Living up to America’s Values: Reforming the U.S. Detention System for Asylum Seekers

Refuge

Volumn 20, Issue 3, 2002, Pages 44-57

  Acer, Eleanor ^a  

^a Lawyers' Committee for Human Rights   (United States)

Author keywords

asylum policy; asylum seekers; detention; fairness; United States

Indexed keywords

EID: 84937381698     PISSN: 02295113     EISSN: 19207336     Source Type: Journal    
DOI: 10.25071/1920-7336.21263     Document Type: Article

References (91)

1. A refugee from Cameroon, statement submitted to the U.S. Senate, Immigration Subcommittee, Committee on the Judiciary (3 May 2001) on file with the Lawyers Committee for Human Rights.
2. Lawyers Committee for Human Rights, Refugees Behind Bars: The Imprisonment of Asylum Seekers in the Wake of the 1996 Immigration Act (New York: LCHR, 1999) at 19; online: .
3. D. Williams, “Macedonia Slows Flow of Incoming Refugees” The Washington Post (31 March 1999). (“Many refugees have reported that Yugoslav authorities are stripping them of their passports and other personal documents …”).
4. I mmi grat i on and Nat i onal i t y Act (I NA) § 235(b)(1)(B)(iii)(IV).
5. INA § 235(b)(1)(B)(v).
6. E. Shmitt, “When Asylum Requests Are Overlooked” The New York Times (15 August 15 2001) A6; J. M. Gonzalez, “Amity-ville Woman Seeks $8Million in JFK Mix-up” Newsday (12 July 2000).
7. The Expedited Removal Study, “Report on the First Three Years of Implementation of Expedited Removal” (San Francisco: University of California, Hastings College of Law, 2000), online: ; Lawyers Committee for Human Rights, Is This America? The Denial of Due Process to Asylum Seekers in the United States (2000).
8. Supra note 4; INA Section 212(d)(5)(A) (providing for parole “on a case-by-case basis for urgent humanitarian reasons or significant public benefit” for an alien applying for admis-sion); 8 Code of Federal Regulations (C.F.R.) § 235.3(c); 8 C.F.R. § 212.5(a); Memorandum from Office of INS Deputy Commissioner, “Implementation of Expedited Removal,” (31 March 1997), reprinted in 74 Interpreter Releases (21 April 1997) (“[o]nce an alien has established a credible fear of persecution or is otherwise referred (as provided by regula-tion) for a full removal proceeding under section 240, release of the alien may be considered under normal parole criteria”) (1997 INS Guidelines).
9. C.F.R. § 3.19.
10. C.F.R. § 3.19 (h)(2)(i)(B).
11. INS Guidelines, supra note 8.
12. Memorandum from G. McNary, INS Commissioner, “Pilot Parole Project for Aliens Seeking Asylum in Exclusion Pro-ceeding,” (27 April 1990); Memorandum from G. McNary, INS Commissioner, “Parole Project for Asylum Seekers at Ports of Entry and in INS Detention” (20 April 1992); Lawyers Committee for Human Rights, Interim Report on the Pilot Parole Project of the Immigration and Naturalization Service (New York: 1990).
13. Memorandum from INS Executive Associate Commissioner for Field Operations, Detention Guidelines Effective October 9, 1998, 75 Interpreter Releases 1523 (2 November 1998) (empha-sis added) (1998 INS Guidelines).
14. Petition to the INS, EOIR, DOJ, Seeking a Rule on Procedures for Parole of Detained Asylum Seekers, submitted by the Lawyers Committee for Human Rights, January 1996.
15. L. Getter, “Freedom Elusive for Refugees Fleeing to the U.S.” Los Angeles Times (31 December 2001); F. N. Tulsky, “Uncer-tain Refuge: Asylum Seekers Face Tougher U.S. Laws, Atti-tudes” San Jose Mercury New,(10 December 2000); M. Ohito, “Inconsistency at INS” The New York Times (22 June 1998); T. Beach & P. Yost, “INS Jailing Many Asylum Seekers” The Boston Globe (17 November 1998) A27; see also Human Rights Watch, Locked Away: Immigration Detainees in Jails in the United States (September 1998); Lawyers Committee for Human Rights, Refugees Behind Bars, supra note 1; Women’s Commission for Refugee Women and Children, Forgotten Prisoners: A Follow-Up Report on Refugee Women Incarcerated in York County, Pennsylvania (July 1998).
