[Senate Hearing 107-274]
[From the U.S. Government Publishing Office]
. S. Hrg. 107-274
AN OVERVIEW OF ASYLUM POLICY
=======================================================================
HEARING
before the
SUBCOMMITTEE ON IMMIGRATION
of the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED SEVENTH CONGRESS
FIRST SESSION
__________
MAY 3, 2001
__________
Serial No. J-107-15
__________
Printed for the use of the Committee on the Judiciary
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COMMITTEE ON THE JUDICIARY
ORRIN G. HATCH, Utah, Chairman
STROM THURMOND, South Carolina PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts
ARLEN SPECTER, Pennsylvania JOSEPH R. BIDEN, Jr., Delaware
JON KYL, Arizona HERBERT KOHL, Wisconsin
MIKE DeWINE, Ohio DIANNE FEINSTEIN, California
JEFF SESSIONS, Alabama RUSSELL D. FEINGOLD, Wisconsin
SAM BROWNBACK, Kansas CHARLES E. SCHUMER, New York
MITCH McCONNELL, Kentucky RICHARD J. DURBIN, Illinois
MARIA CANTWELL, Washington
Sharon Prost, Chief Counsel
Makan Delrahim, Staff Director
Bruce Cohen, Minority Chief Counsel and Staff Director
------
Subcommittee on Immigration
SAM BROWNBACK, Kansas, Chairman
ARLEN SPECTER, Pennsylvania EDWARD M. KENNEDY, Massachusetts
CHARLES E. GRASSLEY, Iowa DIANNE FEINSTEIN, California
JON KYL, Arizona CHARLES E. SCHUMER, New York
MIKE DeWINE, Ohio RICHARD J. DURBIN, Illinois
MARIA CANTWELL, Washington
James Rowland, Majority Chief Counsel
C O N T E N T S
----------
STATEMENTS OF COMMITTEE MEMBERS
Brownback, Hon. Sam, a U.S. Senator from the State of Kansas..... 1
DeWine, Hon. Mike, a U.S. Senator from the State of Ohio......... 13
Feinstein, Hon. Dianne, a U.S. Senator from the State of
California..................................................... 4
Kennedy, Hon. Edward M., a U.S. Senator from the State of
Massachusetts.................................................. 10
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 3
WITNESSES
Acer, Eleanor, Senior Coordinator, Asylum Program, Lawyers
Committee for Human Rights, New York, NY....................... 40
Burhani, Mina, refugee from Afghanistan.......................... 70
Glickman, Leonard, President and Chief Operating Officer, Hebrew
Immigrant Aid Society, New York, NY............................ 83
Graham, Hon. Bob, a U.S. Senator from the State of Florida....... 12
Gyamtso, Amchok Thubten, refugee from Tibet...................... 72
Hammond, Donald, Senior Vice President, World Relief, Washington,
DC............................................................. 77
Mkhizi, Patrick, refugee from the Democratic Republic of Congo... 67
Musalo, Karen, Resident Scholar, Hastings College of the Law,
University of California, San Francisco, CA.................... 13
Stein, Dan, Executive Director, Federation for American
Immigration Reform, Washington, DC............................. 107
Young, Wendy A., Director of Government Relations, Women's
Commission for Refugee Women and Children, Washington, DC...... 25
SUBMISSIONS FOR THE RECORD
Akin, Gump, Strauss, Hauer & Feld, L.L.P., Attorneys at Law,
Washington, DC, memorandum..................................... 54
Al-Torfi, Amin, refugee from Iraq, statement..................... 48
Boulankine, Denis and Tatiana, refugees from Russia, statement... 97
Curumi, Nusret, refugee from Albania, statement.................. 43
Deffenbaugh, Ralston H., Jr., President, Lutheran Immigration and
Refugee Service, Baltimore, MD, statement and attachments...... 85
Fofana, Mekabou, refugee from Liberia, statement................. 41
``Gonzalez, Aracelis'' (alias), asylum seeker from the Dominican
Republic, statement............................................ 50
Jalloh, Makani, refugee from Sierra Leone, statement............. 53
Kamdem, Jean-Pierre, refugee from Cameroon, statement............ 52
Keller, Allen S., M.D., Founder and Director, Bellevue/New York
University School of Medicine Program for Survivors of Torture,
New York, NY, statement........................................ 45
Lutheran Immigration and Refugee Service, Baltimore, MD, paper... 91
AN OVERVIEW OF ASYLUM POLICY
----------
THURSDAY, MAY 3, 2001
U.S. Senate,
Subcommittee on Immigration,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 2:01 p.m., in
room SD-226, Dirksen Senate Office Building, Hon. Sam
Brownback, Chairman of the Subcommittee, presiding.
Present: Senators Brownback, DeWine, and Feinstein.
OPENING STATEMENT OF HON. SAM BROWNBACK, A U.S. SENATOR FROM
THE STATE OF KANSAS
Chairman Brownback. The hearing will come to order.
I would like to welcome you to this first hearing on asylum
under my chairmanship of the Senate Subcommittee on
Immigration. This hearing will give a broad overview of asylum
policy where we will attempt to identify areas where
corrections are due and necessary.
First, for the record, let it be known I intend to
aggressively promote the proper treatment of those who arrive
at our shores seeking freedom from persecution. In his 1801
first annual message, President Thomas Jefferson asked a
piercing question that is true today, 200 years later: ``Shall
oppressed humanity find no asylum in this globe?''
The answer is, yes, they shall, and America has provided
and shall always provide asylum to those escaping tyranny, in
1801 or in 2001.
Further, it must be our continued aim that upon reaching
these shores, persecution would end, dignity would be restored,
and justice would prevail. This is a practical expression of
America's core identity as both the defender of human dignity
for the most vulnerable and a gracious refuge of escape for
those fleeing gross injustice. We are a better Nation because
of the asylees amongst us.
As we give refuge to those worldwide who are desperate and
facing extraordinary persecution, we are a better Nation
because of our generosity. Moreover, asylees represent the best
of American values. Often they are people who have stood alone
at great personal cost. They have taken stands against hostile
governments for principles which are fundamental to us, such as
political and religious liberty. Therefore, as Americans with a
noble legacy, we must continue to examine our asylum policies,
ever vigilant that these most vulnerable asylee claiments
receive fairness and justice.
Throughout our history as a Nation, our refuge and asylum
systems have reflected varied policy extremes. In 1939, more
than 900 Jews aboard the SS St. Louis were within sight of
Miami and they were yet denied entry and forced to return to
Europe. Many were murdered in concentration camps. Yet when
World War II ended, the United States led the effort to
establish universal norms for human rights. The resulting
adoption by the United Nations of the Universal Declaration of
Human Rights on December 10, 1948 included a right to asylum.
Over the next 30 years, the United States provided refuge
to numerous people fleeing communism, including those involved
in underground democracy movements in Hungary, Cuba, and
Southeast Asia. Yet it was not until the Refugee Act of 1980
that Congress enacted a comprehensive system available to those
with ``a well-founded fear of being persecuted for reasons of
race, religion, nationality, membership of a particular social
group, or political opinion.''
The Act provided that every person deemed inadmissible by
an immigration officer at a port of entry had two rights:
first, a right to a hearing before an immigration judge; and,
second, a right to appeal an adverse judicial order. This was
the norm for several years until passage of a new law in 1996.
Notably, in that law, judicial review was partially, yet
significantly, stripped and replaced with a process known as
expedited removal. The flawed results of that law will be
discussed highlighted in today's testimony.
In this frequently employed procedure, an immigration
officer is granted final authority to exclude particular
classes of people, with a supervisor's authorization, without
judicial review or right of appeal, barring re-entry for 5
years. The policy challenge is twofold: First, we must ensure
that persons fleeing persecution are not wrongly turned away at
our shores because of unfair procedures. And, second, it must
be remembered throughout the asylum process that today's asylee
applicant may be tomorrow's American citizen. The bottom line
is that all asylee applicants, future Americans or not, are
entitled to humane treatment as a matter of justice.
And let common sense prevail. No one escaping religious
persecution should be restricted in their reasonable access to
chaplains and scripture studies while in U.S. detention
facilities, if they should be there at all. No one escaping
torture and barbarous incarceration because of their stand for
democracy should be detained in a U.S. facility in a windowless
room for 23 hours a day for several months, or even years. This
should not be. We are better than this, and we can do better
than this. There are present problems with asylum we must begin
to address.
This is my goal. When this generation of asylees produces
the next generation of Americans, I want that family story to
be one of deliverance and celebration, and not one of
bureaucratic mishandling and poor treatment.
That is why I have invited three asylees here today from
Afghanistan, the Congo, and Tibet to testify today about their
asylum experiences. Additionally, there are several more
asylees in the audience ready to talk with people after the
hearing. Their dramatic stories should cause us to reflect on
how we can do better.
Our distinguished witnesses include experts in their field,
and their testimony will provide an overview of asylum law
while identifying problem areas. Such issues include current
INS detention practices, the annual 10,000 cap for asylee
adjustments of status, expedited removal, punishment for use of
false documents by those escaping persecution, and the 1-year
filing deadline for asylum applicants.
I look forward to working together on this crucial task of
promoting dignity, justice, and humanity in our asylum system.
I am pleased to be joined by my colleague from California,
and I would be happy to turn the microphone to her for an
opening statement.
Senator Feinstein. Thanks very much, Mr. Chairman. Thank
you for holding these hearings, and if I may, I would like to
introduce a statement from the ranking member, Senator Leahy,
into the record.
Chairman Brownback. Without objection.
[The prepared statement of Senator Leahy follows:]
Statement of Hon. Patrick J. Leahy, a U.S. Senator from the State of
Vermont
The asylum issues on the agenda today are among the most important
immigration issues this Congress should address. I commend Senator
Brownback for holding this important hearing, and for his efforts to
reach out to Senator Kennedy and me in determining what witnesses and
issues would be appropriate for today's hearing. And I thank the
distinguished panels of witnesses who will testify today, including
both the advocates and religious leaders who devote their careers to
these issues, and the refugees whose desire to come to the United
States has enabled them to overcome some of the obstacles that our
current asylum system places in their way.
Throughout most of its history, the United States has provided a
safe harbor for people seeking refuge on our shores. Our first colonies
were founded by those fleeing religious persecution, and our nation's
success has been driven by the energy and commitment of emigrants from
nations around the globe, including those who flee the political,
religious, and ethnic prejudice and persecution that still regrettably
infects countries on every continent. As Americans, we have much to be
proud of--our commitment to those seeking to emigrate to the United
States remains an example to those countries that follow a more
exclusionary path. But we cannot be indifferent to the ways in which we
have failed to honor our historic commitment to refugees. Our witnesses
will be highlighting some of those ways in their testimony today.
First, we maintain an expedited removal system at our ports of
entry that lacks the necessary safeguards to ensure that people fleeing
persecution are not returned to face their oppressors. Under this
system, INS inspectors have wide-ranging authority to expel people
entering the United States either without documentation or with
facially valid documentation that the inspector simply suspects is
fraudulent. This system--established during the anti-immigration mood
that seized this Congress in 1996--ignores the reality that those who
flee persecution do not always have time to obtain travel documents
from the government that is persecuting them. It is true that those who
know to say they are seeking asylum will not be immediately removed.
But many who reach our shores have little or no knowledge of English or
American immigration law, and have a deep distrust for government
officials based on their experiences at home. Our current system fails
those people and violates our commitments.
In the last Congress, Senator Brownback and I introduced the
Refugee Protection Act, which was cosponsored by Senators Kennedy and
Durbin on this subcommittee. That bill would have restricted the use of
expedited removal to times of immigration emergencies, an approach that
the Senate supported in 1996 in a bipartisan vote to amend the Illegal
Immigration Reform and Immigrant Responsibility Act. (The provision was
removed in a fiercely partisan conference committee.) I am eager to
work with Senator Brownback again to introduce a new version of the
Refugee Protection Act in the coming weeks.
Second, this hearing will look at the one-year filing deadline for
asylum claims, which was also created in 1996. In the Refugee
Protection Act, Senator Brownback and I proposed that the deadline be
subject to a good cause exception, so that meritorious asylum claims
brought after the deadline could still be considered. I believe we
should consider eliminating the deadline altogether for those making
affirmative asylum claims, and retain it--but with a good cause
exception--only for those who make an asylum claim after proceedings
have been brought against them. Many people who merit asylum, such as
those who may have been tortured, may have difficulty recounting the
persecution they underwent. Other deserving candidates may be unaware
of the time limit. I believe we should seek to expand the ability of
deserving asylum applicants to obtain refuge in the United States--
modifying current law in this area is one important avenue.
Third, this hearing will examine the INS' detention of asylum
seekers. Under current practice, the INS regularly detains asylum
seekers whom immigration judges have found to have a credible fear of
persecution. These detention periods can last for months or years,
under conditions that are inappropriate for people who stand accused of
no crime, and who have in fact entered the United States in accord with
our laws. I have grown increasingly concerned about this issue as we
have heard reports of the mistreatment of detainees, and I am
interested to hear from those who closely follow this issue.
Finally, we will hear today about the 10,000 annual cap governing
how many asylees can become legal permanent residents of the United
States. I believe we should increase that cap and help asylees build
their lives in the United States, instead of placing them in a
bureaucratic limbo.
I hope this hearing prompts serious consideration of the problems
with our current asylum policies, and legislation that might be able to
fix them. I am eager to join my colleagues from both sides of the aisle
in that effort.
STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM THE
STATE OF CALIFORNIA
Senator Feinstein. Mr. Chairman, the one issue I would like
to mention today--and this particularly concerns me--is the
manner in which children that come into this country seeking
asylum are treated under our immigration system. Each year, the
INS apprehends over 5,000 unaccompanied minors. These children
are immediately detained and placed in deportation proceedings.
There an immigration judge determines whether or not they have
the right to legally remain in the United States.
A substantial portion of these unaccompanied minors have
valid asylum claims, yet under current policy, they are often
denied the opportunity to present these claims. Worse yet,
their experiences of detention and isolation are often as
traumatic as the persecution they fled in their home countries.
Unbelievably, some children who are in INS custody are
subjected to such punitive actions as shackling, the use of leg
manacles, and strip searches. Others are housed with violent
juvenile offenders.
Unaccompanied minors are the most vulnerable of the world's
asylum seekers, and they deserve our support and protection.
Many have fled the horrors of their homeland: child
prostitution, bonded labor, female genital mutilation, and
forced recruitment as child soldiers. They often lack the
capacity to navigate the complexities of our immigration system
without the assistance of a responsible adult to objectively
act in their best interest.
I recently introduced the Unaccompanied Alien Child
Protection Act of 2001 because I believe that our Nation has an
obligation to better protect these children.
Let me just give you one example of what I am talking
about. Yung Hong fled China alone when he was only 15 years
old. He grew up in an abusive household in Fujian Province.
There his parents beat him severely. They also forced him to
quit school and work, apparently to help pay off their debts to
the government for having Hong's sister, the second child in
the family. Hong fled to the United States in 1998 where he was
held in INS custody in a juvenile prison for over a year. There
he was not provided with any educational or social services in
his native Mandarin language, and he was required to fill out
his asylum application in English. In other words, he was at
the mercy of the U.S. Government to help him with his
application.
Unfortunately, with their overworked schedules, the
immigration officers on hand were unable to assist Hong with
his asylum claim. Even if they were able to help, Hong did not
know how to ask. Nevertheless, he did his best through an
interpreter to answer ever question the immigration judge asked
of him at his immigration trial.
During the proceeding, though, no one thought to ask him
about some of the basics of his claim, such as whether his
family subjected him to forced child labor to compensate the
government for their violation of China's one-child policy, and
whether he would be in danger because, on arriving in the U.S.,
he helped Federal prosecutors bring to justice the alien
smugglers who transported him here in an overcrowded vessel.
The immigration judge denied Hong's asylum on May 17th of
last year. Afterwards, Hong obtained free counsel from the
Catholic Legal Immigration Network in Los Angeles. His lawyer
appealed his case before the Board of Immigration Appeals. On
March 21, 2001, just a short time ago, 3 years after Hong
arrived in the United States, the board remanded Hong's case
back to the immigration judge, stating that Hong was not
granted an opportunity to seek new counsel when his first
counsel abandoned him, a right he did not know he possessed.
The board allowed him to present his case again before the
immigration judge, this time, though, with the assistance of
his new counsel. On his second try, Hong was granted asylum,
but only after he spent 3 years in INS custody.
Cases like this are but the tip of the iceberg. They
demonstrate a major problem with our immigration system. It is
managed by a bureaucracy ill equipped to help the thousands of
unaccompanied children in need of special protection.
I have joined with Senator Graham of Florida and other
colleagues in introducing S. 121, bipartisan legislation which
would address this problem. The bill would place into law
important protections for vulnerable children who are in INS
custody. Among its provisions are those that would:
One, create a special Office of Children's Services within
the Department of Justice that would be responsible for
ensuring that the children's needs are met and that their best
interests are held paramount in all proceedings and actions
involving them;
Two, it would streamline INS procedures to provide better
agency coordination when an unaccompanied child comes into
Federal custody;
And, three, the bill would establish minimum standards for
the custody or, where appropriate, detention of unaccompanied
alien children to assure that they are housed in appropriate
settings.
The bill would develop a core of child welfare
professionals to act as guardians ad litem and to help the
children articulate their needs and make recommendations
regarding their custody, detention, release, and removal based
on the best interests of each child.
It would ensure adequate legal representation for the
children, either through pro bono legal services or appointed
counsel, to help them understand the gravity of the immigration
proceedings they face.
It would ensure that children awaiting adjudication of
their asylum claims do not age out, which is a real problem.
And it would require training for INS adjudicators, immigration
judges, and other personnel on how to address children's needs
in asylum claims.
Mr. Chairman, Senator Graham and I have written to you to
ask that you hold a hearing on the manner in which
unaccompanied alien children are treated while in INS custody,
and I would like to place a copy of that letter to you in the
record today.
[The prepared statement and letter follows:]
Statement of Hon. Dianne Feinstein, a U.S. Senator from the State of
California
Thank you, Mr. Chairman, for holding this hearing today on asylum
law and policy. There is one issue I'd like to mention that
particularly concerns me--the manner in which children who come to this
country seeking asylum are treated under our immigration system.
Each year, the INS apprehends over 5,000 unaccompanied minors.
These children are immediately detained and placed in deportation
proceedings. There, an immigration judge determines whether or not they
have the right to remain legally in the United States.
A substantial portion of these unaccompanied minors have valid
asylum claims. Yet, under current policy, they are often denied the
opportunity to present their claims. Worse yet, their experiences of
detention and isolation are often as traumatic as the persecution they
fled in their home countries. Unbelievably, some children who are in
INS custody are subjected to such punitive actions as shackling, the
use of leg manacles, and strip searches. Others are housed with violent
juvenile offenders.
Unaccompanied minors are the most vulnerable of the world's asylum
seekers, and they deserve our support and protection. Many have fled
the horrors of their homeland--child prostitution, bonded labor, female
genital mutilation, and forced recruitment as child soldiers. They
often lack the capacity to navigate the complexities of our immigration
system without the assistance of a responsible adult to objectively act
in their best interest.
I introduced the ``Unaccompanied Alien Child Protection Act of
2001'' because I believe that our nation has an obligation to better
protect these children.
Let me just give one example of what I'm talking about:
Young Hong fled China alone when he was only 15 years old. He grew up
in an abusive household in the Fujan province There, his
parents beat him severely. They also forced him to quit school
and work--apparently to help pay off their debts to the Chinese
government for having Hong's sister, the second child in the
family.
Hong fled to the U.S. in 1998, where he was held in INS custody in a
juvenile prison for over a year. There he was not provided any
educational or social services in his native Mandarin language.
And, he was required to fill out his asylum application in
English. In other words, he was at the mercy of the United
States government to help him with his application.
Unfortunately, with their overworked schedules, the immigration
officers on hand were unable to assist Hong with his asylum
claim. Even if they were able to help, Hong did not know how to
ask. Nevertheless, he did his best, through an interpreter, to
answer every question the immigration judge asked of him at his
immigration trial.
During the proceeding, no one thought to ask him about some of the
basics of his claim--such as, whether his family subjected him
to forced child labor to compensate the government for their
violation of China's one-child policy; and whether he would be
in danger because, upon arriving in the U.S., he helped federal
prosecutors bring to justice the alien smugglers who
transported him here on a overcrowded vessel.
The immigration judge denied Hong's asylum claim on May 17, 2000.
Afterwards, Hong obtain free counsel from the Catholic Legal
Immigration Network in Los Angeles, CA. His lawyer appealed his
case before the Board of Immigration Appeals.
On March 21, 2001, three years after Hong arrived in the U.S., the
Board remanded Hong's case back to the immigration judge,
stating that Hong was not granted any opportunity to seek new
counsel when his first counsel abandoned him--a right he did
not know he possessed. The Board allowed him to present his
case again before the immigration judge, this time with the
assistance of his new counsel. On his second try, Hong was
granted asylum, but only after he had spent three years in INS
custody.
And cases like this are but the tip of the iceberg. They
demonstrate a major problem with our immigration system. It is managed
by a bureaucracy ill equipped to help the thousands of unaccompanied
children in need of special protection.
I have joined with Senator Graham and other colleagues in
introducing S. 121, bipartisan legislation that would address this
problem. This bipartisan bill would place into law important
protections for vulnerable children who are in INS custody. Among its
provisions are those that would----
create a special Office of Children's Services within the
Department of Justice that would be responsible for ensuring
that the children's needs are met and that their best interests
are held paramount in all proceedings and actions involving
them;
streamline INS procedures to provide better agency
coordination when an unaccompanied child comes into federal
custody;
establish minimum standards for the custody (or, where
appropriate, detention) of unaccompanied alien children to
ensure they are housed in appropriate settings;
develop a corps of child welfare professionals to act as
guardians ad litem and to help the children articulate their
needs and make recommendations regarding their custody,
detention, release, and removal, based upon the best interests
of each child;
ensure adequate legal representation for the children, either
through pro bono legal services or appointed counsel to help
them understand the gravity of the immigration proceedings they
face;
ensure that children awaiting adjudication of their asylum
claims do not ``age-out''; and
require training for INS adjudicators, immigration judges, and
other personnel on how to address children's needs in asylum
claims;
Senator Bob Graham and I have written you, Mr. Chairman, to ask
that you hold a hearing on the manner in which unaccompanied alien
children are treated while in INS custody. I would like to place a copy
of that letter into today's hearing record.
Mr. Chairman, you are well known for your strong support for people
fleeing persecution, and your strong support for children. I hope that
you will join me and cosponsor my bill. And I hope I can count on your
support for both a fair and swift hearing on this problem and prompt
action on S. 121.
Thank you, Mr. Chairman.
Hon. Dianne Feinstein
United States Senate
Washington, DC 20510-0504
April 23, 2001
Hon. Sam Brownback
Chairman
Subcommittee on Immigration
303Hart Senate Office Building
Washington, DC 20510
Dear Mr. Chairman:
We are writing to request a hearing at the earliest possible date
to examine the plight of the more than 4,600 unaccompanied children who
are in the Immigration and Naturalization Service's (INS) custody each
year, traumatized and in great need of special attention.
Last year, four high profile cases have shaken both Congress' and
the public's confidence in the INS's ability to deal with unaccompanied
children in a way that reflects their best interests. These cases are:
Elian Gonzalez, a six-year old child from Cuba, suffered
physical and emotional trauma after being lost at sea for two
days and witnessing the death of his mother. He has now been
reunited with his father and family in Cuba.
Two young Haitian children arrived on a raft shortly after
Elian Gonzalez and were returned to Haiti while their mother
remained in the U.S. to file for asylum. After protests and
several weeks of separation from their mother, Federal
authorities finally permitted the children to be reunited with
their mother the U.S.
A 15-year old Chinese girl was held in a juvenile jail for
eight months. At her asylum hearing, the young girl could not
wipe away the tears from her face because her hands were
chained to her waist. According to her lawyer, ``her only crime
was that her parents had put her on a boat so she could get a
better life over here.'' The INS held her in detention six
weeks after she had received political asylum.
Phanupong Khaisri, a two-year old Thai national, was brought
to the U.S. by two individuals falsely claiming to be his
parents, but who were actually part of a major alien
trafficking ring. The child, who entered the U.S. with severe
flu-like symptoms has been diagnosed as HIV positive. After
inquiries by Congressional offices and a federal court order,
the INS agreed to allow the child to remain in the U.S. until
the agency could provide proper medical attention and determine
what course of action would be in his best interest.
These cases are but the tip of the iceberg. Last year, 4,600
unaccompanied children many of whom had been previously victimized or
persecuted were held in INS detention. Of that number, nearly 2,000
were held in correctional centers with juvenile offenders. Moreover,
many of these children remained in INS detention for prolonged periods.
One Chinese youth was held in a juvenile correctional facility for five
years.
Given these facts, we believe Congress should reexamine the way in
which the immigration system handles foreign minors. As you know, we
recently introduced S. 121, the ``Unaccompanied Alien Child Protection
Act of 2001,'' which seeks to reform the manner in which the federal
government treats unaccompanied children in U.S. custody. This bill is
premised on the idea that we have a special obligation to ensure that
every child who comes into contact with the INS is afforded fair and
humane treatment. That does not appear to be the case today.
We suggest the hearing include: (1) an examination of the
particular circumstances causing children to travel to the U.S. without
a parent or guardian; (2) the suitability of the facilities in which
they are placed; (3) options for alternative placement; and (4) the
Federal government's capacity to adequately address the special needs
of alien children who are in its custody. A discussion involving
various immigration law and child welfare experts may well provide
groundwork for needed change within the INS to ensure proper placement
of the children. For your convenience, we have attached a list of
suggested panels and participants.
We look forward to working with you to schedule a hearing. We and
our respective staffs are prepared to provide you with whatever
additional information you may need as the Committee prepares to
address this important issue. If you or your staff have any questions
on this matter, please do not hesitate to call us or have your staff
contact LaVita Strickland at 2249641 or Caroline Berver at 202-224-
0852.
Sincerely,
Dianne Feinstein
U.S. Senator
Bob Grahm
U.S. Senator
Proposed Judiciary Committee Hearing on Juveniles in the Custody of the
Immigration and Naturalization Service
Panel I--Members of Congress. Members of Congress who have
introduced public and private bills on behalf of children should be
permitted to testify on the need for reforming our immigration laws to
provide the Attorney General discretion to handle children's cases in a
way that comports with their best interests.
Panel II--Government Witnesses Panel. An overview of the manner in
which the INS and other federal agencies deal with unaccompanied alien
children, with a particular focus on custody, detention and release,
family reunification, interaction between federal and state
authorities, and the special needs children face in adjudications and
asylum. The witnesses should be prepared to address statistics on the
number of children held in INS custody, the nationalities of the
children encountered, types of cases, and case outcomes.
Suggested Witnesses:
John Ashcroft, Attorney General, U.S. Department of Justice;
John J. Pogash, National Juvenile Coordinator and Juvenile
Program Director, Immigration and Naturalization Service; and
Michael Creppy, Chief Judge, the Executive Office for
Immigration Review.
Panel III--Victims Panel. The personal experiences of several
witnesses who can attest to the manner in which they were treated under
the current system. The witnesses would highlight severe problems in
detention and release decisions, conditions of detention, asylum cases
for children, and the inadequacies of the Special Immigrant Juvenile
Visa.
Suggested Witnesses:
Mark Potter, immigration attorney for the 15-year old Chinese
asylum seeker detained for eight months;
Catherine Brady, Immigrant Legal Resource Center, San
Francisco, California;
Fauziya Kasindja, an asylum seeker from Togo, who as a youth
was detained for two years in an adult correctional facility
before being granted asylum.
Panel IV--Experts Panel. A panel of expert service providers and
program specialists who have worked on children's immigration issues.
The witnesses would offer concrete solutions to how existing
governmental structures, laws, procedures, and practices should be
changed to address the problems children have in immigration
proceedings.
Suggested Witnesses:
Dr. Susan Martin, Georgetown University (former Executive
Director of the U.S. Commission on Immigration Reform);
Elisa Massimino, Lawyers Committee for Human Rights;
Ralston Deffenbaugh, Lutheran Immigrant and Refugee Services;
Bishop Nicolas DiMarzio, U.S. Catholic Conference of Bishops;
and
Wendy Young, Women's Commission on Refugee Women and Children.
Senator Feinstein. Mr. Chairman, this first came to my
attention when I learned that a young girl had been 7 months in
custody without that situation being resolved. And then I
looked into it, and I found that in any given year there are
5,000 children that come into our country, do not understand
the law, are not represented by counsel, very often end up in
detention facilities under some of the harshest circumstances.
Nobody knows they are there, and they can stay there year after
year after year.
It is, in a sense, a major scandal, and we need to move on
it. So I would be hopeful, Mr. Chairman, that we could have a
hearing on this bill. There are many examples of this same kind
of thing, so I would be hopeful that we might be able to
develop this Office of Children's Services and turn around what
is a stagnant and terrible system.
Chairman Brownback. Thank you very much. We will have that
hearing. I hope you will work with us to get the people here to
testify about this.
I am very concerned about all of our asylees, minors and
adults: the way we are treating them once they come into this
country, and the amount of time we are leaving them in
incarceration.
Senator Feinstein. Right.
Chairman Brownback. And there are better ways and there are
better systems, and we can do better. So I think this would be
a good key feature of that.
Senator Feinstein. Thanks, Mr. Chairman. Senator Kennedy's
and Senator Graham's statements are with the clerk. May I ask
unanimous consent that they be submitted to the record?
Chairman Brownback. Without objection.
[The prepared statements of Senators Kennedy and Graham
follow:]
Statement of Hon. Edward M. Kennedy, a U.S. Senator from the State of
Massachusetts
I commend Senator Brownback for convening this important hearing on
U.S. asylum policy and welcome all of the witnesses, especially the
courageous refugees who are with us today. I understand how difficult
it is for you to speak publicly about your asylum claims. All of us
greatly appreciate your willingness to do so.
This year marks a significant anniversary for an extremely
important part of our immigration policy--the 50th
anniversary of the United Nations Refugee Convention, which established
the right of persons to flee their native land because of a ``well-
founded fear of being persecuted for reasons of race, religion,
nationality, membership in a particular social group or political
opinion.'' Since the passage of this Convention, United States policy
has always been to welcome refugees fleeing persecution. However, in
recent years, our government's respect for refugee rights has
significantly diminished, even though the need for refugee protection
is greater than ever.
Today, more than 14 million people have been forced to leave their
home countries in desperation, fearing not only for their own lives,
but also for the lives of their loved ones. Some of these refugees
arrive in the U.S. seeking asylum. We have a responsibility to see that
they are able to request asylum in a fair and efficient manner.
Unfortunately, in 1996, Congress enacted harsh immigration laws,
which included an expedited removal process that gives INS inspections
officers the authority to summarily remove potential asylum seekers if
they arrive in the United States without proper papers, even though
oppressive governments do not grant proper papers to those they are
persecuting.
