part in creating the situation from which millions of people have fled. Governments have paid lip-service to the needs of the Iraqi displaced, but real and on-going commitment to support them has not emerged to anything like the extent necessary to address this dire and deepening crisis.The extreme violence and instability propelling people to flee Iraq has resulted in the largest population movement in the Middle East since Palestinians were displaced following the creation of the State of Israel in 1948.(3) Unsurprisingly, such widespread displacement has had a profound impact within Iraq and for the political, economic and social stability of the main countries hosting these populations. The 1.4 million Iraqi refugees in Syria now comprise at least 7 per cent of the population;(4) in Jordan, an estimated 500,000-750,000(5) Iraqi refugees comprise around 10 per cent of the population.(6) Inevitably, both countries have been severely affected by the influx of Iraqi refugees, and the situation is worsening as the savings brought by many of the refugees run out. With government resources stretched to breaking point and pressure rising internally, measures are being taken that aim to curb the population flows. The Syrian government has recently introduced strict visa restrictions for Iraqis wishing to enter the country. While these have been temporarily suspended until the end of the month of Ramadan, when fully implemented they will effectively sever the last open escape route for Iraqis. The Jordanian authorities, meanwhile, are poised to impose new visa requirements that will regularize the current, already restrictive entry practice whereby the only Iraqis permitted entry are those who hold Jordanian residency permits, those wishing to enter for certified medical reasons and invitees to conferences.Despite this critical situation, the response of many in the international community, including states that participated in the US-led invasion and can be considered to have a particular obligation to address the humanitarian effects of their military action, has been inadequate. Relief, in the form of financial and other assistance and facilitating the resettlement of refugees, has not readily emerged. States have provided much less assistance than they could and should contribute, and many have not made any contribution to the resettlement of refugees. Worse, the authorities in some states have been prepared actively to put people‘s lives at risk, including through forcible returns to Iraq, cutting off basic assistance to rejected Iraqi asylum-seekers while they remain in their countries, and revoking refugee status. 103 Refugee Aff DDW 2009 US Responsibility US action key – obligation to expedite Iraqi refugee process. Amnesty International Document - Iraq: Millions in flight: the Iraqi refugee crisis September 2007 http://www.amnesty.org/en/library/asset/MDE14/041/2007/en/a2989197-d368-11dd-a329- 2f46302a8cc6/mde140412007en.html Amnesty International calls on states with capacity in the international community, in particular states that have contributed to the US-led invasion, to immediately: · Share the responsibility by resettling Iraqis from Jordan and Syria in an expedient manner, giving priority to the most vulnerable cases in accordance with UNHCR guidelines on the resettlement of Iraqi refugees. This should go far beyond token numbers and should constitute a significant part of the solution to the current crisis. In particular Amnesty International calls for: · the introduction of new resettlement programmes in countries not currently participating in resettlement programmes; · an increase in annual overall resettlement quotas in countries with established resettlement programmes; · an immediate increase in the number of Iraqis taken in annual quotas; · honouring of promises made to increase resettlement numbers; · undertaking faster processing arrangements to ensure protection is provided as quickly as possible; · for states not to lose sight of the needs of the refugees or responsibility sharing and protection aims of resettlement by placing disproportionate focus on "local integration potential" or health requirements; and· for states to ensure that any security assessments are made through individualised determinations based on a thorough investigation, and not on the basis of blanket policies excluding particular categories of refugees, for example, certain age or gender groups. The US must continue to provide funds and aids and cooperate with other nations' gov'ts for those who are barred off Human Rights First. How to Confront the Iraqi Refugee Crisis, A Blueprint for the New Administration Released in December 2008 http://www.humanrightsfirst.org/pdf/090428-RP-iraqi-progress.pdf Hundreds of thousands of displaced Iraqis are living in difficult circumstances in urban centers in Jordan, Syria, Egypt, and Lebanon. The life savings of many middle- and lower-income Iraqis are rapidly disappearing, exhausted by months or years of displacement. UNHCR food provisions become increasingly necessary as families cannot afford to buy food independently. Children are forced to forgo education for employment in the informal economy; on a recent mission to Syria, Human Rights First researchers interviewed several mothers whose teenage sons worked 60- or 70-hour weeks in restaurants to support their extended families. Iraqis who work illegally are vulnerable to exploitation or other employer abuse. Some Iraqi women have been forced to turn to prostitution in order to survive. Compounding these dire circumstances—and creating pressure on host governments—are the global economic crisis, a two- year drought, and dramatic increases in food and fuel prices in the region. In the past year, the United States has significantly improved its funding of humanitarian aid appeals for Iraqi refugees and IDPs—it contributed $398 million in FY 2008, up from just $171 million in FY 2007. The United States must continue this commitment in the coming years, and apply diplomatic pressure on other donor countries, as well as on the government of Iraq, to increase their own aid levels to meet the serious needs of displaced Iraqis. Further, the United States has failed to seriously engage on diplomatic levels with countries in the region to address structural issues that prevent aid from reaching many who greatly need it. Without U.S. leadership on these humanitarian efforts, displaced Iraqis will languish, increasingly desperate, undermining U.S. moral authority and contributing to instability in the region. 104 Refugee Aff DDW 2009 US Responsibility The US is under obligation to provide and facilitate refugee rights (James C. Hathaway, leading authority on international refugee law, director of Program in Refugee and Asylum Law in UMich, 2005, pg495 – 496, ―The Rights of Refugees Under International Law‖) In the end, then, under present interpretations of international human rights law, the failure of a government to provide foreign aid or to allocate its foreign aid resources to meet relative needs is probably not legally actionable. On the other hand, where a state such as India refuses foreign aid which could have enabled it to more fully to meet the subsistence needs of refugees, it likely violates Art. 11 of the Economic Covenant for reasons previously described. There is therefore what amounts to an asymmetrical approach to foreign aid in international law. A government must accept available aid to enable it to provide the necessities of life to persons under its jurisdiction, but states with the means to satisfy even the most basic survival interests of destitute persons abroad are under no concomitant legal duty to share their wealth. Normally a state is considered to be in breach of its obligations under the Economic Covenant only where there is evidence that it has prevented access to a right, failed to stop private actions from denying access to a right, or neglected to facilitate efforts by individuals to secure their rights. In all of these cases, there is an underlying expectation of individual initiative which allows the state's duty to be conceived as secondary. The assumption of states such as Canada and Norway that asylum-seekers will ordinarily meet their own needs by earning money through engagement in employment - which the government authorizes - is therefore precisely in line with the spirit of the Economic Covenant. It follows also that Argentina would not be in violation of the Covenant by virtue of its decision to issue asylum-seekers with a provisional form of work permit viewed with some measure of suspicion by employers - unless, of course, the practical result were to bar refugees from virtually all work, making it impossible for them to meet their basic needs. 105 Refugee Aff DDW 2009 Legal Counsel = Norms Rights to legal council is an international norm Northeastern University School of Law, Program on Human Rights and the Global Economy, December 10, 2007, http://www.ushrnetwork.org/files/ushrn/images/linkfiles/CERD/14_Access_to_Civil_Justice.pdf The advantages of legal representation are not limited to housing, domestic violence and family law matters, but cross the spectrum of litigation.14 For example, the impact of counsel has been repeatedly documented in civil cases involving the rights of immigrants. Asylum cases in particular have shown a dramatic difference in outcome for those represented by counsel. The American Bar Association reported that ―persons with qualified and competent legal representation secure relief at far higher rates than pro se litigants.‖15 Likewise, a study conducted by Georgetown University Institute for the Study of International Migration, analyzing government statistics, concluded that asylum seekers are four to six times more likely to be awarded asylum when they are represented by counsel.16 Recognizing the critical role that counsel plays in access to justice, many nations have sought to affirmatively provide civil counsel as a matter of right. For example, the right to counsel in civil cases has existed for decades or even centuries in most European and Commonwealth countries.17 Significantly, Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms was construed in by the European Court of Human Rights in Airey v. Ireland, App. No. 6289/73 2 Eur. H.R. Rep. 305 (ser. A) (1979), as requiring appointment of civil counsel.18 In this decision, the court concluded that ―indigents cannot have a ‗fair hearing‘ unless represented by lawyers‖ (emphasis added).19 This decision applies to almost fifty nations and over 400 million people, requiring members of the Council of Europe to ―provide counsel at public expense to indigents in cases heard in regular civil court.‖20 106 Refugee Aff DDW 2009 International Norms Acceptance of refugees is a country’s duty John Peters Humphrey Director of the Division of Human Rights (of the United Nations) 10 December 1948 (became international law in 1976) http://www.un.org/rights/50/decla.htm Article 14. (1) Everyone has the right to seek and to enjoy in other countries asylum from persecution. (2) This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations. Equal representation for asylum seekers before the law Director of the Division of Human Rights (of the United Nations) 10 December 1948 (became international law in 1976) http://www.un.org/rights/50/decla.htm Article 7. All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination. Legal representation and speedy trial are universal rights Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, G.A. res. 43/173, annex, 43 U.N. GAOR Supp. (No. 49) at 298, U.N. Doc. A/43/49 (1988). 1988 http://www1.umn.edu/humanrts/instree/g3bpppdi.htm Principle 11 1. A person shall not be kept in detention without being given an effective opportunity to be heard promptly by a judicial or other authority. A detained person shall have the right to defend himself or to be assisted by counsel as prescribed by law. 2. A detained person and his counsel, if any, shall receive prompt and full communication of any order of detention, together with the reasons therefore. 3. A judicial or other authority shall be empowered to review as appropriate the continuance of detention. 107 Refugee Aff DDW 2009 International Norms International refugee rights minimums unmet by the US Andrea Montavon-McKillip, author, 2002 Arizona Law Review, Spring 2002 http://www.lexisnexis.com/us/lnacademic/results/docview/docview.do?docLinkInd=true&risb=21_T685731400 1&format=GNBFI&sort=BOOLEAN&startDocNo=1&resultsUrlKey=29_T6857313252&cisb=22_T68573140 03&treeMax=true&treeWidth=0&csi=140710&docNo=5 U.S. interpretation of its CAT obligations remains problematic. Each of the three branches of the U.S. government has done its part in recent years to guarantee restrictive immigration laws, many of which serve to perforate existing refugee protections under international treaties. n121 The result is that many eligible refugees are returned to danger, and the United States develops a reputation for flouting international law to the detriment of human rights. n122 The United States, [*262] through its three branches of government, does not live up to its obligations under CAT because it employs a formalistic approach towards solving refugee problems n123 - an approach with a paucity of respect for international law and one that is intolerant towards immigrants and refugees. This intolerance has manifested itself in restrictive entry policies, detention, and ill treatment of immigrants and refugees, intended to punish or deter individuals without lawful entry documents from coming to the United States. n124 Xenophobic and racist portrayals of immigrants and refugees by the media, politicians, and law enforcement encourage these policies. n125 Acceptance of refugees is an international duty John Peters Humphrey Director of the Division of Human Rights (of the United Nations) 10 December 1948 (became international law in 1976) http://www.un.org/rights/50/decla.htm Article 14. (1) Everyone has the right to seek and to enjoy in other countries asylum from persecution. (2) This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations. Equal representation for asylum seekers before international law John Peters Humphrey Director of the Division of Human Rights (of the United Nations) 10 December 1948 (became international law in 1976) http://www.un.org/rights/50/decla.htm Article 7. All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination. 108 Refugee Aff DDW 2009 International Norms Refugees should be guaranteed specific legal rights and protection – UN norms. George Okoth-Obbo, Director of the Division of International Protection Services, United Nations High Commissioner for Refugees, Geneva, 5/17/2007, ―Symposium on Advancing the Implementation of the United Nations Global Counter-Terrorism Strategy.