16. Fed. Reg. 82254–82256, “Clarification of Parole Authority” (INS No. 2004–9965) (28 December 2000).
17. Fed. Reg. 82254–82256, “Clarification of Parole Authority” (INS No. 2004–9965) (28 December 2000). (the change was needed because “[s]ome have inter-preted Sec. 212.5 [the relevant parole regulation] to mean that the authority to grant parole is limited to the DD [district director] and the CPA [chief patrol agent].”).
18. D. Mallone, “851 Detained for Years in INS Centers – Many Are Pursuing Asylum,” Dallas Morning News (1 April 2001); U.S. National Council of Churches, Press Release, “People Fleeing from Persecution Held in Worse Than Prison Condi-t i ons i n t he U. S. ” (20 Apri l 20 2001), onl i ne: ; Testimony of Bishop T. G. Wenski on behalf of National Conference of Catholic Bishops Committee on Migration, before the House Judiciary Subcommittee on Immigration and Claims (15 May 2001).
19. FY 1999 Omnibus Consolidated and Emergency Supplemental Appropriations Act (Public Law 105–277), §§ 903–4; supra notte 15, F. N. Tulsky, “Asylum seekers face tougher U.S. Laws, attitudes” (INS lacks precise data on detained asylum seekers; regarding failure to comply with statute requiring that INS report data: “An INS spokesman said that complying with the law would drain resources from other mandated responsibili-ties.”).
20. See supra note 15; “Detainees held in prison-like conditions,” Ecumenical News International (J une 2001), onl i ne: .
21. Supra note 2, at 6–7 (Somali asylum seeker detained for 4 years before being granted asylum); M. Clancy, “Nigerian Finally Wins Asylum After Long Fight” The Herald News (20 July 20 2001) (Nigerian refugee granted asylum after 3 years and 4 months in detention); D. Malone, “Man Locked up for Four Years but Convicted of Nothing” The Dallas Morning New, (1 April 1 2001) (Sri Lankan asylum seeker detained for four years); C. Hedges, “Immigrant Detained for 3 and 1/2 years Emerges from Labyrinth,” The New York Times (6 November 2000) (Congolese refugee granted asylum after three and one-half years in jails and detention facilities); B. Walth, “Asylum Seekers Greeted With Jail,” The Oregonian (10–15 December 2001 (Liberian asylum seeker detained for six years, Chinese asylum seeker detained over two years, Sri Lankan asylum seeker detained for four years).
22. D. Mallone, “851 Detained for Years in INS Centers – Many Are Pursuing Asylum” The Dallas Morning News (1 April 2001).
23. F. N. Tulsky, “Asylum Seekers Face Tougher US Laws, Atti-tudes” San Jose Mercury News (10 December 2000.
24. A. Elsner, “Congressmen Protest INS Treatment of Retarded Boy,” Reuters, (27 March 2002); and articles referenced in notes 25 to 27 infra.
25. E. Herman, “Immigration: No Kid Gloves,” The New York Daily News (30 April 2000).
26. E. Amon, “Access Denied, Children in INS Custody Have No Right to a Lawyer” The National Law Journal (12 April 2001).
27. A. Elsner, “New York Dentists Can Settle Fate of Migrants” Reuters (11 January 2002); C. Hedges, “Crucial INS Gate-keeper: The Airport Dentist” The New York Times (22 July 2001).