The expedited removal process also requires individuals seeking
asylum to specifically state their fear of persecution or their intent
to apply for asylum immediately upon arriving in the U.S. But asylum
seekers are often scared and traumatized. Many are unable to articulate
their fears, especially to government officials whom they may view with
distrust. Persons who have suffered particularly humiliating
persecution, such as rape, may be unable speak to a stranger about
their harrowing experience.
The problem is made worse by the fact that many of these
individuals speak very little, if any, English, and adequate
translators are often not available to assist them in making their
claims. Lack of language skills, combined with fear and intimidation,
often make it impossible for newly arrived asylum seekers to overcome
this significant obstacle. In addition, legal representation is not
permitted at the initial and most critical phase of the expedited
removal process, and the law contains no opportunity for judicial
appeal of a decision on summary removal.
The expedited removal process has caused great hardship for many
vulnerable individuals. ``Mr. Antoun,'' a Coptic Christian who fled
Egypt after repeated threats and beatings by Islamic extremists, was
nearly deported under expedited removal after arriving at JFK
International Airport in September 1999. When he began to explain to
INS officials that he feared persecution in Egypt by Muslim extremists,
an officer responded by saying: ``I'm Muslim. What is your problem with
Muslims?'' Mr. Antoun immediately became worried about the
confidentiality of his statements, and he expressed that concern to the
officer. The officer then responded, ``We will contact your
government.'' Terrified and intimidated, Mr. Antoun withdrew his claim
for asylum and waited in confinement to be returned to Egypt. Finally,
in desperation, he wrote a note to another INS officer; this action
prevented his deportation.
``Mr. Keita,'' a member of the democratic opposition in Guinea,
fled that country in January 2000 after his brother was arrested and
killed by the ruling regime for supporting an opposition candidate.
When Mr. Keita arrived at JFK International Airport, INS officials did
not provide him with an adequate interpreter or an explanation of the
protection available under U.S. law. Understanding only that he would
be returned home if his travel documents were invalid, Mr. Keita was
afraid to explain his situation, and he was summarily ordered removed.
At the door of the plane, Mr. Keita broke into tears and said he would
be killed if he went home. Nonetheless, INS officials continued their
efforts to deport him. The deportation was halted at the last minute,
after Mr. Keita was injured by INS officers, who dropped him several
times while carrying him to the plane.
Mr. Antoun and Mr. Keita's stories are shameful examples of the
deplorable treatment that individuals have received under the expedited
removal process. This treatment is inexcusable, and it is fortunate
that their deportations were averted at the last minute. Countless
other individuals are not so fortunate. They have been deported, and
sent back to situations where they could well be subjected to torture,
and even death.
It is time for Congress to act to end these abuses involving the
expedited removal program. The Refugee Protection Act, introduced last
year by Senator Leahy and Senator Brownback, accomplishes this goal,
and I urge this Congress to enact it following its reintroduction.
In addition, asylum seekers who manage to request asylum are all
too often subjected to mandatory detention. They are held in INS
detention centers or state and county jails, often with criminal
inmates, for months or even years. They have little access to legal
representation, health care, or even contact with family, friends, or
clergy who can assist them with their needs. Detention is extremely
traumatizing for those who have already suffered so much.
Consider the case of Adolphine Mwanza from the Democratic Republic
of Congo. As a young woman, Adolphine was living in a Catholic convent
studying to become a nun. But her family was brutally targeted by the
rulers of her country.
Her brother was killed and she was kidnaped, tortured and raped.
She went into hiding and was eventually able to escape and reach the
United States. Upon arrival, she was placed in detention. Her attorney
filed a parole request with the INS, explaining that she would have
housing and support if released. But her application was denied. She
spent eight months in detention, before she was finally released and
granted asylum.
Her case is not an isolated example. Too many asylum applicants
spend years in detention, even though they have committed no crimes.
The incarceration is a tragedy, especially when fair alternatives are
available. Asylum seekers could be released to family, friends, or
community groups, including faith-based organizations, who are ready,
willing and able to assist them. Such alternatives have been tested at
pilot sites. They are cost-effective and successful and should be
expanded to other sites.
Also, persons who remain in INS detention must be safe and treated
humanely. I commend the INS for issuing detention standards to
accomplish this goal. The standards contain guidelines on issues
ranging from visitation, to access to legal representation and
materials, to a procedure for considering grievances. The
implementation of these standards is an important step in the right
direction. But the guidelines are not binding. Congress should codify
them to make sure that they apply to all facilities of the INS. We
should also guarantee effective monitoring and oversight of their
implementation.
Another worthwhile and proven program to assist asylum seekers
involves legal orientation presentations. These programs accomplish
four goals: 1) they identify persons with meritorious claims for relief
and refer them to counsel at no cost to the government; 2) they
convince those without legitimate claims to accept removal rather than
tie up the system; 3) they reduce tension and improve security in
detention facilities; and 4) they save the government money by making
the judicial process more efficient and by reducing the need for
prolonged detention. Congress should fund the expansion of this
worthwhile program.
Finally, two other problems affect asylum seekers. In 1996,
Congress enacted a one-year filing deadline, requiring such persons to
apply for asylum within a year of their arrival in the United States.
The only exception to this deadline is if extraordinary circumstances
prevent a timely filing. Since the enactment of this arbitrary
deadline, more than 10,000 asylum seekers have had their claims
rejected by the INS. In fiscal year 2000 alone, over 6,000 claims were
rejected, based on failure to meet the filing deadline. Yet many of
these individuals did not file their claims because they were
unfamiliar with our legal system and did not know they were required to
file a timely application.
Asylum seekers should be able to apply for protection regardless of
whether they file their claims before or after this arbitrary deadline.
It serves no valid purpose. Instead, it creates yet another obstacle
for bona fide refugees, and it should be eliminated.
Immigration law also currently places a cap of 10,000 on the number
of persons granted asylum whose status can be adjusted to that of
lawful permanent resident in a fiscal year, regardless of the number of
persons granted asylum in that year. Because the number of persons
granted asylum each year exceeds 10,000, the cap has created a larger
backlog. The INS estimates that there is a backlog of 57,000 asylees
awaiting adjustment. This delay causes significant hardship to these
deserving individuals and their families. No plausible reason exists
for maintaining this cap. Congress should take the initiative to lift
it.
Again, I welcome the witnesses here today, and I look forward to
working with them and with my colleagues on these important issues.
Statement of Hon. Bob Graham, a U.S. Senator from the State of Florida
Mr. Chairman, I appreciate the chance to share my thoughts with the
Subcommittee today. I want to discuss an issue I feel particularly
strongly about--the fate of unaccompanied alien children in the United
States.
Last year 4,675 unaccompanied foreign children arrived here.
These children have left behind their countries, their homes and
their families. They arrive in our country without speaking the
language or knowing the culture. They are often fleeing severe abuse or
exploitation.
They are brought here as ``human props'' in alien smuggling rings
or they wander here in search of a safety net that does not exist in
their home country. Instead, of offering a safety net, these children
find iron bars.
Our immigration laws often require detention upon arrival.
Immigration and Naturalization Service-detention can mean handcuffs,
shackles, strip-searches or incarceration in jails with violent
juveniles.
This is unacceptable treatment for one of the most vulnerable
groups in our society, children. It is also unacceptable for a country
like ours that has a long history of valuing and acknowledging the
rights of refugees and asylum-seekers.
So far, INS has failed to publish regulations on the treatment of
children. There is no minimum standard for the custody of unaccompanied
alien children. Indeed, immigration attorneys repeatedly complain about
due process problems. I am particularly concerned about the placement
of children in medium or high-security criminal facilities. These kids
have, at most, limited access to education, physical recreation or
health care.
I urge the federal government to take action to treat unaccompanied
alien children with respect to their vulnerability and special
circumstances. We need to grant them reasonable standards of custody
while their cases are pending. I would also like these children to have
access to counsel. Our immigration laws are complex. How can we expect
any child--let alone one traumatized or without command of the
language--to navigate the complexity of our immigration laws? And yet,
their claims for seeking asylum are reviewed by the same standards of
proof as that of any adult. If they fail, the children will be
deported.
Exactly a year ago, the saga of Elian Gonzalez, the Cuban child who
arrived in Florida, ended with his removal from the United States.
Regardless of where you stood on the Elian case, there are two things
we have learned from the incident. First, the current immigration law
is too inflexible to take into account the best interest of the child.
No legal provision allowed the evaluation of the child's special
circumstances.
To prevent a similar crisis, the INS today tries not to release a
child to local relatives without first checking with a parent, even if
the parent is overseas. It is only too easy to image how long such a
procedure can take, especially if the parent is living in a country
besieged by civil war or guerrilla activities. Meanwhile, the child is
kept in detention.
Second, we learned from the Elian case how rare it is that these
children get the attention they deserve. We know about Elian, but who
knows about the other 4674 children who were in INS custody last year?
Who hears about the 15-year-old Guatemalan boy and the Chinese girl who
in March were given half an hour to pack their personal belongings and
no time to contact their lawyers before they were moved from Miami to
Chicago?
For all the above mentioned reasons, I urge my colleagues to
support legislation Senator Feinstein and I have introduced. Our bill,
the ``Unaccompanied Alien Child Protection Act of 2001'' will meet the
special needs of these children. S.121 will create an Office of
Children's Services within the Department of Justice to take care of
unaccompanied alien children. An Office of Children's Services, with
jurisdiction over custody and release decisions and oversight
responsibility for juvenile, foster and shelter care, will ensure that
the federal government fulfills its obligation to consider the special
circumstances of unaccompanied alien children when making decisions
regarding their custody and repatriation. The Office of Children's
Services will also establish standards for custody and ensure that
while in immigration proceedings, children have access to appointed
counsel or a guardian ad litem.
Let me also make clear what this law does not do. It does not
change the jurisdiction over immigration law. Decisions on immigration
status, benefits and enforcement will still be the responsibility of
INS, the Executive Office of Immigration Review, and the Department of
State. Also, S. 121 will not interfere with the custodial rights of a
parent or guardian to make family reunification possible.
Even more important, 5.121 does not seek to create new immigration
or asylum claims. Our bill stays within the scope of the current U.S.
immigration law.
I look forward to working with all my colleagues to enact
legislation that will take into account the special needs and
circumstances of unaccompanied children who come to our country.
Chairman Brownback. The Senator from Ohio?
STATEMENT OF HON. MIKE DEWINE, A U.S. SENATOR FROM THE STATE OF
OHIO
Senator DeWine. Very briefly, thank you, Mr. Chairman. Let
me just first congratulate you for holding this hearing. I
think it is long overdue, and the subject matter of this
hearing is very, very important. The whole issue of asylum we,
of course, have dealt with several times in Congress since I
came here. We have dealt with it. I know my colleague from
California and I were very much involved in the debate in 1995
and 1996. We won some, we lost some. But I just again
congratulate you, and I look forward to hearing the witnesses.
I think the testimony we are going to hear is going to be very
compelling, and I think it is going to be very instructive, and
I just appreciate the fact that you are moving forward with
this hearing.
Chairman Brownback. Thank you very much, Senator.
I will call up our first panel. The first speaker is Karen
Musalo, director of an Expedited Removal Study produced in
conjunction with Hastings College of Law at the University of
California. Our second speaker is Wendy Young, director of
Government Relations with the Women's Commission for Refugee
Women and Children. Our third speaker is Eleanor Acer, director
of the Asylum Representation Program with the Lawyers Committee
for Human Rights.
I welcome you all. We look forward to your testimony. Ms.
Musalo, let's start with you, if you would present your
testimony here today.
STATEMENT OF KAREN MUSALO, RESIDENT SCHOLAR, HASTINGS COLLEGE
OF THE LAW, UNIVERSITY OF CALIFORNIA, SAN FRANCISCO, CALIFORNIA
Ms. Musalo. Thank you very much. Good afternoon. My name is
Karen Musalo, and I am a resident scholar at the University of
California, Hastings College of the Law. For the past 4 years,
I have served as founding director and principal investigator
of the Expedited Removal Study, a nationwide study of expedited
removal. During the past 2 years, I have also served as an
expert consultant to the Commission on International Religious
Freedom on matters involving expedited removal. I would like to
thank you, Mr. Chairman, and members of the Subcommittee for
the opportunity to testify regarding expedited removal.
As you said, Congress enacted expedited removal as part of
the 1996 Immigration and Nationality Act reforms, and the
procedures were first implemented in April 1997, and it allows
the summary return of persons who are inadmissible for fraud or
misrepresentation or for lack of valid or suitable travel
documents.
At ports of entry, immigration officers conduct initial
examinations of all arriving individuals at primary inspection,
and they route persons whose admissibility is in question to
secondary inspection, which is a secure, closed area. And
during secondary inspection, persons deemed to be inadmissible
by the immigration officers may be ordered removed without any
further process.
Pursuant to the law, there are two groups of persons
subject to expedited removal who are to be provided with
additional protections rather than being immediately returned.
These are persons who claim a legal right to reside in the
United States, either U.S. citizens, permanent legal residents,
asylees, or refugees; or persons who express a fear of
persecution or an intent to apply for asylum.
Persons who claim lawful status are to have those claims
reviewed by an immigration judge before they are summarily
removed, and persons who express a fear of persecution or a
desire to apply for asylum are to be referred for an interview
with an asylum officer, who will determine whether they have a
credible fear of persecution such that they will actually be
permitted to apply for asylum. This is something very new, to
pre-screen people before allowing them to apply. And persons
who establish that credible fear then will go on and be
permitted to apply, and those who do not may request review by
an immigration judge. There is no right to representation or to
have a consultant present at that review. There is no further
administrative or judicial review. And in both claimed status
and credible fear cases, individuals who do not prevail before
the immigration judge are summarily removed.
Persons who--and I know my colleagues will address this
more. Even those persons who are found to have a credible fear
are put into detention, and although they are eligible for
parole, there is some question about detention policies and
whether they are, in fact, paroled.
Expedited removal represents one of the most fundamental
changes in immigration law and policy because it gives
unprecedented authority to immigration inspectors to issue
unreviewable orders of removal. And as the Chairman said,
before its enactment, every person deemed inadmissible had the
opportunity to go before an immigration judge and then to have
that judge's decision reviewed by the Board of Immigration
Appeals and the Federal courts. And, furthermore, persons
seeking asylum did not have to pass through a screening process
and first show they had a credible fear before they would be
permitted a full hearing on their claims.
When Congress was debating expedited removal, the critics
of the process contended that it created an unacceptable risk
that bona fide refugees would be returned to situations of
persecution. It was feared that asylum seekers, of all people,
who are often weary and traumatized when they arrive, would be
unable to articulate their fears immediately upon arrival,
especially if the form of persecution was of a particularly
humiliating or personal nature, such as women who suffered rape
or other forms of sexual torture. And there was the fear also
that the officers might fail to even implement those safeguards
that had been put into the process to assure that bona fide
refugees would be identified.
Now, as I mentioned when I began, I direct something called
the Expedited Removal Study, and it was initiated in response
to these and other concerns regarding expedited removal. And it
was designed to examine all components of the procedure, and
its objective was to determine whether expedited removal met
the dual Congressional goals of preventing abuse of the system,
while ensuring that bona fide asylum seekers and individuals
with lawful status in the U.S. not be denied admission.
Now, we had hoped to work with the cooperation of the
Immigration Service and have access to the process and access
to the data connected to the process so that we could do a fair
evaluation and look into this issue about whether it meets the
dual Congressional goals.
At first, the INS was very positive and welcomed the idea
of a study that could provide critical information to
policymakers and the public. But shortly thereafter, they
changed their attitude on this issue and denied the Expedited
Removal Study as well as all other researchers who were
interested in the process any access to the procedure. And the
way in which we proceeded at that point with our study was to
use the FOIA process--the Freedom of Information Act process--
as well as to seek out attorneys and non-governmental
organizations who had contact with people who had been
subjected to the process in order to gather information.
Our study has released four reports on the expedited
removal process, and, in general, we have identified a number
of issues of substantial concern that have arisen both from our
analysis of statistical data as well as our investigation of
the processing in individual cases.
In my written testimony, I have identified five cases. I
would like to just very briefly highlight three of those five
cases, which I think are illustrative of some of the problems
that have been identified in expedited removal.
Chairman Brownback. Ms. Musalo, if you could, let's
summarize those because we may have to take a break here for a
news conference on some judicial nominations. So I would like
to get through the panelists as fast as possible, and we will
take your full written statement in the record.
Ms. Musalo. Yes. Just in very brief summary, Mr. Chairman,
one of the cases involved an Algerian asylum seeker who,
although he had been tortured and detained in his home country,
when he arrived at the port in San Francisco, he was both
taunted and ignored when he expressed fear. He was taunted and
told that he would be sent back to his home country. He became
so desperate with his treatment that he grabbed a coffee cup,
broke it on a desk, and stabbed himself in the stomach. He was
brought to a hospital, and it was only after this act of
desperation that he was given a credible fear interview. He not
only established a credible fear, but he was granted asylum.
There was another case of some Ecuadoran asylum seekers who
were precluded from applying in the United Kingdom because they
would have an opportunity to apply in the U.S., but when they
came to the U.S. were summarily returned to Ecuador.
And there is another case I will not go into that involves
a business traveler with legitimate travel documents who was
returned because, although we focus mostly on asylum seekers,
we have also looked at other people with a legitimate right to
enter the United States.
Just in summary, and really finishing up here, I would like
to say that Congress has been aware of these concerns about
expedited removal and has twice asked the General Accounting
Office to conduct studies to try to ascertain if these kinds of
stories that are coming out are simply anomalous and rare, or
whether they represent some deeper, more fundamental problems
with the process. And it has been our opinion--and we have
issued a full report on this--that the General Accounting
Office's two studies have failed to answer any of the key
questions about expedited removal. And to the degree that any
of their conclusions are reliable, they actually have raised
additional concerns about the process.
Let me end with that, and I thank you very much for holding
this hearing, and I thank you very much for the opportunity to
address you.
[The prepared statement of Ms. Musalo follows:]
Statement of Karen Musalo, Resident Scholar, Hastings College of the
Law University of California, San Francisco, California
1. Introduction
Good afternoon. My name is Karen Musalo. I am resident scholar at
the University of California, Hastings College of the Law. For the past
four years I served as founding director and principal investigator of
The Expedited Removal Study (``Study'') a nationwide scholarly study of
expedited removal. During the past two years I have also served on two
occasions as an expert consultant to the Commission on International
Religious Freedom on matters involving expedited removal. I would like
to thank you Mr. Chairman and members of the Subcommittee for the
opportunity to testify regarding expedited removal.
II. Background
Congress enacted the expedited removal law as part of the 1996
Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA),
and the new procedures were implemented in April 1997. Expedited
removal permits the summary return of persons \1\ who are inadmissible
for fraud or misrepresentation \2\ or for lack of a valid or suitable
travel document.\3\
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\1\ Expedited removal applies to ``arriving aliens.'' An ``arriving
alien'' is defined as: an applicant for admission coming or attempting
to come into the United States at a port-of-entry, or an alien seeking
transit through the United States at a port-of-entry, or an alien
interdicted in international or United States waters and brought into
the United States by any means, whether or . not to a designated port-
of-entry, and regardless of the means of transport. 8 C.F.R.
Sec. 1.1(q).
\2\ INA Sec. 212(a)(6)(C)
\3\ INA Sec. 212(a)(7)
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At ports of entry, immigration officers conduct initial
examinations of all arriving individuals at primary inspection, and
route persons whose admissibility is in question to secondary
inspection, which is in a secure, closed area. During secondary
inspection, persons deemed to be inadmissible for fraud or lack of
proper documents may be ordered removed without further process. The
removal order becomes final upon a supervisor's approval, and bars
reentry to the United States for five years. The statute \4\ permits
the withdrawal of an application for admission in the discretion of the
Attorney General, in which case the applicant may depart without being
subject to the five year bar on reentry.
---------------------------------------------------------------------------
\4\ INA Sec. 235(a)(3)
---------------------------------------------------------------------------
Pursuant to the law, there are two groups of persons subject to
expedited removal who are to be provided with additional procedural
protections, rather than being immediately returned at secondary
inspection: (1) those who claim a legal right to reside in the United
States based on citizenship, permanent resident, asylee or refugee
status, and (2) those who express a fear of persecution or an intention
to apply for asylum.
Persons who claim lawful status are to have such claims reviewed by
an immigration judge. Persons who express a fear of return or a desire
to apply for asylum are to be referred to an interview with an asylum
officer (AO) during which it will be determined if they have a credible
fear of persecution. A ``credible fear'' of persecution is established
if ``there is a significant possibility, taking into account the
credibility of the statements made by the alien in support of the
alien's claim and such other facts as are known to the officer, that
the alien could establish eligibility for asylum under Section 208.''
\5\
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\5\ INA Sec. 235(b)(1)(B)(v).
---------------------------------------------------------------------------
In order to assist in the identification of persons who fear return
or desire to apply for asylum, immigration officers are required to ask
three questions (referred to as the ``three fear questions'') during
secondary inspection: (1) why did you leave your home country or
country of last residence?; (2) do you have a fear or concern about
being returned to your home country or removed from the U.S.?; and (3)
would you be harmed if you were returned to your home country?
Interpreters are to be provided if necessary for communication with the
individual.\6\
---------------------------------------------------------------------------
\6\ 8 C.F.R. Sec. 235.3(b)(2)(i).
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Persons who express a fear of return to their home country or an
intent to apply for asylum, in response to these questions or at any
time during secondary inspection, are to be referred to a credible fear
interview. Among those to be referred are persons who express fear or
an intent to apply for asylum through nonverbal acts.
Persons who establish a credible fear of persecution at their
interview with an asylum officer are permitted to apply for asylum.
Persons found not to have a credible fear may request review by an IJ.
There is no right to representation or to have a consultant present at
this review.\7\ The statute precludes any further administrative or
judicial review \8\ in claimed status and credible fear cases, and
persons who do not prevail before the immigration judge are summarily
removed from the United States.
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\7\ An applicant may consult with persons of his or her choice
prior to IJ review of the credible fear determination. INA
Sec. 235(b)(1)(B)(iv); 7 C.F.R. Sec. 208.30(b). However, immigration
judges have the discretion as to whether consultants may be present at
this review. If a consultant is allowed to be present, nothing entitles
him or her to make an opening statement, call and question witnesses,
cross examine, object to written evidence, or make a closing argument.
Executive Office for Immigration Review, Interim Operating Policy and
Procedure Memorandum 97-3: Procedures for Credible Fear and Claimed
Status Reviews, at 4 (Mar. 25, 1997).
\8\ INA Sec. 235(b)91)(c)
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The INA requires mandatory detention, until removal, of all persons
subject to expedited removal proceedings.\9\ A narrow form of parole is
available, in accordance with INA Sec. 212(d)(5), if ``the Attorney
General determines, in the exercise of discretion, that parole is
required to meet a medical emergency or is necessary for a legitimate
law enforcement objective.'' \10\ Once a person establishes a credible
fear of persecution, he is no longer subject to expedited removal
proceedings, but rather to regular removal proceedings under INA
Sec. 240, and therefore, may be eligible for parole under normal parole
criteria.\11\ The INS has stated that persons subject to expedited
removal who are determined to have a credible fear of persecution fall
under the INS's low priority detention group, and that ``it is INS
policy to favor release of aliens found to have a credible fear of
persecution, provided that they do not pose a risk of flight or danger
to the community.'' \12\
---------------------------------------------------------------------------
\9\ INA Sec. (b)(1)(B)(iii)(IV); 8 C.F.R. Sec. 235.3(b)(2)(iii).
\10\ 8 C.F.R. Sec. Sec. 235.3(b)(2)(iii), (b)(4)(ii).
\11\ Parole may be granted pursuant for 8 C.F.R. Sec. 212.5 on a
case by case basis for urgent humanitarian reasons or significant
public benefit, if such persons do not provide a security risk or a
risk of absconding. This is a discretionary grant; the INS has
instructed as follows:
Parole is a viable option and should be considered for aliens who
meet the credible fear standard, can establish identity and community
ties, and are not subject to any possible bars to asylum involving
violence or misconduct; for example, the applicant is an aggravated
felon or a persecutor.
Office of Field Operations, INS, Memorandum on Expedited Removal:
Additional Policy Guidance (December 30, 1997).
\12\ Office of Field Operations, INS, Memorandum: Detention
Guidelines Effective October 9, 1998, at p. 3.
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III. Concerns Regarding Expedited Removal
Expedited removal represents one of the most fundamental changes in
immigration law and policy, because it gives unprecedented authority to
immigration inspectors to issue unreviewable orders of removal. Before
its enactment, every person deemed inadmissible by an immigration
officer at a port of entry had the opportunity for a formal hearing
before an immigration judge, and the right to appeal the judge's
decision to the Board of Immigration Appeals (BIA) and the federal
courts Asylum seekers were not required to establish a credible fear in
a screening process in order to be permitted a full hearing on their
claims.
At the time when Congress was debating expedited removal, its
critics contended that the process created an unacceptable risk that
bona ride refugees would be returned to situations of persecution. It
was feared that asylum seekers, who are often weary and traumatized,
would be unable to articulate their fear immediately upon arrival,
especially if such persons had suffered particularly humiliating forms
of persecution, such as rape or other forms of sexual torture. There
were also concerns that immigration officers might fail to comply with
the requisite procedures--such as those requiring interpretation where
necessary, or referral upon the verbal or non-verbal expression of
fear--all of which could result in the summary removal of a bona fide
asylum seeker. Critics also questioned whether the credible fear
standard applied by asylum officers would be applied too rigorously,
screening out persons with legitimate claims for asylum.
In addition to these concerns focused on asylum seekers, opponents
of the process also criticized the fact that expedited removal gave
immigration officers the authority to make final decisions on
admissibility, which previously had only been made by immigration
judges, and which were subject to administrative and federal court
review. This was seen as having the potential to prejudice legitimate
travelers to the United States, as well as citizens and lawful
permanent residents, who are entitled to only one tier of review if
denied admission by an immigration officer.
IV. The Expedited Removal Study
The Expedited Removal Study was initiated in response to these, and
other concerns regarding expedited removal, and was designed to examine
all components of the procedure. The Study's objective was to determine
whether expedited removal met the dual congressional goals of
preventing abuse of the system, while ensuring that bona fide asylum
seekers, individuals with lawful status in the U.S., and other
legitimate visitors (e.g. business visitors or tourists) not be denied
admission.
The Study's intended methodology contemplated cooperation with the
Immigration and Naturalization Service (INS) so that researchers could
have adequate access to observe and properly evaluate expedited removal
procedures. Of special interest to the Study was the area of secondary
inspection, where immigration officers make decisions regarding
referral of asylum seekers to credible fear interviews, admissibility
of persons with claimed lawful status, and admissibility of arriving
aliens in general.
Unfortunately, the INS, which initially welcomed the idea of a
study that could provide critical information to policymakers and the
public, refused to provide the requisite access to the process or its
related data. Consequently, the Expedited Removal Study was forced to
modify it research strategy and concentrate on the collection of data
from attorneys and non-governmental organizations (NGOs) that represent
persons who have been subject to expedited removal. The Study has also
utilized the Freedom of Information Act (FOIA) process to obtain data
from the INS and the Executive Office for Immigration Review (EOIR).
The Expedited Removal Study has issued four reports on the
expedited removal process; the last of its reports, issued in October
2000, was an evaluation of the General Accounting Office's research on
expedited removal. In general, the Expedited Removal Study has
identified a number of issues of substantial concern arising both from
its analysis of statistical data, as well as its investigation of the
processing in individual cases. These issues give rise to the question
whether bona fide asylum seekers, individuals with lawful status in the
U.S., and other legitimate visitors (e.g. business visitors or
tourists) are being improperly denied admission.
select case studies from the expedited removal study
From April 1997 through October 1999, almost 190,000 had been
subject to expedited removal, and if the trend from 1997 to 1999 is any
indication, the use of expedited removal may be expected to increase.
In this time period, the clear majority of persons removed under
expedited removal 99%--were removed at secondary inspection without a
referral to a credible fear interview or claimed status review. The
high percentage of cases involving a removal at secondary inspection
underscores the importance of evaluating that stage of the proceeding.
The Expedited Removal Studies has identified a number of cases
which illustrate serious problems at secondary inspection, ranging from
the failure of immigration officers to comply with required procedures,
to affirmative misconduct on the part of officers. Because the INS has
not permitted on-site observation, which would have allowed the Study
to engage in a comprehensive analysis of processing at secondary
inspection, it is not possible to conclude whether or not these
troubling cases are representative of expedited removal cases in
general. The following case studies, which are excerpted from the
Study's annual reports, provide examples of failures in the expedited
removal process.
Asylum Seekers
Mr. A, an Algerian Asylum Seeker
Mr. A, a twenty-six year old citizen of Algeria, was an active
member of the Islamic Salvation Front (FIS), a major opposition
political party, in 1990-92. FIS was outlawed by the military
government in 1992, and elections that FIS was expected to win were
canceled. From 1993-94, Mr. A was employed as a gardener for Benjadid
Chadli, a former Algerian president. Early in 1994, while visiting his
parents, Mr. A was arbitrarily detained and tortured for several days
while in police custody. In late 1994, members of the Armed Islamic
Group (GIA), a militant anti-government Muslim organization, broke into
his family's home, abducted him and sought his cooperation in a plot to
assassinate his employer. Mr. A quit his job out of fear and fled to
the home of a friend. Months later, Mr. A and his friend encountered a
group of GIA members who threatened their lives. After forcing them to
a private area, the group beat both men, shot Mr. A's friend dead in
front of him, and then again demanded Mr. A's cooperation with the
assassination, saying it was his last chance.
Mr. A fled to another city, where he was working in 1996 when his
brother was arrested at the airport as he was attempting to leave the
country to study abroad. Mr. A obtained a lawyer to help his brother,
who was charged with treason, convicted and sentenced to twenty years
in prison. Mr. A was arrested and released by police at the courthouse
where his brother's hearing was taking place. In 1998, Mr. A's family
was again targeted by the GIA when a group of rebels ransacked their
home in search of Mr. A, then fled after engaging in a gun battle with
police. Later in 1998, Mr. A was again arbitrarily arrested by Algerian
security forces, detained and tortured over a fifteen day period.
After this event, in September 1998, Mr. A fled Algeria. He
traveled to Bulgaria and then to southeast Asia throughout 1999,
eventually arriving in the U.S. at San Francisco International Airport
on a flight from Shanghai, China, on January 30, 2000. Mr. A was
traveling on a false Spanish passport which he disposed of after
exiting the airplane. He approached an INS officer at primary
inspection and asked for asylum.
Mr. A was referred to secondary inspection. He explained with his
limited English that he had destroyed his passport, which he reported
appeared to have upset the INS officers. Although the regulations
require interpretation under these circumstances, there was no
interpreter at this point. Without interpretation Mr. A had difficulty
understanding what the officers said to him, but he believes that one
of the officers said, ``Algerians go back to Algeria.'' Mr. A was
shackled hand and foot and held in a room together with an Iraqi man
who was also shackled. An INS officer came into the room and asked Mr.
A if he spoke English. Mr. A indicated that he did not, but a second
officer said that Mr. A did speak English but did not want to talk. Mr.
A reported that the first INS officer seemed very angry at him.