‖ Lexis. http://www.coe.int/t/e/legal_affairs/legal_co%2Doperation/fight_against_terrorism/7_Cooperation/ 07-85692_Ebook.pdf First, UNHCR welcomes the United Nations Global Strategy on Counter-Terrorism. Genuine asylum-seekers, refugees and the system of asylum and refugee protection as a whole have all to gain from societies in which no one has to fear the kind of lurking, inordinate risk and danger that modern terrorism represents. Secondly, as the measures set out in this Strategy are implemented, asylum space and the protection rights of asylum-seekers and refugees should be respected and preserved. The key here is due diligence and compliance. UNHCR thus strongly supports the emphasis in the Strategy on compliance with international law, human rights law, refugee law, and humanitarian law. In respect of international refugee law as such, the most vital touch points of States‘ compliance which UNHCR urges are: Admission to the territory and non-rejection at the borders; Admission into due procedures; Proper and fair determination of claims and need for protection; Assurance of basic standards of treatment, above all protection against forcible return to a territory where refugees and asylum-seekers might face persecution (non-refoulement) and non-recourse to detention on an automatic basis. Thirdly, UNHCR would like to underscore that asylum-seekers do not come before asylum States and host populations only as claimers of rights. They indeed bear duties themselves towards those States and communities, most notably, to comply with national laws and regulations established for public order and good. The record shows that by far the decisive cross-section of refugees and asylum-seekers are law-abiding members of the communities in which they find themselves. Those who abuse the laws established for public good and order, or the institution of asylum, should feel the full force of the law as anybody else. And let it be underscored that a duly managed system of asylum does not protect terrorists from prosecution. On the contrary, international refugee law does provide for the identification of those who have committed heinous acts or serious crimes and their exclusion from the protection the system provides. 109 Refugee Aff DDW 2009 Rights Refugees are guaranteed basic human rights Sarah Bailey, Master of Arts in Law and Diplomacy, April 2004, ―Is Legal Status Enough?Legal Status and Livelihood Obstacles for Refugees.‖ http://fletcher.tufts.edu/research/2004/Bailey- Sarah.pdf In addition to establishing definitions of the term ―refugee,‖ the Refugee Convention and the OAU Convention also delineate a body of rights guaranteed to those people who meet the requirements for refugee status. States which have ratified these Conventions are obligated to protect these rights. There are also other international human rights instruments relevant to refugees, an important example being the International Covenant on Civil and Political Rights2 (ICCPR). These international human rights treaties create minimum standards of rights applicable to all individuals, including refugees, whose act of fleeing their country of origin or nationality does not forfeit these basic rights (Helton 1990: 24). The rights at the center of this discussion will be non-refoulement, freedom of movement, the right to employment, and the right to identity documents, because they have a bearing on the legal status of refugees living in urban areas and their entitlement to pursue livelihoods. Non-refoulement The Refugee Convention and the OAU Convention contain articles establishing the obligation of non-refoulement.3 As Helton notes, non-refoulement is central to the very notion that people fleeing conflict or persecution are entitled to protection: The principle that no refugee should be returned to any country where his or her life or freedom is endangered is perhaps the basis of all refugee protection (1990, citing Helton 1989 note 22: 39). Many believe non-refoulement is a part of customary international law, meaning even states which have not ratified the refugee conventions are prohibited from expelling or turning away people seeking asylum (Fullerton 1999: 236).4 For refugees who flee to urban areas, the principle of non-refoulement means that states are obligated not to deport them to the country from which they fled. This is even true for refugees who enter the destination country illegally (ibid.). Article 31 of the Refugee Convention states that refugees whose presence is illegal may not be penalized, so long as they present themselves without delay to authorities and had come directly from the country where their life or freedom were threatened. While they are still protected from refoulement if they are in a country which has ratified the Refugee Convention, Protocol, or OAU Convention, these conditions do have ramifications for refugees in urban areas, some of whom do not present themselves to local authorities and/or have passed through another country en route. 5 In addition, non-refoulement does not appear to mean that the state is not permitted to move the refugee to a designated settlement. Freedom of movement Freedom of movement is a fundamental human right guaranteed in the ICCPR, the Refugee Convention, and the African Charter on Human and People‘s Rights (OAU Doc. CAB/LEG/67/3)(Lawyers Committee for Human Rights 1995: 98). Article 26 of the Refugee Convention states that Each contracting state shall accord to refugees lawfully in its territory the right to choose their place of residence and to move freely within its territory, subject to any regulations applicable to aliens generally in the same circumstances. On the surface, this right appears to protect the actions of refugees who choose to reside in urban areas, though they face restrictions targeted to all non-nationals. However, some states entered reservations to this article. Article 12 of the ICCPR also guarantees freedom of movement and the right to choose one‘s place of residence. However, this right is only guaranteed for those who are lawfully present in the State. This same stipulation is made in Article 26 of the Refugee Convention . This condition means that people fleeing conflict or persecution who are living without the permission of the host country are not necessarily guaranteed the right to choose where they live under either the Refugee Convention or the ICCPR. The fact that freedom of movement is only guaranteed for forced migrants who are legally residing in the state presents a paradox for some refugees, because in many cases, their legal status is actually defined by whether or not they choose to live in designated areas. This creates a trade-off between access to entitlements and freedom of movement, which will be further explored in the discussions on host country policies and livelihood obstacles. Notably, states do possess the right to limit the freedom of movement of any person within their territories in order to protect public health and morals, national security, and the rights and freedoms of others (ICCPR Art. 12(3)). The Right to Wage-Earning Employment and Self-Employment The right to engage in wage-earning employment or self-employment plays an important role in the ability of refugees to pursue productive livelihoods. The Refugee Convention guarantees refugees ―the most favorable treatment‖ possible, meaning that they must be treated as well as foreign nationals in similar circumstances, regarding their right to participate in wage-earning employment and self-employment (Art 17(1), 18). A dozen countries entered reservations to this article limiting their obligation to permit wage-earning employment by refugees. 6 Migrants who do not meet the criteria of refugee are not guaranteed the right to seek employment.7 This restriction impacts the livelihood opportunities for refugees without secure legal status, as states may act on the assumption that they have no obligation to allow them to pursue wage-earning employment or self-employment. 110 Refugee Aff DDW 2009 Rights Increasing refugee legal services sets a precedence and improves decision-making fairness (Lisa Alfredson, Research Assistant Professor, 2006, Graduate School of Public and International Affairs, University of Pittsburgh, International Conference of the International Studies Association, ―Challenging The Human Rights Paradox: The Development of Inter-State Responsibility For Persecuted Non-Citizens‖ http://www.allacademic.com/meta/p99904_index.html) Campaign goals evolved around the need to balance three sometimes conflicting priorities: asylum seekers‘ safety, time, and representation. Interviews with core supporters and analysis of claimant case histories revealed a simultaneous emphasis on achieving immediate asylum for individuals involved in the campaigns, and also satisfying the long-term needs of such asylum seekers as representative of a structurally persecuted group.TP PTBut what was the priority assigned to each? Different policy demands could be made which satisfy immediate needs or structural representation, or both, depending on priority and perceived potential for success. With immediate safety as an over-riding priority, we would expect ends to be more important than means. Appropriate policy may be a means for securing asylum, however there are a number of policy options for this purpose. Under existing legislation, asylum could be sought on a case-by-case basis by fitting claims to existing laws or seeking exceptions to the law, without regard for consistent application in other cases. Or, promoting incremental policy change, the importance of ends and means may merge if cases are argued in an untraditional manner and become precedent- setting. While not immediately changing the law, jurisprudence can strike out new paths and trigger more consistent decision-making. Finally, particular policy goals may be ends in themselves, satisfying long-term goals of securing safety for future asylum seekers. In the long-term, ends and means merge through appropriate refugee policy which addresses immediate needs consistently over time. 111 Refugee Aff DDW 2009 **SOLVENCY*** 112 Refugee Aff DDW 2009 Fed Gov Key Refugee assistance is a federal responsibility (IME, Institute for Market Ecnomics, Sofia, 19 99, http://www.ime-bg.org/pdf_docs/papers/refugees.pdf) Protecting and assisting refugees is primarily a government responsibility. Signatories to the 1951 Convention are legally obliged to protect refugees according to the terms of the Convention without discrimination as to race, religion or country of origin, and to respect fundamental protection principles, such as non-refoulment and non-expulsion (which non-signatories to the Convention are also obliged to respect). Since refugees rarely have time to prepare documents or obtain visas before they seek asylum, signatory States may not penalize refugees for illegal entry into their territories, provided the refugees ―…present themselves without delay to the authorities and show good cause for their illegal entry or presence‖ (Article 31). 113 Refugee Aff DDW 2009 Legal Counsel Key Legal representation key to protect refugees from arbitrary bureaucratic standards. Andrea Gomes, Aaron Spolin, Joanna Huey, Harvard Summer Fellows, Matt Muller, Teaching and Advocacy Fellow, Howard Immigration & Refugee Clinic, Alexa Shabecoff, Asst. Dean of Public Service at Harvard, 2007, ―Serving Immigrants and Refugees: A Guide to Careers in the Law.‖ http://www.law.harvard.edu/current/careers/opia/planning/career-resources/docs/guide- immigration.pdf Lawyers who specialize in asylum and refugee law assist individuals who are fleeing persecution in their home countries in applying for protection in the United States. According to U.S. and international law, refugees are individuals outside their countries of origin who are unwilling or unable to return to their country due to past or a well-founded fear of future persecution on account of their race, religion, nationality, political opinion, or membership in a particular social group (e.g. a sexual minority). Refugees outside the United States may apply for admission through the U.S. overseas refugee program, while refugees already in the country or arriving at its borders may apply for asylum status domestically. Each year the U.S. government determines how many refugees it will admit from particular regions of the world through its overseas refugee program. In addition, non-U.S. agencies (such as the United Nations High Commissioner for Refugees) often set up processing centers to receive refugees, evaluate their eligibility for protection, and facilitate their resettlement in third countries. Non-lawyers (including public officials and nongovernmental workers) process much of this overseas work for refugees. There is no cap on the number of refugees applying inside the United States who may be granted asylum status. To receive asylum protection, the client - with his or her lawyer if the client can afford one or is appointed one - must prove that he or she satisfies the criteria set forth for refugees: they must have suffered persecution or have a well-founded fear of future persecution. The party seeking asylum has to put in a great deal of work showing past persecution or proving a well-founded fear of persecution if forced to return to the country of origin. Due to the many difficulties asylum seekers must face in navigating complex legal standards and overcoming lingual and cultural barriers, the involvement of an attorney in a case is often pivotal. Valid applications for protection are denied for lack of adequate assistance and preparation, and there is a tremendous need for lawyers to represent asylum seekers. This allows the lawyer to have a tremendous impact on his or her client, representing the client before the asylum office and the immigration courts. In the process of representing clients, immigration lawyers will have to interview asylum-seekers, investigate their claims, document their fear of persecution, and even provide background information on the applicant‘s home country to non-lawyer immigration officials who evaluate requests. Additionally, post-9/11 legislation (such as the strengthened requirements in the REAL ID Act and the expanded definition of terrorist connections in the PATRIOT Act) has made asylum status more difficult to obtain. Nonetheless, lawyers working in this area of immigration law find their jobs both exciting and fulfilling. Unlike other prospective immigrants, asylumseekers and refugees often have few, if any, alternative options. This increases the pressure on any given lawyer while also magnifying the emotional reward for a successful case. 114 Refugee Aff DDW 2009 Legal Counsel Key Reports find asylum seekers with legal counsel receive refugee status more often than those without Richard Peña, Chair Commission on Immigration, AMERICAN BAR ASSOCIATION, February 2006 http://www.abanet.org/intlaw/policy/humanrights/immigration2.06107A.pdf Not surprisingly, persons with qualified and competent legal representation secure relief at far higher rates than pro se litigants.14 Disparities in case outcomes are particularly dramatic in political asylum cases. In 2003, 39 percent of non- detained, represented asylum-seekers received political asylum, in contrast to 14 percent of non-detained, unrepresented asylum-seekers.15 Eighteen (18) percent of represented, detained asylum-seekers were granted asylum, compared to 3 percent of detained asylum-seekers who did not have counsel. The U.S. Commission on International Religious Freedom found success rates of 25 percent in cases of asylum seekers with legal representation who were initially caught at a port-of-entry without proper documents, compared to 2 percent approval rates for those without representation.16 This disparity could not be explained by attorneys selecting the strongest cases. 