28. M. R. Pistone and P. G. Schrag, “The New Asylum Rule: Improved but Still Unfair” (Fall 2001) 16 Georgetown Immigration Law Journal 49, n. 272 & n. 273 (citing numerous medical reports, including: N. R. Holtan, Survivors of Torture (1999) 114 Pub. Health Rep. 489; D. Silove, et al., “Anxiety, Depression and PTSD in Asylum-Seekers: Associations With Pre-Migration Trauma and Post-Migration Stressors” (1997) 170 British J. Psychiatry 351, 351–57; H. Thulesium and A. Hakansson, “Brief Report: Screening for Posstraumatic Stress Disorder Symptoms Among Bosnian Refugees” (1999) 12 J. Traumatic Stress 167, 171–73).
29. E. Llorente, “Dreams Turn to Despair” The Bergen County Record (24 May 1999) (quoting Dr. Beverly Pincus, director of Cross-Cultural Counseling Center at the International Institute of New Jersey).
30. B. Walth, “Asylum Seekers Greeted with Jail” The Oregonian (10–15 December 2001); Vera Institute of Justice, Testing Community Supervision for the INS: An Evaluation of the Appearance Assistance Program (August 2000) vol. 1 at 66.
31. Fed. Reg. 7309–7318, “Board of Immigration Appeals: Procedural Reforms to Improve Case Management” (19 February 2002).
32. American Immigration Law Foundation News, Volume 4, I s s ue 3, Mar ch 2002, avai l abl e onl i ne at ; see Comments filed by Capitol Area Immigrants Rights Coalition (CAIR) and Comments filed by the Lawyers Committee for Human Rights [on file with the author].
33. “Joint Statement on Cooperation on Border Security and Regional Migration Issues” issued by the U.S. and Canada (3 December 2001); D. L. Brown, “U.S., Canada to Sign Border Accord” Washington Post Foreign Service (4 December 2001) A16.
34. See B. Frelick, “Who’s On First? The Canada-U.S. Memorandum of Agreement on Asylum” (26 February 1996) 73 Interpreter Releases 217.
35. Fed. Reg. 48334, INS No. 2171–01, “Custody Procedures,” Sept. 20, 2001. The regulation does not limit this power to high level officials; it could allow individual INS officers to decide whether there is an “extraordinary” or “emergency” situation.
36. Fed. Reg. 54909, “Automatic Stay of Bond Orders of Immigration Judges” (31 October 2001).
37. Amnesty International, Amnesty International’s Concerns Regarding post September 11 detentions in the USA (March 2002) (AI Index: AMR 51/044/2002); J. Edwards, “Attorneys Face Hidden Hurdles” New Jersey Law Journal (3 December 2001).
38. J. A. Benjamin, “Iraqi Refugees Cleared by FBI Could Still Face Deportation” South Florida Sun-Sentinel (12 December 2001).
39. Memorandum from M. D. Cronin, INS Executive Associate Commissioner, “Deferred Inspection, Parole and Waivers of Documentary Requirements,” 1(4 November 2001), reprinted in 79 Interpreter Releases 49 (7 January 2002).
40. R. A. Serrano, “Ashcroft Denies Wide Detainee Abuse” Los Angeles Times (17 October 17 2001); R. A. Serrano, “Judge Denies Young Iraqi’s Bid to Join Family” Los Angeles Times (14 January 2002); A. Viglucci and A. Chardy, “Iraqi Christians Get Caught up in Security Web” Miami Herald (26 December 2001); J. Benjamin, “Mideast Detainees Await Freedom,” The South Florida Sun-Sentinel (8 December 2001).
41. Editorial, “Justice Denied, Again for Haitian Asylum Seekers,” Miami Herald (18 March 2002); J. Benjamin, “INS Admits New Get-Tough Policy on Haitians Aimed at Preventing Exo-dus,” South Florida Sun-Sentinel (20 March 2002); A. Chardy, “INS Clamps Down on Haitian Asylum-Seekers” Miami Herald (20 March 2002).