Mr. A reports that he was taken by the first officer to a room
where his handcuffs were removed. There was still no interpreter
present. The INS officer told Mr. A to write down his name, and began
typing into a computer. With his limited English, Mr. A repeated that
he wanted asylum. Pursuant to expedited removal procedures, this should
have resulted in a referral to a credible fear interview unless it
became apparent from follow-up questions that the reason for his fear
was totally unrelated to the refugee definition. Instead of being
referred, the officer reportedly told him several times, ``[t]onight,
you go back to China'' (the country he had transited immediately before
his arrival in the United States). When Mr. A said he would be killed
if he was returned to Algeria, the INS officer said that he did not
care. Mr. A was upset and crying. When the officer briefly left the
room, Mr. A grabbed a coffee cup, broke it against the desk, and
stabbed himself in the abdomen, causing a deep wound. He then began
slamming his head into the table. INS officers came into the room and
restrained him. An incident report prepared later that day by an INS
supervisor states that the stabbing occurred while the interviewing
officer was out of the room to obtain a telephonic interpreter.
Mr. A was taken to a hospital by ambulance, where he received
stitches in his stomach. After a few hours at the hospital, Mr. A was
brought back to the INS airport office for his secondary inspection
interview. Mr. A was exhausted and in pain. At this point an
interpreter was brought in, and Mr. A was interviewed by a different
INS officer in his native Arabic. At the conclusion of the interview,
Mr. A stated that he would be harmed if he was returned to Algeria. His
case was referred to the Asylum Office for a credible fear interview.
Mr. A was returned to the hospital, where he was seen by psychiatric
emergency staff. He spent the night at the airport, and was taken the
next morning to the INS office in San Francisco, then to Marin County
Jail.
Mr. A's credible fear interview took place February 14, 2000, in
San Francisco. The interview, conducted in his native Arabic, lasted
two hours and twenty minutes. Mr. A was found to have a credible fear
of persecution on account of political opinion. After spending
approximately five months in detention he was released from custody,
and was granted asylum in the summer of 2000.
Mr. C, an Egyptian Coptic Christian Asylum Seeker
Mr. C is a twenty-five year old Egyptian citizen who worked in
Egypt as an accountant and volunteered in a Coptic Christian church as
a bread baker in his spare time. He was active in the church and
identifiable as such in the neighborhood because he was in and out of
the church on a regular basis. His religion could also be easily
determined by his name. Mr. C was harassed and assaulted many times,
including one incident involving a serious beating. The State
Department has documented discrimination and other serious abuses of
Christians in Egypt.
Mr. C first came to the United States in mid-1998 on a tourist
visa. During this visit, Mr. C volunteered at a Coptic church as a
baker and worked at a restaurant for several months. In late 1998 he
applied for and was granted an extension of his authorized stay. When
his extension expired in mid-1999, Mr. C returned to Egypt. On his
return, a Muslim group sought to extort money from him in the form of
an unofficial ``tax.'' Mr. C was told that he either had to pay the tax
or convert to Islam. Mr. C reported that the group had identified him
as a target because he had traveled to the U.S. and was assumed to have
money.
As a result of these threats, Mr. C fled to the U.S. intending to
seek asylum, arriving at a New York-area airport in September 1999. Mr.
C was carrying his Egyptian passport with a valid tourist visa. He was
referred to secondary inspection, where he spent most of the next eight
hours shackled to a bench. A search of his belongings turned up a
Social Security card, and Mr. C admitted to having previously worked in
the U.S. without permission.
During his interview with an INS officer at secondary inspection,
Mr. C was asked whether he feared return to Egypt. Mr. C reported that,
as he attempted to explain the problems he faced from Muslims, the INS
officer interjected: ``I am a Muslim. What is your problem with
Muslims?'' Mr. C was taken aback by the officer's statement. He said
that he could explain but was concerned about his government finding
out about his claim to asylum. According to Mr. C, the INS officer then
told him that the INS would contact the Egyptian government about his
case. Both of these statements by the INS officer were highly
inappropriate, and made Mr. C extremely anxious, and he proceeded to
respond to questions with neutral, careful answers, making sure that he
said nothing disparaging of the government or about Islam. Intimidated
by the remarks of the INS officer, Mr. C said that he was not seeking
asylum. As a result, Mr. C was not referred to the Asylum Office for a
credible fear interview and was detained pending his imminent removal
from the United States.
While in detention, however, Mr. C telephoned his sister in Egypt,
and she informed him that the Muslim group had been looking for him
since he left. She urged him not to return, saying that it was not safe
for him in Egypt. Mr. C then contacted an INS officer at the detention
facility and explained that he was afraid to return to Egypt and wished
to seek asylum in the United States. Mr. C was referred for a credible
fear interview and was subsequently found to have a credible fear of
persecution. In February 2000, after five months in detention, Mr. C
was granted asylum by an immigration judge.
A, Y and W--Ecuadoran Asylum Seekers 23
Mr. A, an Ecuadoran businessman, went into hiding after giving
information to the police about a major crime in Ecuador. On July 1,
1995, gold and jewelry worth twenty billion sucres (five million U.S.
dollars) was stolen from an office of the Instituto Ecuadoriano de
Seguro (IESS), Ecuador's Social Security department. The press dubbed
the huge theft ``El Robo del Siglo'' (``The Theft of the Century''),
and a large reward was offered in return for information leading to the
discovery of the perpetrators. One of Mr. A's friends, Mr. Z, had some
contacts in the town where the theft had taken place, and they obtained
information about the perpetrators of the crime. Mr. A, Mr. Z and two
other friends (Mr. X and Mr. Y) promptly went to the National Police
and the IESS to report what they had learned.
About a month later, the four men began to receive anonymous
threats over the phone and by mail. Mr. A received three such phone
calls. He was told that he would be killed because he had given
information about the theft to the police.
In March 1996, acting on the information provided by Mr A and his
friends, the police arrested a number of suspects and charged them with
participation in the theft. The suspects included a police officer and
a well-known gang leader (who was later released). Two other police
officers were implicated but never indicted. Following the arrests, Mr.
X was attacked by unknown assailants, stabbed repeatedly with a
machete, and left for dead. He was found and taken to the hospital.
Upon Mr. X's recovery, he fled Ecuador and went to Colombia; Mr. A has
not heard from him since.
After this incident, Mr. A and his other friends went into hiding.
Mr. Z eventually left for Belgium to seek asylum. Mr. A and Mr. Y hid
in the home of a relative, Mr. W. They soon began to receive
threatening notes and phone calls. They were afraid to report anything
to the police because police officers were involved in the theft. After
a few months, Mr. A and Mr. Y hid in another home located in a remote
area. Members of Mr. W's family were targeted for helping the two men;
one woman was attacked by three men while bringing food to the men in
hiding. After that attack, Mr. A, Mr. Y and Mr. W sought assistance
from the Comision Ecumenica de Derechos Humanos (CEDHU), a human rights
organization. They were advised to leave Ecuador. The CEDHU obtained
visas for the three men and made arrangements for them to travel to
England to seek asylum.
Mr. A and his two friends left Ecuador in mid-1997 with legitimate
travel documents and British tourist visas. Although their destination
was London, their flight had a stopover in Miami, Florida. Their flight
from Quito had been delayed, and they missed the connecting flight.
While the three men waited in the lounge for the next plane, Mr. A and
Mr. W were summoned over the intercom to an immigration office where
they were questioned about their travel plans. Mr. A explained that he
and Mr. W were on their way to London to apply for asylum. An
immigration officer told Mr. A that he did not believe that Mr. A had
an asylum case and accused Mr. A of lying. The officer inspected the
two Ecuadorans' documents. While Mr. A and Mr. W were being questioned,
their plane departed. Mr. Y, who had not been summoned, left on that
flight. He has applied for asylum in the United Kingdom, and his case
is under review.
Eventually, Mr. A and Mr. W were told that they would be allowed to
continue on to London. There were no other flights scheduled that day,
so they slept in chairs at the airport, under surveillance. The next
morning they were escorted aboard a flight to London.
In London, Mr. A and Mr. W were met by British immigration
officials and they requested asylum. A British immigration officer
examined their passports. Both passports had been stamped TWOV (Transit
Without Visa) by the INS in the United States. The immigration officer
explained that new laws in England prevented Mr. A and Mr. W from
applying for asylum because the TWOV stamp indicated that they had made
an entry in another country where they should have sought asylum. The
two men were told that they would be sent back to the United States
where they could apply for asylum. They were each given a document,
Notification to Third Country Authority, which stated that the bearer
had applied for asylum in the United Kingdom and his claim had ``been
refused without substantive consideration because there is a safe third
country'' to which he could be sent. They were told to present the
document upon arrival and were assured that they would not be deported
from the United States.
That same day, Mr. A and Mr. W were escorted onto a flight bound
for John F. Kennedy International Airport in New York. When they
arrived, they were taken directly to an immigration office at the
airport. Mr. A told an immigration officer that he wanted to apply for
asylum because he was in danger in Ecuador. He showed the officer the
British immigration document regarding their applications for asylum,
but he was told: ``We have a different policy here.'' Mr. A was
concerned and upset at the possibility of being returned to Ecuador. He
said that he wished to apply for asylum in the United States, as the
British officials had told him he would be able to do so, but he was
simply ordered to sit down. The two men were not allowed to make a
telephone call. An immigration officer informed Mr. A and Mr. W that
they were to be returned to Ecuador the next day.
The two men spent the night under guard at a nearby hotel; Mr. A
was given no food, was not allowed to bathe and was handcuffed to a
table next to the bed for the entire night. The next morning Mr. A and
Mr. W were escorted aboard a flight to Ecuador. During a stopover in
Miami, Mr. A explained his situation to some Spanish-speakers; they
gave him money and he placed a call to CEDHU in Ecuador. That
organization was able to make calls on their behalf to UNHCR in the
United States, but was unable to prevent their return to Ecuador. Based
on what they had been told in New York, the two men did not seek asylum
while in Miami because they believed they were not eligible. They were
returned to Ecuador. After his return, Mr. A fled once again. According
to the latest information received by the Study, Mr. A has pursued a
refugee status claim in a European country.
As an interesting postscript to this case, it should be noted that
one court in the United Kingdom has addressed the issue of whether the
United States is a safe third country, and has decided that it is not.
This decision was rendered in the case of another Ecuadoran asylum
seeker, Mr. Juan Carlos Paredes Naranjo, who was summarily removed from
the United States under similar circumstances to the applicants in the
case study described above.
Mr. Paredes Naranjo transited through Miami before he arrived in
the U.K. and requested asylum. He was not permitted to apply in the
U.K., but pursuant to the safe third country principle was returned to
the United States to seek asylum. When he arrived in Miami and
expressed his desire to apply for asylum, he was told that he could not
do so because he had already applied in the U.K. He was immediately put
on a flight to Ecuador. The U.K. court ruled that under these
circumstances it did not consider the U.S. to be a safe third country
as to Mr. Paredes Naranjo because it had sent ``him to another country
or territory [i.e. Ecuador] other than in accordance with the [Refugee]
Convention.
Non-Asylum Seekers
Although it has not been its main focus, the Expedited Removal
Study has also reported on the application of expedited removal to non-
asylum seekers, including citizens and those in possession of facially
valid non-immigrant visas.
Sharon McKnight--U.S. Citizen
On June 10, 2000, Sharon McKnight, a United States citizen, arrived
at New York's John F. Kennedy Airport on a flight from Jamaica. Ms.
McKnight, who had been in Jamaica for months to visit a sick
grandfather, was born in New York in 1965. She was referred to
secondary inspection because INS officials thought her passport was
fake. Ms. McKnight, who is said to have the mental capacity of a five
year old, was handcuffed and left overnight in a room at the airport
with her legs shackled to a chair.
Ms. McKnight's family members, who were very concerned about her
traveling by herself, were at the airport to greet and accompany her.
They became concerned when she did not appear for two hours, and
learned of her detention after making inquiries. They produced a birth
certificate, but INS officials deemed that to be fake as well. Family
members stayed at the airport until the next morning, pleading for her
release, but Ms. McKnight was returned to Jamaica on a morning flight.
Upon her arrival there, she was able to find her way to the home of a
relative after baggage porters at the airport donated her bus fare.
The INS asserted that the photograph in Ms. McKnight's passport had
been replaced. An INS assistant area port director told a reporter:
``Obviously, we would not send a U.S. citizen back under any
circumstances.'' An INS public affairs officer later said that McKnight
had told inspectors that she was born in Jamaica, was coming to the
U.S. to work and that her passport had come from a relative. ``Based on
all the evidence they had, the inspectors at Kennedy Airport made the
reasonable decision that she was not admissible to the United States,''
he said.
Ms. McKnight's mother, Eunice Benloss-Harris, said: ``They were
asking her a lot of questions she cannot answer. She can't even read or
write. This is a disgrace.''
Ms. McKnight returned to the U.S. on June 18, with the assistance
of New York Representative Michael Forbes, after her status as a U.S.
citizen was confirmed in a meeting with the U.S. Consul General in
Jamaica and reviewed by State Department officials in Washington, D.C.
INS officials met McKnight at the airport as she disembarked, and
apologized. ``We believe the individual is a U.S. citizen,'' Mark Zorn,
an INS spokesman, told a reporter. ``We personally regret the
circumstance that led to this situation and any harm this situation
unduly caused the individual and the family.'' At an airport news
conference, McKnight stated: ``They treated me like an animal .... I
will have nightmares all my life.'' Id.
Mr. G.P.--Holder of a Facially Valid Non-Immigrant Visa
Mr. G.P., a Venezuelan national, was a long-term employee of F
Corporation, a multinational corporation doing business in the U.S. and
several other countries, and served as F's District Manager of Sales at
F's Miami, Florida offices. Mr. G.P. obtained an L-LA visa, which
permits certain non-U.S. citizen employees of multinational
corporations to enter and temporarily stay in the United States as
intracompany transferees. Between March 1996, and July 1996, Mr. G.P.
traveled between Venezuela and Miami on numerous occasions without
incident. In July, 1996, Mr. G.P.'s inspection was deferred. The
immigration officer conducting the deferred inspection concluded that
Mr. G.P.'s documents were proper and that he should be admitted.
Thereafter, Mr. G.P. made several entries into the United States
without incident.
On June 15, 1997, Mr. G.P. arrived at Miami International airport
and presented the same documents he had presented in the past-a valid
Venezuelan passport with an unexpired L-1A visa. However, this time,
Mr. G.P. was questioned by immigration officials, detained at the
airport overnight, and then returned to Venezuela the next morning. He
was issued an expedited removal order, as he was deemed to have an
immigrant intent. Under the order, Mr. G.P. would be barred from
entering the U.S. for five years.
The immigration officer's denial of admission on the basis of Mr.
G.P.'s immigrant intent was clearly erroneous. Although the L-IA visa
is a non-immigrant visa, it permits dual intent; i.e., it explicitly
allows the individual to qualify for the visa even though he may have
immigrant intent. F Corporation filed a complaint against the INS and
the Attorney General to the Miami U.S. District Court, alleging, among
other things, that the expedited removal order issued by the defendants
violated the immigration stature and relevant regulations.
After spending over $50,000 in attorney fees, F Corporation reached
a settlement with INS whereby INS re-issued Mr. G.P. a valid visa and
canceled the order of expediting removal against him. In addition, INS
agreed that any computer-generated advisories concerning Mr. G.P.'s
previous visa cancellations would be removed from its databases.
22. the general accounting office's studies of expedited removal
Congress has twice directed the General Accounting Office (GAO) to
carry out evaluations of the expedited removal process. Neither of its
studies have adequately answered questions or alleviated concerns
regarding improper or erroneous decision-making in the expedited
removal process.
Congress' first request for a GAO study was included in IIRAIRA
itself, and directed the GAO to determine, among other issues, ``the
effectiveness of such procedures in processing asylum claims by
undocumented aliens who assert a fear of persecution, including the
accuracy of credible fear determinations.''
The GAO's March 1998 report, produced in response to the
congressional request, principally examined INS management controls
over the expedited removal process, reported on a range of INS
expedited removal statistics, and compared the expedited removal
process to previously existing exclusion procedures. The GAO declined
to evaluate the accuracy of credible fear determinations, stating that
it did not possess the legal expertise to carry out such an assessment.
The GAO also declined to engage in a meaningful amount of on-site
observation which would have allowed it to assess INS compliance with
controlling laws and policies, as well as to evaluate qualitative
aspects of the expedited removal process, such as the availability and
quality of translation.
In the fall of 1998 Congress requested a second GAO study; this
request was included in the International Religious Freedom Act of 1998
(IRFA), and directed the GAO to answer four specific questions
regarding expedited removal:
whether INS officers improperly encourage asylum seekers to
withdraw applications for admission;
whether INS officers fail to refer asylum seekers to credible
fear interviews;
whether INS officers incorrectly remove asylum seekers to
countries where they may be persecuted; and
whether INS officers improperly detain asylum seekers or
detain such persons under inappropriate conditions.
The four questions addressed all phases of the expedited removal
process, and demonstrated a concern about possible INS misconduct, as
well as the potential for erroneous decision-making. The first and
second questions focused on the implementation of expedited removal at
the ports of entry where immigration officers make decisions whether to
refer asylum seekers to credible fear interviews, and, as question one
itself reflects, where the opportunity exists for the officers to
pressure asylum seekers to withdraw their requests for admission,
rather than to pursue their claims. The third question constituted an
inquiry into all phases of the expedited removal process, from ports of
entry, through asylum officer and immigration judge decisionmaking on
credible fear, and asked whether the process as an integrated whole is
likely to render incorrect decisions which could result in the return
of asylum seekers to persecution. The fourth question focused
specifically on detention issues, and asked whether asylum seekers who
qualify for release nonetheless remain in detention, and whether
persons who are detained are held in suitable conditions.
Prior to embarking on its study, GAO apprised the relevant
congressional committees it would not attempt to directly answer the
questions set forth by Congress in IRFA because it did not have the
legal expertise, feasible methodology or resources to do so. In an
effort to be what GAO has characterized as ``reasonably responsive'' to
the questions, GAO proposed to the congressional committees an approach
which focused primarily on INS management controls over the expedited
removal process. The GAO's proposal also included an analysis of
certain statistics on expedited removal and detention, as well as an
evaluation of specified aspects of detention.
The GAO released its second report on expedited removal in
September 2000. Nothwithstanding its intention to be ``reasonably
responsive'' to the questions posed by Congress, its report leaves all
four questions largely unanswered. Nonetheless, the GAO did report on a
number of specific aspects of expedited removal which heighten existing
concerns regarding expedited removal. The GAO's findings included the
following:
In a random sample of fiscal year 1999 expedited removal
files, in 2% of the cases, a fear was expressed but there was
no referral to a credible fear interview. If this random sample
is representative, as many as 900 persons in fiscal year 1999
may not have been referred despite expressing a fear. A
breakdown by port indicates a failure to refer rate at JFK
which could be as high as 6%.
A random sample of withdrawal associated with three specific
ports of entry indicated that a significant percentage of
persons (as high as 21 %) were not asked the ``three fear
questions'' which are part of required procedure to assist in
the identification of asylum seekers.
A failure to establish nexus between the persecution and one
of the five statutory grounds (race, religion, nationality,
political opinion or membership in a particular social group)
was the basis for denial in 44 of the 45 cases the GAO examined
in which there was an adverse credible fear determination.
Nexus determinations can involve highly complicated factual and
legal issues, and the credible fear interview, which is not
intended to be a full asylum hearing, may not be an
inappropriate venue for making such complex decisions.
There is a higher likelihood of a negative credible fear
determination at some asylum offices than at others, which
raises the question as to whether adjudication standards are
applied uniformly.
District directors do not appear to be consistently applying
INS policy and parole criteria, which may result in non-uniform
parole decisions in the cases of asylum seekers.
Conditions varied in the detention facilities, as well as at
ports of entry, resulting in asylum seekers receiving widely
disparate treatment depending solely on the location of their
detention and the degree of a particular facility's compliance
with standards. In violation of INS, American Correctional
Association (ACA) and United Nations High Commissioner for
Refugees (UNHCR), detained asylum seekers are not segregated
from the criminal population.
VI. Conclusion
April 2001 marked four years since the implementation of expedited
removal. The number of annual expedited removals may well be
approaching 100,000, and if past trends are any indication, 99% of
those individuals are removed without any further process. Researchers,
refugee advocates, and the media have all reported on a disquieting
number of cases involving 21 asylum seekers and non-asylum seekers
alike who have not been processed in accordance with the law. In some
instances, the reported cases have indicated a failure of protection to
asylum seekers even where there has been compliance with the law, which
raises questions as to whether the procedures themselves are adequate.
Congress has reasons for serious concerns as to whether its objectives
of deterring fraud while protecting bona fide refugees, and other
individuals legitimately seeking admission to the U.S. are being met.
Chairman Brownback. I appreciate your study and your
information. I look forward to working with you to answer
questions about the expedited removal procedure.
Ms. Young?
STATEMENT OF WENDY A. YOUNG, DIRECTOR OF GOVERNMENT RELATIONS,
WOMEN'S COMMISSION FOR REFUGEE WOMEN AND CHILDREN, WASHINGTON,
D.C.
Ms. Young. Good afternoon. On behalf of the Women's
Commission for Refugee Women and Children, thank you for the
opportunity to testify regarding the detention of asylum
seekers. I also wish to submit my full written testimony to the
record.
Chairman Brownback. It will be in the record, without
objection.
Ms. Young. Thank you.
The Women's Commission has assessed detention conditions in
35 facilities across the country. We have found that asylum
seekers often endure arbitrary and prolonged detention in
conditions that undermine the U.S. commitment to refugee
protection. Such individuals come to the United States
expecting refuge. None expect imprisonment.
Immigration detention has become the fastest growing prison
program in the United States. The INS detains 20,000
individuals a day, for an annual total of over 200,000.
Approximately 5 percent of the detained population are asylum
seekers. Women constitute 7 percent and children 3 percent.
Statistics related to detention, however, are difficult to
pin down because of the INS' poor data collection. In fact, the
INS has failed to comply with a statutory provision which
requires annual reports on detention data to Congress.
What has been extensively documented are the harsh and
inhumane conditions of detention. All the facilities used by
the INS are prisons or the equivalent. Fences, cells, and
locked doors define the detainees' living space. In fact, the
term ``detention'' itself is misleading. ``Incarceration''
better reflects the experiences of asylum seekers.
Moreover, detained asylum seekers have suffered sexual,
physical, and verbal abuses, commingling with criminal
offenders, handcuffing and shackling, inadequate health care,
poor translation services, insufficient outdoor recreation, and
a lack of appropriate religious services.
Detention also impedes legal representation, which is
critical to the success of an asylum claim. More than twice as
many detained asylum seekers lack representation as compared to
non-detained asylum seekers in removal proceedings. And
represented asylum seekers are 4 to 6 times more likely to win
their asylum claims than those who are unrepresented.
Two examples demonstrate some of the problems in detention.
First is sexual abuse at the Krome Detention Center in Miami,
where women detainees have accused 15 officers of rape,
molestation, and harassment. INS officers made false promises
of release to women if they cooperated. They threatened them
with deportation, transfer to county jails, or even death if
they dared to resist. Instead of placing the women in an
appropriate alternative to detention, the INS has responded by
transferring them to a county prison, where many new problems
have arisen.
The treatment that some religious programs have received in
detention centers serves as a second example. In 1999, the INS
Newark District canceled an arrangement with Jesuit Refugee
Services to provide religious services in the Elizabeth
Detention Center. Among the INS' reasons was that a Bible study
reading had been based on the gospel of Matthew, which preaches
``welcoming the stranger.''
The prisons and jails with which the INS contracts and
which provide approximately 60 percent of INS detention space
presents special problems because they are not designed to meet
asylum seekers' legal and social service needs.
It is also critical to address the situation of children in
detention, as Senator Feinstein has pointed out. The some 5,000
unaccompanied children in INS custody each year range in age
from 18 months to 17 years old. The INS experiences an inherent
conflict of interest with children it holds, as it is acting as
their caregiver at the same time that it is seeking their
deportation.
While the INS does maintain approximately 600 shelter and
foster care beds, it holds approximately one-third of children
in juvenile jails for periods ranging from a few days to more
than a year. Furthermore, less than half of the children in INS
custody are represented by counsel. U.S. immigration law also
fails to provide for the appointment of guardians ad litem, a
regular practice in other court proceedings.
The INS has recently developed standards for conditions of
detention, an acknowledgment that detention practices should be
consistent and facilities held accountable. However, the
standards are fundamentally flawed because they are non-
binding, only the INS is monitoring their implementation, and
it has only recently begun the process of applying the
standards to prisons with which it contracts. They also do not
apply to facilities in which children are detained.
The fundamental question, however, is why is the INS
detaining asylum seekers in the first place. It has stated that
its policy should normally be to release asylum seekers who
have established a credible fear of persecution, but many INS
districts continue to detain asylum seekers for prolonged
periods, sometimes years. The disparity between the national
policy and local implementation is due to the tremendous
discretion to parole asylum seekers delegated to district
directors.
The success of pilot projects that have explored the
viability of alternatives to detention underscore the
irrationality of current practice. Such pilots have ensured
that asylum seekers appear for their hearings and that they are
treated humanely in the interim. Alternatives have also proven
to be much less costly.
In 1990, the INS implemented a pilot project known as the
Asylum Pre-Screening Officer Program. Under APSO, 97 percent of
paroled asylum seekers appeared for their hearings. In 1997,
the Vera Institute of Justice tested a supervised release
program in New York. The program resulted in up to a 93 percent
appearance rate, depending on the level of supervision. It also
cost 55 percent less than detention.
In 1999, the INS released 22 Chinese asylum seekers
detained in the county prison in rural Illinois to local non-
profit shelters. All but one of the participants remained in
the program, resulting in a 96 percent appearance rate.
And, finally, New Orleans Catholic Charities has housed
more than 34 formally detained asylum seekers in shelters, none
of whom have absconded. The shelters cost the INS one-sixth the
cost of detaining individuals in prisons.
In conclusion, asylum seekers will remain vulnerable to
arbitrary detention unless Congress mandates a rational parole
policy, alternatives to detention, and the restoration of due
process.
We recommend the enactment of legislation that establishes
that U.S. policy is generally not to detain asylum seekers;
that delegates the authority to parole asylum seekers or to
place them in a detention alternative to asylum officers and
immigration judges; that mandates the establishment of
alternatives to detention; and that provides government funding
to facilitate legal orientation sessions.
In addition, Congress should move quickly to pass S. 121,
the Unaccompanied Alien Child Protection Act, which addresses
the critical custody, care, and assistance needs of
unaccompanied children.
I would like to submit an excellent op-ed by Senator
Feinstein from today's Oregonian regarding S. 121 in the
record.
Chairman Brownback. Without objection, it will be in the
record.
Ms. Young. Thank you.
Depriving an individual of her freedom is one of the
gravest actions a government can take. We believe that Congress
must take the lead in restoring accountability, consistency,
and compassion to U.S. detention policy. Thank you for holding
this important hearing.
[The prepared statement of Ms. Young follows:]
Statement of Wendy A. Young, Director of Government Relations and U.S.
Programs, Women's Commission for Refugee Women and Children
I. Introduction
Good afternoon. My name is Wendy Young. I am the Director of
Government Relations and U.S. Programs for the Women's Commission for
Refugee Women and Children, a nonprofit organization which seeks to
improve the lives of refugee women and children around the world by
acting as an expert resource and engaging in a vigorous program of
public education and advocacy. On behalf of the Women's Commission, I
would like to thank you, Mr. Chairman and members of the Subcommittee,
for the opportunity to testify regarding the detention practices of the
Immigration and Naturalization Service (INS) and their impact on women
and children seeking asylum.
In 1996, the Women's Commission launched an assessment of detention
conditions in the United States that has included visits to
approximately 35 detention centers around the country and interviews
with dozens of detained asylum seekers, the organizations providing
them with legal and social services, and the INS and local government
officials charged with their care. We have issued seven reports
documenting widespread problems in the detention system that jeopardize
the United States' legal and moral obligation to offer refugee
protection.
In general, we have found that asylum seekers often endure
arbitrary and prolonged detention in conditions that fail to meet
international standards of refugee protection and basic standards of
decency and compassion. Some asylum seekers are women who have fled
gender-related persecution, including rape, female genital mutilation,
sexual slavery, honor killings, forced abortions, and forced marriages.
Some are children who have fled recruitment as child soldiers, child
marriages, forced prostitution, and child slavery. Some are survivors
of torture. Some are victims of religious, ethnic, or political
persecution. Virtually all have come to the United States expecting
refuge and freedom from persecution. Virtually none expected
imprisonment by the world's leading democracy and defender of human
rights.
II. Background
Immigration detention has become the fastest growing prison program
in the United States today. On any given day, the INS has approximately
20,000 individuals in detention, for an annual total of over 200,000.
The agency estimates that approximately five percent of detainees are
asylum seekers. Women constitute seven percent of the overall detained
population and children three percent.
The INS has reported that the average length of detention for
aliens in removal proceedings was 29 days in Fiscal Year 1999. However,
asylum seekers are often held for much longer. The Hastings College of
Law reported that the average length of stay in the INS New York
District, where large numbers of asylum seekers are detained, was 109
days. The Dallas Morning News recently reported that of the 851
indefinitely detained individuals in INS custody, defined as those in
detention for more than three years, 361 are asylum seekers.\1\ The
Women's Commission has interviewed many asylum seekers who have endured
detention for years; in one case, a Chinese woman had been held in
various facilities for almost five years before she was finally granted
asylum and released.
---------------------------------------------------------------------------
\1\ Dan Malone, ``More than 800 Detained Indefinitely by INS,''
Dallas Morning News (April 1, 2001).
---------------------------------------------------------------------------
Statistics related to detention, however, are very difficult to pin
down due to poor data collection. The INS, in fact, has failed to
comply with a statutory provision enacted as part of the Fiscal Year
1999 Omnibus Appropriations Act (P.L. 105-277) which requires annual
reports to the Judiciary Committees in the House and Senate data
pertaining to detained asylum seekers. This data is required to address
the number of asylum seekers in detention; countries of origin; gender;
ages; location of detention by detention facility; whether criminals
are detained in the same facility, and if so, whether they are
commingled with the INS detainees; the number and frequency of
transfers; the rate of release from detention for each INS district;
and a description of the disposition of detainees' asylum cases. The
first report under this provision was to be submitted on October 1,
1999, but it is our understanding that the INS has yet to release even
this initial report.
The cost that detention represents to U. S. taxpayers is extremely
high. In interviews with facility administrators, the Women's
Commission found that the INS is paying anywhere from $41 to $156 per
day per detainee. In the case of local and county prisons, the INS
typically pays the facility twice the rate it is paid for the
incarceration of criminal inmates, even though such facilities rarely
provide services to INS detainees beyond those provided to the criminal
inmates.
III. Conditions of Detention
The Women's Commission has evaluated the following conditions in
facilities which it investigated: the physical settings used to detain
asylum seekers; the treatment that women receive from INS and prison
staff and criminal inmates; the availability of translation services;
health care; recreation and access to the outdoors; the availability of
spiritual support and religious services; and the availability of legal
services.
