Academic journal article American University International Law Review

No Due Process, No Asylum, and No Accountability: The Dissonance between Refugee Due Process and International Obligations in the United States

Academic journal article American University International Law Review

No Due Process, No Asylum, and No Accountability: The Dissonance between Refugee Due Process and International Obligations in the United States

Article excerpt

I. INTRODUCTION

The Syrian refugee crisis has captured the world's attention.1 There are currently more than 4.8 million displaced Syrian refugees2 with limited options for resettlement, as European states begin to close their borders.3 Though the U S. media has recently taken up the debate of whether refugees should or should not be accepted, it has rarely addressed the questionable denial of asylum claims by the United States under the Material Support Bar.4 The Material Support Bar,5 codified in section 212 of the Immigration and Nationality Act ("INA"),6 is a ground for inadmissibility to the United States for individuals who have actively supported terrorist groups by providing them material aid.7 The Material Support Bar's statutory language was modified by the Patriot Act in 2001 and the REAL ID Act in 2005;8 both acts transformed the statute from a simple ban on material support into an intricate provision, placing a heavy burden on asylum seekers to disprove allegations of terrorism support.9 It has been widely acknowledged that the U S. government is overbroad in its application of the Material Support Bar in asylum proceedings.10

The International Covenant for Civil and Political Rights (ICCPR),11 ratified by the United States in 1992, obligates signatory states to protect and preserve basic human rights, equality before the law, and the right to a fair trial in Article 14.12 Article 4(1-3) of the ICCPR allows a state to derogate from standard ICCPR obligations during a time of national emergency.13

Three days after the terrorist attacks on September 11, 2001, then President George W. Bush declared a state of national emergency for the United States.14 However, the United States never formally notified the United Nations of its declaration and, therefore, did not properly derogate under the Article 4(1) derogation provision.15

While the United States does have legitimate interests in rejecting asylum applications of individuals who have substantially supported terrorist activity and remain a threat to national security, the convoluted Material Support Bar currently denies due process rights to asylum seekers who pose no threat to national or international security.16 The United States must comply with the ICCPR standards for due process in its dealing of immigration proceedings for asylum seekers.17

This Comment will argue that the United States is violating its ICCPR Article 14 obligations under the Article 4(1) derogation provision by not providing due process in its application of the Material Support Bar. Part II of this Comment will lay out the international standards for due process.18 Part II will also describe the ICCPR, specifically looking at Articles 4 and 1419 and the framework of the Material Support Bar.20 Part III of this Comment will analyze how the Material Support Bar is violating Article 14(1),21 Article 14(3)(a),22 and Article 14(3)(c)23 of the ICCPR. Part III of this Comment will also analyze how the United States has not properly derogated under the Article 4(1) derogation provision, because the Material Support Bar is not proportional to the U S. state of emergency,24 and because the United States did not properly declare its state of emergency.25 Part IV of this Comment will then recommend that the statutory language of the Material Support Bar be more narrowly tailored to target true threats to national security.26 Part IV of this Comment will recommend that an Ombudsperson be implemented to communicate with asylum seekers during the legal process.27 Part IV of this Comment will also recommend the creation and implementation of a stable mechanism for granting duress and group-based waivers to asylum seekers.28 Finally, Part V of this Comment will conclude that the United States is violating Article 14 of the ICCPR under its current application of the Material Support Bar, even under an Article 4(1) derogation.29

II. BACKGROUND

In 1967, the United States ratified the United Nations Protocol Relating to the Status of Refugees,30 and, in 1980, Congress enacted the Refugee Act,31 an asylum program that formalized the process for granting asylum to noncitizens in the United States, thereby allowing the U S. …

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