42. INA § 208(d)(5)(A)(i).
43. INA § 208(b)(2).
44. C.F.R. § 212.5(a) (prohibiting parole of anyone who is a security risk). The 1997 INS Guidelines, supra note 8, specify that parole is only a viable option for asylum seekers who meet certain criteria and “are not subject to any possible bars to asylum involving violence or misconduct.” The 1997 INS Guidelines detail procedures to be followed if some concern arises that an individual may be a security risk, may be subject to a terrorist bar or may otherwise be a danger to the commu-nity. These procedures include an investigation and inquiries to the FBI and other appropriate agencies. The 1998 INS Guidelines, supra note 13, provide that “it is INS policy to favor release of aliens found to have a credible fear of persecu-tion, provided that they do not pose a risk of flight or danger to the community” [emphasis added].
45. D. Williams, “Macedonia Slows Flow of Incoming Refugees” The Washington Post (31 March 31 1999) (“Many refugees have reported that Yugoslav authorities are stripping them of their passports and other personal documents ….); The American Jewish Committee Office of Government and International Relations, News Release, “American Jewish Committee Speaks at Capitol Urging Rollback of Harsh Immigration Legislation” (17 September 1999) (“Often those fleeing re-pressive regimes have no means of escape except by using invalid travel documents. It should be recalled that this nation has long honored Raoul Wallenberg, who saved countless lives during the Holocaust by issuing unofficial travel documents.”)
46. Supra note 2, at 7.
47. For instance, the Lawyers Committee is aware of a number of asylum seekers who fled to the U.S. on their own valid passports and on visas that were originally obtained for legitimate reasons but were detained under expedited removal after they explained to INS officials at the airport that they wished to apply for asylum.
48. Article 31, United Nations Convention Relating to the Status of Refugees, 28 July 1951, 189 U.N.T.S. 150 (entered into force 22 April 1954) [hereinafter Refugee Convention]. The U.S. became bound by Articles 2–34 of the Convention when, in 1968, it acceded to the United Nations Protocol Relating to the Status of Refugees, 31 January 1967, 19 U.S.T. 6223, 60 U.N.T.S. 267 (1968) (entered into force October 4, 1967, accession by the United States in 1968) [hereinafter Protocol]. For a detailed discussion of the scope and meaning of Article 31 of the Refugee Convention, see G. S. Goodwin-Gill, “Article 31 of the 1951 Convention relating to the Status of Refugees: Non-penalization, Detention and Protection,” October 2001 (prepared at the request of UNHCR for the Global Consult-ations), online: .
49. United Nations High Commissioner for Refugees, UNHCR Revised Guidelines on Applicable Criteria and Standards relating to the Detention of Asylum Seekers, February 1999, online: at 3 [hereinafter UNHCR Detention Guidelines]; UNHCR Executive Committee Conclusion on Detention of Refugees and Asylum Seekers, No. 44 (1986).
50. INS Guidelines, supra note 8; 1998 INS Guidelines, supra note 13.
51. See note 15 supra.
52. E. Llorente, “Dreams Turn to Despair” The Bergen County Record (24 May 1999) (quoting New Jersey District Director); Lawyers Committee for Human Rights, Refugees Behind Bars at 29 n.96 (reporting statistics).
53. A. Elsner, “Haitian Women Asylum Seekers Complain about US Prison” Reuters (14 March 2002); National Coalition for Haitian Rights, Press Release, “Haitian Coalition Urges the Release of over 200 Haitian Asylum Seekers in Miami,” (8 March 2002); A. Chardy, “INS Clamps Down on Haitian Asylum-Seekers” Miami Herald (20 March 2002).
54. E. Ebrahimian, Lutheran Immigration and Refugee Services, “Senate Committee Votes to Fund Legal Orientations and Detention Alternatives” Detention Watch Network News, Issue 18 (Summer 2001). See also M.-L. Hopgood, “Immigrant Detention under Fire” Dayton Daily News (13 August 13 2001). Chen was only released after human rights and refugee advocacy organizations raised her case with the press and with INS headquarters. She was subsequently granted asylum.
55. International Covenant on Civil and Political Rights, 19 December 1966, 999 U.N.T.S. 171, art. 9(1) (entered into force 23 March 1976, accession by the United States 8 June 1992) [hereinafter ICCPR].