17 Representation rates, it concluded, turned more on the availability of counsel, than on the strength of the cases. As evidence, the Committee found that approval rates remained comparable between areas with the lowest and the highest rates of representation. Legal counsel is not provided for asylum seekers and is essential in ensuring due process National Immigrant Justice Center, NIJC provides direct legal services to and advocates for these populations through policy reform, impact litigation, and public education. October 2006, http://www.immigrantjustice.org/news/asylum The U.S. government does not provide legal counsel for immigration proceedings, and most asylum seekers cannot afford to hire their own attorneys. Most arrive in the United States with only a few possessions and a complex legal case. Research has shown that legal representation is essential in ensuring due process for asylum-seekers and securing protection for those who could face torture or death if they returned home. Legal counsel key in face of rising security considerations. Mark T. Fennell, BA in Political Science, Boston College, magna cum laude, Juris Doctor Candidate, Notre Dame Law School. ―Preserving Process in the Wake of Policy: The Need for Appointed Counsel in Immigration Removal Proceedings.‖ University of Notre Dame Journal of Law, Ethics, and Public Policy Vol. 23, 2009. JM Particularly since September 11, 2001, trauma and fear have become foundational elements of American immigration policy. Although national security and general crime control are obviously vital national interests, policymakers must be cautious not to use fear as a justification for dehumanization and injustice in the immigration context. Although expanding the grounds for deportation may be necessary to ensure safety, higher stakes require higher procedural protections. Without adequate safeguards - such as an absolute right to appointed counsel for indigent noncitizens - the risk of injustice is simply too high. 115 Refugee Aff DDW 2009 Legal Counsel Key National security paranoia increases need for noncitizen legal counsel. Mark T. Fennell, BA in Political Science, Boston College, magna cum laude, Juris Doctor Candidate, Notre Dame Law School. ―Preserving Process in the Wake of Policy: The Need for Appointed Counsel in Immigration Removal Proceedings.‖ University of Notre Dame Journal of Law, Ethics, and Public Policy Vol. 23, 2009. JM Due largely in part to the terrorist attacks of the mid-1990s and the cultural trauma of September 11, 2001, immigration policy is no longer a civil concern charged with evaluating the status of foreign individuals. 92 Rather, current immigration policy reflects an attitude that immigrants [*274] threaten the physical and economic safety of citizens. This "national security" element to immigration law encourages the mentality that 93 immigrants threaten American society and therefore should be punished for any wrongdoing. In order to deal with America's post-September 11th vulnerability, policymakers have defined a one-dimensional battle between "us" and "them." National security has always been a legitimate ground to remove a noncitizen. The INA 94 95 defines "National Security" broadly to include "national defense, foreign relations, or [the] economic interests of the United States." Whenever Congress legislates in regards to national security, the courts are particularly 96 reluctant to review legislative and executive action. As stated above, it is well established that "the power to 97 exclude or expel aliens, being a power affecting international relations, is vested in the political departments of the government." Concededly, it is imperative that the President be able to direct foreign relations and defend 98 the nation with one voice. However, as political rhetoric and federal legislation increasingly characterize 99 immigration policy as national security policy, noncitizens become vulnerable to mob mentalities of fear. This reality demands an increase in procedural due process rights including a categorical right to appointed counsel. National rhetoric aimed at restoring a sense of security increasingly combines immigration, crime, and terrorism into one imprecise concept. Empirically proven-legal council increases the chance of winning the case Jaya Ramji-Nogales, Assistant professor, Temple University Beasley School of Law 2007 ( ―REFUGEE ROULETTE: DISPARITIES IN ASYLUM ADJUDICATION‖ ―Stanford Law review‖ Volume 60 Issue 2) Similarly, asylum applicants represented pro bono by large law firms cooperating with Human Rights First (formerly the Lawyers Committee for Human Rights) had a success rate of about 96% in the 479 cases they handled to conclusion in that same period.76 Asylum seekers whose legal representatives track down corroborating evidence and obtain experts to testify about country conditions as well as about the asylum seeker‘s mental and physical health are more likely to win their cases. Moreover, such claims are easier for adjudicators to decide than those that rely only on the asylum seeker‘s testimony. 116 Refugee Aff DDW 2009 Legal Counsel Key Multiple unique benefits when asylum applicants are legally represented Susan F. Martin, Director, Georgetown University Institute for the Study of International Migration, AND Andrew Schoenholtz, ISIM Director of Law and Policy Studies Workshop on Refugee and Asylum Policy in Practive in Europe and North America, Oxford University, 1-3 July 1999 ASYLUM IN PRACTICE: SUCCESSES, FAILURES, AND THE CHALLENGES AHEAD 117 Refugee Aff DDW 2009 Legal Services Key INS detainees unable to access services. Charles Wheeler and Mary McClenahan. ―Credible Fear Report.‖ American Immigration Lawyers Assocation. October 29, 1997. http://www.aila.org/content/default.aspx?bc=1016|6715|16871|17119|13120 The INS remains resolute in denying any outside organizations access to secondary inspection for the purpose of monitoring the expedited removal process. In the meantime, advocates who have interviewed clients after they have gone through the process report the following problems: Clients report being shackled to benches in airport holding rooms for up to 18 hours before being transferred to local jails or INS detention centers. During this time they are denied food and are separated from traveling companions or family members. As with all persons in secondary, they are denied the right to make a phone call. The INS has translated the M-444, "Information About Credible Fear Interview," into 13 foreign languages, but many persons still receive only the English version. The "free legal services list" is only provided in English, resulting in most clients failing to understand its significance. The lists are largely unhelpful, anyway, since they are often comprised of agencies that do not provide representation to persons in detention. In addition to completing the I-867B, "Sworn Statement," some INS inspectors are asking prolonged questions and recording detailed responses from persons who claim a fear of return to their home countries. The purported basis for this extended interrogation is language in Chapter 17 of the Field Officer's Manual, which authorizes inspectors to "ask sufficient follow-up questions to determine the general nature of the fear or concern." These notes are then used as a basis for possible conflicting statements later in the credible fear process. Inspectors are supposed to provide persons screened in for a credible fear with a copy of their sworn statement (I-867B). In practice, however, advocates report that clients rarely receive the sworn statement at secondary. Later, in detention, the asylum officers give detainees a copy of the I-867B, but only if they request it. But detainees are not informed of their right to request the form, hence few receive it. 118 Refugee Aff DDW 2009 Legal Services Key Legal services needed – filing deadline complications. Rachel D. Settlage, Clinical Fellow, University of Baltimore School of Law. J.D./M.S. (Foreign Service), Georgetown University, 1998. B.A., University of California, Berkeley, 1992., attorney at Asylum Program of Southern Arizona and foreign affairs officer in the Office of Country Reports and Asylum Affairs, US State Department. ―Affirmatively Denied: The Detrimental Effects of a Reduced Grant Rate for Affirmative Asylum Seekers.‖ Boston University International Law Journal, Spring 2009. JM The IIRIRA introduced a new filing deadline for asylum applications of one-year after an applicant's last arrival in the United States, unless the applicant can demonstrate that changed circumstances or extraordinary circumstances exist that are related to the failure to file within one year. This change was codified ostensibly 125 to reduce fraud in the asylum system, but in reality, it simply prevents many asylum seekers with valid 126 persecution claims from having their claims adjudicated on the merits. Preparing an application for asylum is an extremely complicated, time-consuming process, with serious consequences attached to any errors. It is 127 unreasonable to expect that every asylum seeker has the ability to navigate the process and prepare an application within one year of arrival. In fact, prior to the IIRIRA, many asylum seekers were not able to apply within the first year. The one-year deadline makes no allowance for the applicant who does not know 128 about the deadline, which is extremely problematic for those who have no familiarity with the U.S. legal system or the asylum process. Even those who do know that asylum is available and that there is a deadline may be unable to find affordable legal assistance and may find the difficulties in preparing an application on their own insurmountable. The net effect of the one-year bar is to make asylum unattainable for the most 129 vulnerable of all protection seekers: those who do not speak English, those who cannot read and write, or those who have no friends or family to help guide them through the U.S. asylum process. 119 Refugee Aff DDW 2009 Legal Services Key Asylee detainees have limited access to legal counsel – causes indefinite detention. Charles Wheeler and Mary McClenahan. ―Credible Fear Report.‖ American Immigration Lawyers Assocation. October 29, 1997. http://www.aila.org/content/default.aspx?bc=1016|6715|16871|17119|13120 Detainees are sometimes forced to choose between visiting with their attorney or eating lunch, since legal visits routinely occur around this time. Food cannot be brought in from the outside and given to the detainee. Although INS facilities are supposed to make special accommodations, they rarely do. The INS Office of International Affairs admits that something should be done locally to correct this problem. Advocates are sometimes forced to wait anywhere from one to three hours at the detention facility before the client is brought out for visitation. The INS explains that during this time they are trying to locate the person and make arrangements to escort them to the visitation room. Although applicants are supposed to receive copies of the asylum officer's notes of the credible fear interview, this practice is irregular. In one facility, pro se applicants are never provided with the notes, and are told they can obtain them only if an attorney requests them. Advocates have experienced difficulty in meeting with their clients and preparing them for the credible fear interview within the short amount of time allowed. Since the asylum office is under pressure to conduct the interview within 48 hours of the applicant's arrival, and complete all processing of the credible fear application within a week, officers are stingy in their granting continuances beyond 24 hours. In contrast, they sometimes take weeks before issuing a decision in a case. Also, it is not uncommon for the INS to fail to alert the asylum office when an applicant is screened in for a credible fear interview, resulting in potential asylum seekers languishing in detention indefinitely. Legal representation critical to successful asylum process. CDJ. ―Representation for Immigrants and Refugee Claimants: Quality of Representation.‖ Canadian Department of Justice, January 21, 2009. http://canada.justice.gc.ca/eng/pi/rs/rep-rap/2003/rr03_la16- rr03_aj16/p9.html Some respondents were of the view that it is essential that claimants have access to professional legal advice as early as possible in the process. Others suggested that settlement workers and volunteers affiliated with NGOs are well placed to provide any required assistance and/or representation in the early stages, particularly with regard to admissibility and eligibility interviews. These respondents felt that legal representation is only required for refugee determination hearings and for cases in other proceedings where complex legal issues must be decided. The view that full legal representation is required from the very beginning of the process was most forcefully stated by a lawyer from Vancouver, who felt strongly that what happens in the initial stages can make or break a case. Since claimants are ill-informed about the process, this lawyer believed that it is imperative that they have access to qualified legal counsel from the outset. He expressed grave concern about the possible harm done to claimants who act on inaccurate or inappropriate advice from well-meaning NGO personnel who do not fully understand the legal issues involved. While many other service provider respondents felt that claimants need assistance as soon as they present their claim, they did not go as far as this lawyer and insist on full legal representation from the outset. One settlement worker, who has often found herself providing these services because of problems clients have had in accessing other representation, indicated that she felt uncomfortable giving advice about legal issues. a lawyer or trained paralegal has to be involved as a representative from the earliest stages of the In her opinion, process. However, this respondent did not think that clients would normally require anyone in an active representative role at admissibility interviews, but she did feel that they need access to legal advice from a competent, qualified person. 120 Refugee Aff DDW 2009 Precedent Increasing refugee legal services sets a precedent and improves decision-making fairness Lisa Alfredson, Research Assistant Professor, 2006, Graduate School of Public and International Affairs, University of Pittsburgh, International Conference of the International Studies Association, ―Challenging The Human Rights Paradox: The Development of Inter-State Responsibility For Persecuted Non-Citizens‖ http://www.allacademic.com/meta/p99904_index.html) Campaign goals evolved around the need to balance three sometimes conflicting priorities: asylum seekers‘ safety, time, and representation. Interviews with core supporters and analysis of claimant case histories revealed a simultaneous emphasis on achieving immediate asylum for individuals involved in the campaigns, and also satisfying the long-term needs of such asylum seekers as representative of a structurally persecuted group.TP PTBut what was the priority assigned to each? Different policy demands could be made which satisfy immediate needs or structural representation, or both, depending on priority and perceived potential for success. With immediate safety as an over-riding priority, we would expect ends to be more important than means. Appropriate policy may be a means for securing asylum, however there are a number of policy options for this purpose. Under existing legislation, asylum could be sought on a case-by-case basis by fitting claims to existing laws or seeking exceptions to the law, without regard for consistent application in other cases. Or, promoting incremental policy change, the importance of ends and means may merge if cases are argued in an untraditional manner and become precedent-setting. While not immediately changing the law, jurisprudence can strike out new paths and trigger more consistent decision-making. Finally, particular policy goals may be ends in themselves, satisfying long-term goals of securing safety for future asylum seekers. In the long-term, ends and means merge through appropriate refugee policy which addresses immediate needs consistently over time 121 Refugee Aff DDW 2009 Legal Counsel K2 Due Process Legal counsel is vital to due process Lawyers Committee for Human Rights. Refugee Project March 1990 Implementation of the Refugee Act of 1980: A Decade of Experience (KF2819.A2 I47 1990) Under the present system, access to legal counsel is a virtual necessity for an asylum applicant to have his or her claim fairly considered. Counsel assists claimants in articulating the claim in English, in maneuvering through the complexities of the US immigration bureaucracy, and by acting as a general interlocutor between the applicant and the system. The general immigration statute provides that any person in exclusion or deportation proceedings has the privilege of being represented by counsel, at no expense to the Government. Representation is often provided by public interest legal or lawyer groups. . 