In recent years, the INS has developed approximately 35 standards
that address conditions of detention ranging from attorney access to
grievance procedures. These standards represent a critical
acknowledgement by the agency that detention facilities should be
consistent in their practices and held accountable to certain minimal
standards. However, the standards are fundamentally flawed in several
key areas. First, they are non-binding and serve only as guidelines.
Second, the INS itself is charged with monitoring their implementation.
Third, the INS has only recently begun the process of applying the
standards to the county and local prisons with which it contracts,
meaning that the majority of INS detainees continue to be held in
facilities that fall outside the scope of the standards. And finally,
the standards are based in large part on the standards used by the
American Correctional Association, standards which were developed with
a criminal population in mind, and not asylum seekers.
types of facilities used to detain asylum seekers
All of the facilities that the INS uses for detention are prisons
or the equivalent. Locked doors, cells or institutional dormitories,
hi-tech security systems, and concertina wire fences define the
detainees' living space. On many levels, the term ``detention'' itself
is misleading; ``incarceration'' and ``imprisonment'' better reflect
the experience of asylum seekers held in the custody of the INS.
The INS uses four types of facilities to detain asylum seekers. The
agency operates nine of its own detention centers, known as ``Service
Processing Centers.'' Second, the INS contracts with for-profit
correctional companies that have benefited from the national trend to
privatize prisons and have also found it lucrative to manage facilities
that house only immigration detainees. Such facilities are known as
``contract facilities.'' Third, the INS jointly manages two facilities
with the Bureau of Prisons (BOP) and accesses other federal prisons as
needed. Finally, the majority of INS detention (approximately sixty
percent) is provided by county and local prisons from which the INS
rents bed space for detainees as needed.
The prisons and jails with which the INS contracts, of which there
are hundreds, present special problems. Such facilities are
fundamentally designed to punish criminal offenders and protect the
surrounding communities, neither goal of which is compatible with
meeting the critical legal and social service needs of asylum seekers.
Staff in such facilities is typically not aware of nor trained in
the special needs of asylum seekers. Many local officials interviewed
by the Women's Commission expressed surprise upon learning that
individuals in their care were seeking refugee protection and had not
been convicted of any crimes. This can result in serious
misunderstandings. For example, an asylum seeker may exhibit symptoms
of Post Traumatic Stress Disorder that the prison staff perceive as
behavioral problems meriting discipline rather than psychological
support.
Even after learning that asylum seekers lack criminal records,
prison officials often are reluctant to differentiate among populations
in the facility. The warden of the Turner Guilford Knight Correctional
Center in Miami-Dade County recently stated, ``I can't treat the INS
people differently. I'll have problems, and remember, I have 1,200
inmates in here.'' The York County prison warden observed, ``The worst
thing that you can do in a prison is separate a group out for special
care.''
Moreover, delegating the daily care of asylum seekers to local
facilities, create a new level of bureaucracy. This often results in
difficulties in addressing complaints about abuses and other problems,
as the INS will place responsibility on local officials and vice versa.
INS officials at all levels frequently refer to themselves as
``guests'' of the prisons and declare themselves unable to influence
prison policies, completely disregarding the fact that the INS retains
custody of the individual, that the prison is under contract with the
INS and therefore should be held accountable for meeting certain
standards, and that the INS is paying local governments significant
amounts of money to detain individuals.
Detainees are frequently commingled with criminal inmates, despite
the fact that they have not committed a crime themselves. Women are
more likely than men to be commingled with the general prison
population. Because they are fewer in number, the INS often cannot
afford to rent a separate cell pod for the female detainees. The women
report being terrified of the criminal inmates, who often harass the
INS detainees.
Many detention centers are overcrowded. In the York County Prison,
INS-detained women frequently sleep in the gymnasium, due to a lack of
bed space. Overcrowding at the Krome Service Processing Center is a
chronic problem which forces detainees to sleep on temporary cots
squeezed in between the permanent beds. Attorneys reported that when
the facility is overcrowded, systems fail to keep pace, resulting in
attorneys waiting hours to see their clients.
treatment of detainees by ins officials and prison staff
While many INS and prison officers treat detainees in their care
with respect, professionalism, and compassion, there are also frequent
reports of abuses and harassment. Detainees whom the Women's Commission
has interviewed have reported verbal, physical, and sexual abuses;
frequent pat, strip, and cavity searches; handcuffing and shackling;
and excessive use of solitary confinement for minor infractions of
facility rules.
The treatment that women detainees have received in the Miami INS
District is perhaps unrivaled in the seriousness of the abuses
reported. For years the Krome Service Processing Center in Miami has
been plagued with chronic problems and been the target of multiple
federal investigations. In May 1999, controversy surrounding the
facility again erupted when 20 separate allegations of sexual abuse by
at least 15 Krome officers surfaced.
Reported sexual abuses ranged from rape to sexual molestation and
harassment. Women who cooperated in sexual activities were made false
promises of release from detention. Threats of deportation, transfer to
county jails, or even death were leveled at women who dared to resist
or complain of abuses. While not all of these activities involved women
asylum seekers, it is disturbing to note that such abuses had been
reported as far back as 1990, and no follow up action was taken.
Furthermore, physical and emotional abuses against women have also been
reported, including officers demanding that Muslim women asylum seekers
remove their veils before eating and denying the women meals when they
refused to unveil.
The Department of Justice has launched an investigation into Krome.
One officer has been indicted for rape. It is critical, however, that
the investigation not be allowed to drag out or fail to result in
either criminal prosecution or disciplinary action against those
officers shown to be involved. Unfortunately, that was the result of
past investigations; some of the very same officers accused of sexual
misconduct in 1990 were allegedly involved in the most recent abuses.
Of grave concern in the meantime is the actions that have been
taken by the INS to address the Krome problem. The Women's Commission,
the Florida Immigrant Advocacy Center, and other advocates urged the
INS to remove women from Krome and to develop an appropriate
alternative to detention, such as shelter care in the community. While
the INS did remove the women from Krome, it chose to transfer them to
the Turner Guilford Knight Correctional Center, a nearby county prison.
Conditions in the prison have failed to meet the most basic needs of
women asylum seekers.
Male detainees have also been the targets of abuse in some
facilities. After a riot broke out in the Esmor Detention Center in
Elizabeth, New Jersey due to poor living conditions,\2\ male detainees
were transferred to the Union County Jail, also in Elizabeth. Officers
there then tortured the detainees by forcing them to put their heads in
the toilet, pulling their genitals with pliers, and ordering them to
engage in sexual acts. Four of the guards were convicted and six others
pled guilty to criminal charges of abusing the detainees.\3\ In the
Jackson County Jail, the Florida Immigrant Advocacy Center reported
that male detainees were shocked with stun guns, beaten, cursed,
targeted with racial slurs, and placed in solitary confinement for
requesting medical care or food.
---------------------------------------------------------------------------
\2\ Esmor was shut down after the riot and then later reopened
under new management. It is now known as the Elizabeth Detention
Center.
\3\ Ronald Smothers, ``3 Prison Guards Guilty of Abuse of
Immigrants,'' The New York Times (March 7, 1998), p. A1.
---------------------------------------------------------------------------
Women interviewed by the Women's Commission frequently reported
callous behavior by prison guards and INS officers. In the Elizabeth
Detention Center, a woman asylum seeker from the Democratic Republic of
Congo described being dragged across the floor by INS officers when she
resisted being taken to the airport for deportation. She told the
Women's Commission that the officers laughed at her when her pants
began to fall off due to the rough handling. Haitian asylum seekers
detained at the Turner Guilford Knight prison began to cry as they
described the humiliation of being transported in handcuffs and
shackles, and stripped and cavity searched upon their arrival at the
prison.
translation services
The lack of readily available translation services is a pervasive
problem in detention centers. Generally, the INS only provides
interpretation during emergencies or medical examinations, and that is
typically by telephone. Otherwise, it relies heavily on detainees to
translate for each other.
The inability to communicate compounds many of the problems faced
by detainees, particularly those individuals who speak uncommon
languages. For example, it exacerbates their fears about detention and
the status of their asylum cases. It also results in an inability to
request medical assistance or to report other problems. It leads to
unnecessary disciplinary actions due to detainees' confusion about the
facility regulations. Finally, it interferes with detainee's access to
the few services available to them, because detainees remain unaware of
the existence of such services or are unsure about how to request them.
A Burmese woman asylum seeker in the Turner Guilford Knight
Correctional Center was unable to communicate with INS officers and
prison guards. The prison guard in charge of her cell pod persistently
called her Chinese, unaware even of the woman's nationality. The woman
had been there for several weeks with no information about her case.
She struggled to communicate with the little Chinese and English that
she was able to speak.
The lack of translation services can also interfere with detainees'
legal representation. The Elizabeth Detention Center, for example,
recently informed attorneys that they could no longer meet with two
detainees simultaneously, which in the past had facilitated detainees'
ability to translate for each other during interviews or intakes.
Furthermore, with the exception of ``know-your-rights'' presentations
and initial screening interviews when portable telephones are made
available, no telephones are regularly available in the attorney-client
rooms. This makes it impossible at other times for attorneys to obtain
telephonic translation, for example during intakes or interviews. The
Catholic Legal Immigration Network, Inc. (CLINIC) reported that during
a recent intake, it was only able to communicate with three asylum
seekers out of the nine interviewed. It was unable, for example, to
communicate with nationals from Iraq and Algeria due to language
barriers.
Furthermore, there are no translation services available in
Elizabeth to assist non-English speaking or illiterate asylum seekers
in completing their I-589s, the form required to raise an asylum claim.
CLINIC reported that immigration judges posted to the facility have
told such detainees that they must either return with a completed form
or they will be ordered removed from the United States at their next
hearing.
Similar issues were recently raised by an immigration judge posted
to the York County Prison in Pennsylvania. Immigration Judge Walt
Darling indicated his intent to order the INS to provide an interpreter
to assist unrepresented aliens in completing their immigration
forms.\4\ The INS General Counsel responded by noting, ``It is the
position of the Service that provision of interpreter services to
unrepresented aliens is a conflict of interest for the Service.
Furthermore, there is no legal authority for the Government to provide
such services. Just as the alien has the right to representation in
immigration hearings, but the Government is without authority to
provide this representation, so too may the alien obtain interpreter
services at his or her own expense.'' \5\
---------------------------------------------------------------------------
\4\ Letter from the Honorable Walt Darling to INS Philadelphia
District Counsel Kent Frederick (July 17, 2000).
\5\ Letter from INS General Counsel Owen B. Cooper to The Honorable
Walt Darling (July 25, 2000).
---------------------------------------------------------------------------
INS and prison officers alike are often dismissive of the need for
translation services. In the Wicomico County Jail in Salisbury,
Maryland, an INS officer observed that he
believed that sign language was adequate to communicate with INS
detainees. The prison warden in the same facility said, ``The language
barrier isn't a big problem. The detainees know what's happening.''
health care
The inability to communicate, combined with the slow or
inappropriate response of some facilities to medical complaints, has
led to disturbing instances of serious medical problems being ignored
or mismanaged by both INS and prison authorities. In other cases, the
stress and trauma of prolonged detention have caused individuals to
develop physical and mental health problems.
The Public Health Service (PHS) provides medical services in INS
Service Processing Centers and contract facilities. In most of the
prisons with which it contracts, the INS utilizes the health services
provided to the criminal inmates. Often, these services are provided by
outside medical contractors. These services typically do not include
medical staff trained to care for patients from different cultures.
Moreover, there is frequently a lack of female medical staff. This can
undermine the treatment of women detainees, many of whom come from
cultures in which it is considered inappropriate to reveal sensitive
medical information to male strangers.
A Colombian woman asylum seeker detained in the Krome Service
Processing Center was diagnosed with a stomach tumor. Despite the
severity of her illness, the INS handcuffed and shackled her on the way
to the hospital. She was then chained to the hospital bed. When the
woman asked the INS officers to remove the chains, she reported that
they responded with abusive language. She also reported that when her
family tried to visit her at the hospital, the INS denied that she was
there. The woman later told a fellow detainee that she would rather die
than return to the hospital.
Women at the Turner Guilford Knight Correctional Center complained
that after their transfer, the prison medical staff greatly reduced the
dosage of psychotropic drugs that had been prescribed to them while
they were at Krome. The sudden change in medication led to drastic mood
changes and the detainees' hospitalization. Other women reported that
their drugs were administered erratically and several hours behind
schedule.
Many women whom the Women's Commission interviewed complained that
they were experiencing physical ailments because of their prolonged
detention. This included chronic stomach problems, such as nausea,
heartburn, and diarrhea; dizziness; high blood pressure; irregular
menstrual cycles; and significant weight changes. In some cases, women
had been prescribed drugs to address their conditions but were ignorant
of the nature and properties of the drugs.
Asylum seekers who have fled violence and persecution in their
homelands frequently are in poor health when they arrive in the United
States. In addition, they may be suffering from Post Traumatic Stress
Disorder or other mental health problems. It is critical that they be
provided prompt, adequate, and culturally appropriate medical care.
recreation and access to the outdoors
Detainees universally report boredom and listlessness as a result
of the lack of recreational activities and outdoor access in detention
centers. They frequently spend their days lying in bed or watching
English-language television. Reading materials are also usually only in
English.
Access to the outdoors is severely limited in most detention
centers, as minimal as one hour per week. Many facilities offer only
rooftop exercise areas or walled areas covered by mesh fencing, through
which little natural light filters. Many facilities also lack or have a
minimal number of windows, adding to detainees' physical malaise'and
disorientation.
Some detainees have also reported that they do not avail themselves
of outdoor exercise even when available. Sometimes this is because they
are confused about the rules. Sometimes they fear intermingling with
the criminal inmates. In other cases, they are subject to strip or pat
searches upon re-entering and prefer not to endure that humiliation.
Experience has shown that activities and outdoor access can make
detention more tolerable. Several women, for example, expressed their
appreciation at being detained in the minimum security portion of the
York County Prison, where a large grassy outdoor area is available to
the women throughout the day. They compared it favorably to being
housed in the maximum security portion of the prison, where outdoor
access is more limited, and to both the Elizabeth and Wackenhut
Detention Centers (from which many women are transferred back and forth
from York), where the outdoor areas are walled and fenced.
availability of spiritual support and religious services
Religious services in the prisons with which the INS contracts are
generally made available through a facility's existing chaplain's
office. Services for certain denominations are therefore readily
available, while services for religious sects that are less common in
the United States are unavailable or have to be arranged. Of particular
concern is the fact that INS Service Processing Centers and contract
facilities as yet fail to provide chaplains, although the INS has
expressed interest in developing such programs.
Also troubling is the treatment that some religious programs have
received in INS centers. In November 1999, the INS Newark District
abruptly cancelled an arrangement with Jesuit Refugee Services (JRS)
under which JRS was providing religious services and English classes.
The INS's stated rationale for the cancellation was the fact that a
Bible study reading had been based on the gospel of Matthew 25, which
preaches ``welcoming the stranger.'' The INS believed that this
discussion would provoke unrest among detainees. It also criticized the
programs for allowing detainees to speak about their concerns about
detention, an obvious focus of conversation given the stress caused by
detention. Despite repeated requests by JRS to renew the programs, the
INS declined to do so and instead arranged for another program to
replace JRS. The new religious service providers has signed an
agreement that stipulates that it will refrain from discussing
detention with detainees and that an INS officer will be present at all
religious sessions.
Religious service providers who visited women asylum seekers at the
Turner Guilford Knight prison told the women that they would not return
after their first visit, because it was so difficult to gain access
into the facility. Among the problems they confronted was the lack of
space for such services. They were forced to use a small attorney-
client visit room. This dual usage also disrupted legal services, since
it is the only such room available.
There are also disturbing instances of proselytizing in some
prisons. In the Hancock County Justice Facility in Bay St. Louis,
Mississippi, three Chinese women asked the Women's Commission
delegation to let the American public know that they could be released
because they now believed in Jesus Christ. The head chaplain in the
York County Prison opposed efforts of local advocates to achieve
release of Chinese detainees, arguing that the detainees should first
convert to Christianity, then agree to deportation in order to carry
Christianity back to China.
Other detention facilities have made a concerted effort to provide
a variety of religious services and sources of spiritual support.
Detainees often find such support critical to their ability to cope
while in detention.
visitor access
Detainees frequently report a sense of isolation, confusion, and
helplessness while in detention. They are typically cut off from
relatives, friends, agencies, and individuals willing to assist them
and act as a source of support. Factors which hinder the ability of
such parties to visit detainees include the remote locations of many
detention centers, limitations on phone calls, frequent transfers of
detainees from facility to facility, limited visitation hours, and the
slowness of some facilities to locate detainees when visitors request
to see them. Other limitations include restrictions on who can visit a
detainee. The Wicomico County Jail in Salisbury, Maryland, for example,
will not allow minors under age 18 to visit inmates or detainees, even
if the requested visit is with a parent.
The recent experience of a Colombian woman transferred from the
Turner Guilford Knight Correctional Center in Miami to the York County
Prison exemplifies the isolation experienced by detainees. The woman
was separated from her husband, who was detained in the Krome Service
Processing Center. Three days after her detention began, she was
transferred to the York County Prison. INS officers refused to tell her
where she was being taken.
The woman's husband, meanwhile, was released from Krome and
traveled to Pennsylvania to visit his wife and bring her documents
which the INS told her would be required for her parole. His request to
visit her was refused. However, he was able to submit the requested
documentation. His wife was told that she would be released in two
days. Instead, however, the woman was transferred back to Miami. Her
husband was waiting to visit her, but the INS refused to allow her to
speak with him to inform him of her upcoming transfer. As she was being
loaded onto a van for transport to the airport, she saw her husband in
the prison parking lot and began to cry. The driver allowed her to
speak to him from the van. The woman arrived back at the Turner
Guilford Knight Correctional Center at 2:30 am. Her husband is stranded
in Pennsylvania because he did not have enough money to return to
Miami. He also missed his own court date as a result.
different treatment accorded to women
Of particular concern to the Women's Commission is the disparity
that exists in some facilities between services offered to men and
women in detention. While detention of any asylum seeker often results
in barriers to services, abuses, and hardship, the Women's Commission
has documented several instances in which women were denied services
offered to male detainees held by the same INS district.
This discrimination appears to result from several factors. First,
there are far fewer women in detention than men. This difference in
numbers, for example, often means that INS-detained men are separated
from criminal inmates in the prisons the INS utilizes, whereas the INS
finds it hard to justify renting a separate cell pod for the handful of
women held in the same facility. This was the case in such prisons as
the Virginia Beach City Jail; the Kern County Lerdo Detention Center in
Bakersfield, California; the York County Prison in York, Pennsylvania;
the Berks County Prison in Reading, Pennsylvania; the New Orleans
Parish Prison; and the DeKalb County Jail in Atlanta, Georgia. At the
time of a Women's Commission visit to Puerto Rico, the INS district had
temporarily shut down the female wing of the Aguadilla Service
Processing Center, finding it cheaper to move the women to the federal
prison in San Juan.
The INS also used the relatively few number of women detained in
the Kern County Lerdo Detention Center as a justification to decline
bussing the women to meet with their attorneys in San Francisco, a
service it offered to male detainees in the same facility when vans
were travelling to the city for other reasons. This failure, however,
had a detrimental effect on the ability of the women to obtain adequate
legal representation. The prison is more than a five-hour drive from
San Francisco, a prohibitive commute for lawyers offering pro bono
services.
Women detainees also often come from cultures in which they are
taught not to question authority, and thus INS and prison officers
frequently describe INS-detained women as ``docile.'' This
characteristic, however, also means that the needs of women are easily
neglected. The male Chinese asylum seekers who arrived on the ship the
Golden Venture and were detained at the York County Prison, for
example, were provided arts and crafts materials. Chinese women
detained in the female wing, however, were not provided any form of
recreation to occupy their time.
Moreover, women are more at risk of certain abuses, including
sexual attacks. Officers at the Krome Service Processing Center appear
to have particularly targeted women detainees for rape and sexual
harassment and molestation. This abuse, furthermore, undermined the
women's access to legal representation. While it was critical to remove
the women from exposure to the exploitation they were suffering in
Krome, the INS chose to transfer the women to the Turner Guilford
Knight Correctional Center, which has greatly interfered with the
women's access to legal services. Local legal service providers are now
struggling to offer services in both facilities. They have also
reported that access to the prison is much more difficult than at
Krome. Moreover, the INS has discontinued transporting the women back
to Krome for their credible fear interviews before asylum officers
posted at Krome, instead relying on telephone interviews with the
women. Face-to-face interviews can fundamentally influence the outcome
of the interview, as asylum officers are better able to assess body
language and non-verbal cues.
IV. Legal Representation of Detained Asylum Seekers
Legal representation is critical to the ability of asylum seekers
to pursue their asylum claims. The immigration bar typically considers
asylum cases as among the most complex and time-consuming of the
various types of legal problems its members address.
Despite the critical need for assistance, however, the Institute
for the Study of International Migration at Georgetown University has
reported that more than twice as many detained asylum seekers lack
representation as compared to non-detained asylum seekers in removal
proceedings. Moreover, its analysis revealed that represented asylum
seekers are four to six times more likely to win asylum than those who
are unrepresented.\6\
---------------------------------------------------------------------------
\6\ Memo from Andrew Schoenholtz, ``Asylum Representation,''
Institute for the Study of International Migration, Georgetown
University (September 12, 2000).
---------------------------------------------------------------------------
Several problems endemic to detention hamper the ability of asylum
seekers to obtain representation. First, asylum seekers are often
dependent on pro bono or low-cost legal representation. However, such
programs are typically strapped for resources and struggling to meet
the needs of the entire detained population, which has soared
dramatically in recent years.
Moreover, the lists of pro bono and low-cost legal service
providers that the Executive Office for Immigration Review (EOIR) makes
available to detainees are frequently inaccurate. This, combined with
telephone systems that are often inadequate and expensive, makes it
difficult for asylum seekers to contact lawyers. In many detention
centers, moreover, a legal representative cannot leave messages for his
or her clients, forcing the service provider to visit the detention
center if he or she needs to communicate with the client. The INS has
moved toward programming telephones in Service Processing Centers and
contract facilities so that detainees can make toll-free calls to legal
services programs, an important step in facilitating the ability of
detainees to obtain counsel and remain informed about their cases.
A further barrier to legal representation is the remote location of
many detention centers, which deters attorneys from accepting detainees
as clients. Many facilities are located in rural areas far from the
legal services that are generally available in urban centers with
strong immigrant traditions. In addition, attorneys report that they
frequently have to wait hours before being allowed to see their
clients. The combination of long commutes and time wasted waiting to
speak to a client effectively means that attorneys may have to devote
an entire day to visit one client.
Furthermore, the INS regularly transfers detainees from detention
center to detention center for fiscal and logistical reasons. Detainees
therefore often end up in facilities hundreds of miles from their
attorneys. The INS typically does not provide prior notification to
attorneys before their clients are moved. The Women's Commission
tracked the case of a woman asylum seeker from Cameroon who was
transferred from the Wackenhut Detention Center in Queens, New York,
where she had been detained for several months, to the York County
Prison. Her attorney was not notified of the transfer.
Service Processing Centers and contract facilities often lack
adequate attorney-client visitation rooms, forcing attorneys to wait or
to visit with their clients in non-contact visitation booths via
telephone. In some centers, visitation rooms are also insufficiently
sound-proofed. For example, during a visit to the Krome Service
Processing Center, a Women's Commission delegation stood outside the
attorney-client visitation rooms. The delegation clearly overheard what
should have been a confidential conversation between an attorney and
his client, who was revealing sensitive medical information.
Finally, prisons occasionally pose special problems for attorney
access. For example, prisons have denied entrance to immigration
lawyers because they belong to state bars that do not issue bar cards.
A Women's Commission delegate who was a member of the New York State
bar, which does not issue bar cards, was delayed from entering the
Federal Detention Center in downtown Miami for almost two hours while
she argued with prison administrators about her lack of a bar card.
Prisons are also often unfamiliar with the concept of non-attorneys
representing detainees, as is the case with representatives accredited
by the Board of Immigration Appeals (BIA). The Virginia Beach prison
warden told an Amnesty International delegation in which the Women's
Commission participated that he would normally deny access to a BIA-
accredited representative, because he had never heard of such a
program. Prisons also sometimes fail to program telephone systems to
provide toll-free access to immigration pro bono programs, even when
such access is provided to criminal defense pro bono programs.
The Women's Commission is also concerned about the increasing use
of video teleconferencing to conduct immigration court proceedings.
Attorneys participating in such hearings have complained about
inadequate technology and the isolation of their clients, who often
remain in the detention center while the judge, interpreter, and even
the detainee's attorney are located in a different facility miles away.
Reliance on such technology may seriously jeopardize due process, as
detainees are confused and isolated throughout the conduct of the
proceedings, and cannot confer with their counsel.
We are encouraged by the INS's recent efforts to provide pro bono
and low-cost legal service providers access to Service Processing
Centers, contract facilities, and some prisons to offer group ``know-
your-rights'' presentations. Such programs have proven critical to
providing detainees with accurate legal information, to identifying
those detainees who are most in need of legal services, and in
rendering the immigration proceedings more efficient by encouraging
individuals with no relief available to them to accept removal.
In Fiscal Year 1998, EOIR funded a pilot project to test the
efficacy of ``know-yourrights'' presentations in three sites. In its
final report on the pilot, EOIR observed, ``the rights presentation has
the potential to save both time and money for the government while also
benefiting detainees. During the pilot, cases were completed faster and
detainees with potential meritorious claims to relief were more likely
to obtain representation.'' It also suggested that expansion of the
project should be explored.
Legal representation can make the difference between an asylum
seeker successfully winning her asylum claim or being returned to face
further human rights abuses in her homeland. Representation is also
perhaps the most vital link that a detainee can have to the outside
world. In addition to the critical role that attorneys play in
presentation of an asylum claim, they also can act as an intermediary
between the INS and the detainee. They also offer hope to a detainee, a
not insignificant function since many asylum seekers might otherwise
abandon their claims and agree to deportation.
V. INS Parole Policy for Detained Asylum Seekers
Theoretically, parole from detention is available to asylum
seekers. Such parole is allowed under sections 235(b)(1)(B)(iii)(IV)
and 212(d)(5)(A) of the Immigration and Nationality Act, which provide
for parole of aliens applying for admission to the United States on a
case-by-case basis for urgent humanitarian reasons or significant
public benefit. INS regulations further stipulate that certain
categories of aliens are eligible for parole, including but not limited
to pregnant women and juveniles.\7\ The INS itself has stated in field
directives that its policy should normally be to release asylum seekers
who have established a credible fear of persecution, a preliminary
screening standard that asylum seekers must meet under expedited
removal before they are allowed to pursue their asylum claims.\8\
---------------------------------------------------------------------------
\7\ 8 C. F. R Sec. 212.5.
\8\ Memorandum from Office of INS Deputy Commissioner,
``Implementation of Expedited Removal'' (March 31, 1997) (stating that
once an alien has established a credible fear of persecution, release
may be considered under normal parole criteria); Memorandum from INS
Executive Associate Commissioner for Field Operations, ``Expedited
Removal: Additional Policy Guidance'' (December 30, 1997) (stating that
parole is a viable option for aliens who have met the credible fear
standard); Memorandum from INS Executive Associate Commissioner for
Field Operations, ``Detention Guidelines'' (October 9, 1998) (stating
that it is INS policy to favor release of aliens who have been found to
have a credible fear of persecution).
---------------------------------------------------------------------------
However, despite such instructions from INS headquarters to its
district offices, many INS districts continue to detain asylum seekers
for prolonged periods, in some cases for years. The disparity between
the stated national policy and implementation at the local level is
attributable to the fact that tremendous discretion to parole asylum
seekers has been delegated to individual INS district directors.
Belying the soundness of these decisions is the fact that many such
asylum seekers are ultimately successful in their asylum claims. Sadly,
they may have endured years of unnecessary incarceration in the
meantime.
Despite repeated inquiries from advocates and others and the
submission of Freedom of Information Act requests by the Lawyers
Committee for Human Rights, INS headquarters has failed to provide the
national parole rate. Estimates have ranged from 10 to 40 percent.\9\
Disturbingly, the INS New York and Newark Districts, which host two of
the largest detention centers, and which are dedicated almost
exclusively to holding asylum seekers, are among the most restrictive
in terms of their parole of asylum seekers. The Hastings College of
Law's Expedited Removal Study found that those asylum seekers entering
through Kennedy Airport in New York have the highest average length of
detention in the country, at 124 days. Those arriving in Newark are
held an average of 86 days. Of the major ports of entry surveyed, San
Diego came in with the lowest average, at 11 days.\10\
---------------------------------------------------------------------------
\9\ See ``Refugees Behind Bars,'' Lawyers Committee for Human
Rights (August 1999), p. 25.
\10\ Karen Musalo, Lauren Gibson, Stephen Knight, and J. Edward
Taylor, ``Report on the First Three Years of Implementation of
Expedited Removal,'' Center for Human Rights and International Justice,
University of California, Hastings College of Law (May 2000), pp. 69-
71.
---------------------------------------------------------------------------
The Women's Commission's interviews with INS officials have
revealed tremendous differences in the stated rationale for decisions
to detain or parole asylum seekers. Some district officials cite
identity or security concerns. Others favor detention because they view
it as a legitimate enforcement tool to deter individuals from seeking
refuge in the United States. In a recent conversation, for example, a
high-level INS official in Miami told the Women's Commission to expect
parole rates in the district to drop because the district feared that
high parole rates were encouraging Colombians to seek entry to the
United States through the Miami International Airport rather than other
international ports of entry where parole rates are less generous.
Other INS officials have cited ``congressional intent'' as their reason
for denying release to asylum seekers. This appears to be especially
common in the INS New York District.
In some cases, the stated rationale for release is equally without
a sound basis. In 2000, the former Krome Service Processing Center
officer-in-charge admitted to the Women's Commission that his primary
reason for regularly paroling asylum seekers was the lack of detention
bed space in the district. While the limitations in space was resulting
in favorable release rates, he also indicated that he probably would
not maintain the existing parole policy if more bed spaces became
available.
While the Women's Commission did not focus on the merits of the
asylum claims of the women whom we interviewed, it was obvious that
many were strong candidates for release. We spoke to women from many
countries, the vast majority of which were experiencing armed conflict
and human rights abuses. Many women stated that they had fled torture;
threats to their lives; and persecution, including various forms of
genderrelated persecution. Moreover, many of the women were later
granted asylum.
VI. Alternatives to Detention
Pilot projects that have explored the use of alternatives to
detention for asylum seekers underscore the irrationality of U. S.
detention practices. Such pilots have demonstrated considerable success
in meeting the dual goals of ensuring that asylum seekers appear for
their immigration court hearings and that they are treated humanely
pending the outcome of those proceedings. They have also proven to be
much less costly than detention.
Such pilots date as far back as 1990 when INS headquarters
implemented a pilot to test what became known as the Asylum Pre-
Screening Officer Program (APSO). Under APSO, asylum seekers were
eligible for release if they met several criteria, including having a
credible asylum claim, evidence of their identity, a place to live, a
means of support, and legal representation. After APSO proved
successful in terms of both alleviating the harsh consequences of
detention on asylum seekers and freeing up INS detention space, the
agency attempted to implement the parole policy nationwide through non-
binding guidelines.\11\ Unfortunately, some INS districts failed to
implement the program adequately, and it gradually fell into disuse.
