Commissioners: Margarette May Macaulay; Enrique Gil Botero; Francisco Jose Eguiguren; Jose De Jesus Orozco Henriquez; Paolo Vannuchi; Executive Secretary Paulo Abrao Petitioners: Catholic Legal Immigration Network, Inc. (CLINIC) / Washington and Lee University, Immigrant Rights Clinic / Latin American Coalition, Immigration Law Clinic / University of the District of Columbia, Immigration and Human Rights Clinic / American Immigration Lawyers Association (AILA) / Georgia Alabama Chapter / Innovation Law Lab /Center for Gender & Refugee Studies / University of California Hastings College of the Law State: United States On December 9, 2016, during the 160th Extraordinary Period of Sessions, the Inter-American Commission on Human Rights (IACHR) conducted a thematic hearing regarding the situation of asylum seekers in the United States. Professor David Baluarte, Director of the Immigrant Rights Clinic at Washington and Lee University School of Law, began the civil society’s presentation by explaining the term “asylum free zones” (Zones). Mr. Baluarte said that the Zones are immigration court jurisdictions in the United States that are so hostile to asylum applicants that they deny any meaningful opportunity to adjudicate these claims. Further, by creating sub-regulatory rules, with no basis in law, those jurisdictions are able to deny applications with little chance of being reviewed. Next, Eunice Lee, Co-Legal Director at the Center for Gender & Refugee Studies, presented on the disparities in asylum adjudications. Ms. Lee explained that, subject to statutory bars, the immigration courts under the Executive Office of Immigration Review of the Department of Justice (EOIR) evaluate asylum applications under the 1951 Refugee Convention (Article I). However, Ms. Lee stated that some court jurisdictions do not fulfill their obligations because they have grant rates far below the 52% national average—three examples are Atlanta, GA (2%); Eloy, AZ (7%); and Charlotte, NC (13%). Ms. Lee cited a Stanford Law Review study, a 2008 United States Government Accountability Office (GAO) report, and a November 2016 GAO report showing that the EOIR was aware of the Zones, but took no action to remedy the disparities. Ms. Lee acknowledged that grant rates vary based on the case-by-case nature of asylum adjudications, but argued that the Zones’ grant rates were so low that they could not be explained by normal case variation. Sarah Owings, of the American Immigration Lawyers Association, then presented on the Atlanta immigration court and the sub-regulatory obstacles that judges use to deny applications. For example, the court does not permit the generally-accepted use of telephonic testimony from experts, arguing that experts do not know the specific applicant. However, in such instances, the expert’s testimony would be about country conditions, not the specific applicant. Additionally, the court requires motions for continuances to be written in English, which significantly disadvantages non-English speaking pro se applicants. Lastly, Ms. Owings stated that the court often schedules “priority cases” for faster processing, but that such practices actually hurt applicants because they receive less time to prepare. Next, Atenas Burrola, of the Immigration Law Clinic of the Latin American Coalition, presented on the Charlotte immigration court. In addition to the deterrents the Atlanta court employs, the Charlotte court denies applications when they are based on gender or gang-related fears. Although Ms. Burrola acknowledged that such reasons will not grant asylum, she noted that those arguments are meant to be saved for a merits stage determination, and that judges are denying applications for those reasons immediately. Michelle Mendez, of Catholic Legal Immigration Network, Inc., then presented on the effect that Zones have on the rule of law. Ms. Mendez referred to an occasion where the acting Solicitor General said to the Supreme Court that some immigration judges were “really bad” at certain aspects of their positions. Although the Solicitor General made that statement in support of mandates that restrict judicial independence, Ms. Mendez argued that it demonstrates the problem that Zones pose. Mr. Baluarte then concluded the civil society’s presentation by requesting that the IACHR take four actions. First, that the IACHR issue a public statement expressing concern over Zones like those in Atlanta and Charlotte. Second, that the Commission visit the Zones to investigate the low grant rates. Third, that the Commission produce a report on the disparities in asylum adjudications, based in part on court visits. And fourth, that the Commission prioritize the resolution of a contentious case on this matter that petitioners plan on filing, if the situation is not resolved internally. Edward Kelly, Deputy Chief Immigration Judge, began the United States’ presentation. Mr. Kelly emphasized the case-by-case nature of asylum adjudications and stressed that no two cases could be compared directly, even where the facts might appear similar. However, Mr. Kelly stated that the EOIR takes claims of disparities in asylum adjudications seriously, and that the organization took a series of steps following the 2008 GAO report cited by Ms. Lee. First, the EOIR met with the GAO to identify the outlier jurisdictions with low grant rates such as Atlanta, but also courts with high grant rates like New York and San Francisco. After identifying the outliers, the EOIR evaluated the judges based on professional conduct and legal performance, then subsequently conducted trainings. Second, EOIR officials met with the GAO to determine what types of information were necessary to perform the analysis that the GAO conducted, in an attempt to replicate and update its own data. Third, EOIR analyzed the duties and tasks Assistant Chief Immigration Judges are required to do in order to properly supervise immigration judges and provide additional trainings. Commissioner Gil Botero began by showing his deep concern about the inequality in the Zones. He stated that access to justice for refugees is established within the IACHR’s mandate. Commissioner Gil Botero cited the American Declaration of the Rights and Duties of Man, Article 27; the American Convention on Human Rights, Articles 22.7 and 22.8, and the Refugee Convention as evidence. Accordingly, the Commission stated it would be intolerable to leave the outcome of an asylum application to turn on whether a particular judge in a given jurisdiction respects international standards. However, Commissioner Gil Botero acknowledged and applauded the United States’ efforts to remedy the systemic problems in asylum adjudication. President Macaulay then identified other jurisdictions such as Houston and Las Vegas that also had very low grant rates. She expressed concern about disproportionately low grant rates being based on racial, ethnic, nationalist, religious, or other bias. In their closing remarks, petitioners emphasized the four initial points that Mr. Baluarte identified as appropriate measures to begin remedying the disparities. Additionally, the petitioners highlighted that immigration judges are predominantly former prosecutors, and that this background may give them an inadvertent bias. Finally, petitioners noted that, despite the GAO’s reports which show a willingness to examine the situation, the significant similarities between the 2008 and 2016 reports demonstrate how the EOIR needs to take more concrete action. In the United States’ closing remarks, it thanked the petitioners for raising their concerns. Additionally, it rebutted the petitioners’ general claims that the Zones violate due process of law because Article 26 of the American Declaration applies only to criminal cases. However, it claimed that even under United States law, asylum seekers are still adequately represented because they have opportunities through the EOIR to receive assistance of counsel. Author’s Legal Analysis: Although the United States signed the American Convention on Human Rights, it has not ratified the Convention, so the Commission cannot hold the United States legally accountable. Additionally, the United States correctly characterized Article 26 as applying only to criminal cases, so the Commission would be on weak footing to determine whether due process violation occurred according to the Convention. However, the Commission could still take the first three actions petitioners requested and develop recommendations for the EOIR to implement.