122 Refugee Aff DDW 2009 Modeling If the US ignores refugee rights, then other countries will too (Susan F. Martin, Patricia Weiss Fagen, Kari Jorgensen, Lydia Mann-Bondat, Andrew Schoenholtz, Professor of International Migration at Institute for the Study of International Migration School of Foreign Service at Georgetown University, 2005, ―The Uprooted: Improving Humanitarian Responses to Forced Migration, pg39-40) When States in the developed world violate the core protection obligation provided by the Refugee Convention and Protocol – non-refoulement – States in the developing world imitate their misbehavior. During a two-year period from 1992 to 1994, the official policy of the United States was to interdict Haitians on the high seas and return them directly to Haiti without considering any protection needs and rights they might have. This was a period of political repression in Haiti, as the democratically-elected government had been overthrown by a military coup. It was no surprise in 1996, then, when Cote d‘Ivoire officials denied entry to a boat, the Bulk Challenge, carrying several thousand Liberian refugees. Despite a long tradition of generosity toward refugees from Liberia, Cote d‘Ivoire did not hesitated to turn this boat away, knowing well that a key supporter of UNHCR had recently refouled thousands of Haitians on boats. Even when developed nations stop short of such open refoulement but deny entry to their territory, the message is clear: find protection elsewhere. Australia adopted a new policy to address boat arrivals of asylum seekers in late August 2001, not long before national elections were to be held. Under the new policy, Australia refuses to allow such arrivals into Australian territory and sends them to other counties in the Pacific, where their refugee claims are assessed. After a number of boat arrivals increased in the late summer, Australia refused entry to Norwegian freighter, the Tampa, carrying some 430 persons, most of whom claimed to be Afghans. The Australians negotiated temporary refuge for the passengers with the tiny Pacific nation of Nauru and New Zealand. Australia provided Nauru with an aid package worth the equivalent of $10 million in return for hosting the asylum seekers. New Zealand said it would assess the asylum claims of those brought to its territory. The Nauru government asked the UNHCR to screen the asylums seekers taken to Nauru, and UNHCR eventually agreed, but only for the group sent to Nauru. UNHCR expressed serious concern that Australia‘s actions could send a negative message to impoverished nations close to conflict zones, which often take in hundreds of thousands of refugees. Enforcement of rights spills over, demonstrated with Canadian policy (Lisa Alfredson, Research Assistant Professor, 2006, Graduate School of Public and International Affairs, University of Pittsburgh, International Conference of the International Studies Association, ―Challenging The Human Rights Paradox: The Development of Inter-State Responsibility For Persecuted Non-Citizens‖ http://www.allacademic.com/meta/p99904_index.html) The new norm of gender persecution encompasses domestic violence and all forms of female-specific violence. Its international impact includes not only the opening of a new avenue for protection of women from around the world, but also directly influencing the shape of refugee policy at international and at national levels elsewhere. Within two years the UNHCR issued international recommendations modeled after the Canadian policy. The European Commission followed suit, as did a growing number of states. The US, for example, issued policy directives in 1995 directly modeled after and citing the Canadian approach. Other states include the UK, Australia, Denmark, Netherlands, Norway, South Africa and Sweden. To my knowledge, there has been no previous systematic scholarly treatment of this refugee movement as a whole or the political processes through which new rights to international protection were generated, despite the intense debates it raised.TPD 2D T This paper therefore offers original empirical analysis of a new refugee movement that profoundly impacted rights to international protection from human rights abuse. Relevant to my analysis is scholarship that attempts to explain the increasing rights of noncitizens in Western countries (especially Soysal 1993, 1994, 1997; Jacobson 1996; Sassen 1996). These studies do not explore the rise of non-citizen rights as a means of addressing the human rights paradox, but rather attempt to explain post World War II changes in citizenship laws and non-citizen residents‘ access to national rights, including increasing guest worker, illegal immigrant and refugee access to welfare, education and other social services. They look in particular at the rising using of judicial systems by non-citizens to attain rights previously reserved for citizens. They attribute the attainment of national rights by non-citizens to the emergence of new ―post-national‖ or ―trans- national‖ forms of membership, underpinned by international human rights which are said to be transforming traditional state defined political communities, traditionally cast in terms of citizenship, and weakening state sovereignty. Many of the most influential works on the subject bear this position explicitly in their titles: The ―Limits of Citizenship‖, ―…The Decline of Citizenship‖, ―Losing Control: Sovereignty and the Decline of Citizenship‖, and so on.TPD 3 DPT Benhabib (2004) more recently has nuanced the discussion by explaining that ―decline-of-citizenship theorists‖ underestimate the continuing importance of citizenship; instead she emphasizes the transfiguration of citizenship under human rights as bringing greater inter-cultural content to national rights and access to them. 123 Refugee Aff DDW 2009 **AT** 124 Refugee Aff DDW 2009 Plan Unpop – No Constituency for Funding Funding for legal representation of asylum seekers is politically explosive. There's no constituency for better treatment--only increased enforcement. Margaret TAYLOR Law @ Wake Forest '97 Promoting Legal Representation For Detained Aliens: Litigation and Administrative Reform 29 Conn. L. Rev. 1647 p. L/N Efforts to persuade the INS and the EOIR to help finance the expansion of pro bono representation projects may draw the same political ire. On the one hand, the Senate has declared that the Attorney General "should consider" awarding "start-up administrative grants" to allow not-for-profit organizations to create pilot projects to promote legal representation for detained aliens. n214 But Congress has never appropriated money for these projects. Moreover, the rather tepid congressional support for promoting INS detainees' access to counsel is dwarfed by the very clear message emanating from the enforcement measures of the new immigration legislation. At minimum, it seems highly unlikely that the Congress that gave us expedited removal and enacted sweeping restrictions on judicial review will allocate funds to support legal representation programs at INS detention facilities. The enactment of IIRAIRA illustrates only the most obvious result of congressional intervention-- actual legislation. Congress also sends signals indirectly, yet effectively, through various forms of legislative oversight. n215 Management problems at INS have recently provided fodder for a multitude of hostile congressional hearings. n216 Strong [*1707] public rebukes of immigration officials occur with notable regularity on Capitol Hill. n217 This intense congressional scrutiny and pronounced mistrust of the INS may temper agency enthusiasm for any measures that can be misrepresented and exploited by political opponents. Thus, the INS and the EOIR may tread lightly, if at all, around the potentially explosive topic of funneling money to programs that promote legal representation for INS detainees. 125 Refugee Aff DDW 2009 Plan Unpop Plan unpopular – Republicans blocked Gitmo asylee bill. Taylor. ―House panel bar benefits for Gitmo detainees.‖ Andrew, Associated Press, June 12, 2009. http://www.google.com/hostednews/ap/article/ALeqM5gBPaHA8wyvhZsKWPW8Uxp30QpfqgD98PBAFG0 Republicans on a key House panel won a vote Friday to make doubly sure that Guantanamo Bay detainees won't be given immigration benefits that would allow them to stay in the United States if they're released. The 34-24 vote was the latest step in which lawmakers have gone on record against allowing detainees at the detention center in Cuba into the United States other than for the purpose of going on trial. Republicans said the provision is aimed at making sure detainees who are released before their trials or are found innocent can't stay in the United States. Democrats said the language approved Friday is similar to a provision in the pending war funding bill facing floor votes next week that would take effect as soon as Obama signs the measure. But the war funding measure's restrictions would be in force only through Sept. 30. The measure approved Friday would extend it far beyond that date. The House panel's plan, by Rep. Harold Rogers, R-Ky., would block the government from providing "any immigration benefit" to Guantanamo detainees. It was amended to clarify that bringing detainees in for their trials is permitted. 126 Refugee Aff DDW 2009 Plan Unpop – Funding Cuts Funding unpopular Mark T. Fennell, BA in Political Science, Boston College, magna cum laude, Juris Doctor Candidate, Notre Dame Law School. ―Preserving Process in the Wake of Policy: The Need for Appointed Counsel in Immigration Removal Proceedings.‖ University of Notre Dame Journal of Law, Ethics, and Public Policy Vol. 23, 2009. JM INA § 239(b)(2) requires an immigration judge to provide a list of available lawyers or social service organizations that are willing to represent indigent noncitizens pro bono. 38 In 1982, however, Congress passed the Legal Services Corporation (LSC) appropriations bill restricting federal funding for certain types of legal services provided throughout the country. 39 The 1982 legislation prohibited LSC beneficiary organizations [*267] from maintaining immigration practices. 40 Furthermore, in 1996, Congress passed the Omnibus Consolidated Recessions and Appropriations Act, preventing LSC beneficiary organizations from representing most noncitizens even when all funds associated with the representation originated from non-government sources. 41 The list provided by immigration judges, therefore, includes significantly fewer organizations than it did twenty-five years ago. In addition to prohibiting many immigration lawyers from representing noncitizens pro bono, the government also maintains the power to transfer detained noncitizens to remote holding facilities - often in rural communities - where legal aid simply does not exist. 42 Therefore, an indigent noncitizen's statutory right to counsel is illusory at best since the government effectively limits the number of available lawyers. 127 Refugee Aff DDW 2009 Plan Unpop – Terrorist Threats Plan unpopular—terrorist threats Bill Frelick director of Human Rights Watch's refugee policy program, monitors, investigates, and documents human rights abuses against refugees, asylum seekers, and internally displaced persons, and advocates for the rights and humanitarian needs of all categories of forcibly displaced persons around the world. Director of Amnesty International USA's refugee program and the US Committee for Refugees. Editor of USCR's annual World Refugee Survey and Refugee Reports. Frelick has traveled to refugee sites throughout the world and is widely published. He taught in the Middle East from 1979-1983 and was co- coordinator of the Asian Center of Clergy and Laity Concerned from 1976-1979. Frelick has a B.A. from Oberlin College and an M.A. from Columbia University. Amnesty International USA March 2005 http://www.migrationinformation.org/usfocus/display.cfm?ID=296 The issue of detaining asylum seekers has recently risen on the US political agenda. Terrorism-related security measures increasingly appear to infringe on the right of refugee claimants to pursue their asylum claims. Members of Congress have introduced legislation both to limit grounds for asylum, arguing that terrorists use the asylum system to gain a foothold in the United States, and to expand detention of aliens, including asylum seekers. In 2004, Congress passed the Intelligence Reform and Terrorist Prevention Act, which included authorization for the construction of up to 40,000 additional immigration detention bed spaces over the next five years. While the President's fiscal year (FY) 2006 budget request includes a seven percent increase generally for the Department of Homeland Security (DHS), the Detention and Removal Office (DRO) within DHS's Immigration and Customs Enforcement (ICE) saw a 19 percent increase, a boost of $176 million. The President's requested budget enhancements in his FY 2006 budget include $90 million for additional detention bed space and related personnel costs. Human rights advocates are particularly concerned about the likely expansion of detention of asylum seekers for two principal reasons. 