August 01, 2015

ABA urges representation at overseas refugee interviews

The ABA requested last month that the Department of Homeland Security (DHS) reverse its current ban on access to counsel in overseas refugee interviews.

“Representation of counsel would assure that refugees are given a fair chance to navigate the admission process successfully while protecting their human rights,” then ABA President William C. Hubbard wrote in a July 24 lette to DHS Secretary Jeh Johnson, DHS Deputy Secretary Alejandro Mayorkas, and Leόn Rodríguez, director of U.S. Citizenship and Immigration Services. “Presence of a legal advocate at interviews can also aid the U.S. government interviewer by bridging linguistic, cultural and psychological gaps,” he explained.

Refugees applying for resettlement through the U.S. Refugee Admission Program (USRAP) must navigate a complicated admission process that includes a minimum of four interviews with United Nations and U.S. officials, and they must submit numerous documents for both evidentiary and identification purposes. Most refugee applicants do not speak English, and many suffer from mild to severe cases of Post Traumatic Stress Disorder as a result of persecution.

Hubbard asserted that, because USRAP is a compulsory administrative proceeding, refugees are entitled to be allowed representation by counsel at no expense to the government under implementing regulations for the Immigration and Nationality Act (INA) and the Administrative Procedure Act (APA). From 1982 to 1992, INS officially interpreted the INS regulations − 8 CFR § 292.5(b) − as allowing counsel in the context of refugee asylum applications occurring outside the United States. In 1992, however, INS abruptly revised this prior analysis of the regulations through a memo to the Office of International Affairs.

In addition, Hubbard said that because refugees are required to appear in person for their interviews, they are covered under Section 555 (b) of the APA, which provides that a person compelled to appear in person before an agency is entitled to be accompanied, represented and advised by counsel.

He emphasized that it has been documented that the presence of counsel improves the efficiency and fairness of the process and is one of the key determinates to a positive case outcome. Hubbard concluded that there is no legislative, regulatory or practical reason to deny refugee applicants access to counsel.

A change in the agency’s interpretation, he said, could be made through an internal memorandum and would not require any statutory or regulatory change to bring the agency into compliance with the plain language of longstanding regulations.