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US Court rebukes evidence withholding as “Kafkaesque”

January 18, 2011

An appeals court in the United States has rebuked the Department of Homeland Security for failing to disclose the contents of an immigrant’s case file, in a decision that could also apply to some aspects of UNHCR’s restrictive evidence policies in refugee status determination.

The case, Dent v. Holder, concerned the government’s attempt deport a man who claimed to be an American citizen. He had difficulty obtaining on his own all of the necessary documents to prove his citizenship, but it turned out that the government had the missing evidence in his “A-file” and failed to disclose it until late in the appeals process.

The government had maintained that an immigrant could access government documents about his case only through a Freedom of Information Act request, which would take too long to process to be useful in many deportation cases. The court said this would violate due process rights, and would reflect “a Kafkaesque sense of humor about aliens’ rights.”

The court said: “We conclude that Dent, having asked for help in getting what records the agency had that bore on his case, should have been given access to his file. The only practical way to give an alien access is to furnish him with a copy.” Even if Dent had not asked for records, the court said, “We are unable to imagine a good reason for not producing the A-file routinely without a request.”

Although not a refugee case, the decision has implications for the legitimacy of UNHCR’s evidence policies. In RSD, UNHCR policy allows applicants to gain access to documents that they originally submitted, but the applicant has to know enough to ask for them. But UNHCR restricts disclosure of full case files to refugee applicants.

Disclosure of interview transcripts – typically the single most important piece of evidence  in refugee cases – is expressly prohibited by UNHCR policy in its own offices, even though UNHCR has called for such disclosure by governments. There is no equivalent to the Freedom of Information Act in the UN system, and no UN court system that can rule on due process rights in the way the American Court of Appeals dealt with Dent’s situation.

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