128 Refugee Aff DDW 2009 Link Shield Congress ignores refugees because of their unpopularitry Shirmila N. Cooray, worked with two Iraqi refugees this past fall while studying in Denmark. Jason Opal is an assistant professor at Colby who specializes in early American history and the history of international law. Kennebec Journal Morning Sentinel 04/03/2008 http://kennebecjournal.mainetoday.com Among the least-acknowledged results of the Iraq War is a refugee crisis of enormous proportions. According to the aid organization Refugees International, since 2003 -- and especially since the outbreak of sectarian bloodshed in 2005 and 2006 -- at least two million Iraqis have escaped their country. Two million more have been displaced within Iraq's fragile borders. Some fled because they helped the American military (or were rumored to have done so) and now face reprisals as collaborators. Many sought refuge from the brutal struggle between and among Sunnis and Shiites for power and influence, or from the sheer lawlessness that has crippled much of post-Saddam Iraq. For the most part, they cannot work in their adopted countries, nor enroll their children in schools. So they draw on family savings and scrape by, sinking into poverty far from home. With important exceptions, no one in the United States -- not our president, not our Congress, not our religious or cultural leaders -- has taken much notice of this crisis. During a recent debate in the House of Representatives, for example, one congressman flatly denied that the United States should "subsidize the existence or living standards of refugees in Jordan or anywhere else if they have the option of going home." Citing the tactical successes of the U.S. "surge" in Baghdad, he argued that the best option was to ensure that the Iraqi government "continues on a path of stability," by encouraging the displaced people to return home. He even suggested that some refugees were "not interested in leaving the refugee camp, because there was a subsidy situation going on." The implication is that Americans have already done all they can for this troublesome country, whose suffering is no concern of ours. Given the economic worries of Maine and the United States, this line of thinking is very appealing. It is also wrong, in every sense of the word. The fact that violence has declined in much of Iraq over the past several months (with recent flare-ups, it appears) does not mean that many or most of the refugees can return home. The fact that the war is no longer a popular subject of debate or discussion, if indeed it ever was, does not mean that we can avoid its results or ignore its victims. At the very least, the United States has a moral obligation to resettle those Iraqis who helped the American military and to increase aid to those nations now harboring the great majority of refugees, Jordan and Syria. At the very least, the United States must do a better job admitting these vulnerable people than it did in 2007, when Refugees International says only 1,600 of a promised 7,000 Iraqis were resettled. Last fall, one of us met two Iraqi refugees while studying in Denmark. Although these refugees received public housing and health care from the Danish government, the two men wanted nothing more than to live and work as they once had, and to command the respect of friends and neighbors. Despite the suffering of their countrymen, they were not bitter or angry, and their gentleness and generosity reminded us of the human cost of war -- and the obligations that come with it. If a small and homogenous nation like Denmark can offer shelter, surely a nation as large, open, and diverse as the United States can do the same. Shirmila N. Cooray is a junior at Colby who worked with two Iraqi refugees this past fall while studying in Denmark. Jason Opal is an assistant professor at Colby who specializes in early American history and the history of international law. 129 Refugee Aff DDW 2009 Plan Pop – Feinstein & UAC Child legislation popular – Unaccompanied Alien Child provisions and Democrat backing prove. Diane Feinstein. ―William Wilberforce Trafficking Victims Protection Reauthorization Act.‖ 11-th Congress, 2nd Session, 154 Cong Rec S 10886. Senate Congressional Record, December 10, 2008. Lexis. Today, Congress will pass the Unaccompanied Alien Child Protection Act to remedy this by requiring that children who pose no danger to themselves or others be placed in the least restrictive setting possible; requiring the Office of Refugee Resettlement to do a suitability assessment before placing the child with any agency or person; and prohibiting placing children, who have committed no crimes, in a prison with hardened criminals. This legislation also requires, whenever possible, family reunification or other appropriate placement in the best interest of the unaccompanied alien children. For example, the Office of Refugee Resettlement must do a home study before placing a child into a home or foster care. The bill also provides for pro bono legal representation for unaccompanied alien children in their immigration matters, where possible, at no expense to the Government. And finally, the bill requires training for Department of Homeland Security personnel and others who come into contact with unaccompanied children. I would also like to be clear about what this bill would not do. This legislation does not expand the current immigration rights of any child. Instead, it presumes that children will be placed in removal proceedings-unless they qualify for immigration benefits under current law. It does not remove the jurisdiction and responsibility for adjudicating immigration status from the Department of Homeland Security or the Executive Office for Immigration Review, where such jurisdiction and responsibilities currently reside. It does not interfere with the custodial rights of a parent or guardian in situations where a parent or guardian seeks to establish custody. Like the Trafficking bill, these provisions have received broad bipartisan support. Among the endorsers of this legislation are organizations representing mental health and child welfare professionals, as well as legal, human rights, immigration and religious organizations. It is a moderate, reasonable bill that by and large addresses issues of a child's care and custody, and not issues of substantive immigration relief. I thank my House and Senate colleagues for passing this important bill. I also specifically thank Senators Biden, Brownback, Kennedy, and Leahy, as well as Representatives Berman, Lofgren, and Conyers for their hard work and leadership in securing the passage of this bill. I urge the President to sign this important legislation. Mr. DURBIN. Madam President, I ask unanimous consent that the bill be read the third time and passed, the motion to reconsider be laid upon the table, with no intervening action or debate, and that any statements relating to the bill be printed in the Record. The PRESIDING OFFICER. Without objection, it is so ordered. The bill (H.R. 7311) was ordered to a third reading, was read the third time, and passed. 130 Refugee Aff DDW 2009 Plan Pop - Obama Plan popular – Obama supports Iraqi refugee rights – plan offers opportunity to send message to allies. Matthew Dearborn, research assistant, IRIS. ―World Refugee Day 2009: Assessing the Obama Administration‘s Response to the Iraqi Refugee Situation.‖ Strategic Affairs Journal, June 22, 2009. Although Bush‘s approach to the Iraqi humanitarian situation has been highly criticized, the ball is now in Obama‘s court. Regarding Iraqis displaced by the war (both IDPs and refugees), the Obama administration has affirmed that ―[t]hese men, women and children are a living consequence of this war and a challenge to stability in the region, and they must become a part of Iraq‘s reconciliation and recovery. America has a strategic interest – and a moral responsibility – to act.‖(7) He also made several promises on the topic during his campaign – for instance, to set up an international working group to handle the crisis and to ―provide at least $2 billion to expand services to Iraqi refugees in neighboring countries.‖(8) Following his inauguration, he elaborated on his promises to also include offering diplomacy and assistance to aide the millions of displaced Iraqis as well as cooperating with other countries ―to resettle Iraqis facing great personal risk.‖(9) Five months after assuming the presidency of the United States, Obama‘s record on this front still has considerable room for improvement. When considering the budget proposal for FY2010, specifically the funding devoted to Migration and Refugee Assistance and the U.S. Emergency Refugee and Migration Assistance Fund, it is clear that, while he is calling for an increase in funding, it is not a significant change over the past several years. Plan Pop – Obama committed to asylee detention reform. National Immigrant Justice Center. ―Obama‘s Immigration Reform Plan Must Include Human Rights Protections for Detainees.‖ April 10, 2009. http://www.immigrantjustice.org/blog/uspolicyblog/obamas-immigration-reform- plan-must-include-human-rights-protections-for-detainees.html Heartland Alliance's National Immigrant Justice Center welcomes the White House announcement that President Obama will take up comprehensive immigration reform this year. A longtime supporter of fair and humane immigration policies, President Obama has kept his campaign pledge to begin to fix our nation's broken system. In addition to resolving the complex issues surrounding the undocumented population, the National Immigrant Justice Center urges the White House and Congress to modify current punitive laws and policies that deprive immigrants, refugees and asylum seekers of due process and fair treatment. Any comprehensive immigration reform must ensure that: All immigrants who face deportation have the opportunity to speak with a judge. Asylum seekers who come to this country are not detained while seeking protection The immigration detention system is reformed to ensure it is transparent, humane, and used only when necessary, relying to a much greater extent on non-custodial alternatives to incarceration. ―A comprehensive immigration reform package must protect the human rights of asylum seekers and immigrants, who all too often endure substandard or even deadly conditions in detention,‖ said Mary Meg McCarthy, executive director, Heartland Alliance‘s National Immigrant Justice Center. The broad outlines of an Obama plan that have been discussed publicly thus far signify a commitment to address some of the most pressing issues, including a program to bring undocumented immigrants into regular status. Such a program would increase national security, preserve family unity, and restore the historical role of the United States as a nation that welcomes immigrants and their entrepreneurial spirit. This program also would yield significant economic benefits: while many immigrants without documentation pay payroll taxes, they do not pay federal or state income taxes. Providing a path to legalization for these men and women would yield additional revenue through these income taxes. The Obama Administration has demonstrated its commitment to work toward these due process and detention reforms. The National Immigrant Justice Center looks forward to working with the White House and Congress as they debate future policy and develop legislation. 131 Refugee Aff DDW 2009 Plan Pop – Senate Judiciary Commitee Plan popular – powerful Senate Judiciary Committee backs unaccompanied minor legislation. Diane Feinstein, Senate Committee on Intelligence, Senate Committee on Appropriations, Senate Committee on the Judiciary, Senate Committee on Rules and Administration. ―Senate Judiciary Committee Approves Feinstein-Brownback Bill to Protect Unaccompanied Alien Minors.‖ Senate.gov, June 3, 2004. The Senate Judiciary Committee today approved bipartisan legislation sponsored by U.S. Senators Dianne Feinstein (D-Calif.) and Sam Brownback (R-KS) to reform the treatment of unaccompanied alien minors who are in federal immigration custody. "Unaccompanied alien minors are among the most vulnerable of the immigrant population," Senator Feinstein said. "Many of these children have entered the country under traumatic circumstances. They are young and alone, subject to abuse and exploitation. These unaccompanied children are often unable to articulate their fears, their views, or testify to their needs as accurately as adults can. Despite this, U.S. immigration laws and policies have traditionally been developed and implemented without regard for their effect on children, particularly on unaccompanied alien children." "This bill would change how these children are treated. It provides critically needed guidance to both the Department of Homeland Security and the Office of Refugee Resettlement within the Department of Health and Human Services, in the treatment and care of unaccompanied alien children encountered by immigration officials at our borders. This will ensure that unaccompanied children who come into the care of the U.S. government are treated appropriately." The bill is cosponsored by Senators Jeff Bingaman (D-NM), John Breaux (D-LA), Sam Brownback (R-KS), Maria Cantwell (D-WA), Lincoln Chafee (R-RI), Hillary Clinton (D-NY), Susan Collins (R-ME), Jon Corzine (D-NJ), Mike DeWine (R-OH), Richard Durbin (D-IL), John Edwards (D-NC), Russell Feingold (D-WI), Bob Graham (D-FL) Tim Johnson (D-SD), Edward Kennedy (D-MA), John Kerry (D-MA), Herb Kohl (D-WI), Mary Landrieu (D-LA), Frank Lautenberg (D-NJ), Patrick Leahy (D-VT), Barbara Mikulski (D-MD), Patty Murray (D-WA), Paul Sarbanes (D-MD), Charles Schumer (D-NY), Arlen Specter (R-PA), George Voinovich (R-OH). 132 Refugee Aff DDW 2009 Plan Pop – War Provisions Refugee aid popular-gets slipped in with war provisions AP 6-19-09 [JIM ABRAMS, http://www.google.com/hostednews/ap/article/ALeqM5i1DBB8JA46mzegcVniqdGeQYASwQD98S9F7 G0] Last month, when the House passed its original version of the bill without the IMF provision by a 368-60 margin, 51 anti-war Democrats opposed it. This time, with only five Republicans voting for it, Democratic leaders managed to reduce opposition within their party to 32. Among other provisions in the bill: $534 million for some 185,000 service members who have had their enlistments involuntarily extended since Sept. 11, 2001. They will receive $500 for every month they were held under stop-loss orders. $10.4 billion for international aid, with $1.4 billion for Afghanistan, $2.4 billion for Pakistan, $958 million for Iraq, $390 million for refugee assistance and $700 million for international food assistance. 133 Refugee Aff DDW 2009 Plan Pop Refugees bipart United States Department of State. ―Report to the Congress: Proposed Refugee Admissions for Fiscal Year 2009.‖ United States Department of Homeland Security, United States Department of Health and Human Services. 2009. http://www.state.gov/documents/organization/113507.pdf The U.S. Refugee Admissions Program is a source of pride for the American people. Refugees who come to the U.S. have experienced, or have a well-founded fear of, persecution. Some have experienced torture or witnessed the murder of family members. They and their families have felt great despair. This program enables refugees to start new lives in a country that welcomes them. This program enjoys deep bipartisan support because it saves lives and creates opportunities for people in tremendous need. The resettled refugees, the communities that welcome them, and the international and non-governmental organizations that support their resettlement and integration all gain from their participation in this program. Senators introduced legislation to place a coordinator for Iraqi refugees Krista Minteer, Communications Associate Human Rights First. June 24, 2008 http://www.humanrightsfirst.org/media/asy/2008/alert/314/index.html Yesterday a bi-partisan group of Senators introduced legislation to establish a White House Coordinator for Iraqi refugees and internally displaced persons (IDPs) to direct federal policy regarding the nearly five million Iraqis who have fled their homes and are now displaced in the region. The incremental, piecemeal approach of the Bush administration to the Iraqi refugee crisis has been woefully inadequate,‖• said Elisa Massimino, Washington Director of Human Rights First. ―This complex urban displacement crisis in the heart of the Middle East requires a much greater investment of U.S. resources and diplomacy. A White House Coordinator would elevate this issue to a level of priority commensurate with the challenge.‖ ―U.S. policy has improved in the past year, but the crisis is growing more complex,‖• said Amelia Templeton, of the Lifeline for Iraqi Refugees Project at Human Rights First. ―The pressure on impoverished Iraqi refugees to consider returning to their country is increasing. But returns could be disastrous if they happen with no guarantee of physical safety, legal protection, or material assistance for the displaced. A White House-level official could ensure that the President recognizes the strategic risks associated with the premature or coerced return of refugees.