Ending Secret Asylum Files (if only we could take UNHCR to federal court …)
Among the remaining areas of dispute about due process standards in UNHCR refugee status determination, disclosure of evidence remains the most difficult. UNHCR policy still maintains that UN offices should withhold from asylum-seekers the central evidence in their own refugee cases: their interview notes.
So I hope someone at UNHCR is paying attention to the settlement just reached in federal court between immigration lawyers in San Francisco and the U.S. Citizenship and Immigration Service. Under its terms, the U.S. Government must provide asylum seekers who ask with the “notes taken by asylum officers to document their interviews with asylum applicants.”
This is awkward for UNHCR. On the one hand, the UN Refugee Agency advocates for governments to give asylum-seekers equal access to information and evidence. On the other hand, it sets a lesser standard for its own field offices.
To be clear, the American asylum interviews are not a perfect analogy to UNHCR RSD, because they grant asylum by discretion, with rights above and beyond what is required by international law. In the U.S., refugee protection under international law is adjudicated in Immigration Courts, where applicants have long had access to hearing transcripts and can see all of the evidence submitted by the government to oppose their claims. A U.S. appeals court has found that immigrants in deportation proceedings should normally have access to the entire “A-File” that the government holds on non-citizens (though the Department of Homeland Security continues to resist enforcement of this ruling.)
But the U.S. Asylum Office does bear some significant similarities to UNHCR RSD in that it uses a non-adversarial interview approach, in which the interviewer takes notes of what is said. This is exactly what happens in UNHCR RSD interviews. If U.S. asylum officers can share their notes, why can’t UNHCR staff?
This is more evidence that UNHCR’s evidence withholding policies could not exist without UN immunity. We can’t easily take them to court like the folks in San Francisco, and so we must rely on efforts at persuasion with precious little leverage. But that shouldn’t stop UNHCR officials developing policies that they could actually defend in an independent tribunal. UNHCR need not hide behind its immunity. UNHCR could be taking the lead, or rather, leading by example. Instead, we are begging UNHCR just to catch up.