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Immigration Detention: Give Detainees Fair Hearings

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Earlier today, the Constitution Project and Human Rights Watch co-hosted a panel discussion on immigration detention and access to counsel at the National Press Club. Two new reports, Recommendations for Reforming our Immigration Detention System and Promoting Access to Counsel in Immigration Proceedings by the Constitution Project's Liberty and Security Committee, and Locked Up Far Away: The Transfer of Immigrants to Remote Detention Centers in the United States by Human Rights Watch, were released at the event. In her opening remarks, moderator Megan Mack, Director of the American Bar Association Commission on Immigration, discussed the timeliness of both reports in light of the Obama administration's recent announcement that it plans to reform immigration detention.

The panel featured Liberty and Security Committee member Asa Hutchinson, former member of Congress (R-AR) and Undersecretary for Border & Transportation Security at the Department of Homeland Security; Judge Bruce Einhorn, Director of the Asylum Clinic and Professor of Law at Pepperdine University and former immigration judge; and Alison Parker, Deputy Director of the US Program of Human Rights Watch.

Secretary Hutchinson began the discussion by outlining the Constitution Project's bipartisan report and emphasizing the importance of working towards consensus-based reform of immigration laws and policies. He discussed several of the report's recommendations regarding alternatives to detention and increasing access to counsel for immigrants facing deportation. For example, he discussed the recommendation that "credible fear" interviews for people seeking political asylum be held within two weeks to minimize the time such people spend in detention, as well as the proposal that immigration judges should be required to appoint counsel for indigent non-citizens in immigration removal proceedings where certain factors are met. Secretary Hutchinson argued that immigration detention can be made more humane and fair without compromising national security.

Ms. Parker noted that the bipartisan support for immigration reform demonstrates that there is a widespread recognition that the system is fatally flawed. She described the report she authored for Human Rights Watch, which investigates the frequent practice of transferring detainees to faraway detention centers and the harmful impact that this practice has on an immigrant's ability to access counsel and obtain a fair deportation hearing. Ms. Parker urged that people should be detained and immigration hearings should be held as near as possible to the place where the non-citizen is arrested, and that when transfers are unavoidable, Immigration and Customs Enforcement (ICE) should be required to adhere to strict guidelines for such transfers.

Judge Einhorn rounded out the panel by lending his perspective as a former immigration judge. He argued that there must be effective judicial supervision to ensure that detainee transfer decisions are fair and legitimate. Citing his experience as an immigration judge, he said that immigrants who are not represented by counsel are much more likely to give up and agree to deportation, even if they may have meritorious claims, rather than remain in detention. He emphasized that access to counsel is essential to guarantee that immigrants receive fair hearings.

In response to various questions posed by Ms. Mack and members of the audience, the panelists agreed that while ICE's announcement that it will move from a jail-oriented detention scheme towards a civil detention scheme is a promising first step, this policy alone will not solve the problem. They also agreed that many of the recommendations in both reports could be implemented without the need for new legislation in Congress.

Today's event drew a diverse audience to the National Press Club's First Amendment Room, including attendees from various print and radio news outlets, congressional staff, government officials, and immigration advocates. Photos of today's event will be available on the Constitution Project's website tomorrow.