‖ 134 Refugee Aff DDW 2009 AT: Econ DA Prolonged application process creates adverse national health and economic concerns. Rachel D. Settlage, Clinical Fellow, University of Baltimore School of Law. J.D./M.S. (Foreign Service), Georgetown University, 1998. B.A., University of California, Berkeley, 1992., attorney at Asylum Program of Southern Arizona and foreign affairs officer in the Office of Country Reports and Asylum Affairs, US State Department. ―Affirmatively Denied: The Detrimental Effects of a Reduced Grant Rate for Affirmative Asylum Seekers.‖ Boston University International Law Journal, Spring 2009. JM It is clear that an affirmative asylum seeker with a legitimate claim whose asylum process is prolonged because she is referred to an immigration judge suffers a tremendous cost. However, it is not just the asylum [*104] seeker that suffers a cost. When an asylum case is referred to an immigration judge for a de novo hearing, the U.S. Government faces additional operating and personnel costs, both within the Department of Justice, which adjudicates the case, and the DHS, which represents the government's interests in immigration court proceedings. There is a societal cost involved with a prolonged asylum process as well. Asylum seekers who are unable to work for 180 days, or in some cases longer, are not contributing to the overall economic well-being of American society, either through their work or through taxes. There are also significant community health risks if communicable diseases go untreated because of an asylum seeker's lack of access to health care or insurance. 217 Untreated illnesses may ultimately lead to higher healthcare costs later, or to decreased work productivity once status is obtained. 218 Millions of taxpayer dollars spent to detain refugees Bronwyn Lance, Columnist The Virginian Pilot July 2, 2000 Perhaps most disturbingly, the INS indicated that it does not know exactly how many asylum seekers it holds in detention as it does not track this number. However, using statistical projections based on the number of asylum seekers that make it past the credible fear determination, it has been estimated that by 2001, approximately 24,000 will be detained at an annual cost of more than $500 million taxpayer dollars. 135 Refugee Aff DDW 2009 AT: States States would eliminate other support for refugees—they are the first programs on the chopping block. John Fredriksson, Associate Director of US Committee for Refugees, director of Immigration and Refugee services of America, lead NGO director of 1999 Humanitarian Evacuation Program. ―Bridging the Gap Between Rights and Responsiblities: Policy Changes Affecting Refugees and Immigrants in the United States Since 1996.‖ Georgetown Immigration Law Journal, Spring 2000. While international human rights treaties speak generally of social and economic rights, enumerating rights to work, education, health care, social security and other social benefits, it is important, in the U.S. context, to distinguish between a conceptual system driven by an emphasis on "rights" and a popular understanding of social welfare assistance that is discretionary, temporary and short-term. In the United States, the social welfare system is decentralized, includes a significant role for private charitable groups and volunteers, and relies to a larger degree on private contributions to address [*758] the needs of the poor and disadvantaged. n2 The very concept of a guaranteed federal social safety net disappeared as a result of the welfare reform legislation enacted in 1996, which turned authority over most social welfare programs to the states. n3 What is left in the wake of the 1996 reforms is a patchwork of programs and benefits designed and administered at the state and county levels, and characterized by immense variation in eligibility requirements, programmatic goals and outcomes, and timelines available for services and assistance. In other words, what may be perceived as a "social and economic right" in New York is not necessarily available in Montana or Florida. States have greater discretion in defining eligibility and access to services for refugees and immigrants than for determining citizens' benefits, n4 and while currently most states provide refugees and immigrants with similar services and assistance as those available to U.S. citizens, states are not required to do so. There remains a very real possibility that if the economic growth of the last seven years ends and states find themselves faced with growing expenses for social welfare programs, benefits for refugees and immigrants will be targeted for further reductions. Refugees generate tax revenue for fed government, but heavy burden on states. John Fredriksson, Associate Director of US Committee for Refugees, director of Immigration and Refugee services of America, lead NGO director of 1999 Humanitarian Evacuation Program. ―Bridging the Gap Between Rights and Responsibilities: Policy Changes Affecting Refugees and Immigrants in the United States Since 1996.‖ Georgetown Immigration Law Journal, Spring 2000. [*765] Research finds that even though many newcomer families find themselves in poverty during the early period after arrival, immigrants and refugees quickly become self-sufficient. n41 On balance, immigrants and refugees contribute more in taxes than they use in services. n42 However, while tax receipts from immigrants and refugees are channeled primarily to the federal government, the burden of financing social services and welfare assistance for these groups until they achieve self-sufficiency is primarily borne by state and local governments. n43 In the restrictionist impulse of the 1996 debate over welfare reform, the new legislation addressed this perceived imbalance backwards by granting states control over immigrant eligibility for both federal and state social welfare programs. n44 While many states have not chosen to drop immigrants and refugees from the programs they now control, n45 they have the legal basis to do so in the future. Many fear that when the economy turns sour, immigrants and refugees will be the first to be cut off and left without any access to services and assistance. 136 Refugee Aff DDW 2009 AT: Refugee Threat No risk of political threat – policies maintain current US interests. PRA. ―Refugee and Asylum Seekers‖. Political Research Associates, 2008. http://www.publiceye.org/ark/immigrants/AsylumSeekers.html Contrary to the Right's exaggerations, refugees are not overrunning the United States. The vast majority of the world's refugees are in the developing world. Iran alone hosts almost three times as many refugees as the United States. The U.S. refugee population is actually only 4.6 percent of the total number of refugees worldwide. For every 427 U.S. citizens, there is 1 refugee.1 The U.S. refugee and asylum policies tend to reflect the interests of the U.S. government and are based on various political factors. These include maintaining U.S. control within certain regions, highlighting rights violations within enemy nations, and providing humanitarian assistance in order to meet domestic and international political demands. For example, U.S. refugee policy has often favored refugees from nations the United States considered adversaries. From the beginning of Castro's regime until 1994, the United States had an open-door policy to Cuban refugees. In contrast, the United States maintained strict restrictions on the numbers of refugees accepted from Haiti, in part because it supported the Haitian government.2 In addition, U.S. foreign policy has played a role in the political and economic upheavals that have led to the creation of refugees in many nations, including Haiti, Nicaragua and Afghanistan. 137 Refugee Aff DDW 2009 AT: Terrorist Asylum No risk of terrorist asylees – multiple security checks. Rachel D. Settlage, Clinical Fellow, University of Baltimore School of Law. J.D./M.S. (Foreign Service), Georgetown University, 1998. B.A., University of California, Berkeley, 1992., attorney at Asylum Program of Southern Arizona and foreign affairs officer in the Office of Country Reports and Asylum Affairs, US State Department. ―Affirmatively Denied: The Detrimental Effects of a Reduced Grant Rate for Affirmative Asylum Seekers.‖ Boston University International Law Journal, Spring 2009. JM The war on terror has increased suspicion and distrust of asylum seekers. Some commentators have even suggested that terrorists would use the asylum process to gain admission into the United States. However, 147 there is no real evidence that terrorists have tried to use the asylum process. Nor does it make sense that they 148 would want to; applying for asylum is not only an extremely complicated and lengthy procedure, but it involves multiple security checks, including fingerprinting, other biometric verifications, and background checks. 149 Nevertheless, because the substantive grounds for asylum are well established, in the aftermath of 9/11 150 legislators sought increased administrative and legislative means by which to permanently limit the number of asylum seekers granted protection in the United States, all in the name of increasing security. Since 9/11, new legislation has broadened [*89] the definition of "terrorist group" and "terrorist activities," thereby increasing the number of people who are inadmissible, and changed some of the standards and requirements for establishing an asylum claim, thereby increasing the level of proof required of asylum seekers. Terrorist will not come through the refugee programs Idean Salehyan* Assistant Professor Department of Political Science University of North Texas 4/30/08 (―US Refugee and Asylum Policy: Has Anything Changed After 9/11?‖ http://www.lse.ac.uk/collections/MSU/papers/LMRG-Salehyan%20Asylum%20911-.pdf) In addition, it seems unlikely that terrorists would attempt—as a first strategy—to enter the United States through the refugee resettlement or asylum systems. High legal and administrative hurdles, in place pre-9/11, would make this entry strategy quite doubtful (for European perspectives see Guild 2003). People who have been granted refugee status overseas are by no means assured of entering the United States. Of the hundreds of thousands of people who qualify for refugee status in overseas camps, only a small handful is allowed to resettle in the US each year. The asylum adjudication process also seems like an unlikely candidate for potential terrorists. Since administrative reforms in 1996, there have been increased provisions for detaining asylum- seekers, several levels of screening to determine credibility, and the process leaves a long papertrail. Provisions are also in place to ensure that asylum seekers are fleeing government persecution rather than prosecution for legitimate offenses, such as involvement in militant activities. These bureaucratic hurdles, especially relative to other admissions categories, were likely to deter terrorists even before 2001. 138 Refugee Aff DDW 2009 139 Refugee Aff DDW 2009 AT: Terrorist Asylum Stringent security requirements now – no risk of terrorist asylum. Rachel D. Settlage, Clinical Fellow, University of Baltimore School of Law. J.D./M.S. (Foreign Service), Georgetown University, 1998. B.A., University of California, Berkeley, 1992., attorney at Asylum Program of Southern Arizona and foreign affairs officer in the Office of Country Reports and Asylum Affairs, US State Department. ―Affirmatively Denied: The Detrimental Effects of a Reduced Grant Rate for Affirmative Asylum Seekers.‖ Boston University International Law Journal, Spring 2009. JM In determining who is eligible for asylum, an adjudicator must take into account whether the asylum seeker is barred from admission on the grounds of having engaged in terrorist activity. The USA PATRIOT Act of 151 2001 and the Real ID Act of 2005 amended the INA by broadening the definition of "material support," "terrorist," and "terrorist organizations," and thereby greatly expanded the class of people who are now inadmissible on this ground. This expanded definition has put legitimate refugees and asylum seekers at risk of being denied protection in the United States. Under the law as amended by the USA PATRIOT Act and the Real ID Act, a person is inadmissible if he or she ever engaged in "terrorist activity", which includes committing "an act that actor knows, or reasonably should know, affords material support, including a safe house, transportation, communications, funds, transfer of funds or other material financial benefit, false documentation or identification, weapons..., explosives, or training... to a terrorist organization... or to any member of such an organization." The USA PATRIOT Act expanded the definition of "terrorist organization" 152 to include any group that used a "weapon" other than for personal monetary gain. The Real ID Act further 153 expanded the definition to include any group that has a subgroup that uses weapons. As a result, a group may 154 be deemed to be a terrorist organization even if it has not been designated as a Tier I or Tier II [*90] terrorist organization by the U.S. Department of State. Organizations found to be terrorist organizations, but not 155 designated as such by the Department of State, are generally referred to as Tier III terrorist organizations. Detention process unnecessary – no risk of asylum seeker threat. Human Rights First, non profit legal organization. ―US Detention of Asylum Seekers: Seeking Protection, Finding Prison.‖ April 2009. Through our pro bono representation work, and in conducting research for this report, we have learned of many refugees who were jailed for many months—and some for years—in these prison-like facilities before being granted asylum in this country. Many asylum seekers could have been released from detention while their cases were pending, either on parole or through an immigration court custody hearing. Providing asylum seekers with access to fair release procedures does not undermine security. In fact, the Department of Homeland Security‘s regulations and guidelines on parole expressly prohibit the release of an individual who presents a risk to the community or a flight or security risk. The case law governing immigration court custody hearings also requires that the individual establish that he or she does not present a danger to others, a threat to national security, or a flight risk 140 Refugee Aff DDW 2009 AT: Employment Solves Pov Bureaucratic delays prevent asylee employment. Rachel D. Settlage, Clinical Fellow, University of Baltimore School of Law. J.D./M.S. (Foreign Service), Georgetown University, 1998. B.A., University of California, Berkeley, 1992., attorney at Asylum Program of Southern Arizona and foreign affairs officer in the Office of Country Reports and Asylum Affairs, US State Department. ―Affirmatively Denied: The Detrimental Effects of a Reduced Grant Rate for Affirmative Asylum Seekers.