56. M. R. Pistone, “Justice Delayed Is Justice Denied” (1999) 12 Harvard Human Rights Journal 197 at 247.
57. See notes 9–10 supra and accompanying text. Federal court habeas petitions have not proved an effective tool for review of parole denials. Not only does it often take months or longer for federal courts to make decisions, but federal courts have in some cases refused to review INS parole determinations in the wake of the 1996 law, and in other cases have deferred to INS parole determinations as long as the INS cites a reason for its parole denial. See Veerikathy v INS, 98 Civ. 2591, 1998 U.S. Dist. LEXIS 19360 (E.D.N.Y. Oct. 9, 1998); see also Bertrand v. Sava 684 F.2d 204 (2d Cir. 1982); Zhang v. Slattery, 840 F. Supp. 292 (S.D.N.Y. 1994).
58. ICCPR, art. 9(4).
59. See United Nations Human Rights Committee, General Com-ment 8/16 (“the important guarantee laid down in paragraph 4 [of article 9], i.e. the right to court control of the legality of detention, applies to all persons deprived of their liberty by arrest or detention.”); United Nations Commission on Human Rights, resolution 1997/50, Commission on Human Rights, UN doc. E/CN.4/RES/1997/50, 15 April 1997 (request-ing that Working Group on Arbitrary Detention “devote all necessary attention to reports concerning the situation of immigrants and asylum seekers who are allegedly being held in prolonged administrative custody without the possibility of administrative or judicial remedy ….”).
60. Torres v. Finland, UN Human Rights Committee, Communi-cation No. 291/1988, 2 April 1990 (concluding that asylum seeker’s detention during period in which he was unable to appeal detention order to court violated ICCPPR Article 9(4)).
61. A v. Australia, UN Human Rights Committee, Communica-tion No. 560/1993, 3 April 1997 (finding that a court review, which was limited to a finding that the asylum seeker was indeed a “designated person” within the meaning of Austra-lia’s Migration Amendment Act did not satisfy the requirements of Article 9, paragraph 4, of the ICCPR).
62. UNHCR Detention Guidelines, supra not e 49; see also UNHCR Executive Committee Conclusion 44 (1986) (“de- tention measures taken in respect of refugees or asylum seekers should be subject to judicial or administrative review.”).
63. See note 21 supra and accompanying text.
64. Zadvydas v. Davis, 533 U.S. 678, 121 S. Ct.249 (2001).
65. “After this 6-month period, once the alien provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, the Government must respond with evidence sufficient to rebut that showing. And for detention to remain reasonable, as the period of prior post-removal confinement grows, what counts as the reasonably foreseeable future conversely would have to shrink. This 6-month presumption, of course, does not mean that every alien not removed must be released after six months. To the contrary, an alien may be held in confinement until it has been determined that there is no significant likelihood of removal in the reasonably foreseeable future.” Zadvydas, 533 U.S. at 701.
66. See, e.g., K. Coffey, “The Due Process Right to Seek Asylum in the United States: The Immigration Dilemma and Consti-tutional Controversy” (2001) 19 Yale Law and Policy Review 303; Brief Amicus Curiae of the Lawyers Committee for Human Rights to the U.S. Supreme, Reno v. Ma, 26 December 2000. (The Supreme Court consolidated the Ma and Zadvydas cases.)
67. Fed. Reg. 56967 – 56982, “Continued Detention of Aliens Subject to Final Orders of Removal,” 14 November 2001 (excluding arriving aliens from regulations issued pursuant to Zadvydas decision).
68. A v. Australia, supra note 61.
69. UN Working Group on Arbitrary Detention, Deliberation No. 5, Principle 7, UN doc. E/CN.4/2000/4, 28 December 1999, Annex II.
70. “Asylum Representation, Summary Statistics” prepared by Dr. Andrew I. Schoenholtz, Director of Law and Policy Stud-ies, Institute for the Study of International Migration, Georgetown University, May 2000.