---------------------------------------------------------------------------
\11\ Memorandum from INS Commissioner, ``Pilot Project for Aliens
Seeking Asylum in ExclusionProceedings'' (April 27, 1990); Memorandum
from INS Commissioner, ``Parole Project for Asylum Seekers at Ports of
Entry and in INS Detention'' (April 20, 1992).
---------------------------------------------------------------------------
In 1997, the INS contracted with the Vera Institute of Justice to
test the viability of a supervised release program for asylum seekers
in the INS New York District. This project indicated that supervised
release met the INS's goal of tracking the whereabouts of asylum
seekers and ensuring their appearance at their asylum proceedings as
well as the humanitarian goal of allowing asylum seekers to live as
normal a life as possible while their proceedings are pending. The
findings of the Vera Institute clearly indicated that supervised
release of asylum seekers is a viable option; 84 to 93 percent of the
asylum seekers who participated appeared for their hearings, depending
on the level of supervision provided. In addition, the pilot found that
the cost of supervision of asylum seekers is 55 percent less than
detention.\12\
---------------------------------------------------------------------------
\12\ ``Testing Community Supervision for the INS: An Evaluation of
the Appearance Assistance Program,'' Vera Institute of Justice (June 7,
2000), pp. iii, 27.
---------------------------------------------------------------------------
In 1999, the INS transferred a group of Chinese asylum seekers from
Guam to a county prison in Ullin, Illinois after they had been
determined to have a credible fear of persecution. These asylum seekers
had originally been apprehended on the high seas after the Coast Guard
intercepted the smugglers who were attempting to bring the Chinese to
U.S. territory. After four months in jail in rural Illinois, the INS
negotiated with local service providers, under the auspices of the
Lutheran Immigration and Refugee Service and members of the Detention
Watch Network, to release the asylum seekers to local shelters, the
location of which was not revealed to protect the asylum seekers from
the smugglers to whom they owed debts. Approximately 22 Chinese were
released into the care of the shelters; all but one of them remained in
the program.\13\
---------------------------------------------------------------------------
\13\ Esther Ebrahimian, ``The Ullin 22: Shelters and Legal Service
Providers Offer Viable Alternatives to Detention,'' Detention Watch
Network News, Lutheran lmmigration and Refugee Service (August/
September 2000).
---------------------------------------------------------------------------
Finally, INS districts have also tested local alternatives to
detention in cooperation with charitable organizations. In New Orleans,
for example, Catholic Charities has housed more than 30 formerly
detained asylum seekers in non-secure shelter facilities. None of the
asylum seekers who have participated in the program have absconded.
Moreover, housing asylum seekers in the shelter costs the INS one-sixth
the daily average cost of detaining individuals in local prisons. One
INS official in New Orleans called it ``a great program.'' \14\
---------------------------------------------------------------------------
\14\ Joan Treadway, ``Program Helps Immigrants Find Jobs and
Shelter,'' The Times-Picayune (January 22, 2001).
---------------------------------------------------------------------------
These pilot projects clearly demonstrate that alternatives to
detention are both humane and cost-effective. They also meet the INS's
concern that asylum seekers appear for their proceedings. Moreover,
asylum seekers who are not detained are much more likely to obtain
counsel, a service critical to ensuring due process in an adversarial
court proceeding.
The INS itself has expressed a commitment to continuing to test
alternatives to detention. However, given the tremendous success and
consistent results already demonstrated in past pilots, the Women's
Commission believes that a national policy that embraces such
alternatives should be legislatively mandated and implemented
immediately.
VII. Children in INS Custody
In each of the past three fiscal years (1998-2000), the INS has
reported approximately 4,600 unaccompanied children in its custody.
Many such children are fleeing armed conflict and human rights abuses
in their homelands. Such abuses include recruitment as child soldiers,
forced prostitution, forced labor, child marriages, female genital
mutilation, and slavery. Other children have been abused, abandoned, or
neglected by their families, and thus may be eligible for Special
Immigrant Juvenile status. They range in age from 18-months-old to 17-
years-old, while approximately 60 percent of these unaccompanied
children eventually reunite with family members, the remaining 40
percent lack relatives in the United States.
Subsequent to a class action settlement agreement known as Flores
v. Reno (1997), the INS has opened nine shelters in which it houses
children in its custody. The majority of these shelters are
institutional in nature and offer an environment of soft detention. The
children's activities are closely monitored, the doors are frequently
locked or alarmed, and children are not allowed off the premises of the
facility unless accompanied by facility staff. However, the children
are allowed to wear street clothing, are offered educational classes,
and are not locked in cells or cell pods. Occasionally, they engage in
recreational or educational trips off-site in the company of shelter
staff. The INS also has an extremely limited foster care program,
generally used for young children, girls, or children with special
needs.
Unfortunately, the INS shelter and foster care system, which
consists of approximately 600 beds, has failed to keep pace with the
number of children in INS custody at any given time. As a result of the
lack of bed space in the shelters and sometimes questionable placement
decisions made by the INS, approximately one-third of children in INS
custody spend time in a juvenile jail, for periods ranging from a few
days to more than a year. The majority of these children have not
committed a crime of any sort. Despite this, they are housed in highly
punitive, restrictive settings; are sometimes commingled with youthful
offenders; are subject to handcuffing and shackling; and are forced to
wear prison uniforms. Children and their attorneys have reported
beatings and other abuses.
Staff in the juvenile jails are often ill-informed about the INS-
detained children and remain unaware of their legal, cultural, and
mental health needs. Educational programs are typically conducted in
English. Due to the remote location of many of the juvenile jails and
the general lack of awareness of children in INS detention, immigration
attorneys who can assist the children are often unavailable, resulting
in the questionable removal of children who might actually be eligible
for asylum or other forms of relief.
The INS experiences an inherent conflict of interest with children
in its custody the agency is acting as caregiver to children in its
custody at the same time that it is seeking their removal from the
United States. INS immigration enforcement concerns often result in
decisions, including placement decisions in the detention context, that
are not in keeping with the best interests of the child. Moreover, the
INS lacks the expertise to care for children.
This conflict of interest was recently exacerbated. In 2000, the
INS consolidated its children's programs under its Detention and
Removal branch. By doing so, it removed oversight of the children's
shelters from the Office of International Affairs, which was staffed in
part by child welfare professionals. The care of children is now lodged
with a branch overwhelmingly staffed by law enforcement officials who
specialize in detention and deportation and lack the expertise to
identify and address children's unique needs.
Also absent in the current system for children in INS custody are
professionals who can shepherd the child through his or her immigration
proceedings. Less than half of the children in INS custody are
represented by counsel. U. S. law also fails to provide for the
appointment of a guardian ad litem to unaccompanied children in
immigration proceedings, a regular practice in other court proceedings
affecting children.
The Women's Commission was pleased and encouraged by the INS's
issuance of Guidelines for Children's Asylum Claims in 1998. However,
the success of these guidelines in identifying and ensuring protection
of refugee children will hinge in large part on the adequacy of the
assistance they are provided to navigate U. S. asylum law. Children
must be provided the assistance of counsel to identify any relief for
which they may be eligible and to advocate for such relief in
immigration court. A guardian ad litem should be a child welfare
professional who can ensure that the child's best interests are
addressed by establishing trust with the child; identifying the
circumstances that provoked his or her departure from the homeland;
developing recommendations about the detention, custody and release of
the child; ensuring that the child understands the proceedings in which
he or she has been placed; and enabling the child to have his or her
own voice heard in the proceedings.
The recent handling of the case of an eight-year-old Nigerian girl,
who is currently detained in the Boystown shelter in Miami, Florida,
exemplifies the failure of the U. S. system to adequately protect
unaccompanied children in INS custody. Despite her young age, the girl
has been in detention since May 2000. The INS refused to allow the
young girl to go to juvenile court to determine if she has been abused,
abandoned, or neglected and is therefore eligible for long-term foster
care, a prerequisite requirement before a Special Immigrant Juvenile
visa can be pursued. In its denial, the INS claimed that the girl's
parents are attempting to commit immigration fraud, despite the fact
that both parents have explicitly stated that they no longer want the
child. The girl's attorney, therefore, has decided to file for asylum
before the immigration judge.
Despite a prior agreement to the contrary, the INS is challenging
the appointment of a guardian ad litem to the child. Furthermore, the
INS trial attorney argued in immigration court that the child's
attorney has no standing to represent the child, since the INS--as the
child's custodial ``guardian''--has not agreed to such representation
and is the only entity with the authority to appoint counsel. During
the hearing, the district counsel actually suggested that the Krome
officer-in-charge should represent the child. The case was continued
for the sixteenth time while the attorney briefs both issues.
Meanwhile, the child continues to suffer in detention, despite an
expert opinion from a social worker that her development and mental
well-being are deteriorating.
VIII. Recommendations
Prolonged detention frequently erodes the physical, mental, and
emotional health of asylum seekers. It also is an unnecessary waste of
taxpayer dollars and limited detention space. Asylum seekers will
remain vulnerable to arbitrary detention decisions by INS district
directors unless Congress mandates a rational parole policy,
alternatives to detention, and the restoration of due process.
Specifically, the Women's Commission for Refugee Women and Children
recommends that Congress expeditiously enact legislation that:
Establishes that the policy of the United States is generally
not to detain asylum seekers who have established a credible
fear of persecution, and that the parole of asylum seekers
provides a significant public benefit. This will help ensure
that parole decisions are not made arbitrarily at the sole
discretion of INS district directors.
Delegates the authority to determine whether to parole asylum
seekers or to place them in an appropriate alternative to
detention to asylum officers. Such decisions should be made
within one week after an asylum seeker submits a parole
request. Shifting parole authority away from the INS district
offices to asylum officers would introduce greater objectivity
into the decision-making process.
Permits review of a parole denial by an immigration judge
within 30 days. If the parole denial is upheld, the immigration
judge should provide the reason for such denial in writing to
the asylum seeker and his or her legal representative.
Establishing a system to review parole denials would introduce
accountability into the decision-making process. A written
decision would assist asylum seekers and their legal
representatives to prepare for renewed parole requests with
enhanced documentation and other evidence supporting parole.
Allows for a renewed request for parole if the asylum seeker
has new or additional information supporting the request. The
personal circumstances of the asylum seeker may change after
parole is denied. For example, a relative or other sponsor may
come forward and offer the asylum seeker a place to live.
Mandates the establishment of alternatives to detention, that
at a minimum include unsupervised release from detention;
supervised release under the auspices of private nonprofit
voluntary agencies with expertise in meeting the legal,
spiritual, cultural, and psychological needs of asylum seekers;
and nonsecure shelter care or group homes also supervised by
such voluntary agencies. The current detention system offers
only two options: detention or release. The development of
alternatives to detention would better assist the INS in
meeting the needs of asylum seekers while ensuring their
appearance at their proceedings. Alternatives to detention are
cost-effective and have been proven to work.
Mandates the development of regulations to both establish
standards for conditions of detention and create adequate
monitoring and oversight of their implementation. The INS has
developed standards to address conditions of detention.
However, they remain non-binding and are monitored and enforced
by the INS itself.
Provides government funding to facilitate ``know-your-rights''
presentations and legal representation to indigent asylum
seekers. Legal representation renders the asylum system more
efficient and ensures fairness in immigration proceedings.
In addition, Congress should move quickly to pass 5. 121, the
Unaccompanied Alien Child Protection Act. We urge the
subcommittee to conduct an oversight hearing on the bill as
soon as possible. Introduced by Senator Dianne Feinstein, this
critical legislation comprehensively addresses the custody,
care, and assistance needs of unaccompanied children and closes
procedural gaps in the current system that jeopardize their
protection. Among other important steps, S. 121 addresses the
current conflict of interest experienced by the INS, which is
simultaneously charged with caring for the same children it is
seeking to deport, by establishing a new Office of Children's
Services within the Department of Justice. It also calls for
the development of adequate shelter and fostercare. Finally, it
calls for the appointment of counsel and guardians ad litem to
unaccompanied children to ensure that their eligibility for
relief is adequately considered.
IX. Conclusion
Depriving an individual of his or her freedom is one of the gravest
actions a government can take. The degree of neglect and abuse that the
Women's Commission has documented in INS detention practices is
alarming. We believe that Congress must play an active role in the
design, implementation, and monitoring of U. S. detention policy. We
urge you to move forward with legislation that restores accountability,
consistency, and compassion to detention.
Thank you again for holding this important hearing. The Women's
Commission stands ready to work with your offices to assist in this
process.
Chairman Brownback. Thank you, Wendy. That was excellent
testimony, very thoughtfully put forward. I appreciate the
passage that you were talking about in Matthew, I believe it
was Matthew 25: where the Son of Man comes in his glory, and he
says he is going to judge all the nations and sort them into
sheeps and goats and say to the one group, ``Come join me,''
and to the other, ``I am not going to bring you here because
you didn't take care of me.'' and they will answer him, saying,
``Lord, when did we see you hungry or thirsty or a stranger or
naked or sick or in prison and did not minister to you?'' And
he will answer them saying, ``Assuredly, I say to you, inasmuch
as you did not do it to one of the least of these, you did not
do it unto me.''
They may have had quite a bit of wisdom. They were wanting
to read that. I might also add that was the passage I heard
read at Mother Teresa's funeral: the call to which she
dedicated her life.
Ms. Acer?
STATEMENT OF ELEANOR ACER, SENIOR COORDINATOR, ASYLUM PROGRAM,
LAWYERS COMMITTEE FOR HUMAN RIGHTS, NEW YORK, NEW YORK
Ms. Acer. Thank you, Chairman Brownback, Senator DeWine. It
is an honor to be here today to offer our views about U.S.
asylum policy. You have shown tremendous leadership in
protecting the rights of refugees.
My name is Eleanor Acer, and I direct the Asylum Program at
the Lawyers Committee for Human Rights. We have many serious
concerns about the impact of the 1996 law on the ability of
refugees to seek asylum in this country. I am honored today to
be joined by a number of refugees, three of whom will be
testifying before you shortly, and others who will be
identified during my testimony and who will be submitting
written statements to the subcommittee.
The expedited removal provisions of the 1996 law empower
INS inspectors--whose primary responsibility and training is in
border enforcement rather than adjudication--to order the
summary deportation of individuals arriving from abroad without
proper documents. Although anyone who expresses a fear of
persecution should under the law be referred to an asylum
officer for a credible fear interview, no outside authority
reviews these decisions. Immigration inspectors are, in effect,
given the power to act as judges.
While the INS has taken some steps to attempt to reduce the
possibility that genuine asylum seekers will not be deported
under these expedited procedures, those efforts have not
succeeded in preventing mistaken deportations and other abuses.
Indeed, mistakes are inevitable given the summary nature of the
procedures.
Expedited removal is a system that by its very design is
destined to fail. It lacks the procedural safeguards that are
necessary to ensure that legitimate asylum seekers are not
mistakenly returned to face persecution: access to legal
representation, appeal to an independent authority, the
provision of notice prior to proceedings, and provision of
qualified, independent translators.
A process that lacks crucial safeguards will not be able to
avoid mistakes. A Sudanese Christian woman was ordered deported
by officers at the Texas border. A Kosovar student was turned
away from a California airport, and another Kosovar refugee was
deported from Newark Airport.
Even U.S. citizens are not protected from these summary
procedures. Just last year, a disabled woman from Long Island
was detained at JFK airport, handcuffed, shackled, and deported
to Jamaica under expedited removal.
Given the dire consequences of a mistaken decision to send
someone back to a place where they might face persecution, the
fact that many genuine refugees do not speak English as well,
one would think that the airport procedures would require the
use of qualified interpreters who are fluent in an individual's
language of fluency. Instead, refugees have reported that their
requests for translators have been denied and that they did not
even understand the process that they were being subjected to.
I would like to ask Mekabou Fofana, a Liberian teenager, to
stand. Mekabou arrived at JFK airport 9 days before his 16th
birthday. Despite his request, he was not provided with a
Mandingo interpreter. When INS officers twisted his arm and
attempted to forcibly fingerprint him, he fell to the floor,
hitting his head and bleeding so profusely that he had to be
taken to the hospital. After a year and a half in detention in
adult facilities, he was granted asylum and is now attending
high school in New York City.
I would like to request that Mekabou Fofana's written
statement and the statements of the other refugees and asylum
seekers who I will be identifying shortly be included in the
record.
Chairman Brownback. Without objection.
[The prepared statement of Mekabou Fofana follows:]
Statement of Mekabou Fofana, Refugee from Liberia
Chairman Brownback and other Senators, thank you for the
opportunity to submit this statement about the experience of refugees
who seek asylum in this country. I am a refugee and I have been granted
asylum in the U.S.
I fled Liberia with my family as a young child. My family are
ethnic Mandingos. We were targeted by the rebel forces of Charles
Taylor because my father had supported the former president of Liberia.
My father was killed. My mother, younger brothers, and I fled to the
Ivory Coast. In 1999, two of my uncles were murdered and I was
threatened by men who recognized me as my father's son. I feared that
my uncles' murderers were with the former rebel movement of Charles
Taylor. I fled to the United States to seek asylum, and because I did
not have a passport from Liberia, I traveled on a false passport from
the Ivory Coast.
I arrived at JFK International Airport on July 11, 1999, nine days
before my 16th birthday. I spoke only a few words of English and could
not understand the INS officers who questioned me. Although I kept
repeating ``Mandingo, speak Mandingo,'' the INS did not call a Mandingo
interpreter. Instead, they brought an airline employee who spoke
French. I spoke very little French and could not understand the
translator. After the interview, I was given papers to sign. I refused
to sign the papers because I could not read them and did not know what
they were. I was then taken to be fingerprinted. I was frightened and
did not understand what was happening to me. One of the INS officers
grabbed my hand and tried to fingerprint me by force. I cried out, in
Mandingo, ``Don't force me, you are hurting me.'' I was crying. The
officer returned with four others. They grabbed me, twisted my arm, and
tried to fingerprint me. I fell to the floor and slammed my head
against the edge of a desk, cutting my head. One of the INS officers
stepped on my shoulder. I was bleeding a lot and could not see. I was
very scared and couldn't believe that they could hurt me like this in
this country. I was handcuffed and taken to the hospital where I got
stitches. I was afraid they would kill me in the hospital. My white
shirt was covered in blood. I was taken back to the airport and
shackled to a bench overnight. I still have pains in my head from that
time. I do not understand the way I was treated at the airport. Is this
what America is like?
The next morning I was taken to the Wackenhut detention center in
Queens, New York. I was held at the adult facility even though I was a
minor, because the INS claimed that they could tell I was over 18 from
a dental examination. I was detained at Wackenhut about six months. I
was very sad at Wackenhut because I was put with adults and wasn't
supposed to be with them. When I was very sick at Wackenhut and needed
help, I had to wait before seeing the doctor. The doctor did not ask me
what was wrong with me, but only gave me Ibuprofen. It made me feel
that he didn't care about me. Every night I had nightmares that I was
being deported.
I have family in New York. My uncle is a U.S. citizen. My aunt is a
legal permanent resident. My cousin was granted asylum. Even though I
have family here, I was not released on parole. I asked for parole
three times, but the INS denied it each time. While appealing the
denial of my claim, I was transferred to Lehigh County Prison, a
criminal prison in Pennsylvania--moving me far from my family and my
pro bono lawyers. I was detained there with criminals for one week. I
felt like I was treated like a criminal. I was the youngest one among
them and was very scared that the criminal detainees would hurt me. My
cellmate had killed someone and would tell me about the crimes he had
done. I was so afraid, I couldn't sleep at night. After I requested to
be moved, they changed me to another cell with INS detainees, where I
was for over a month. When I had medical problems at Lehigh, I made
many requests to see a doctor, but never had a response. It was not
fair for the INS detainees at Lehigh, because we were not treated like
human beings.
After my treatment was mentioned in an article in the New York
Daily News, I was transferred to York County Prison, another remote
detention facility in Pennsylvania. I was detained there about five
months. It was worse there than at Lehigh. They gave me a criminal
uniform, which was different from the ones for INS detainees, and held
me with criminals for one day. As I was transferred to my cell with INS
detainees, I was handcuffed, chained, and shackled like a criminal. I
was crying. One guard asked me why I was crying. I told him, ``I'm not
a criminal.'' I felt like my life was finished. I was too young to be
there. It was very hard to reach my family. I was sad that sometimes me
and other Muslims were not allowed to meet with an imam, a religious
leader, on Friday, our holy day. I thought that they should respect our
religion.
One day, I was told to pack my bags. I thought I was getting
paroled, but instead they transferred me to a detention center in
Welfare County, Pennsylvania. I was there for two days, and then was
transferred to Carbon County Prison. I was detained at Carbon County
for about nine months. While I was waiting to be transferred to my
cell, I was kept in segregation for one week. It made me feel like I
was going crazy, because I was so alone. While I was in segregation, I
couldn't call my lawyer or my family. After I was transferred to my
cell, I made many requests to go to English classes. It was only the
week before I was released, that I was finally able to go to class. I
was just happy to be able to pray every day.
I was finally granted asylum in December 2000, after a year and a
half in detention. I couldn't believe I would be released and was very
happy. Even after I was released and was free, I would dream that I was
still in detention. I am now living in New York City and am going to a
local high school. I like school and am doing well. I like America,
because I know that here, my life is protected.
Thank you, Senators, for listening to my story. Please change the
law so that refugees are guaranteed hearings in front of a judge and
are not detained and not held with criminals.
Ms. Acer. I would like to ask Nusret Curumi, an Albanian
asylum seeker, to stand. Mr. Curumi arrived at O'Hare
International Airport in Chicago last year and was dragged by
his clothing by INS officers after he explained that he wished
to apply for asylum. Despite his requests he was not provided
with an Albanian interpreter whom he could understand, and INS
officers yelled at him when he refused to sign documents in
English that he could not understand.
[The prepared statement of Mr. Curumi follows:]
Statement of Nusret Curumi, Refugee from Albania
In August of 2000 I fled my native Albania seeking safe haven and
freedom of expression and political belief in the United States. In
Albania I was arrested, threatened with death, beaten and tortured
after I criticized the government for refusing to return money I had
invested in a government sponsored pyramid scheme. The officers who
arrested me, threatened to ``cut out my tongue'' for speaking against
the government.
When I arrived in the United States, I was shocked by what happened
to me. My problems began at the O'Hare International Airport in
Chicago. When I arrived and went through the immigration line, the INS
officer who checked my passport asked me where I was going. I couldn't
understand her. She called several other officers over. I immediately
told the immigration officers as best I could in the little bit of
English that I know that my passport was false and that I wanted
asylum. Shortly afterward, four to five INS officers dragged me by my
clothes and forced me into a room where they searched me without giving
me any explanation of what was happening to me other than to say that I
must talk now.
The officers asked me what languages I spoke. I told them that I
spoke Albanian and a little Italian. One officer knew some Italian, and
asked me what I was doing in the United States. I tried to explain to
him that I left Albania because the regime there was communist. The
officer told me that ``ironically, it's also communist here.'' When he
said that, I was afraid to respond to him and feared that he would beat
me. ``You're going to sign here,'' he told me. I did not understand the
document he showed me, so I wouldn't sign it. The officers continued to
try to force me to sign the document in that room, but it was written
in English and there was no Albanian translation, so I could not
understand what it said. I was afraid; I didn't know what signing that
statement would do. I feared that it could mean that I would be
returned to Albania, where I could be jailed, tortured or killed. I
kept telling them ``no.''
After three to four hours of this, the officers finally got a
translator on the telephone. However, I couldn't understand the
translator well, as he sounded like he was Kosovar and spoke with an
entirely different dialect than I speak. Every once in awhile I
understood a word that he spoke, but I did not understand him well
enough to know what was happening to me. To make matters worse, I could
barely hear him, as he was working from his home and the conversation
was continually interrupted by children who were yelling and arguing in
the background. I tried to tell the translator that I could not
understand him. I asked him to come to talk to me in person so that I
could see him and ask him to repeat things I didn't understand. He told
me that he was too far away and could not do that. I told him that I
didn't understand the document they wanted me to sign. The translator
told me that the officers were ``doing their job'' and that I should
just sign the statement. ``How can I sign it, when I don't know what it
says?'' I asked him.
When I continued to refuse to sign the statement, the four
officers, three uniformed and one in civilian clothes, stood me up and
surrounded me. They all yelled at me for approximately one half hour,
though I could not understand what they were saying. I said nothing
except to try to explain in Italian, why I feared returning to Albania.
When I still refused to sign the statement, one of the officers,
without any explanation, took off my shoes and belt and pushed me into
a room with two other detainees, four beds and one small window. I
couldn't see outside, but thought that the officers might be observing
me from the outer room. I was very afraid that I would be sent back to
Albania.
After about a half hour, the officers returned and brought me out
to a different room, this time they gave me a blank piece of paper and
told me just to write my name down. I don't understand whether they
were just showing me what they wanted or whether they were trying to
get me to sign. It wasn't clear. Either way, I was afraid that if I
signed a blank piece of paper, the officers could write down anything
they wanted and claim that I had knowingly signed it. I refused again.
They had contacted the same Kosovar translator. I told him that I was
exhausted from my trip and needed to sleep.
The officers put me back in the room for about 45 minutes. Just as
I started to fall asleep, one of the officers entered the room abruptly
and took me back out into the room with the translator to try to get me
to sign the document. I then refused to sign the document for the fifth
time. 45 minutes later, I was taken to another room.
Before I arrived at the airport, while I was in transit in Italy, I
had called my family to tell them that I was on my way to the United
States. As soon as he heard, my brother, Fatos, made the trip from
Baltimore to Chicago to meet me at the airport. He arrived several
hours after my flight landed. When he got to the airport, he looked
around for me. Fatos was very concerned and asked a woman at the
arriving flights information desk what had happened to me. She thought
that I had been taken into INS custody, wrote down the telephone
number, called it and gave Fatos the phone. Fatos spoke to the officer,
gave his name, explained that he was looking for me and asked if they
had any information. The INS officer told Fatos, ``Yeah, we've got
him.'' When he learned that I had entered without a valid visa, Fatos
asked what he should do, the INS officer told him ``Nothing. Go home.''
and hung up.
Fatos waited a few minutes, went outside the airport and called
back. An officer told him, ``Your brother has an attitude. He won't
sign the papers.'' Fatos told him this was because I didn't know what I
was signing. He offered to look at the papers so he could tell me
whether or not to sign them. The officers told him that he couldn't
come in because I was in a restricted area. He asked to speak with me.
They told him ok, but said that I couldn't speak back to him. Then they
told Fatos, ``Just tell him to sign.'' Fatos told the officer that he
couldn't do that and again hung up. Finally he called back again and
asked the officers to come outside to talk with him. When they came,
they just told him to tell me to sign the paper. During all this time,
no one mentioned anything about my right to seek asylum. It was Fatos,
who came here several years ago as an asylum seeker, and has now won
asylum, who told the officers that I should have a lawyer with me and
that I had a right to ask for asylum. They said, ``Yeah, but he has to
sign first.'' They said that if I didn't sign, they would send me back
to Albania.
My brother said that he would tell me to sign the document only if
it was translated into Albanian. The officers went to the room where I
was being held and left Fatos outside where he called in to speak to
me. Fatos told me that if the document was written in Albanian to read
it carefully and to sign it. He didn't know that the document was in
English. I did not sign it. At that point, my brother left to find a
hotel and a lawyer and I remained in INS custody.
I spent that night in a locked room with the two other people who
seemed to be in the same situation as I was. The next morning, two
officers searched me and put me in a van. No one told me where I was
being taken. It was the van driver who told me in Italian that I was
going to a detention facility. I was taken to the Broadview detention
facility where I spent the next three days, after which I was taken to
jail. Still, no one ever told me if I had any rights or that I could
ask for asylum. I was constantly very afraid that I would be returned
to Albania. I learned what would probably happen next, not from any INS
official, but from other Albanian INS detainees in the jail. They told
me that I would probably have an interview where I could explain why I
was afraid to return to Albania. I was kept in that jail for 10 days
before I had that interview with INS. The same translator who I had not
understood before was again used at my interview with the asylum
officer.
Once I was finally able to explain my situation to an Asylum
Officer, I was held in INS custody for another 14 days even though my
brother was willing and anxious to support me and take me to my
hearings. When Fatos spoke to INS Detention officers about this they
told him that the problem with my release was that officers at the
airport had written that I had an ``attitude'' problem and refused to
sign the documents they had given me. It was only after numerous phone
calls made by my brother Fatos and his girlfriend, who is a U.S.
citizen, that I was able to be released. Even when the officer told my
brother that I would be released, he said that he couldn't tell him
when.
I don't understand why the INS treated me the way they did. I don't
believe that it is right that they should try to force me to sign a
document without translating it first. I was afraid during the entire
ordeal with U.S. immigration that I would be sent back to be tortured
and killed in Albania.
Even though I am only an Albanian and a refugee in this country, I
hope you will believe me. You may not understand how things are in
Albania or what happened to me when I arrived in the United States. In
order to get a valid passport in Albania, I would have had to pay more
than $12,000; money I don't have. This is how corrupt the Albanian
government can be. I was desperate. I was afraid for my life. I had to
flee. I could not have gotten a passport legally even if I had the
money because I would have risked being arrested and beaten by
government officials for trying to leave the country. There weren't
very many options for someone in my position.
Ms. Acer. Many who seek asylum in this country are
survivors of torture. Dr. Allen Keller, the director of the
Bellevue NYU Program for Survivors of Torture, has prepared
written testimony on behalf of his program, as well as
Physicians for Human Rights and the National Consortium of
Torture Treatment Programs. In that testimony, he details the
difficulties that torture survivors face in speaking about
their persecution and the difficulties that they face under
expedited removal, as well as under the 1-year filing deadline
and detention practices. I would like to request that Dr.
Keller's statement be made part of the record as well.
Chairman Brownback. Without objection.
[The prepared statement of Dr. Keller follows:]
Statement of Allen S. Keller, M.D., c/o Division of Primary Care
Medicine, New York University School of Medicine, New York, N.Y.
On behalf of the Bellevue/NYU Program for Survivors of Torture, the
National Consortium of Torture Treatment Programs and Physicians for
Human Rights, I am submitting this statement in strong support of the
Refugee Protection Act. This legislation is essential in addressing the
ill effects of current immigration policy, which fundamentally
undermines the rights and safety of refugees and asylum seekers coming
to this country seeking protection.
I have more than 15 years experience in working with and caring for
refugees and asylum seekers. In 1985, I worked as a medical volunteer
with the American Refugee Committee in a refugee camp along the Thai-
Cambodian border. I am the founder and director of the Bellevue/NYU
Program for Survivors of Torture. This program is jointly sponsored by
New York University School of Medicine and Bellevue Hospital, the
nation's oldest public hospital. The Bellevue/NYU program provides
comprehensive medical, psychological care and social services to
victims of torture and refugee trauma. Since the program began in 1995,
we have cared for nearly 600 men women and children from over 50
different countries.