‖ Boston University International Law Journal, Spring 2009. JM Mr. O was fortunate because he was able to work for most of the time that it took to adjudicate his asylum claim. When an asylum seeker files an asylum application, a clock begins to run that documents the days that have passed in the adjudication of the case. Asylum seekers may not apply for work authorization until 150 days have passed from the date the application was filed, and work authorization will only be granted if there is not a final determination on their case within 180 days. 206 All asylum seekers are thus unable to work until their case has been adjudicated, or 180 days have passed, whichever occurs first. However, some asylum applicants are unable to work at all during their asylum process. If a delay occurs in the course of adjudication and it is determined to be caused by the asylum seeker, then the clock is stopped. 207 Thus, clocks are stopped if asylum applicants request that an asylum interview be rescheduled, or if they request a continuance in their master calendar or merits hearing for any reason, including the need for additional time to find a lawyer, or to obtain additional evidence. However, immigration practitioners report that some clocks are erroneously stopped, or even reset, through no fault of the applicant. 208 Once stopped, it can be very difficult, if not impossible, to restart a clock. Because of these regulations, all asylum seekers must either have the means to support themselves without working for up to 180 days while their case is processed, or be forced to rely on friends and family for support. For those asylum seekers whose clocks are stopped, they must wait sometimes indefinitely before they become eligible for work authorization. In the worst case situation, asylum seekers remain destitute and homeless while awaiting adjudication of their application. 141 Refugee Aff DDW 2009 AT: Fraud Recycling solved by verification and biometric mechanisms (EPAU Evaluation Reports, 9-30-08, UNHCR and European Partnership Agreement Unit Evaluation Reports, pg 23, http://www.unhcr.org/48ecb2e32.html) The biggest challenge encountered in nearly every operation was ―recycling‖ (i.e. when returnees attempt to receive the cash grant more than once. Recycling can be countered by making entitlement to assistance contingent on verification against a registration database (Afghan refugees in Iran 2000, Burundian refugees in Tanzania). Cross-checking of VRFs, pre-registration or use of family photos, inspections of vehicles and truckloads, have all been used as techniques to reduce recycling. The use of biometric verification mechanisms (such as iris scanning of Afghans or fingerprinting of Guatemalans) is believed to have significantly reduced recycling and to be a effective means of discouraging it. However, in the absence of baseline data, the impact of such mechanisms is difficult to assess. In general, without a comprehensive data protection policy framework, heavy reliance on electronic records and use of biometrics raises certain dilemmas. Work unavailable to asylum seekers before application U.S Department of Justice, 2005 States News Service, 2005 28 April 2005 http://www.lexisnexis.com/us/lnacademic/results/docview/docview.do?docLinkInd=true&risb=21_T685726807 1&format=GNBFI&sort=RELEVANCE&startDocNo=1&resultsUrlKey=29_T6857227264&cisb=22_T685726 8073&treeMax=true&treeWidth=0&csi=8058&docNo=5 Asylum applicants cannot apply for employment authorization at the same time they apply for asylum. However, they can apply for work authorization if 150 days have passed since they filed their completed application and no decision has been made on their application. The USCIS has 30 days to either grant or deny the requests for employment, and work authorization can begin after 180 days. In all other cases, asylum applicants will be authorized to work in the United States when they are granted asylum and as long as they remain in asylum status. 142 Refugee Aff DDW 2009 AT: Refugees Kill Environment Refugees conserve more than most people (Gaim Kibreab, professor of Social and Policy Studies at London South Bank University, 12-16-02, ―Environmental Causes and Impact of Refugee Movements: A Critique of the Current Debate‖ in Disasters Volume 21 Issue 1, Pages 20 – 38, http://www3.interscience.wiley.com/journal/119173126/abstract) There is a widespread view that a causal link exists between poverty and the propensity to use renewable resources unsustainably. Yet, available empirical evidence worldwide shows that affluence and the use of polluting technologies rather than poverty are the real causes of global environmental degradation. For example, in 1985, one-quarter of the world‘s population in the North was responsible for three quarters of global waste. In 1987, the per capita waste production in the developed countries was 1.6 tons. The corresponding figure for cities in the South was 0.17 tons, while in the rural areas it was less than 0.06 tons (Commoner in Shaw, 1989: 199). In poor countries, poverty limits the amount and type of consumption per capita, including pollutant technologies, which in turn limits the amount of waste production (Commoner in Shaw, 1989: 199). The rural poor rely on the ecosystem directly for their survival with no mediation. It is possible, therefore, that poor people understand very well the consequences of endangering the ecosystem because, if they do, they endanger themselves and their children. Even though extreme poverty may force desperate people to over-use renewable resources in order to survive, it is equally reasonable to argue that poverty may motivate more prudent and conservative use of resources. Thus, the relationship between poverty and unsustainable resource use is an empirical question. Consequently, it is incorrect to argue that refugees are exceptional degraders because they are poor. 143 Refugee Aff DDW 2009 AT: Refugees Kill Environment Ext. Resource degradation is not unique to refugees, many across African also do the same (Gaim Kibreab, professor of Social and Policy Studies at London South Bank University, 12-16-02, ―Environmental Causes and Impact of Refugee Movements: A Critique of the Current Debate‖ in Disasters Volume 21 Issue 1, Pages 20 – 38, http://www3.interscience.wiley.com/journal/119173126/abstract) It is argued in the literature that refugees lack incentives to use resources prudently because they have no security of tenure (UNHCR, 1991, 1992; Hoerz, 1995; Kimani, 1996). There is an undeniable connection between tenurial security and the willingness to undertake conservation measures (see Kibreab, 1996a). This security usually takes the form of recognised and legally protected communal or individual property rights or secure rights of usufruct. It is important to note, however, that the problem of tenurial insecurity across Africa is not unique to refugee situations. Thus, refugees cannot be seen as ‗exceptional resource’ degraders because of this. In the literature, the underlying assumption is that it is only refugees who lack tenurial security. Such remarks emanate from lack of understanding of the socio-economic and institutional frameworks within which subsistence producers, be they refugees or nonrefugees, eke out a living in most rural African and Asian contexts. In most Third World countries, the rural poor lack tenurial security and operate in an uncertain environment (for India see Jodha, 1985, 1986; Chopra, Kadekodi and Murty, 1989; Pasha, 1992; for south Asia see Bromley and Chapagain, 1989; for Africa see Ghai, 1992). The degree of uncertainty within which rural Africans operate with regard to their access to land and the associated resources is succinctly summarised by an African elder who posed a question at a workshop on land by first stating that Kenya had two parallel governments ‗[O]ne government gazettes our forests as a way of protection, the other subdivides them for the strong and the mighty‘, and then wondered ‗[N]ow to which government should we owe allegiance?‘ (quoted in The East African, 1996). Insecurity of tenure can further be elucidated by looking at the situation in Sudan. Historically, the various tribes had exclusive rights over resources located within their respective Dars or homelands. Non-members sought permission to enter from rights holders if access was needed to tide over a seasonal crisis. The rights holders had the power to admit or deny entry. They could also impose conditions of entry. Access to, and use of, resources by members of the tribes were also institutionally regulated. These resource-regulating institutions were strictly enforced by traditional leaders who could bring pressure to bear on their members. This form of property rights provided not only tenurial security, but was also a good framework for devising and enforcing prudent resource management systems. 144 Refugee Aff DDW 2009 **MISC** 145 Refugee Aff DDW 2009 Referred to Immigration Judges Refugees are referred to immigration judges The United States of America to the UN Committee on Human Rights Concerning the International Covenant on Civil and Political Rights, 10/21/05, ―Second and Third Periodic Report of the United States of America to the UN Committee on Human Rights Concerning the International Covenant on Civil and Political Rights.‖ http://www.state.gov/g/drl/rls/55504.htm#art14 235. Expedited Removal of Arriving Aliens. The IIRIRA established a special, expedited removal procedure for certain aliens. Persons found to be inadmissible at a port-of-entry under sections 212(a)(6)(C) (seeking to procure visa or admission to the United States by fraud or willful misrepresentation) or 212(a)(7) (not possessing valid entry documents) of the INA are subject to immediate removal unless the alien satisfies exceptions defined in the INA. 8 U.S.C. § 1225(b)(1). Expedited removal procedures currently are also applied to two categories of aliens who evade inspection and enter the United States illegally: (1) aliens arriving by sea who have not been in the United States for at least two years; and (2) aliens apprehended within 100 miles of a U.S. international land border within 14 days of entry. Implementation of expedited removal with respect to the latter category has commenced in select areas of the United States and was recently expanded to cover the entire southwest border of the United States. Expedited removal is necessary to prevent potential dangerous mass migrations of economic migrants by sea and to enhance the security and safety of the U.S. land border. 236. Before the expedited removal procedure is used, the examining officer creates a statement of the facts regarding an alien's identity, alienage, and inadmissibility. 8 C.F.R. • 235.3(b)(2)(i). The officer also advises the alien of the charges against him or her and affords the alien the opportunity to respond to those charges. Id. If an alien claims to be a permanent resident, a refugee, an asylee, or a United States citizen, the alien is referred to an immigration judge for a determination of that claim or for a removal hearing if the claim is verified. 8 C.F.R. § 235.3(b)(5). 146 Refugee Aff DDW 2009 Asylum Seeker and Reception Stats – Iraq, US Iraqis remain the top asylum seekers and US leads claim receptions (Ron Redmond, spokesperson for UNHCR, 10-17-08, UN Refugee Agency, http://www.unhcr.org/48f861532.html) Despite a drop in their numbers, Iraqis remained by far the top nationality seeking asylum in industrialized countries in the first half of 2008, according to UNHCR's latest asylum report released today (Friday). During the first six months of 2008, a total of 19,500 asylum claims were lodged by Iraqis in the 44 industrialised countries included in the report. This constitutes an 18 percent decrease compared to the previous six months and a 10 percent decrease compared to the first half of 2007. In spite of this downward trend, Iraqis still accounted for 12 percent of all asylum applications lodged in the industrialised world. Among other things, UNHCR's report shows that the number of asylum claims made by Iraqis (19,500), was higher than the combined number of asylum claims submitted by citizens of the Russian Federation (9,400) and China (8,700), the second and third most important source countries. Other important countries of origin of asylum seekers were Somalia (7,400), Pakistan and Afghanistan (6,300 each). Sixty percent of all Iraqis claimed asylum in only four countries: Sweden (20 percent), Germany (18 percent), Turkey (14 percent) and the Netherlands (12 percent). One in five of all applications by Iraqis were submitted in Sweden (3,900), which has been the main destination country for Iraqi asylum seekers for some time. Arrivals in Sweden, however, have seen a recent drop following a change in Swedish decision-making on Iraqi asylum claims resulting in fewer Iraqis submitting applications. At the same time, applications by Iraqis have gone up in Germany, the Netherlands and Norway. Germany, for example, received 3,400 Iraqi asylum claims in the first half of 2008, the same level as in the preceding six months, but four times more than in the first half of 2007. Overall, an estimated 165,100 asylum claims were submitted by all nationalities in the industrialised countries during the first half of 2008. The United States remained the largest single recipient of new claims by asylum seekers of all nationalities during the first six months of 2008. An estimated 25,400 individuals submitted asylum applications in the USA, representing 15 percent of all applications lodged in the 44 industrialized countries covered by the report. Canada ranked second country of destination with 16,800 applications by asylum seekers of all nationalities during the first six months of 2008. The number of asylum claims submitted in industrialised countries in 2007 rose by 9 per cent compared to 2006. This upward trend has continued during the first half of 2008 with data showing an increase of 3 percent compared to the first half of 2007. Assuming that current patterns remain unchanged during the next six months, UNHCR expects the number of asylum claims lodged during the whole of 2008 to reach up to 360,000, or 10 percent higher than in 2007. Among the major source countries of asylum-seekers, significant increases were registered by asylum applicants from Mali, Zimbabwe, Myanmar, Afghanistan, Sri Lanka, Côte d'Ivoire, Georgia and the Democratic Republic of the Congo. 147 Refugee Aff DDW 2009 New Resettlement Patterns New resettlement pattern Lyndsey Layton, staff writer. ―More Refugees Are Settling in Mid-Size Cities.‖ Washington Post, September 28, 2006. http://www.washingtonpost.com/wp-dyn/content/article/2006/09/27/AR2006092701706_pf.html Political refugees coming to the United States are increasingly putting down roots in metropolitan areas without large immigrant populations, according to a study being released today by the Brookings Institution. The study, the first of its kind to analyze refugee settlement patterns in metropolitan regions, found that while traditional immigrant gateways such as New York, Chicago and Los Angeles still absorb most refugees, that flow has slowed in the past several years, and refugees are increasingly settling in Seattle, Atlanta, Sacramento, Minneapolis-St. Paul and Portland Ore., said Audrey Singer, a Brookings demographer who co-wrote the study. "These are places that are taking on more refugees proportionally than they have in the past, and it's helping to change the face of these cities," Singer said. 148 Refugee Aff DDW 2009 ***NEG*** 149 Refugee Aff DDW 2009 No Solvency – Patchwork Agencies Refugee action fails – disjointed federal agencies. John Fredriksson, Associate Director of US Committee for Refugees, director of Immigration and Refugee services of America, lead NGO director of 1999 Humanitarian Evacuation Program. ―Bridging the Gap Between Rights and Responsibilities: Policy Changes Affecting Refugees and Immigrants in the United States Since 1996.