International Journal of Refugee Law Advance Access published online on February 16, 2008
International Journal of Refugee Law, doi:10.1093/ijrl/eem070
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International Law and Detention of US Asylum Seekers: Contrasting Matter of D-J- with the United Nations Refugee Convention
* Alicia Triche Naumik is a former CLINIC detention attorney who is currently composing a doctoral thesis on international refugee law and ‘national security’ at Oxford University. She is also a part-time appellate attorney at Nesom Law Office in Oakdale, Louisiana, where she specializes in removal defense. This article is based loosely on a Master of Studies degree awarded by the Oxford Law Faculty in Oct. 2003
US refugee law reflects an ever-increasing conception that the application of international standards would constitute an unacceptable risk to national security. CSR Article 31(2)'s requirement that refugees ‘shall not’ be detained unless ‘necessary’ appears among the chief casualties of such suspicions. US jurisprudence remains strikingly devoid of reference to Article 31, and 2003's Matter of D-J- is a prime example. D-J- was an administrative decision in which the US Attorney General held that national security required all US asylum seekers who successfully arrive via boat must be subject to mandatory detention throughout the course of removal proceedings. Despite US accession to the Protocol, Article 31(2) was not mentioned.
This article explores what might have happened to D-J- if the Refugee Convention had indeed been applied to his case. Utilizing the international methodology for treaty interpretation, it applies Article 31(2) to various aspects of the Attorney General's decision. Part 2 argues that under the Supreme Court's Charming Betsy rule, statutory discretion to detain must be interpreted consistently with US international obligations. Part 3 concludes that Article 31(2) of the Refugee Convention grants asylum seekers a right to release whenever their detention is not ‘necessary’. Part 4 proposes a three-part ‘pyramid’ approach to explain the elemental phases of the decision to detain an asylum seeker and examines necessity at each stage. Finally, Part 5 discusses Article 31(2)'s implications regarding evidence and proportion. The premise throughout is that, had it been applied, the Refugee Convention could have protected the interests of both D-J- and ‘national security’.