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Smith,
Armendariz,
et al v US
“The
State’s
failure to provide Mr. Smith and Mr.
Armendariz a judicial mechanism to
present their humanitarian defenses and
offer an effective remedy, if
merited,
to preserve their fundamental rights,
[family rights and children’s
rights in
the case] establish independent violations
of Articles XXVI and XVIII
of the
American Declaration.” We can note that
the US Board of Immigration
Appeals
followed by judicial review by a US
federal court is the main
deportation
decision appeal mechanism. Family rights
and children’s rights used to
be
considered by the BIA, but no longer are.
The inability to consider the
rights
is the violation of the fair trial rights. The
IA
Commission repeated in this case that
Article XXVI of the American
Declaration applies to certain civil
proceedings which involve a
possible
sanction and flow from a prior criminal
conviction. And we know
that
deportation often stems from some form of
criminal conviction. The
Commission
ends: “In short, in the context of
immigration proceedings that include
the
sanction of deportation, the Commission
finds that heightened due
process
protections apply.” (American Declaration
Article XXVI reads:” Every
person
accused of an offense has the right to be
given an impartial and public
hearing, and to be tried by courts
previously established in accordance
with
pre-existing laws, and not to receive
cruel, infamous or unusual
punishment.”) So this Art. XXVI
hearing applies to the sanction
of
deportation arising from an offense! How
far
this goes is yet to be seen in future
cases. In its 2000 Report on
Canada’s
refugee system the Commission found that
judicial review might be
adequate to
satisfy the obligation for a simple brief
court procedure to protect
fundamental rights provided there were not
unreasonable restrictions on
access
to the judicial review. MSS v Belgium and
Greece
Finding
MSS had an arguable case that return to
Afghanistan would
violate his Article 2 right to life and
Article 3 right to no torture
or cruel
treatment or punishment, the Court found
“shortcomings in access to the
asylum procedure
and in the examination of applications for
asylum …: insufficient
information
for asylum seekers about the procedures to
be followed, difficult
access ..., no reliable ... communication
between the
authorities and the asylum seekers,
shortage of interpreters and lack
of
training of the staff ...conducting the
individual interviews,
lack of legal aid ... depriving the asylum
seekers of legal counsel,
and excessively lengthy delays in
receiving a decision.” Surveys showed
"almost all first-instance
decisions are negative and stereotyped
without details of reasons for
the
decisions."
Belgium
was
found in violation of Article 13 right to
effective remedy because an
appeal to the Belgian Aliens Appeals Board
to set aside an expulsion
order does
not both suspend the enforcement of the
order and allow a rigorous
scrutiny of the
substance of the complaint. A request for
a stay of execution lodged
before the
same court under the ‘extremely urgent
procedure’ automatically
suspends the
execution of the expulsion measure by law
... for a maximum of
seventy-two hours. However, “the
requirement flowing from Article 13
that execution of the
impugned measure be stayed cannot be
considered as a subsidiary
measure, that
is, without regard being had to the
requirements concerning the scope
of the
scrutiny…” The
extremely
urgent procedure “reduces
the rights of the defence and the
examination of the case to a
minimum.” The
Court
was aware “that the examination of
the
complaints under Article 3 carried out by
certain divisions of the
Aliens
Appeals Board ...was not thorough. They
limited their examination to verifying
whether the persons concerned
had
produced concrete proof of the irreparable
nature of ... the alleged
potential violation of Article 3, thereby
increasing
the burden of proof to such an extent as
to hinder the examination on
the
merits of the alleged risk of a violation.
Furthermore, even if the
individuals
concerned did attempt to add more material
to their files along these
lines
after their interviews with the Aliens
Office, the Aliens Appeals Board
did not
always take that material into account.”
Finally,
MSS had
not failed to exhaust domestic
remedies. His request for a stay of
execution
under the extremely urgent procedure
was rejected on procedural grounds
- his
failure to appear. Contrary to what
the Government suggested, the Court
considered that in the circumstances
of the case, this was not a lack
of
diligence on the applicant's part. The
Court did not see how his
counsel could
possibly have reached the seat of the
Aliens Appeals Board in time.  |