‖ Georgetown Immigration Law Journal, Spring 2000. Another particularity of U.S. refugee policy is that there is no national governmental agency exclusively responsible for refugee policy. In fact, the [*759] implementation of refugee policy at the federal level (and to a certain extent, also at the state level) is split among at least four federal agencies having broad responsibilities for separate functions and services: (1) the Department of State establishes and implements policies concerning admission, early reception and placement; n5 (2) the Department of Health and Human Services is involved with resettlement, employment and other social services; n6 (3) the Department of Justice, and specifically the Immigration and Naturalization Service (INS), engages in legal status adjudication and the conferral of citizenship and other immigration benefits; n7 and (4) albeit with much smaller impact on refugees, the Department of Labor addresses labor migration issues. n8 This division of functions creates an environment where there is little room for serious policy coordination and development in any of the many facets of refugee policy. The frequently overlapping authorities of agencies responsible for implementing refugee policy contribute to confusion and duplication of services, particularly at the local level. n9 150 Refugee Aff DDW 2009 Current Education Solves Current programs provide multiple education options for refugee children U.S. Department of Health and Human Services 2008 ( Administration for Children and Families, September 18th, 2008 , ―School Impact‖ http://www.acf.hhs.gov/programs/orr/programs/ref_school_impact.htm) The Refugee School Impact Program is part of the Division of Refugee Assistance (DRA) and provides grants to State and State-alternative programs to support impacted school districts with the funds necessary to pay for activities that will lead to the effective integration and education of refugee children. Services target school-age refugees between the ages of five (5) and 18 years of age with program activities that include English as a Second Language instruction, after-school tutorials, programs that encourage high school completion and full participation in school activities, after-school and/or summer clubs and activities, parental involvement programs, bilingual/bicultural counselors, interpreter services and other services. 151 Refugee Aff DDW 2009 ORR Solves The Office of Refugee Resettlement provides safe and specific help to refugee children U.S. Department of Health and Human Services 2009 ( Administration for Children and Families, May 18th, 2008, ― Unaccompanied Children's Services‖ http://www.acf.hhs.gov/programs/orr/programs/unaccompanied_alien_children.htm Program Description The Division of Unaccompanied Children‘s Services (DUCS), within the Office of Refugee Resettlement (ORR), is responsible for the care and placement of unaccompanied alien children (UAC). ORR provides a safe and appropriate environment for UAC from the time they are placed in ORR custody until their reunification with family members or sponsors in the U.S. or until they are removed to their home country by DHS immigration officials. ORR takes into consideration the unique nature of each child‘s situation and child welfare principles when making placement, case management, and release decisions that are in the interests of the child. On December 23, 2008, the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA) was signed by the President. The TVPRA includes provisions to promote the identification and protection of trafficking survivors and those who are eligible for asylum and other forms of immigration relief. The legislation sets standards for care and services to UAC in custody regarding age determinations, repatriation, placement, suitability assessments, access to counsel and legal orientations,SIJS, and child advocates. 152 Refugee Aff DDW 2009 RMA/CMA Solve Cash and Medical Assistance provides to refugees where TANF fails U.S. Department of Health and Human Services 2008 (September 18th, 2008, ―Cash and Medical Assistance‖; http://www.acf.hhs.gov/programs/orr/programs/cma.htm) The Cash and Medical Assistance (CMA) Program is part of the Division of Refugee Assistance and provides reimbursement to States and alternative refugee assistance programs for 100 percent of Refugee Cash Assistance (RCA), Refugee Medical Assistance (RMA), and Unaccompanied Refugee Minors program services, provided to refugees and other eligible persons, as well as associated administrative costs. ORR clients determined ineligible for Temporary Assistance for Needy Families (TANF) and Medicaid are may be eligible for RCA and RMA for up to eight (8) months from the date of arrival in the U.S., date of final grant of asylum for asylees, and date of certification for trafficking victims. Refugees may apply for RCA and/or RMA in their State of residence within eight (8) months from the date of arrival. CMA also reimburses states for medical screening costs through local public health clinics so that contagious diseases and medical conditions that may be a barrier to refugees are identified and treated. 153 Refugee Aff DDW 2009 Legal Rep Available In Squo Legal representation is entitled to non-US-citizens in custody (part of the refugee acceptance plan) Muzaffar Chishti Director and Lawyer, Migration Policy Institute at NYU August 2004 http://www.migrationinformation.org/USFocus/display.cfm?ID=245 The US Supreme Court rarely gets an opportunity to pronounce on the delicate balance between national security and individual liberties. It is rarer for it to do so in the context of war, and even rarer when the case involves non-citizens. But that is precisely what the Supreme Court did in the final days of its 2003-2004 term. It affirmed the rights of non-citizens held in custody by the government as alleged "enemy combatants" in the post-September 11 war on terrorism. Though the ruling is limited to the treatment of non-citizens held as "enemy combatants," it sets an extremely important precedent for the rights of all non-citizens detained by US authorities. The ruling on non-citizen detainees was rendered the same day as the Supreme Court ruled on three separate but related cases involving post-September 11 "enemy combatants." The court was deeply aware of the historic significance of its rulings. And yet, it broadly—and decidedly—rejected the administration's argument that the executive branch has the exclusive authority to determine whether or not to indefinitely detain citizens and non-citizens. The ruling allows citizens and non-citizens alike to challenge their detention before US courts. Through these rulings, the Supreme Court has issued one of its strongest statements ever against the executive claim of unreviewable authority in times of war. 154 Refugee Aff DDW 2009 Iraqi Refugees = Terrorists Terrorism is spread in Iraq due to terrible conditions in Iraq and the US Byman and Pollack 2008 (Daniel L. Byman and Kenneth M. Pollack, 2008,―Iraq's Long-Term Impact on Jihadist Terrorism‖; http://ann.sagepub.com/cgi/content/abstract/618/1/55) This article argues that the problems facing Iraq could have tremendous consequences for the broader "war on terror," particularly if they return to or exceed levels seen at the height of the violence in 2006. Salafi militants, followers of an extreme interpretation of Islam who want to use violence to unite Muslims under religious rule, have been fighting in Iraq and may use the country as a base for operations and attacks elsewhere in the region. In addition, refugees from Iraq might spread terrorism, radicalize neighboring populations, and contribute to strife and instability throughout the region. While a U.S. troop withdrawal may inspire fewer young men to take up terrorism against the United States, it would also increase militants' operational freedom in Iraq itself, allowing terrorist groups to recruit, train, and plan with relative impunity. As a result, if the United States withdraws from Iraq without leaving behind a stable Iraqi government, it should still maintain a regional military presence and help bolster other regimes in the Middle East from the threat of terrorism from Iraq. 155 Refugee Aff DDW 2009 Rights Undermine Sovereignty Increasing refugee legal rights undermines state sovereignty. (Lisa Alfredson, Research Assistant Professor, 2006, Graduate School of Public and International Affairs, University of Pittsburgh, International Conference of the International Studies Association, ―Challenging The Human Rights Paradox: The Development of Inter-State Responsibility For Persecuted Non-Citizens‖ http://www.allacademic.com/meta/p99904_index.html) The new norm of gender persecution encompasses domestic violence and all forms of female-specific violence. Its international impact includes not only the opening of a new avenue for protection of women from around the world, but also directly influencing the shape of refugee policy at international and at national levels elsewhere. Within two years the UNHCR issued international recommendations modeled after the Canadian policy. The European Commission followed suit, as did a growing number of states. The US, for example, issued policy directives in 1995 directly modeled after and citing the Canadian approach. Other states include the UK, Australia, Denmark, Netherlands, Norway, South Africa and Sweden. To my knowledge, there has been no previous systematic scholarly treatment of this refugee movement as a whole or the political processes through which new rights to international protection were generated, despite the intense debates it raised.TPD 2D T This paper therefore offers original empirical analysis of a new refugee movement that profoundly impacted rights to international protection from human rights abuse. Relevant to my analysis is scholarship that attempts to explain the increasing rights of noncitizens in Western countries (especially Soysal 1993, 1994, 1997; Jacobson 1996; Sassen 1996). These studies do not explore the rise of non-citizen rights as a means of addressing the human rights paradox, but rather attempt to explain post World War II changes in citizenship laws and non-citizen residents‘ access to national rights, including increasing guest worker, illegal immigrant and refugee access to welfare, education and other social services. They look in particular at the rising using of judicial systems by non-citizens to attain rights previously reserved for citizens. They attribute the attainment of national rights by non-citizens to the emergence of new ―post-national‖ or ―trans- national‖ forms of membership, underpinned by international human rights which are said to be transforming traditional state defined political communities, traditionally cast in terms of citizenship, and weakening state sovereignty. Many of the most influential works on the subject bear this position explicitly in their titles: The ―Limits of Citizenship‖, ―…The Decline of Citizenship‖, ―Losing Control: Sovereignty and the Decline of Citizenship‖, and so on.TPD 3 DPT Benhabib (2004) more recently has nuanced the discussion by explaining that ―decline-of-citizenship theorists‖ underestimate the continuing importance of citizenship; instead she emphasizes the transfiguration of citizenship under human rights as bringing greater inter-cultural content to national rights and access to them. 156 Refugee Aff DDW 2009 UAC Protection Act Solves Children The Unaccompanied Alien Child Protection Act provides pro bono legal counseling Dianne Feinstein, US Senator of California, 7/31/2008, ―Senate Judiciary Committee Approves Feinstein Amendment to Protect Unaccompanied Alien Children.‖ http://feinstein.senate.gov/public/index.cfm?FuseAction=NewsRoom.PressReleases&ContentRecor d_id=7b292e44-b306-86d0-a0b4-981389abaf5d&Region_id=&Issue_id=551ee47b-7e9c-9af9-7621- 90e3666ca9fc Every year, more than 7,000 undocumented and unaccompanied children are apprehended. ―This legislation will ensure that unaccompanied children receive humane and appropriate treatment while in the custody of the United States government,‖ Senator Feinstein said. ―It would give unaccompanied minors access to pro bono legal counsel and someone to look after their best interest. I‘ve been working on this legislation for seven years. It is time for it to become law.‖ As under current law, if a child has committed a crime or poses a national security threat, that child will still be held in secure custody and deported. The ―Unaccompanied Alien Child Protection Act of 2007‖ is supported by: The United Nations High Commissioner for Refugees, National Immigrant Justice Center, The United States Conference of Catholic Bishops, The Women‘s Commission on Refugee Women and Children, The Lutheran Immigration and Refugee Service, and Immigrant Children‘s Advocacy Center at the University of Chicago The legislation is also co-sponsored by Senators Edward Kennedy (D-Mass.), Russ Feingold (D-Wis.), Maria Cantwell (D-Wash.) and John Kerry (D-Mass.) 157 Refugee Aff DDW 2009 No Humanitarian Interest States manage refugees out of economic, not humanitarian interest (Idean Salehyan, Professor of Political Science at the University of North Texas, 20 01, ―Safe Haven: International Norms, Strategic Interests,and U.S. Refugee Policy,‖ The Center for Comparative Immigration Studies) In the first part of this paper, I will develop a model of refugee policy-making that is primarily based on state interests and international strategic concerns. I argue that refugees create international instability and can potentially lead to conflict. States with an interest in preserving order in the refugee-producing region may agree to a burden-sharing arrangement in which the costs of managing the refugee flow are distributed among them.5 In other words, the orderly management of refugee crises is an international public good, which interested states contribute resources to provide. Funding international aid agencies such as the UNHCR and/or resettling a share of the refugees within their territories are ways in which states can mitigate the often chaotic effects of forced population movements. Foreign policy as well as domestic concerns also effect the decision as to whether or not states will accept asylum seekers headed for their territories. When the costs of accepting refugees exceed the expected benefit of managing the refugee crisis, states will be reluctant or unwilling to do so, despite the influence of human rights norms. 158 Refugee Aff DDW 2009 T Def Violation- Refugees aren‘t technically in the United States because of the entry doctrine. Ani E. Ajemianwrote the section on Iraqi refugees in Jordan. Ms. Ajemian is an associate at Sherin and Lodgen LLP.2007 (―Alone and Ignored: Unaccompanied Alien Children Seeking Asylum in the United States, Canada and Australia‖) See Bucci, supra note 23 at 275-304. While the CRC and the 14th amendment presumably apply to unaccompanied children because due process is granted to ―persons‖ rather than just ―citizens‖ of the United States, refugee children are often not protected due to technical requirements provided by the United States ―Entry Doctrine.‖ Id. The Entry Doctrine creates a loophole that often denies refugee children legal protections due to its strict language. Id. For example, if the INS finds that a refugee has not ―entered‖ the U.S. under the technical language of the doctrine, then that refugee may be detained and subject to exclusion proceedings where due process guarantees are not recognized. 159
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