I am on the Executive Committee of the National Consortium of
Torture Treatment Programs. This consortium consists of 23 treatment
centers throughout the United States who provide care to survivors of
torture and refugee trauma. The oldest torture treatment center in the
United States is the Center for Victims of Torture, which was started
in 1985 and is located in Minneapolis, Minnesota.
I am on the international advisory board of Physicians for Human
Rights (PHR). PHR has a network of health professionals who voluntarily
provide medical and psychological evaluations for survivors of torture
and other human rights abuses applying for political asylum in the
United States. I have participated in this asylum network since 1992
and have conducted nearly 100 evaluations of asylum seekers. I have
also participated in a number of PHR investigations including
documenting the medical and social consequences of land mines in
Cambodia (1993), a high incidence of torture among Tibetan refugees who
fled to Dharamsalla India (1997), and patterns of human rights abuses
among Kosovar refugees (1999).
Torture is a worldwide health and human rights concern and is
documented to occur in more than 90 countries worldwide. Survivors of
torture arriving in this country have been persecuted for daring to
question ruling powers, for expressing religious beliefs, or simply
because of their race or ethnicity. For example, among the patients I
have cared for are monks and nuns from Tibet, student leaders from
Africa, and ordinary citizens from Bosnia.
Torture can have devastating physical and psychological
consequences. I have seen the scars from shackles, the marks from
cigarette burns inflicted during interrogation and the wounds and
broken bones from severe beatings. I have listened to stories of shame
and humiliation, of haunting nightmares, and memories that will not go
away. One patient of mine, for example, who was repeatedly submerged in
a vat of water while being interrogated, would feel like he was gasping
for air whenever he showered or went out in the rain.
As a physician caring for survivors of torture and refugee trauma,
I am very concerned about the current immigration policy of expedited
removal, which provides for the immediate deportation of individuals
who arrive without valid travel documents. Not surprisingly, torture
victims often have to flee their countries without such documents since
it is the torturers who control them.
I have come to appreciate the extraordinary difficulty asylum
seekers and refugees have in recounting their traumatic experiences,
even months or years after the events took place. Individuals may have
difficulties remembering all of the specific details of their trauma,
either because they are trying to block out these disturbing memories,
or because they may have been subjected to extreme conditions such as
repeated episodes of torture/abuse, imprisonment under poor conditions
(including deprivation of sleep, light, and food), which may make it
difficult for them to remember all of the details. Individuals may feel
very anxious about not being able to remember everything. Additionally,
individuals may have suffered neurological impairments such as
cognitive deficits or hearing/visual loss from head trauma, or they may
be experience significant physical symptoms such as musculo-skeletal
pain from prior beatings, which impedes on their ability to effectively
communicate.
Describing prior disturbing events under any circumstances can
evoke symptoms of anxiety including fear, nervousness, palpitations,
and dizziness. In fact, one of the hallmarks of Post-Traumatic Stress
Disorder, which is a form of anxiety, is a trying to avoid thinking
about the traumatic events. Furthermore, individuals may have strong
feelings of shame and humiliation in recounting certain events such as
sexual assault. Also individuals may have feelings of guilt from having
escaped while friends and family did not. Individuals who recount
events subsequently often have difficulty sleeping and recurrent
nightmares of the events.
For these reasons, many individuals want to avoid discussing their
trauma. An asylum seeker may find recounting events to an immigration
officer, immediately upon arrival after a long and difficult trip and
in a foreign language, often without assistance, to be particularly
stressful. A refugee's inability or extreme reluctance to tell of their
experience under such circumstances is understandable. Unfortunately,
such reluctance can be mistaken for a lack of credibility, especially
by someone who does not have experience evaluating survivors of
torture. Under current immigration policy, which allows for expedited
removal, I am concerned that survivors of torture and other traumatic
events are being turned back by INS inspectors at airports or other
points of entry.
The current law requiring individuals to apply for asylum within
one year of arriving in this country also poses an unfair burden on
asylum seekers. Many of the individuals I have evaluated and cared for
are not aware of this policy. Others are not able to testify within one
year because of the psychological and emotional consequences of their
abuse.
For example, one woman I cared for before the 1996 law went into
effect was arrested in her country after participating in a pro-
democracy demonstration. During the course of her incarceration, she
was repeatedly raped by police, who told her they were ``going to teach
her a lesson for participating in such activities.''
She once told me that she wasn't going to apply for asylum because
she couldn't bear to have to tell her story. It was only after a
trusting, therapeutic relationship with her was established that she
was able to reveal the events of her abuse. It would have been
psychologically devastating for her to have to recount these events
immediately upon her arrival in this country, or even within a year of
arrival. In all likelihood, she would have been unable to meet the one-
year filing deadline.
Another area of concern with current immigration policy is
imprisoning arriving asylum seekers in INS Detention Facilities,
including county jails, pending adjudication of their asylum cases.
This can often take months or years. Prior to being transferred to
detention facilities, asylum seekers are often held at airports for
several hours in hand cuffs and leg shackles. Individuals are
subsequently kept in these restraints while being transported to
detention facilities and at other times as well, including, in some
instances, during their asylum hearings. Imprisonment and treating
asylum seekers like criminals is retraumatizing and can have harmful
effects on their physical and emotional well being. Many of the INS
Detention Centers are windowless warehouses with little or no
opportunity for detainees even to see the light of day. Imprisonment
and such deprivation can result in exacerbating disturbing memories and
nightmares of abuse the asylum seekers had suffered previously.
Depression can be caused by detention and feelings of isolation,
hopelessness and helplessness.
Asylum seekers may experience worsening of physical symptoms,
including musculoskeletal pain, because of their restricted activity.
Somatic symptoms, such as headaches, stomach aches and palpitations can
also result from detention.
For example, Patrick is a young man from an African country. He
witnessed his father beaten and killed for being a member of an
opposition political party. Patrick was subsequently imprisoned and
repeatedly tortured. He later escaped, and eventually made his way to
this country. An INS asylum officer interviewed him. Patrick was tired,
scared, and neither spoke English well nor adequately understood the
process. The asylum officer wrongly concluded--in an interview
conducted without an interpreter that Patrick was not from Congo
because he could not speak French. The INS ordered that Patrick be
deported. An immigration judge--in a ``review'' in which Patrick was
unaided by counsel or an interpreter--failed to correct the asylum
officer's mistake. Subsequently, Patrick was shackled and placed on a
plane back to his country. As he was being dragged onto the plane he
was crying and saying, ``Please, America is a human rights country. Why
do you want to deport me? I don't want to be killed.'' Fortunately for
Patrick, the plane's pilot heard his cries and refused to take off.
Shortly after that incident, I examined Patrick in an INS Detention
Facility. He had scars from where the shackles had been applied both in
his country as well as ours. Subsequently, he remained in detention for
more than 3 years. During that period, Patrick suffered from
significant periods of depression and anxiety, for which he was
inadequately treated. He frequently experienced extreme difficulty
sleeping and nightmares of the abuse he had suffered in his country. He
also frequently suffered from muscle aches, headaches and palpitations.
I believe these symptoms resulted from his imprisonment here.
After more than three years, Patrick was granted asylum and
released. He is now working and making productive contributions to our
society, though he still experiences nightmares and disturbing memories
both of the abuse he suffered in his native country as well as his
imprisonment upon arrival in our country.
Another asylum seeker detained by the INS, whom I recently
interviewed, had been brutally beaten by authorities in his native
country because of his ethnicity. ``I came to America to be free,'' he
told me. ``I came here to find peace and to live in peace. I never
expected to be put in jail. They don't call it jail, they call it
detention. But it is jail. Being in this jail reminds me a lot about
what happened to me in my country. If I were free, I could be doing
normal activities and I wouldn't think so much about what happened. I'm
not saying these things would be eliminated, but I would feel much
better because I am a free person.''
While in INS Detention, many asylum seekers are held in county
jails, again demonstrating that asylum seekers are treated like
criminals. Many asylum seekers have never been in prison before.
Furthermore, authorities in detention facilities utilize segregation
(solitary confinement) or the threat of segregation as a means of
behavior control. This is particularly cruel given that many
individuals who were imprisoned and tortured in their own countries may
have been placed in solitary confinement as part of their abuse.
One detainee I interviewed described this: ``I saw an officer
searching the bags of one of the detainees. Another detainee asked the
guard not to search the man's bag without him being there. The officer
called another officer and they took the detainee who had objected to
the search away. He was in segregation for 3 days. I felt very sorry
for that man. They showed him no respect. This is not how to treat
another human being, and certainly no reason to put him in segregation.
It made me sad and worried for myself. Could something like that happen
to me?''
Another detainee I interviewed recounted this event. ``One day, a
guard was doing a bed count in my bunk. One of the other men in the
bunk asked him why they were doing that since they had just counted.
That was all he said. The guard came back with several other guards,
put my bunkmate in handcuffs and took him away. He was there for four
days. There are some people in isolation for a month or a month and a
half.'' They subsequently had a hearing, and realized he hadn't done
anything wrong and released him. But that was after four days. The
guards like to threaten people with segregation. People get very scared
of segregation because it is a room where you are by yourself, and it
is small and very cold.''
Treating individuals who have suffered horrific human rights abuses
like criminals is morally reprehensible and can have harmful effects on
their health. Furthermore, while in detention, asylum seekers often
have difficulty accessing health services, particularly mental health
services, which are essential to their recovery from the traumatic
events they have suffered.
Among the individuals being detained in these adult facilities are
children, who given their youth, may be even more vulnerable to the ill
effects of detention including worsening of symptoms of depression and
anxiety. Furthermore, it is troubling that the INS is relying on dental
x-rays to make determinations of the age of individuals. Such
examinations are subject to variability. Even in the case of the most
skilled individual performing age determination, the age range
specificity is fairly wide and may be plus or minus 3 years or more for
individuals between 16 and 18 years old.
The Bellevue/NYU Program for Survivors of Torture, in collaboration
with Physicians for Human Rights, is currently conducting a study
evaluating the health status of asylum seekers held in detention by the
INS. The results of this study will be available by the early fall.
Current immigration policy poses an unfair and unhealthy burden on
survivors of torture and other victims of human rights abuses who come
to the United States seeking safety and political asylum. In our zeal
to make our borders secure, we cannot--we must not forget who we are. A
country of immigrants. A country of refugees.
Ms. Acer. Given the fact that many asylum seekers have fled
from often unspeakable torture and persecution, one would think
that they would be treated with courtesy and professionalism.
While we understand that the pressures on immigration
inspectors are substantial and that the time pressures that
they are under may affect their ability to treat people as
hospitably as we might wish, there is no justification for the
abusive treatment that many asylum seekers encounter.
We have been told by asylum seekers who have arrived at
airports across the country that they have been handcuffed,
shackled, screamed at, sworn at, laughed at, intimidated,
kicked, or pushed.
One woman from Congo, who has since been granted asylum,
was called a liar, laughed at, and kicked after she became
dizzy and collapsed on the floor. Finally, another INS officer
interceded and, realizing she was ill, called an ambulance for
her.
I would like to ask Fahim Danusmondi, a refugee from
Afghanistan, to stand. Fahim was 19 when he arrived,
traumatized by the recent killing of his father and separation
from his mother and sister. When he told an INS officer that he
did not have a passport, the officer jumped at him, pushed him,
grabbed his pants and pulled them down, apparently looking for
documents. He was chained to a bench for 25 hours. After 5
months in detention, he was granted asylum.
I would like to ask Amin Al-Torfi, a torture survivor from
Iraq, to stand. Amin fled to this country after he and his
family were persecuted by Saddam Hussein's regime because of
their political and religious beliefs. At the airport, he was
told that he would have to wait 3 days to get an Arabic
interpreter. He was shackled by the leg to a bench for 8 hours,
strip-searched, and led like a criminal, handcuffed to another
asylum seeker, through the airport in front of other
passengers. After 5 months in detention, Ami was granted
asylum.
[The prepared statement of Mr. Al-Torfi follows:]
Statement of Amin Al-Torfi, Refugee from Iraq
Chairman Brownback and other Senators, thank you for the
opportunity to submit this statement about my experience as a refugee
who sought asylum in this country. I was granted asylum in the United
States on December 20, 2000.
My name is Amin Al-Torfi, and I am from Iraq. I fled to this
country after I was persecuted by Saddam Hussein's regime for my
political opinion, my religious beliefs, and because of the political
activities of my family. We are Shi'a Muslims from the South, and my
father was an imam. Since the start of the Hussein regime, Shi'a
Muslims have been persecuted as a minority group. In 1991, after the
Gulf War, there was a major uprising against Saddam Hussein's regime.
People hoped to change the government, and several of my family members
were involved in an opposition political party. As a result, my
brother, uncle and several cousins disappeared. I later learned that my
brother and uncle had been killed. At that same time, the secret police
also arrested my father and another brother, and detained them
incommunicado for two years.
In 1996, the secret police arrested me at my high school. I was 17
years old. I was detained for three months, interrogated, accused of
political activities against the Hussein regime and tortured.
In 1999, my father preached against Saddam Hussein at the mosque.
That year, while I was enrolled at college studying electronics, I
joined a student organization which was affiliated with an opposition
political party. I hoped to change the government so there would be
democracy, religious freedom and respect for human rights. In February
1999, there was a government crackdown against opposition activities.
During this time, the secret police arrested my father and brother, and
searched for me as well. I was forced to go into hiding for several
months, fearing for my life. Thankfully, I was able to flee to the U.S.
I had always known that the United States was a country that respected
human rights and democracy. That's why I came here, to be safe from
torture.
I arrived in the U.S. in July 2000. Because it was impossible to
obtain valid travel documents from the government that was persecuting
me, I had no other choice but to use a false passport to attempt to
enter the United States. At JFK airport, I requested asylum. I was sent
to the secondary inspection area where I was interviewed in the open in
front of 25 to 30 other passengers. At that time, I spoke little
English. I requested an Arabic interpreter, but was told that there was
none available, and that if I wanted to continue with the interview in
Arabic, I would have to wait as long as three days at the airport until
an interpreter was available. I was uncomfortable explaining my
situation in English because I was afraid the officer would not
understand what I was saying, and that I would be sent back to Iraq. It
was also very difficult to explain my story in front of many other
people. (When I later reviewed the transcript from my airport
interview, it was listed that the officer asked me if I preferred to
continue with the interview in private, though he had not asked me this
question).
After the interview, I was handcuffed by INS officers, and the
handcuffs were attached to a chain around my waist. I thought that
there was a mistake, that the INS officers did not understand that I
was an asylum seeker. I asked why I was being handcuffed, and tried to
explain that I was not a criminal. But the officer told me that it was
the law. I was taken to another room, where I was shackled by the leg
to a bench for eight hours. During this time, I was strip-searched by
two guards. Afterwards, I was taken to the Wackenhut Detention Facility
in Jamaica, NY. I was lead, handcuffed to another asylum seeker,
through the airport where other passengers could see me.
I was detained at the Wackenhut Detention Facility for about five
months. Before I arrived, I expected it would be like a refugee camp
where I would be free to come and go while applying for asylum.
Instead, it was a prison. I couldn't believe it. I thought my eyes were
seeing wrong. No one explained to me why I was there, or how long I was
going to be there.
When I arrived the officers took all my clothes and gave me orange
prison clothing. They also took all of my personal belongings. I was
fingerprinted and photographed. Then they sent me to my dorm.
My dorm held up to forty other asylum seekers. There were five
showers and four toilets, all of which were out in the open, and close
to our beds. There was no privacy. There was a television, four phones,
and eight tables where we ate all of our meals. There were no windows.
We remained in this room for twenty-three hours a day. We were allowed
out for one hour each day to go to ``indoor recreation,'' a windowless
room where we could play basketball or use an exercise machine. There
was nothing to do, and many of us suffered from boredom and depression.
I spent my time thinking about my future, how long I was going to be in
detention, how I could be released. I felt at that time, my life had
stopped, that I was living like a plant: I couldn't move. It was very
sad, and silent, and hopeless. I felt very isolated. My only break from
this routine came from 11 p.m. to 2 a.m. five days per week when, for
$1.00 per day, I and other detainees performed sanitation duty in
certain areas of the facility.
Most days, the food was served in small portions, so that I was
often hungry. Over the course of my detention, I lost ten pounds.
The asylum seekers at Wackenhut were treated like criminals. Our
beds were searched three times each week, and guards patted us down
every time we exited or entered the dorm for visits with our attorneys,
to see the facility doctor or for our hour of recreation.
Luckily, the Lawyers Committee for Human rights took my case, and
found pro bono attorneys for me from the firm of Strook & Strook &
Lavan. Because of their efforts, I was granted asylum in December 2000,
after about five months in detention. I now live in New York City and
work to help other refugees at the Hebrew Immigrant Aid Society. I
would like to continue my studies in electronics and to work side by
side with other Americans for U.S. improvement.
I want to thank all of the Senators for giving me the opportunity
to share my experience as a refugee in the United States. When I was
detained by INS, I felt sadness and pain. Asylum seekers who flee
torture and death in their countries should not be treated as I was. I
hope that my testimony helps you to improve the system so that future
refugees are not detained and are treated fairly.
Ms. Acer. Also with us today is a man who we will call
``Michael Antoun'' in order to protect his family members at
home. Mr. Antoun is a Coptic Christian who fled religious
persecution in Egypt. He was so intimidated by his treatment at
the airport that he was afraid to request asylum and was
actually scheduled to be deported to his country of
persecution, until he luckily spoke with his sister, who
reminded him of the dangers he would face. After 5 months in
detention, he was granted asylum. Please note that Mr. Antoun's
name has been supplied in confidence to the subcommittee, and
we would like to request that Mr. Antoun's statement, as well
as those of the others mentioned, be submitted into the record.
Chairman Brownback. Without objection.
[The prepared statement of Mr. Antoun was not available at
the time of printing.]
Ms. Acer. Even the next stage of the expedited removal
process, the so-called credible fear process, which does offer
some additional protections, lacks essential procedural
safeguards. The only oversight of these determinations is a
highly expedited review by an immigration judge, which must
take place within 7 days, leaving little time for a refugee to
find a lawyer or to gather additional evidence, and no other
avenue of appeal. Patrick Mkhizi will testify later today about
the INS' attempt to deport him after a mistaken determination
that he did not meet that standard.
I would now like to ask a woman whom we will call
``Aracelis Gonzalez,'' in order to protect her identity and
that of her children, to stand. She fled here after suffering
brutal abuse and domestic violence, but she was ordered
deported under expedited removal last year because the INS
officers who interviewed her and the judge who conducted a very
expedited review believed that she would not be able to make a
case for asylum. She was spared deportation following the
extraordinary efforts of Senator Leahy and several Members of
Congress who wrote to the INS Commissioner expressing concern
about the decision to deport her.
[The prepared statement of Ms. ``Gonzalez'' follows:]
Statement of ``Aracelis Gonzalez'', Asylum Seeker from the Dominican
Republic
Chairman Brownback and other Senators, thank you for the
opportunity to submit this statement about the experience of refugees
who seek asylum in this country. I am a refugee and an applicant for
asylum in the U.S.
I appreciate your cooperation in keeping my identity confidential,
to protect my privacy and the safety of my children and my mother back
home.
I fled to the United States in last summer to escape from brutal
domestic violence. For years, the man I lived with as my husband beat
me, raped me, and threatened me with death. I could find no protection
against him in my country. When I arrived in New York, I was sent to
the Wackenhut Detention Center in Queens. Difficult and strange as
detention was, at least I knew that I was safe. For the first time in
years, I could sleep through the night in peace.
But when I got the results of my credible fear interview, I found I
had been ordered deported under expedited removal. The asylum officers
who interviewed me said they found me credible and said that the harm I
had suffered rose to the level of persecution. But they did not think I
could claim asylum as a victim of domestic violence. A ``review'' was
held within a few days, and the immigration judge did not change the
INS decision. I was told I was being sent back to the Dominican
Republic. I was terrified that my husband would kill me if I were sent
back.
I was saved thanks to the intervention of Senator Leahy and several
members of Congress, who wrote to the INS and expressed concern about
the decision to deport me without giving me a full hearing. After
several months in detention, I was paroled in December 2000. I am now
living with family while I wait for a hearing on my asylum case.
I would like to thank those who helped save me from expedited
deportation and to thank all of you, Senators, for giving me the
opportunity to tell you about my experience. I hope you will improve
the system so that other refugees who come here in fear for their lives
are not sent back without a full hearing before an immigration judge.
Ms. Acer. Although we should all be deeply disturbed by the
manner in which asylum seekers are being treated under these
provisions of law, we should not be surprised. Expedited
removal is a system designed to fail, and to fail those we most
want to protect. In 1996, when it was considered whether to
adopt this system, the Senate rejected it as unfair,
unnecessary, and a betrayal of American values. We agree.
So, too, do others. The bipartisan Commission on
Immigration Reform and the Advisory Committee on Religious
Freedom Abroad to the Secretary of State have both recommended
that expedited removal be repealed. The decision to deport an
asylum seeker should only be made by a trained immigration
judge in a fair proceeding that affords the person fundamental
due process protections. Expedited removal should be used, if
at all, only in extraordinary migration situations, and
additional safeguards should be included in those situations
where it is authorized.
Under expedited removal, asylum seekers are subject to
mandatory detention, and although they are eligible for parole
once they successfully pass through that credible fear
screening process, the parole decision is entrusted to the
unreviewable discretion of local INS officials, who often
administer this power in an arbitrary manner. There is no
appeal of their decisions to an independent authority, not even
to an immigration judge. Deserving refugees are denied parole
even when they are deemed credible and have verifiable
community ties.
We will hear in a minute from a woman from Afghanistan who
will explain how she was denied parole even though she has a
U.S. citizen sister. Another client of the Lawyers Committee, a
rape survivor who had been studying to become a nun in Congo,
was denied parole even though a Catholic convent in New Jersey
had agreed to house and support her.
I would like next to ask Jean-Pierre to stand. The 7-month
detention of this refugee, who had lost part of his leg as a
result of the torture he had suffered, underscores the cruelty
of our detention system. Jean-Pierre was a student activist in
his home country and was arrested and repeatedly tortured
there. When he fled for his life to the U.S., he was greeted
with handcuffs at the airport. When he asked if it was a crime
to ask for asylum, the INS officers told him ``this is the
law.'' He was--
Chairman Brownback. What is his home country?
Ms. Acer. Cameroon. He was just granted asylum last week
and was finally released after 7 months in detention, and he is
here with us today. I would like to request that his statement
as well be introduced into the record.
Chairman Brownback. Without objection.
[The prepared statement of Mr. Kandem follows:]
Statement of Jean-Pierre Kamdem, Refugee from Cameroon
Chairman Brownback and other Senators, thank you for the
opportunity to submit this statement about the experience of refugees
who seek asylum in this country. I am a refugee and have been granted
asylum in the U.S.
I was an activist for students' rights in Cameroon and was
arrested, jailed, and tortured for criticizing my government. As a
result of my torture I lost one of my legs. I fled the country after I
narrowly escaped being arrested again for my political activities.
When I arrived at J.F.K. Airport I explained my situation to the
INS inspectors and explained that I was seeking asylum. After they took
my statement, they put me in handcuffs. I was very surprised by this. I
remember asking one of the officers whether it was a crime to ask for
asylum. He replied: ``This is the law.'' After that they brought me to
a detention center in New Jersey. I was even more surprised to be taken
to a place where they took away my clothes and gave me the uniform of a
prisoner.
The concept of ``detention'' was new to me, because in Cameroon I
had only experienced prison. I was not sure what to make of my status
as an INS detainee. But then one day as I was watching television in
the detention center, I saw a report on the news about a crime that had
been committed. The criminal appeared on television, and he was wearing
a uniform just like mine.
I saw little difference between the deprivation of liberty we
experienced in INS detention and prison. Of course it was very
different from the experience of prison in my country. In Cameroon,
prison means torture and terrible conditions that affect one so much
physically that one does not have time to consider one's psychological
suffering. There were problems with the conditions of detention in the
U.S. as well-the routines were demeaning, I was unable to get exercise
adapted to my condition, I suffered from insomnia and constant
headaches under the harsh electric lighting, and there were basically
no educational opportunities and few distractions from the stress and
uncertainty of our condition. But the moral torment was the worst
aspect of the experience. During my seven months in detention I
wondered often about the long-term consequences of existing under that
level of stress for such a length of time. I worry about this still. My
help and consolation in detention was my religious life, and the
support I received from a Catholic priest who visited me and other
detainees regularly.
I think that if I had in fact committed a crime, I would have found
detention easier to bear. But I knew that asking for asylum was a right
under international law. In my country, when I used to think about
international law and human rights, the United States was the first
country I associated with those ideals. What I experienced when I
arrived here did not correspond to the vision that those outside of the
United States have of this country.
Two weeks ago I was granted asylum and released from detention. Now
that I am free I feel full of hope. I am looking forward to beginning a
new life in this country and resuming my interrupted education.
I would like to thank you, Senators, for giving me the opportunity
to describe my experience. I hope you will improve the system so that
other refugees who arrive in this country seeking asylum in the future
do not have to experience detention.
Ms. Acer. Decisions to detain asylum seekers should not be
entrusted to the discretion of local INS officials. Detention
and parole decisions should be made pursuant to legally binding
regulations, and they should be automatically and promptly
referred for review to judicial or other competent and
independent authority. In addition, the use of alternatives to
detention should be maximized.
I am going to talk for a few minutes very briefly about the
asylum filing deadline. Since that deadline took effect, more
than 10,000 asylum seekers have had their claims rejected by
the INS. The Lawyers Committee has heard of many bona fide
asylum seekers whose claims have been rejected since that
deadline became effective.
For instance, the asylum claim of a torture survivor and
student activist from Burma was denied by an immigration court
in California based on the deadline, even though the judge
believed he was credible and otherwise eligible. He did not
apply for asylum earlier because he hoped that the situation in
his country would improve so that he could return to his
family.
Earlier this week, a Virginia immigration judge denied
asylum to a woman from Afghanistan based on the asylum filing
deadline, even though he concluded that her fear of being
subject to an honor killing in Afghanistan was credible.
I would like to ask Anna Smirnova, a refugee from Russia,
to stand. The INS is currently contesting her grant of asylum
on the ground that her claim is barred by the filing deadline.
As she describes in her written statement, she missed the 1-
year deadline due to the burdens of pregnancy, a physical
condition that should certainly have satisfied one of the
exceptions to the deadline, and the results of the burden of
caring for a new infant as a single mother. And, like many
refugees, she was unaware of the deadline.
[The prepared statement of Ms. Smirnova was not available
at the time of printing.]
Ms. Acer. Even refugees who do not file within 1 year have
had their cases rejected by the INS because it claims asylum
seekers do not have enough evidence to prove they have
complied. For instance, the claim of Makani Jalloh, a torture
survivor and mother from Sierra Leone, who applied shortly
after her arrival in this country, was rejected, placing her
and her two children into deportation proceedings. With the
help of pro bono lawyers, Makani and her children eventually
won asylum.
[The prepared statement of Ms. Jalloh follows:]
Statement of Makani Jalloh, Refugee from Sierra Leone
Chairman Brownback and other Senators, thank you for the
opportunity to submit this staatement about the experience of refugees
who seek asylum in this country. I am a refugee and I have been granted
asylum in the U.S.
My husband and eldest son were murdered by the rebel forces of the
Armed Forces Revolutionary Council and the Revolutionary United Front
during an attack in December of 1998. After brutally attacking and
beating me and making further threats towards the rest of the family,
the rebels left our home. After the rebels murdered my husband and my
son, I fled with my three children. Fearing for my safety and the
safety of my children because of the rebels' attacks, I decided the
only way that I could guarantee my family's security was to flee the
country.
I arrived in New York in July 1999. After I explained my past
terror, a friend suggested that I should apply for asylum and he helped
me draft my initial asylum application that I submitted in August 1999,
nearly one month after my arrival. It is my understanding that my
initial asylum request was denied because the government does not
believe that I applied for asylum within one year of arriving. However,
this is not true. I applied for asylum within six weeks of arriving in
the United States.
The INS placed me and my two children into deportation proceedings.
I then learned about the Lawyers Committee for Human Rights, which
found pro bono attorneys to take on my case. With the help of my pro
bono lawyers, I and my children eventually won asylum before an
immigration judge.
Thank you, Senators, for giving me the chance to tell you what has
happened to me. I hope that you can change the law so that refugees do
not have a one year filing deadline when they apply for asylum.
Ms. Acer. While a 1-year filing deadline may not seem
unreasonable at first, a closer examination of the reality that
faces many refugees when they arrive in this country makes
clear that a deadline is indeed very difficult for many
deserving refugees to meet. They may arrive here unable to
speak English, unfamiliar with our legal system, unable to
afford food and housing, let alone legal counsel, and often
suffering from the effects of torture and persecution. The
asylum filing deadline should be repealed so the deserving
refugees should not be denied access to the system.
I want to talk for just 3 minutes on the cap on asylee
adjustments. When refugees are granted asylum, they are
entitled under our law to apply for legal permanent resident
status 1 year after their grant of asylum. But the annual cap
on the number of asylees who may adjust means that refugees now
have to wait several years to receive their legal permanent
resident status. The law firm of Akin, Gump, Strauss, Hauer and
Feld has prepared an excellent background memorandum on this
issue, and I would ask that the paper be submitted into the
record.
Chairman Brownback. Without objection.
[The memorandum follows:]
Statement of Akin, Gump, Strauss, Hauer & Feld, L.L.P., Attorneys at
Law, a Registered Limited Liability Partnership, Including Professional
Corporations
MEMORANDUM
TO: Members of the United States Senate Subcommittee on Immigration
FROM: Reed L. Russell
DATE: April 25, 2001
RE: Elimination of the Cap on Adjustment of Status for Asylees Under
Section 209(b) of the Immigration and Nationality Act
This memorandum advocates changing an arbitrary and ill-considered
immigration statute, section 209(b) of the Immigration and Nationality
Act (``INA''). Because of this statute, over 50,000 aliens lawfully
admitted to the United States under grants of asylum are currently
waiting to have their applications for lawful permanent residence
status processed and, therefore, effectively being denied the
opportunity to become active and productive members of our society.
Under section 209(a) of the INA, an individual lawfully admitted to
the United States as a refugee or through a grant of asylum must remain
in the country for one year before he or she may apply to adjust his or
her status to that of a lawful permanent resident. 8 U.S.C.
Sec. 1159(a). However, there is an additional cap under section 209(b)
that limits to 10,000 the number of asylees that may adjust status each
year to become permanent residents, regardless of the number granted
asylum. 8 U.S.C. Sec. 1159(b).
The cap had no practical impact before 1995, because the number of
asylees never reached 10,000.\1\ However, in 1995, the INS imposed
significant reforms in the asylum process to counteract rampant fraud
in applications and to streamline procedures. See United States DOJ,
INS, Asylum Reform: Five Years Later (Feb. 1, 2000) (``Asylum
Reform''). As a result, significantly fewer applications are filed each
year but the number of grants now exceeds 10,000 annually. See id.
Because that number exceeds the cap imposed by section 209(b), the
statute has created a significant backlog in the processing of
applications for permanent residence. Estimates from the INS as of
March 31, 2001 place the backlog at 57,680 persons. Thus, given the
10,000 person per year cap, someone granted asylum today will not be
able to adjust his or her status to that of a permanent resident for at
least six years.