71. See Pistone, “Justice Delayed,” supra note 56 at 218 (“Being in detention frustrates asylum seekers’ ability to work effi-ciently with their representatives. Detained asylum seekers are not able to locate witnesses, gather evidence, or otherwise assist their attorneys in case preparation.”)
72. Pistone, “Justice Delayed,” supra note 56 at 219–20.
73. Pistone, “Justice Delayed,” supra note 56 at 2.
74. Vera Institute of Justice, Testing Community Supervision for the INS: An Evaluation of the Appearance Assistance Program, vol. 1, pp iii, 8, 27 (August 2000), online: ; C. Stone, “Supervised Release as an Alternative to Detention in Removal Proceedings: Some Promising Results of a Dem-onstration Project” (2000) Georgetown Immigration Law Journal at 283, 285.
75. Vera Institute of Justice, Testing Community Supervision for the INS: An Evaluation of the Appearance Assistance Program, vol. 1, Vera Institute, at iii.
76. Vera Institute, at 31.
77. E. Ebrahimian, “The Ullin 22: Shelters and Legal Service Providers Offer Viable Alternatives to Detention,” Detention Watch Network News, August/September 2000, at #8.
78. Refugee Protection Act (S1311, H4074), test available online: ; F. Trejo, “Senators Propose Bill to Ease Provisions for Asylum Seekers” The Dallas Morning News (3 August 3 2001).
79. See, e.g., Lawyers Committee for Human Rights, Refugees Behind Bars, supra note 2 at 3; Women’s Commission for Refugee Women and Children, Behind Locked Doors: Abuse of Refugee Women at the Krome Detention Center, October 2000; Human Rights Watch, Locked Away: Immigration Detainees in Jails in the United States (September 1998) at 7; F. N. Tulsky, “Uncertain Refuge: Asylum Seekers Face Tougher U.S. Laws, Attitudes” The San Jose Mercury News (10 December 2000) (quoting recommendation of T. Alexander Aleinikoff, expert on immigration law and former INS Associate Commissioner for Programs); M. Pistone, Harvard Human Rights Journal, supra note 56.
80. M. R. Pistone, “ Justice Delayed Is Justice Denied: Proposal for Ending the Unnecessary Detention of Asylum Seekers” (Spring 1999) Harvard Human Rights Journalat 56.
81. S. McRae, “Judges Pursue New Level of Independence” Daily J our nal News wi re (17 J anuary 2002), onl i ne: .
82. A. C. Helton, “A Rational Release Policy for Refugees: Rein-vigorating the APSO Program,” 75 Interpreter Releases No. 19 (May 18, 1998) (“The Department of Justice should engage in rulemaking to embody [APSO asylum parole] program criteria and procedures in regulation.”); Lawyers Committee for Human Rights, Petition for Rulemaking, note 14 supra. The text of the proposed Refugee Protection Act is available at .
83. G. Goodwin-Gill, Article 31, supra note 48 at 24 ff (discussing practices of various states).
84. The United Kingdom, Ireland, Denmark and some other European states provide some funding for legal representation of asylum seekers. The Australian government also funds some legal representation for asylum seekers.
85. E. Amon, The National Law Journal, supra note 26.
86. Unaccompanied Alien Child Protection Act of 2001, S 121 (HR1904). The text of the bill and additional information relating to the bill are available at .
87. Human Rights Watch, Locked Away, supra note 79; Lawyers Committee for Human Rights, Refugees Behind Bars, supra note 2.
88. A. Elsner, “Haitian Women,” Reuters (14 March 2002).
89. Pistone & Schrag, The New Asylum Rule, supra note 28.
90. See note 29 supra and accompanying text.
91. E. Ibrahimian, Lutheran Immigration and Refugee Service, “Religious Leaders Decry Detention Conditions and Call for Changes” Detention Watch Network Newsletter, Summer 2001; Bishop Nicholas DiMarzio, Chairman of the U.S. Catholic Bishops’ Committee on Migration, “Liberty (But Not) For All” The Newark Star Ledger (24 May 2001); L. S. Glickman, President of the Hebrew Immigrant Aid Society, The Bergen County Record (10 July 2001).