---------------------------------------------------------------------------
\1\ The cap was raised from 5,000 to 10,000 in 1990. See Pub. L.
101-649, Sec. 104(a)(1) (1990).
---------------------------------------------------------------------------
These individuals already have passed through a rigorous process
that allows for grants of asylum only to those persons who come from
countries with truly intolerable human rights conditions and who pass a
criminal background investigation. See 8 C.F.R. Sec. 213. However,
because of the delay in obtaining permanent residency, these lawfully
admitted aliens often face significant difficulty obtaining employment.
Moreover, they suffer the continued anxiety of not knowing whether they
will be allowed to remain in the United States based on their asylum
status.\2\ Finally, this delay also postpones these individuals'
integration into society as citizens, because they cannot apply for
citizenship until five years after obtaining lawful permanent residency
status.
---------------------------------------------------------------------------
\2\ Asylum status can be terminated in some circumstances even
after it has been formally granted. See 8 U.S.C. Sec. 1158(c)(2)(A).
---------------------------------------------------------------------------
This statute is irrational and unsupportable for at least three
reasons. First, although it properly allows the processing of refugees
based on the rational criteria of the number admitted each year, the
statute inexplicably denies the same common-sense treatment to asylees
by imposition of the 10,000-person cap. This is so even though the
basic standard for admission is the same for refugees and asylees: an
inability or unwillingness to return to the home country due to
``persecution or a well-founded fear of persecution on account of race,
religion, nationality, membership in a particular social group, or
political opinion.'' 8 U.S.C. Sec. 1101(a)(42). Thus, the system for
admitting refugees encourages their integration by allowing a refugee
to obtain permanent residency within two years of arrival,\3\ while it
delays that process for six years for individuals who receive grants of
asylum, even though the basis for granting them admission to the United
States could very well be identical. This situation is nonsensical at
best and punitive at worst and it should be eliminated.
---------------------------------------------------------------------------
\3\ The asylee must wait one year before applying for the
application and then the application process takes approximately one
year once it begins.
---------------------------------------------------------------------------
The second reason the cap should be eliminated is that it creates
an unnecessary administrative backlog and delays the orderly processing
of applications for permanent residence. Individuals granted asylum
have already been screened through a rigorous process where they must
submit testimonial and/or documentary evidence supporting their claims
and respond to questions by a trained asylum officer in an interview
that often lasts at least one hour and in some cases two or more hours.
Indeed, in some cases asylees must prove the bona fides of their claims
in immigration court. Moreover, applicants must submit to a criminal
background investigation. As evidence of the rigorous standards
applied, a February 2000 report shows that even after reforming the
system to eliminate most fraudulent claims, the INS still grants less
than 40 percent of applications for asylum. See Asylum Reform, supra.
Finally, the arbitrary cap creates an unnecessary strain on INS's
scarce resources, which could be applied to enforcement or other
immigration needs. Instead, these resources are allocated to manage a
backlog of thousands of asylees that otherwise would be moving through
the system in an orderly fashion. Individuals granted asylum already
have established themselves as credible and free of a criminal
background. Forcing them to wait beyond the statutory one-year
probationary period to adjust status serves no apparent purpose and, in
fact, creates an unnecessary strain on public resources. Moreover, we
are not the first to reach this conclusion.
In 1997, the United States Commission on Immigration Reform, a
bipartisan commission of policy makers and immigration experts, issued
a comprehensive report on recommended changes in the immigration law.
See United States Commission on Immigration Reform, U.S. Refugee
Policy: Taking Leadership (June 1997) (``Taking Leadership'').\4\ Among
those recommendations was an elimination of the 10,000-person cap
imposed by section 209(b). See id. at 35. Indeed, the Commission also
advocated elimination of the statutory one-year waiting period in favor
of granting permanent resident status to all individuals when they
received a grant of asylum. See id. at 34.\5\
---------------------------------------------------------------------------
\4\ The Commission was formed in 1990 under the Immigration Act of
1990. Its members have included the following: Archbishop of Boston
Bernard Cardinal Law (first Chairman); Barbara Jordan (second
Chairwoman); Shirley Mount Husfstedler (third Chairwoman), former Ninth
Circuit Judge and Secretary of Department of Education; Professor
Lawrence Fuchs, former Executive Director of the Select Commission;
Michael Teitelbaum of the Alfred P. Sloan Foundation, Richard Estrada,
columnist for the Dallas Morning News; Harold Ezell, former INS
Regional Commissioner; Robert Hill, immigration attorney; Warren
Leiden, Executive Director of the American Immigration Lawyers
Association; Nelson Merced, Massachusetts State Legislator, and Bruce
Morrison, former Chairman of the House Subcommittee on Immigration,
Refugees, and International Law.
\5\ One commission member advocated a two-year conditional
permanent resident status. Taking Leadership at 34n.* However, no one
attempted to defend the current system.
---------------------------------------------------------------------------
With respect to the elimination of the 10,000-person cap, the
Commission provided two bases for its recommendation: (i) the
inevitable backlog that would occur because of the excess of asylum
grants over 10,000 per year and (ii) the rigorous asylum process. See
id. at 35.
The Commission is seriously concerned that under the current system
[the excess of asylum grants over 10,000] will result in an
unnecessary backlog of adjustment applications. We strongly
reiterate our belief, stressed in our 1995 report on legal
immigration, that the federal government should not manage
immigration policy by backlogs and waiting lists. Given the
recent reforms in the asylum system and the rigorous standard
applied in granting asylum, numerical ceilings on adjustment
are neither necessary nor good public policy.
Id.
The third reason for eliminating the cap, one that is related to
the second, is that the statute is adverse to a basic common-sense
principle: that the United States government should seek to integrate
lawfully admitted aliens into the society as soon as possible so that
they may participate and contribute to their full potential. As the
Commission stated in advocating removal of both waiting periods:
``Elimination of the delay in adjustment would greatly reduce continued
uncertainty and instability in the lives of asylees even after their
initial approval and would enable asylees and their families to
integrate into the U.S. in a timely fashion.'' Taking Leadership at 35.
Individuals granted asylum receive a work authorization card
allowing them to obtain employment. However, the INS requires that the
work-authorization card be renewed annually until the asylees become
lawful permanent residents.\6\ As a result, many employers are
reluctant to hire these individuals because of the uncertainty
surrounding their residency status. Thus, the combination of the one-
year statutory waiting period and the multi-year administrative backlog
makes it more difficult for asylees to gain long-term employment and
become productive members of society. This result is counter to the
common-sense principle that the United States government should be
trying to make it easier, not more difficult, for willing and able
individuals to be fully employed.
---------------------------------------------------------------------------
\6\ Although the regulation provides for a work-authorization card,
we are aware of no language in the regulation or the statute providing
a basis for the INS's requirement that the card be renewed annually.
See 8 C.F.R. Sec. 208.7 (work authorization).
---------------------------------------------------------------------------
Furthermore, the delay operates in contravention to the well-
settled policy of integrating new immigrants into society as productive
citizens. A lawful permanent resident has to wait five years before
becoming eligible to apply for United States citizenship. This five-
year period cannot begin for an asylee until he or she obtains lawful
permanent residency status. Thus, by delaying the time for asylees to
become lawful permanent residents, the statute also delays the time for
them to become naturalized citizens and, thus, prevents them from fully
integrating into American society.
Adding to the dilemma, many asylees arrive with families to
support. Yet, because of the waiting period, these individuals are
forced to support their families through transient and most likely
menial jobs for several years. The effect is to impose an unnecessary
hardship on individuals and families who are in the United States only
because they have suffered from gross injustices in their home country.
In short, section 209(b) (i) irrationally and inexplicably treats
one class of lawfully admitted aliens worse than others similarly
situated, (ii) causes unnecessary administrative delays, and (iii) is
counterproductive and contrary to the interests of the United States.
We propose several options to remedy this glaring inequity:
1) Adopt the recommendation of the United States Commission on
Immigration Reform and grant permanent resident status to
asylees, eliminating both the one year statutory waiting period
for refugees and asylees as well as the 10,000 person cap for
asylees; or
2) Amend section 209 to delete section 209(b), thus eliminating only
the 10,000-person cap on asylees; or
3) Enact special legislation providing for an elimination of the
waiting period for all those individuals who have received
grants of asylum and been present in the United States for at
least one year as of the date the legislation.
Granting more timely permanent resident status to asylees would not
increase the number of lawful immigrants in the United States or impose
additional burdens on scarce public resources. Asylees already are
lawfully in the country and eligible to remain for an indefinite period
of time. Rather, granting asylees permanent resident status would have
the salutary effect of allowing them to seek long-term employment and
assimilate into their communities more quickly, thereby hastening their
integration into society as full participating and contributing
members. We hope that you will see the obvious logic of our position
and lend your support to remedy this situation.
Ms. Acer. The impact of this delay on refugees can be
significant. It can undermine their ability to integrate into
our society, to seek employment and advancement, to apply for
citizenship, to travel to visit family members securely, and in
some cases to be united with family members. One client of the
Lawyers Committee, a refugee from Ethiopia, married after she
was granted asylum. The delay of several years in receiving her
adjustment needlessly delayed her ability to petition for her
husband to come to the U.S. and join her. Because of the
marriage, the U.S. has refused to issue the husband a visa to
come to visit his wife and now young child. The couple has been
separated for 4 years. Their son, now 3 years old, sees his
father once a year during a brief visit. My client, who spent
her childhood separated from her family because of the cruelty
of the Mengistu regime, is very patient. But no policy interest
is served by this unnecessary delay.
Thank you very much. We really appreciate your hearing us
today.
[The prepared statement of Ms. Acer follows:]
Statement of Eleanor Acer, Senior Coordinator, Asylum Program, Lawyers
Committee for Human Rights
Executive Summary
Since the refugee Pilgrims first landed almost 400 years ago, the
United States has served as a refuge for those fleeing persecution and
oppression. After World War II, when America and so many other nations
failed to protect many refugees from Nazi persecution, the United
States led the effort to establish universally recognized human rights,
including ``the right to seek and enjoy in other countries asylum from
persecution.''
Several provisions of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 have severely undermined the ability of
genuine refugees to seek asylum here and have unduly restricted their
access to protection. These provisions include expedited removal and
the one-year filing deadline on asylum claims. The mandatory detention
provision that accompanies expedited removal has reinforced the
practice of detaining asylum seekers, resulting in the jailing of
thousands of genuine asylum seekers and survivors of torture.
Under the 1996 law's ``expedited removal'' system, a uniformed
enforcement officer of the Immigration and Naturalization Service
(INS)--as opposed to a specially trained immigration judge--can turn a
refugee back at the airport or border crossing without due process and
without meaningful review. The proceedings are conducted so swiftly
that mistakes are inevitable, and those who are removed are barred from
re-entering the United States for five years. Furthermore, secondary
inspection-the stage of the process during which erroneous decisions
are most likely to be made-is conducted behind closed doors, with
virtually no meaningful scrutiny by independent observers.
While the INS has taken some steps to attempt to reduce the
possibility that genuine asylum seekers will not be deported under
expedited removal, those efforts have not succeeded in preventing the
mistaken deportations and other abuses that have been documented by
academics, the press and non-governmental organizations.
Expedited removal is a system that is, by its very design, destined
to fail. It lacks the very procedural safeguards that are necessary to
ensure that legitimate asylum seekers are not mistakenly returned to
face persecution. We respectfully urge that steps be taken to ensure
that the decision to deport an asylum seeker or other individual who
arrives without proper documents will be made only by a trained
immigration judge in a fair proceeding that affords the person
fundamental due process protections: prior notice of the consequences
of the proceedings; when the person is not fluent in English, a
qualified translator who is fluent in the person's language of fluency
and is bound to maintain confidentiality; the right to be represented
by legal counsel; and the opportunity to have decisions reviewed on
appeal.
The use of expedited removal should be restricted to extraordinary
migration situations. Additional safeguards should be included in those
situations where expedited removal is authorized. These safeguards,
which should include immigration judge review of all removal orders,
will reduce the risk of mistaken deportations.
We also urge that decisions to detain asylum seekers should no
longer be entrusted to the discretion of local INS officials. Initial
detention and parole decision should be made pursuant to legally
binding regulations, and should be automatically and promptly referred
for review to a judicial or other competent and independent authority.
In those cases in which some form of detention or supervision is deemed
necessary, and where there is no risk to the community, the use of
alternatives to detention should be maximized, including for instance
supervised release programs or release to community, religious or
nongovernmental organizations trained in refugee resettlement.
Congress should eliminate the one-year filing deadline. At the very
least the filing deadline should be eliminated in affirmative asylum
applications, and the fact that an application has been filed over one
year after arrival should be considered a negative discretionary
factor, subject to a good-cause exception, for asylum applications
filed defensively before immigration judges. To the extent any filing
deadline is retained, federal court review of filing deadline denials
should be restored. If the deadline is eliminated or limited, those
whose cases have been rejected based on the prior filing deadline
provision should be allowed to reopen their cases.
Finally, the cap on asylee adjustments should be lifted. Those who
are granted asylum are entitled, under our law, to apply for permanent
residency one year after their grant of asylum. These are deserving
individuals, many of whom have suffered unspeakable harms. Their
welcome into our society should not be delayed for years by the limit
on the number on asylees that can become legal permanent residents.
Introduction
Chairman Brownback, Senator Leahy, and members of the Subcommittee,
it is an honor to be here today to offer our views about U.S. asylum
policy. You and other distinguished members of this Subcommittee have
shown tremendous leadership in protecting the rights of asylum seekers.
We appreciate your focusing attention today on these important issues.
My name is Eleanor Acer, and I direct the Asylum Program at the
Lawyers Committee for Human Rights. The Lawyers Committee is a non-
profit, non-governmental organization that has worked since 1978 to
protect and promote fundamental human rights and to ensure protection
of the rights of refugees. We ground our refugee protection work in the
international standards of the 1951 Convention relating to the Status
of Refugees, the 1967 Protocol relating to the Status of Refugees and
other international human rights instruments, and advocate adherence to
these standards in U.S. law and policy.
The Lawyers Committee vigorously opposed certain provisions of the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996--
among them the expedited removal provisions and the asylum filing
deadline--because we believed those provisions would severely impede
the right of refugees to seek and enjoy asylum and would result in the
denial of protection to victims of torture and persecution. We have
documented the impact of expedited removal on asylum seekers in two
reports--Slamming The Golden Door: A Year of Expedited Removal, issued
in March 1998 and Is This America? The Denial of Due Process to Asylum
Seekers in the United States, issued in October 2000.
The Lawyers Committee has also long-advocated for the rights of
detained asylum seekers. We have urged effective and consistent
implementation of parole guidelines for asylum seekers. We have issued
several reports addressing the implementation by the INS of its parole
guidelines for asylum seekers, including our 1999 report, Refugees
Behind Bars; The Imprisonment of Asylum Seekers in the Wake of the
19961mmigration Act, and have formally petitioned the INS to codify
those guidelines in regulations. We have also advocated for
alternatives to detention and the imposition of a check on the INS's
authority to detain asylum seekers.
In addition to our work on asylum policy, the Lawyers Committee
operates one of the largest and most successful pro bono asylum
representation programs in the country. With the assistance of
volunteer attorneys, the Lawyers Committee provides legal
representation, without charge, to hundreds of indigent refugees each
year. Our program's clients include numerous--asylum seekers who have
been subject to the expedited removal procedures, who have been
detained at various detention facilities and county jails, and who have
been affected by the asylum filing deadline. Some of those clients are
here today and will be testifying or submitting testimony to you.
i. u.s. leadership in protecting refugees and international standards.
From the earliest days of the Republic, the United States has
provided safe haven for people fleeing persecution. The principle of
asylum is a deeply rooted American value, powerfully expressed since
the founding of the Republic. In fact, it was President George
Washington who set the precedent that the United States would not
return people to persecution. This nation has long recognized its
special responsibility to the persecuted. And the immortal words of
Emma Lazarus, enshrined beneath the Statue of Liberty, reaffirm this
nation's commitment to welcome those who flee to our shores ``yearning
to breathe free.''
The U.S. commitment to the protection of refugees was reinforced by
the lessons of World War II. Modern refugee protection principles were
incorporated into international treaties following the Nazi persecution
of Jews and other groups during World War II. The U.S. led the effort
to establish the United Nations and to articulate universally
recognized human rights. In 1948 the United Nations General Assembly
adopted the Universal Declaration of Human Rights, which affirmed that
``[e]veryone has the right to seek and enjoy in other countries asylum
from persecution.''
Current U.S. asylum law derives from two treaties, the 1951 United
Nations Convention relating to the Status of Refugees and 1967 Protocol
relating to the Status of Refugees. The nonrefoulement provision of the
Convention--binding on the U.S. as a result of its 1968 ratification of
the 1967 Protocol--prohibits a signatory state from returning a refugee
to any country in which the refugee's ``life or freedom would be
threatened on account of his race, religion, nationality, membership in
a particular social group or political opinion.'' Article 34 of the
Convention requires that signatory states ``shall as far as possible
facilitate the assimilation and naturalization of refugees.'' The
asylum and non-refoulement obligations were made U.S. law by the
Refugee Act of 1980. The international community and the United States
have promised that never again will those who face persecution be
denied refuge.
ii. expedited removal
The expedited removal provisions of the 1996 law empower INS
inspectors-whose primary responsibility and training is in border
enforcement rather than adjudication-to order the summary deportation
of individuals arriving from abroad without valid documents. Although
individuals who fear return to their home countries are not supposed to
deported, mistakes have been made. Indeed, mistakes are inevitable
given the summary nature of the procedures.
At the first stage of the expedited procedure, called ``secondary
inspection,'' an individual can be ordered deported by an immigration
inspector, without any review by a judge or independent authority.
Although anyone who expresses a fear of persecution, or an intention to
apply for asylum, should, under law, be referred to an asylum officer
for a ``credible fear'' interview, no outside authority reviews these
decisions. Immigration inspectors are, in effect, given the power to
act as judges.
Expedited removal is a system that is, by its very design, destined
to fail because it lacks essential safeguards: there is no notice prior
to secondary inspection of the consequences of the process (i.e.,
immediate deportation); there is no guarantee of a qualified
interpreter to explain the process to an alien who is not fluent in
English; there is no right to be represented by legal counsel;
decisions are made not by independent adjudicators but by border
enforcement personnel; and there is no right to have these decisions
reviewed on appeal. Compounding these deficiencies is the speed of the
process; expedited removal moves so quickly that mistakes are
inevitable.
A process that lacks crucial safeguards will not be able to avoid
mistakes. For instance, Rita Joy Martins-Beckely, a Sudanese Christian
woman who fled from religious and political persecution in Sudan was
ordered deported under expedited removal by officers at the Texas
border even though she told the officers that she was afraid to return
to Sudan. A Kosovar student was turned away from a California airport
in January 1999, and another Kosovar was deported from Newark Airport
in 1998 even though he indicated that he was worried about being
returned to his home country.
Even U.S. citizens are not protected from these summary procedures.
Just last year, Sharon McKnight, a disabled woman from Long Island, was
detained at JFK airport, handcuffed and shackled overnight, and then
deported to Jamaica under expedited removal--even though her mother
gave immigration officials proof of Sharon's birth in the U.S.
The danger of mistaken determinations, inherent in any system
without checks, is compounded by the lack of due process and
improprieties that plague the secondary inspection stage of expedited
removal. The notorious practices of the INS at the Portland, Oregon
airport, including the strip-searching and jailing of a Chinese
businesswoman, earned the city the nickname of ``Deportland.''
Given the dire consequences of a mistaken decision to send someone
back to a place where they would face persecution, and the fact that
many genuine refugees do not speak English, one would think that the
procedures would require the use of qualified interpreters who are
fluent in an individual's language of fluency and who are obligated to
maintain confidentiality. Instead, refugees have reported that their
requests for translators have been denied and that they did not
understand that nature of the process they were subject to. For
instance:
Mekabou Fofana, a Liberian refugee who is here with us today,
arrived at JFK airport on July 11, 1999, nine days before his
16th birthday. He could not understand what the officers
were saying to him, and although he said ``speak Mandingo,'' they did
not provide him with a Mandingo interpreter. When the officers directed
him to sign the papers they put before him, he refused because he did
not know what the papers said. The officers twisted his arm and
attempted to forcibly fingerprint him. Mekabou fell to the floor, hit
his head, and bled so profusely that he was taken to the hospital for
stitches. After a year and a half in detention, Mekabou was granted
asylum and is now attending high school in New York City.
Nusret Curumi, who is here with us today, fled from Albania after
he was arrested and detained for making statements critical of his
government. He arrived at O'Hare International Airport in Chicago in
August 2000. After he told an INS officer that the passport he was
traveling on was not his, he was dragged by his clothing to another
room where he was searched and questioned. He was not provided with an
Albanian interpreter, and was directed to sign documents even though he
could not understand what they said. He was not told about his right to
have a credible fear interview.
Given the fact that many asylum seekers have fled from unspeakable
torture and persecution, one would think that they would be treated
with courtesy and professionalism. While we understand that the
pressures on immigration inspectors are substantial, and that the time
pressures they are under may affect their ability to treat people as
hospitably as we might ideally wish, there is no justification for the
abusive treatment many asylum seekers encounter when they arrive here.
Asylum seekers at airports across the country are often handcuffed and
shackled like criminals. We have spoken to asylum seekers who have been
screamed at, sworn at, laughed at by INS officers charged to ensure
their protection. Some have been intimidated, kicked and pushed.
Let me tell you the story of one refugee woman who fled to the U.S.
from the Democratic Republic of Congo (the former Zaire) and arrived at
JFK airport in November. When she arrived, she had not eaten in days
and was suffering from a severe tooth infection. Despite her need for
an interpreter, the INS officers did not provide an interpreter that
she could understand. When she started to cry, several officers accused
her of lying. When she became dizzy and collapsed on to the floor, an
INS officer kicked her, ordering her to get up. Later, another officer
kicked her and accused her of being a liar, while other officers
laughed at her. Finally, another INS officer interceded--realizing that
she was ill, he called an ambulance for her. After six months in
detention, she was finally granted asylum.
Mr. Curumi was forcefully dragged through O'Hare airport in
Chicago. An Algerian refugee who arrived at San Francisco international
airport last year was shackled and told he was being deported; when he
told an INS officer that he would be killed if returned to Algeria, the
officer said he did not care. ``Mina Burhani'' will tell us later how
she was strip-searched, shackled to a bench, and then transported in
handcuffs and shackles.
Amin Al-Torfi, a torture survivor from Iraq who is here with us
today, fled to this country after he and his family were persecuted by
Saddam Hussein's regime because of their political opinions and
religious beliefs. When he requested an Arabic interpreter upon his
arrival at JFK airport last year, he was told that an Arabic
interpreter was not available and that he would have to wait three days
at the airport to get one. He was shackled by the leg to a bench for
eight hours, strip-searched, and led like a criminal, handcuffed to
another asylum seeker, through the airport in front of other
passengers. After 5 months in detention, he was granted asylum.
A refugee from Afghanistan was pushed by an INS officer who grabbed
his pants to search for documents. He was shackled to a bench over
night, and all day the next day. After 5 months in detention, he was
granted asylum.
One refugee who is here with us today was so intimidated by his
treatment at the airport that he initially did not request asylum and
was scheduled to be returned to his country of persecution. ``Micheal
Antoun,'' is a Coptic Christian who fled Egypt because he had been
repeatedly threatened and beaten by Islamic extremists. (As he fears
retaliation against family members at home, his real name will be
supplied to the Subcommittee confidentially.) Mr. Antoun, while being
held in solitary confinement at a detention facility awaiting
deportation back to Egypt, spoke by phone to his sister who begged him
not to return to Egypt because of the danger he would face. Luckily, he
was able to contact someone who averted his deportation. After 5 months
in detention, he was granted asylum.
Even the next stage of the expedited removal process--the so-called
``credible fear'' process--which offers some additional protections,
lacks essential procedural safeguards. The only oversight of these
determinations is a highly expedited ``review'' by an immigration
judge, which must take place within seven days, leaving no time for a
refugee to find a lawyer or gather additional evidence, and no other
avenue of appeal. With us today is Patrick Mkhizi who will testify
later about the INS's attempt to deport him after a mistaken
determination that he did not meet the credible fear standard. Also
here with us today is a woman who we will call ``Aracelis Gonzalez'' in
order to protect her identity. She fled here after suffering brutal
abuse and domestic violence in the Dominican Republic. But she was
ordered deported under expedited removal last summer apparently because
the INS officers who interviewed her, and the Immigration Judge who
conducted the expedited review, believed that she would not be able to
make a case for asylum based on gender-related persecution. She was
spared from deportation following the extraordinary efforts of Senator
Leahy and several Congress Members who wrote to the INS Commissioner
expressing deep concern about the INS's decision to deport her under
expedited removal.
Although we should all be deeply disturbed by the manner in which
asylum seekers are being treated under these provisions of the law, we
should not be surprised. Expedited removal is a system designed to fail
those we most want to protect. In 1996, when it considered whether to
adopt this system, the Senate rejected it as unfair, unnecessary, and a
betrayal of American values. We agree.
So do others. Among the many voices calling for repeal of expedited
removal are two major bodies established by Congress and by the
president: the bipartisan Commission on Immigration Reform and the
Advisory Committee on Religious Freedom Abroad to the Secretary of
State and to the President of the United States.\1\ The Commission on
Immigration Reform, referring to expedited removal, urged ``immediate
correction of certain provisions [in the 1996 law] that can harm bona
fide asylum seekers and undermine the efficiency of the asylum
system.'' \2\ The Advisory Committee on Religious Freedom, created
after the implementation of expedited removal, called for its repeal in
its final report to the secretary of state in May 1999.
---------------------------------------------------------------------------
\1\ U.S. Commission on Immigration Reform, U.S. Refugee Policy:
Taking Leadership, June 1997, at 38; Final Report of the Advisory
Committee on Religious Freedom Abroad to the Secretary of State and to
the President of the United States, May 17, 1999, at 45.
[W]e must eliminate processes such as ``expedited removal'' that can
make victims of those fleeing religious persecution rather than
providing access to protection. . .Repeal of ``expedited
---------------------------------------------------------------------------
removal'' should be a high priority for the Administration.
We respectfully urge that steps be taken to ensure that the
decision to deport an asylum seeker or other individual who arrives
without proper documents will be made only by a trained immigration
judge in a fair proceeding that affords the person fundamental due
process protections: prior notice of the consequences of the
proceedings; when the person is not fluent in English, a qualified
translator who is fluent in the person's language of fluency and is
bound to maintain confidentiality; the right to be represented by legal
counsel; and the opportunity to have decisions reviewed on appeal.
Because of the demonstrated risk to refugees, expedited removal
should only be used in extraordinary migration situations. Additional
safeguards should be included in those situations where expedited
removal is authorized. These safeguards, which should include
immigration judge review of all removal orders, will reduce the risk of
mistaken deportations.
iii. detention of asylum seekers
The detention of arriving asylum seekers, a practice that expanded
in the 1980s, was reinforced by the restrictive provisions of the 1996
immigration law. Under expedited removal, asylum seekers are sub ject
to ``mandatory detention'' and although they are eligible for parole
once they successfully pass through the credible fear screening
process, the parole decision is entrusted to the unreviewable
discretion of local INS officials who administer this power in varying
manners. There is no appeal of their decisions to an independent
authority--not even to an immigration judge. And the INS has so far
failed to issue enforceable regulations spelling out the parole
criteria for asylum seekers.
As a result, those who arrive in this country seeking protection
are routinely imprisoned for months, and sometimes for years while
their asylum cases are pending. Deserving refugees are denied parole
even when they have been deemed credible and have verifiable community
ties. Some of these refugees are here with us today.
We will hear in a minute from a woman from Afghanistan who will
explain how she was denied parole even though her U.S. citizen sister
was willing to house and support her. Another client of the Lawyers
Committee, a rape survivor who had been studying to become a nun in
Congo, was denied parole even though a Catholic convent in New Jersey
had agreed to house and support her. Mekabou, who stood up before us a
few minutes ago, was denied parole despite his young age and even
though he had a U.S. citizen uncle and other family members in this
country. Patrick Mkhizi who we will hear from shortly was detained for
3 and \1/2\ years and denied parole.
The seven month detention of Jean-Pierre Kamdem, a survivor of
severe torture, who lost part of his leg as a result of his torture,
underscores the cruelty of our detention system. Mr. Kamdem, who is
here with us today, was a student activist in Cameroon and was arrested
and repeatedly tortured in his home country, leading to the loss of
part of his leg. Last year, he narrowly escaped arrest again, and fled
to the U.S. He was greeted with handcuffs at the airport. When he asked
if it was a crime to ask for asylum, the INS officers told him ``this
is the law.'' He was detained at the Elizabeth, New Jersey detention
facility for seven months. He was just granted asylum last week and was
finally released from detention.
Our current system of detaining asylum seekers, a system which
provides no meaningful access to parole for so many and no independent
review of detention decisions, flies in the face of our obligations
under international refugee protection treaties. Indeed, the Executive
Committee of the United Nations High Commissioner for Refugees (UNHCR),
of which the United States is a member, has concluded that detention of
asylum seekers ``should normally be avoided.'' UNHCR's 1999 detention
guidelines clearly call for procedural safeguards--including automatic
review of detention decisions before an independent judicial or
administrative body in those cases when asylum seekers are detained,
and urge the maximum use of alternatives to detention.
Our current detention system is also inconsistent with American
traditions of due process and humanity, and places an unnecessary
burden on U.S. taxpayers. The devastating impact of detention on
individual torture survivors and other refugees which we see first-hand
in our every day work, is documented in the testimony of Dr. Allen
Keller, the Director of the Bellevue/NYU Program for Survivors of
Torture, which is submitted in writing to the Subcommittee today. The
impact is also clear in the lives of the refugees who have come here
today to give us their firsthand testimony.
We urge that decisions to detain asylum seekers should no longer be
entrusted to the discretion of local INS officials. Initial detention
and parole decision should be made pursuant to legally binding
regulations, and should be automatically and promptly referred for
review to a judicial or other competent and independent authority. In
those cases in which some form of detention or supervision is deemed
necessary, and where there is no risk to the community, the use of
alternatives to detention should be maximized, including for instance
supervised release programs or release to community, religious or non-
governmental organizations trained in refugee resettlement.
iv. the asylum filing deadline
The Illegal Immigration Reform and Immigrant Responsibility Act of
1996 imposed, for the first time, a one-year-from-arrival filing
deadline on asylum claims filed with the U.S. government. The only
exceptions to that filing deadline are for ``changed circumstances''
that materially affect an asylum seeker's eligibility for asylum or
``extraordinary circumstances'' relating to the delay in filing the
asylum application. The 1996 law also purports to preclude federal
court review of determinations to bar asylum claims under the deadline.
Since the filing deadline took effect, more than 10,000 asylum
seekers have had their claims rejected by the INS. In fiscal year 2000
alone, more than 6000 asylum claims were rejected based on the filing
deadline.
The Lawyers Committee has learned of many bona fide asylum seekers
whose claims have been rejected because of the filing deadline,
including asylum seekers represented through our pro bono
representation program. Even asylum seekers whose circumstances
squarely fit the statutory exceptions, and the regulations detailing
those exceptions, have had their asylum claims rejected. For instance,
the asylum claim of a torture survivor and student activist from Burma
was denied by an immigration court in California based on the asylum
filing deadline, even though the judge believed he was credible and
otherwise eligible. The Burmese refugee had been repeatedly arrested
and tortured by the Burmese military regime because of his peaceful
political activities. He did not initially apply for asylum because he
hoped that the situation in Burma would improve so that he could return
to his family.
Makani Jalloh, a refugee and mother from Sierra Leone, fled to the
U.S. after her husband and son were killed, and she herself was
brutally attacked. She arrived in the U.S. in July 1999. She did not
read or write English, and had no money to support herself or to pay
for a lawyer. With the help some fellow Sierra Leonians, she filed for
asylum--within one year of her arrival. Makani was not able to afford
to pay for a lawyer to accompany her to her asylum office interview,
and the INS rejected her asylum case, claiming that she could not prove
that she had been in the U.S. for less than one year. The INS placed
Makani and her two children into deportation proceedings. Makani then
learned about the Lawyers Committee for Human Rights, which found pro
bono attorneys to take on her case. With the help of her pro bono
lawyers, Makani and her children eventually won asylum before an
immigration judge.
Here today is Anna Smirnova, a national of Russia. The INS is
currently contesting her grant of asylum on the ground that her claim
is barred by the deadline. Anna fled from Russia fearing persecution
based on her mixed nationality. She is part Jewish, and also part Arab
and part African-American--her great-great grandfather was a prominent
American civil rights leader. Anna arrived in the United States on
April 17, 1998. She gave birth later that year, and began caring for
the new infant. She missed the one-year filing deadline due to the
burdens of being pregnant--a physical condition that should certainly
have satisfied one of the exceptions to the filing deadline--and the
resulting burden of caring for a new infant as a single mother. And,
like many refugees, she was unaware of the deadline. However, once she
became aware of the one-year requirement she immediately filed her
claim, which was received by the INS on April 22, 1999. Yet despite
extensive documentation of her fears of persecution and of her
pregnancy, the INS rejected Anna's asylum claim based solely on the
asylum filing deadline. Although an immigration judge eventually
granted her claim, the INS is still seeking to deport her based in part
on her failure to file within the one-year filing deadline. While her
attorneys at the Hebrew Immigrant Aid Society are opposing the appeal,
the INS is still maintaining that her claim is barred by the filing
deadline.
Ironically, the filing deadline has actually led to inefficiency
and waste in the asylum system. Some deserving asylum claims--claims
which would likely have been granted on the merits but for the asylum
filing deadline--have been ``rejected'' procedurally by the INS based
on the filing deadline. As a result, these cases have been referred to
immigration court meaning that the system must bear the additional
expense of a hearing in immigration court before the asylum seeker is
granted asylum. Without the filing deadline, some of these cases would
have been granted asylum by the INS without the additional expense of
an immigration court hearing.
It is now widely recognized within the U.S. government that the
INS's 1995 asylum regulatory changes (known as ``asylum reform '') were
a tremendous success: new asylum claims are now processed on a timely
basis (generally within 180 days); the large backlog of asylum claims
has been reduced; the number of asylum claims has declined dramatically
from 123,884 in FY 1994 to 41,659 in FY 2000 (the FY 1999 numbers were
even lower); and the asylum grant rate has increased, which appears to
reflect that a higher percentage of meritorious asylum claims are being
filed. Thus, many of the problems that led some to favor an asylum
filing deadline have been remedied by the asylum reforms initiated in
1995.
While a one-year filing deadline may initially sound reasonable to
some, a closer examination of the reality that faces many refugees when
they arrive in this country makes clear that the filing deadline is
indeed difficult for many deserving refugees to meet. Many genuine
refugees arrive in this country unable to speak English, unfamiliar
with our legal system, unable to afford food and housing, let alone
legal counsel, and often suffering from the effects of the torture or
persecution they have faced. Amchok Gyamtso Thubten will describe for
us today the difficulties that many Tibetan refugees face in meeting
the asylum filing deadline. Some who have been victims of ethnic or
religious persecution, may not even realize they are eligible for what
is often referred to as ``political'' asylum.
Prior to the enactment of the filing deadline, the Lawyers
Committee conducted a study of its own pro bono cases. This study
revealed that only 38% of the Lawyers Committee's cases (cases that the
Lawyers Committee had judged to be bona fide) were filed within one
year of the refugees' arrival. This is understandable. As Dr. Allen
Keller, the Director of the Bellevue/NYU Program for Survivors of
Torture has explained: ``Generally, the most deserving asylum
applicants are unable to speak about their persecution immediately
after they arrive in the United States. Victims of torture, and others
who suffer from Post-Traumatic Stress Disorder (PTSD), have great
difficulty relating their stories both to their representatives and to
U.S. authorities until they have had time to recover from their
trauma.'' Dr. Keller has submitted written testimony to this
Subcommittee today documenting this impact.
We believe that the asylum filing deadline should be repealed. It
is inefficient and is causing needless hardship to refugees who clearly
deserve protection. Short of outright appeal, the filing deadline
should at least be eliminated in affirmative asylum applications, and
the fact that an application has been filed more than one year after
arrival could be considered a negative discretionary factor, subject to
a good-cause exception, in connection with asylum applications filed
defensively before immigration judges. To the extent any filing
deadline is retained, federal court review of filing deadline denials
should be restored. If the deadline is eliminated or limited, those
whose cases have been rejected based on the prior filing deadline
provision should be allowed to reopen their cases.
v. the cap on asylee adjustments
When refugees are granted asylum, they are entitled under our law
to apply for legal permanent residence status one year after their
grant of asylum. But as there is an annual cap on the number of asylees
who may adjustment and a backlog of applications, refugees now have to
wait several years to receive their legal permanent residence status.
Amchok Gyamtso Thubten, a Tibetan refugee who will be testifying before
you shortly, applied for legal permanent residence status in 1999. He
has still not received his ``green card.'' It has been estimated that
someone granted asylum today will not be able to adjust his or her
status for 6 six years. The impact of this delay on refugees is
significant--it undermines their ability to integrate into our society,
to seek employment and advancement, to apply for citizenship, to travel
to visit family securely and in some cases to be united with family
members.
One client of the Lawyers Committee, a refugee from Ethiopia,
married after she was granted asylum. Her husband, a long-time family
friend who lived in exile in Europe, was not eligible to be brought to
the U.S. as an asylee because the marriage occurred after our client
was granted asylum. The delay of several years in receiving her green
card needlessly delayed her ability to petition for him to come to the
United States and join her. While she visits him several times a year,
the couple has been separated by an ocean for their four-year marriage.
Because of the marriage, the U.S. has refused to issue the husband a
visa to come to visit his wife and child. Their son, now 3 years old,
sees his father for brief visits once a year. They hope that after she
becomes a citizen, they will finally be able to live together as a
family. My client, who spent her childhood separated from her family
because of the cruelty of the Menguistu regime, is patient. But no
reasonable policy interest is served by this unnecessary delay.
The cap on asylee adjustments should be lifted. Those who are
granted asylum are entitled, under our law, to apply for permanent
residency one year after their grant of asylum. These are deserving
individuals, many of whom have suffered terribly under governments who
abuse the basic rights we in this country take for granted. Their
welcome into our society should not be delayed for years by an
arbitrary limit on the number on asylees that can become legal
permanent residents.
Chairman Brownback. Thank you, Eleanor. That was powerful
testimony. I also want to thank all of you who came here today
to present your statements in front of us.
Could all of you stand again, please? Those of you that are
here today with your asylum story, I thank you. I want to
personally thank you for coming here and giving your time so
that we could put a face on a very difficult situation. And I
applaud you. I think it is wonderful what you have done and
what you have fought on through. I hope you will continue to
work with us to make the system better and forgive us for any
deficiencies we have had in it. Thank you.
Eleanor, thank you for presenting, and for all the
arrangements that you made in getting people here. I want to
ask just a couple quick questions. We have two more panels in a
short afternoon.
The most powerful statement I heard here regards the
betrayal of American values. I do not know if it was you or Ms.
Young, who made the statement, but it seems to me that this is
what is going on here. We allow people, we encourage people to
come to America and seek asylum; we say we do not want to see
you persecuted in your homeland, and yet we treat them so
poorly here.
Has it always been this way in the United States, or prior
to 1996 was it different, Ms. Acer?
Ms. Acer. Yes, the procedures that existed prior to 1996
were much superior. When asylum seekers arrived here in this
country, they had a right to come in front of an immigration
judge. They could not be summarily returned from the airport.
That part of the process was much better.
The detention problems existed before. They have been
reinforced by the 1996 law. Those are longstanding problems
that really need a fix, and it is wonderful that you are
looking into those issues now and that hopefully can lead to a
permanent improvement there as well.
Chairman Brownback. I think these are both areas we really
need to look at.
Ms. Young?
Ms. Young. In the detention context, certainly the INS had
the authority to detain asylum seekers prior to the 1996 Act.
But I think what we saw in 1996 was an increased emphasis on
detention and also a provision that said that asylum seekers
must be mandatorily detained until they prove credible fear.
And, again, theoretically, parole is available once credible
fear is established. However, what we see are INS districts
implementing detention policies of their own. In fact, we have
33 different detention policies across the United States, and
some INS districts are more generous than others.
Unfortunately, for example, the New York and Newark
districts, where large numbers of asylum seekers are detained,
have some of the tightest parole policies in the country.
Chairman Brownback. Thank you.
Senator DeWine?
Senator DeWine. Mr. Chairman, let me again thank you for
holding this hearing and thank our witnesses. I come at this
not as an unbiased and impartial observer. I spoke out against
this provision in 1995 and 1996. Candidly, the bill was much
more draconian than it ended up when it started. And we were
successful in some areas, but in other areas we were not.
Let me, if I could, just read briefly what I said at the
time in the floor debate, and I think that your testimony today
has tragically confirmed what I feared 5 years ago when we were
debating this. ``The most worthy cases for asylum would be
excluded if we impose this new summary exclusion procedure.
Among those excluded would be cases of victims of politically
motivated torture and rape, the very people who are most likely
to use false documents to flee. The few times in our history
when we have turned our back on people who are persecuted--and
there are examples of this, the Nazi Germany situations, for
example, and those few times we have lived to regret it.''
So I think that your testimony confirms, frankly, what I
feared a few years ago when we were debating this bill, and I
think frankly it is up to this Congress to try to take the
lessons that we have learned and the testimony that we take
from you and the other panel members today and maybe try to do
something with that.
Let me ask any member of the panel who can answer the
question: We talk about the individuals who seek asylum who are
detained, and do we have statistics that would indicate what
the average time of detention is and what the range of time for
detention is? Are those statistics available?
Ms. Young. As I mentioned in my testimony, the INS has been
notoriously poor at collecting detention statistics. However,
having said that, what we do know is in terms of overall
detention, which includes asylum seekers but also other
populations, they reported in 1999 that the average length of
detention I think was 29 days, if I recall correctly.
However, we have seen that asylum seekers are held for
much, much longer periods of time. Just to give one example, I
interviewed a Chinese woman who was held in Bakersfield,
California, who had been in detention for almost 5 years and
eventually won asylum.
Also, the length of detention, again, in districts such as
New York and Newark, where large numbers of asylum seekers are
held, tends to be much higher than that average that I just
cited. I believe in New York it is around 124 days. Karen
Musalo may know--
Senator DeWine. So there is a great discrepancy, and you
already testified to this. There is a great discrepancy in what
area of the country--between the different areas.
Ms. Young. Absolutely, and, again, that is, I think,
because of the discretion that is granted to the INS districts
in terms of what decisions they make in terms of parole or--
Senator DeWine. And I am not sure I understand that. How
does that play out? How is it that Congress has created a law
that gives that much discretion? How does that work? Explain to
me how that works.
Ms. Young. To a certain extent, I think it is not unique in
the detention context. The INS districts tend to exercise
tremendous authority over a lot of decisionmaking. The INS is a
very decentralized agency.
But the problem is you have basically got the fox watching
the henhouse because the districts are also charged with
deporting people. So they tend to err on the side of law
enforcement concerns as opposed to humanitarian or even fiscal
concerns.
Senator DeWine. Anybody else?
Ms. Acer. I was just going to add that there is no appeal.
For example, when parole is denied, you cannot go see a judge
or anyone outside, an independent of the INS. And that is
inconsistent even with the UNHCR's guidelines.
Also, the Dallas Morning News recently, after having FOIA'd
some statistics, I think discovered about, I think, 361 asylum
seekers who had been detained over a year, I believe, if that
is the correct number.
Senator DeWine. Thank you, Mr. Chairman.
Chairman Brownback. Thank you very much.
I thank the panelists for bringing such compelling,
excellent, well thought through, and well presented testimony,
and I look forward to working with you.
Our second panel will be three asylee witnesses and their
presentation of their experiences. I apologize in advance for
not getting these names accurate when I pronounce them, so
please just bear with me. Patrick Mkhizi is an asylee from the
Democratic Republic of the Congo. Our second speaker is Mina--
that is not her actual name, but a name given to protect her
identity--who is an asylee from Afghanistan. And our third
speaker is Amchok Gyamtso Thubten, an asylee from Tibet. We are
grateful for your testimony here today. I apologize again for
not getting your names right. You can call me ``Sam,'' if you
would like. That may help explain why I have difficulty with
some names.
Patrick, would you please present us your testimony first?
And if you could, get close to the microphone so we can clearly
hear your testimony.
STATEMENT OF PATRICK MKHIZI, REFUGEE FROM THE DEMOCRATIC
REPUBLIC OF CONGO
Mr. Mkhizi. Thank you.
Chairman Brownback. Patrick, you are going to need to pull
that microphone right up to you. It is kind of a ``get close
and personal'' microphone.
Mr. Mkhizi. Chairman Brownback and other Senators, thank
you so much for asking me to come here today to talk about my
own experience when I came to this country. I am a refugee and
I have been granted asylum in the U.S.
Chairman Brownback. Patrick, please, again, pull that
microphone up closer to you, would you, please? The technology
is not the best.
Mr. Mkhizi. It seems almost a miracle that I am sitting
here today. You see, when I first arrived in the United States,
I was very nearly deported and then was detained for three and
a half years. I came to the U.S. to escape from persecution in
my country, which was Zaire. My father was a member of pro-
democracy party, which opposed the Mobutu regime. One terrible
day, security forces raided our home and discovered opposition
materials. They beat and tortured me, and they beat my father
to death before my eyes. My mother and two sisters ran away
from the house, and I have not seen them since. I knew I had to
run away, too. I made my by boat to the United States. I
arrived in Philadelphia in May 1997, just after the expedited
removal procedures began.
The INS put me in chains and took me to the detention
facility in Elizabeth, New Jersey. An INS asylum officer sat
with me and asked me a lot of questions. I did not understand
what was happening because there was no interpreter, no lawyer
to explain things to me, and I did not even know what asylum
meant at the time. I was so afraid. I did not know what was
going to happen to me, and I thought they might send me back to
Zaire. The INS officer decided I did not have a credible fear
and ordered me deported. I then had an immigration judge
``review,'' but there was no lawyer or interpreter to help me
understand. It was very confusing. The judge asked me questions
in English which I could not understand. I was too terrified to
answer because I was afraid of being sent back to Zaire to die.
My fears came true. They brought me in chains to the
airport to send me back. I was shaking with fear. At the
airport, I cried out, ``This is a country of human rights! Why
are you trying to deport me to my country, where I will be
killed?'' I lay on the ground and refused to go. Three
detention guards picked me up, handcuffed me tightly, and
carried me onto the plane. I was absolutely terrified. I cried
on the plane and pleaded with them not to deport me. The
airline employees asked the guards to take me off the plane.
I was returned to the detention facility and contacted the
UNHCR. The INS finally changed its decision and decided that I
really was afraid to go back and that I could apply for asylum.
I was detained at Elizabeth for more than 2 years.
Detention was very difficult experience for me. I had lost my
family and had been tortured in my home country. I felt
depressed and scared. My one comfort during this period was
through the English classes and Bible classes offered by Jesuit
Refugee Services, which were later stopped by INS. Through JRS,
I met Charlie and Gerri Mulligan, who visited me and sponsored
me for parole. I made a parole request, but the INS denied it.
Then the INS transferred me to Sussex County Jail, where I
was put in a cell with convicted criminals for 1 year. I lived
in constant fear of being harmed by other inmates. After that
jail, the INS transferred me to York Prison in Pennsylvania,
where I was held for about a month.
After living like a criminal in jail for three and a half
years, I was finally granted asylum in November 2000. I could
not believe at first that I was being released from detention.
I was so happy to have my freedom. Now I am trying to build a
new life. I am taking English classes and studying to become an
auto technician. I am working as an auto technician. I am proud
to say that recently I was employee of the month and student of
the month. For me, this is the meaning of freedom. It is a way
of showing my appreciate for getting my freedom back.
I want to thank you, Senators, for giving me this
opportunity to tell you about my difficulties. I came to this
country seeking freedom and safety. But I was so close to being
deported and then in jail for so long. The law is very harsh. I
hope that you will make the system safer and more humane for
refugees like me.
Thank you.
[The prepared statement of Mr. Mkhizi follows:]
Statment of Patrick Mkhizi, Refugee from the Democratic Republic of
Congo
Chairman Brownback and other Senators, thank you so much for asking
me to come here today to talk about my own experience when I came to
this country. I am a refugee and I have been granted asylum in the U.S.
It seems almost a miracle that I am sitting here today. You see,
when I first arrived in the United States, I was very nearly deported
and then was detained for 3 and \1/2\ years. I came to the U.S. to
escape from persecution in my country, which was Zaire. My father was a
member of a pro-democracy party, which opposed the Mobutu regime. One
terrible day, security forces raided our home and discovered opposition
materials. They beat and tortured me, and they beat my father to death
before my eyes. My mother and two sisters ran away from the house and I
have not seen them since. I knew I had to run away too. I made my way
by boat to the United States. I arrived in Philadelphia in May 1997,
just after the expedited removal procedures began.
The INS put me in chains and took me to the detention facility in
Elizabeth, New Jersey. An INS asylum officer sat with me and asked me a
lot of questions. I did not understand what was happening, because
there was no interpreter, no lawyer to explain things to me, and I did
not even know what asylum meant at the time. I was so afraid. I did not
know what was going to happen to me and I thought they might send me
back to Zaire. The INS officer decided I did not have a credible fear
and ordered me deported. I then had an immigration judge ``review,''
but there was no lawyer or interpreter to help me understand. It was
very confusing. The judge asked me questions in English which I could
not understand. I was too terrified to answer because I was afraid of
being sent back to Zaire to die.
My fears came true. They brought me in chains to the airport to
send me back. I was shaking with fear. At the airport, I cried out,
``This is a country of human rights! Why are you trying to deport me to
my country, where I will be killed?'' I lay on the ground and refused
to go. Three detention guards picked me up, handcuffed me tightly, and
carried me onto the plane. I was absolutely terrified. I cried on the
plane, and pleaded with them not to deport me. The airline employees
asked the guards to take me off the plane.
I was returned to the detention facility and contacted the IJNHCR.
The INS finally changed its decision and decided that I really was
afraid to go back and that I could apply for asylum.
I was detained at Elizabeth for more than two years. Detention was
a very difficult experience for me. I had lost my family and had been
tortured in my home country. I felt depressed and scared. My one
comfort during this period was through the English and Bible classes
offered by Jesuit Refugee Services, which were later stopped by INS.
Through JRS, I met Charlie and Gerri Mulligan, who visited me and
sponsored me for parole. I made a parole request, but the INS denied
it.
Then the INS transferred me to Sussex County Jail, where I was put
in a cell with convicted criminals for one year. I lived in constant
fear of being harmed by other inmates. After that jail, the INS
transferred me to York Prison in Pennsylvania, where I was held for
about a month.
After living like a criminal in jail for three and a half years, I
was finally granted asylum in November 2000. I couldn't believe at
first that I was being released from detention. I was so happy to have
my freedom. Now I am trying to build a new life. I am taking English
classes and studying to become an auto technician. I am also working as
an auto mechanic. I am proud to say that recently I was employee of the
month and student of the month. For me, this is the meaning of freedom.
It is my way of showing my appreciation for getting my freedom back.
I want to thank you, Senators, for giving me the opportunity to
tell you about my difficulties. I came to this country seeking freedom
and safety. But I was so close to being deported and then in jail for
so long. The law is very harsh. I hope that you will make the system
safer and more humane for refugees like me.
Thank you.
Chairman Brownback. That was powerful. God bless you for
being here.
Mina?
STATEMENT OF MINA BURHANI, REFUGEE FROM AFGHANISTAN
Ms. Burhani. Chairman Brownback and other Senators, I am
grateful for the chance to talk today about my own experience
as a refugee seeking asylum here.
I appreciate your cooperation in keeping my identity
confidential as I fear that my family in Afghanistan might be
further endangered if it was known that I have fled to the U.S.
and spoken out about my treatment in Afghanistan.
I was a medical student in Afghanistan before I was forced
to leave school when the Taliban ordered women out of the
schools. The Taliban took a particular interest in me because
my sisters had converted to Christianity and because I ran a
school to teach young girls. Though I tried to keep the school
secret, the Taliban discovered what we were doing. They raided
the school and closed it down. They beat me and threatened to
kill me. They said that they knew I was a Christian probably
because they knew that my sisters were Christian. They said
that my punishment would be a lesson to others. I am sure that
you know, Senators, that the Taliban treat those who disobey
their orders very harshly. I was very frightened and knew that
I had to flee from Afghanistan. When I left, I took only one
extra set of clothes and some money. I did not bring
identification with me because I knew that if the Taliban
stopped me, it would be dangerous if they learned my identity,
because my family is so despised by them.
I fled to the U.S. and arrived at JFK airport in October
1998. After the INS interviewed me, an officer ordered me to
take my clothes off to search me. When I hesitated, she ordered
me to do what she said. I was confused and humiliated. Then
they shackled me to a bench. I thought that they were going to
send me back to Afghanistan. I was so sacred that I fainted in
the airport. As they took me to the hospital, I was still
scared and told them, ``Do not send me back. Please kill me
here, but do not send me back to Afghanistan.''
I was eventually brought to Wackenhut, which is a kind of
jail for asylum seekers like me. I was brought there in
handcuffs and shackled to another person. At the Wackenhut
facility, they took away my clothes and gave me an orange
prison uniform. I was treated like a criminal. I was kept in a
room with 11 other women for 23 hours a day. There was no
privacy. The toilets and shower were in the same room behind
only a low wall so that you could somebody's upper body as they
sat on the toilet. We were only taken out of the room for an
hour a day. The outdoor recreation area was really like a
cage--an internal courtyard with a fence for a roof. We could
not see the trees or anything other than a small patch of sky
through the fencing.
My lawyers tried to get me out of that terrible place. They
applied for parole for me. I have one sister in this country
that is a citizen of America. My sister signed an affidavit
promising to house and support me if the INS would release me.
But they refused. We could not appeal to a judge or anyone
outside the INS. It was very difficult for me to be detained.
When my sister came to visit me on Christmas Eve, she was so
upset, she begged an INS official to release me. Meanwhile, the
Lawyers Committee told Members of the U.S. Congress about what
was happening to me, and one of them raised my case with the
INS. It was only because someone so powerful and respected had
compassion for me and intervened that I was not detained for a
long time. I was detained like a criminal for 3 months and 14
days, but many of the refugee women I met there were detained
for even longer. One woman I knew who had fled from Uganda was
detained for about 2 years before she was finally granted
asylum.
I am now attending the University of Baltimore and received
a scholarship for my studies.
I am happy to learn that there are U.S. Senators who are
concerned about the treatment of asylum seekers in this
country. I believe that this country is a wonderful country,
and I thank you for your efforts to improve its treatment of
refugees. Thank you.
[The prepared statement of Ms. Burhani follows:]
Statement of Mina Burhani, Refugee from Afghanistan
Chairman Brownback and other Senators, I am greatful for the chance
to talk today about my own experience as a refugee seeking asylum here.
I appreciate your cooperation in keeping my identity confidential
as I fear that my family in Afghanistan might be further endangered if
it was known that I have fled to the U.S. and spoken out about my
treatment in Afghanistan.
I was a medical student in Afghanistan before I was forced to leave
school when the Taliban ordered women out of the schools. The Taliban
took a particular interest in me because my sisters had converted to
Christianity and because, together with one sister, I ran a school to
teach young girls. Though I tried to keep the school secret, the
Taliban discovered what we were doing. They raided the school and
closed it down. They beat me and threatened to kill me. They said that
they knew I was a Christian probably because they knew that my sisters
are Christian. They said that my punishment would be a lesson to
others. I am sure that you know, Senators, that the Taliban treats
those who disobey its orders very harshly. I was very frightened and
knew that I had to flee from Afghanistan. When I left, I took only one
extra set of clothes and some money. I did not bring identification
with me because I knew that if the Taliban stopped me, it would be
dangerous if they learned my identity, because my family is so despised
by them.
I fled to the U.S. and arrived at JFK airport in October 1998.
After the INS interviewed me, an officer ordered me to take my clothes
off. When I hesitated, she ordered me to do what she said. I was
confused and humiliated. Then they shackled me to a bench. I thought
that they were going to send me back to Afghanistan. I was so scared
that I fainted. As they took me to the hospital, I was still scared and
told them ``Don't send me back. Please kill me here, but don't send me
back.''
I was eventually brought to Wackenhut, which is a kind of jail for
asylum seekers like me. I was brought there in handcuffs and shackled
to another person I did not know who was also seeking asylum. At the
Wackenhut facility, they took away my clothes and gave me an orange
prison uniform. I was treated like a criminal. I was kept in a room
with 12 other women for 23 hours a day. There was no privacy. The
toilets and shower were in the same room behind only a low wall--so
that you could see someone's upper body as they sat on the toilet. We
were only taken out of the room for one hour a day; the outdoor
recreation area was really like a cage--an internal courtyard with a
fence for a roof. We could not see the trees or anything other than a
small patch of sky through the fencing. Every day, guards woke us up at
Gam and told to stand in a line to be counted. They searched us several
times a week.
My pro bono lawyers tried to get me out of this terrible place.
They applied for parole for me. I have one sister in this country and
she is an American citizen. My sister signed an affidavit promising to
house and support me if the INS would let me out. But they refused. We
could not appeal to a judge or anyone outside the INS. It was very
difficult for me to be detained. When my sister came to visit me on
Christmas Eve, she was so upset, she begged an INS official to release
me. Meanwhile, the Lawyers Committee told some Members of the United
States Congress about what was happening to me, and one of them raised
my case with the INS. It was only because someone so powerful and
respected had compassion for me and intervened that I wasn't detained
for even longer. I was detained like a criminal for over three months,
but many of the refugee women I met there were detained for even
longer. One woman I knew who had fled from Uganda was detained for
about 2 years before she was finally granted asylum.
I am now attending the University of Baltimore and received a
scholarship for my studies.
I am happy to learn that there are U.S. Senators who are concerned
about the treatment of asylum seekers in this country. I believe that
this country is a wonderful country and thank you for your efforts to
improve its treatment of refugees.
Chairman Brownback. Thank you, and I wish the best to you
in your studies. I hope they go marvelously for you. You
certainly deserve it.
Ms. Burhani. Thank you.
Chairman Brownback. Amchok?
STATEMENT OF AMCHOK THUBTEN GYAMTSO, REFUGEE FROM TIBET
Mr. Gyamtso. Chairman Brownback, other Senators, it is an
honor to speak before you today about the problems facing
refugees who seek asylum in the U.S. My name is Amchok Thubten
Gyamtso. I am a refugee from Tibet, and I have been granted
asylum in this country.
In Tibet, my family opposed the Chinese occupation of
Tibet, and for that we suffered harsh persecution for many
years. My father had been a Tibetan Government minister and was
executed for opposing Chinese rule and resisting the Chinese
invasion. My family was labeled an enemy of the communist
regime, and I was expelled from school when I was 10 years old.
I entered a Buddhist monastery when I was 14 years old. As a
Buddhist monk, I distributed literature about the Dalai Lama
and peacefully advocated for Tibetan independence. I had hoped
to bring about more freedom for Tibetans who, like myself, were
denied the same rights as Chinese citizens. Because of my
activities, the Chinese Government held me in prison for 3
years and 4 months. During those years, I was tortured.
Fortunately, I managed to escape to this country. I arrived
in November 1995, before there was such a thing as expedited
removal and the filing deadline. With the help of the Lawyers
Committee for Human Rights, I won asylum in 1997. Last year,
lawyers at Latham and Watkins helped me to found Song Tsen
Tibetan Community Outreach, a Tibetan community organization
based in New York City. As the president of Song Tsen, I work
to inform the Tibetan refugee community about the 1996
immigration law's asylum filing deadline. In a survey that Song
Tsen conducted with 600 Tibetan refugees in New York City, we
found that more than half did not know about the 1-year filing
deadline. I have worked with many Tibetan refugees who missed
the filing deadline or did not know that it exists.
Just recently, I worked as an interpreter with pro bono
attorneys representing one Tibetan refugee who, like me, was
detained and tortured by the Chinese authorities because of his
peaceful activities on behalf of Tibetan independence. After
arriving in the United States, he did not apply for asylum
immediately because he could not understand English. He did not
know about the 1-year filing deadline. He was also suffering
from the effects of torture and had difficulty talking about
what had happened to him. As a result, he missed the filing
deadline. In March of this year, his asylum claim was rejected
by the INS based on the filing deadline. I also know of other
Tibetan refugees whose asylum claims have been rejected on the
same basis.
Through my work, I have also heard of Tibetan refugees who
have come to the United States to seek asylum but were turned
away after being stopped by the INS at JFK International
Airport. For instance, I have heard of two Tibetan monks and a
nun who were not permitted to apply for asylum and deported
after arriving at the JFK airport. I do not know what has
become of them.
I have also recently visited a Tibetan refugee who is
currently detained at the Elizabeth Detention Center in
Elizabeth, New Jersey. He is a farmer who had peacefully
protested when the Chinese removed the Dalai Lama's picture
from a local monastery. As a result, he was wanted by the
Chinese authorities. Fearing arrest and torture, he fled to the
United States. He arrived at the JFK airport on New Year's Eve
2000. No interpreter was provided for his interview with INS,
and since he speaks almost no English, he had difficulty
communicating with INS officers. Right now, he is the only
Tibetan in detention, and it is hard for him to communicate
with other detainees because he does not speak English. He has
told me that he feels isolated and extremely lonely.
Detention, expedited removal, filing deadlines--I am very
grateful that these laws were not in place when I fled to this
country. But you should also know, Senators, that even those
fortunate refugees who overcome the many hurdles and are
granted asylum must wait a long time before they can get legal
permanent residence. For example, although I applied in 1998, I
still have not been granted my permanent residence status.
Thank you, Senators, for this opportunity to share my
experiences and the difficulties of Tibetan refugees affected
by the 1996 immigration law. I hope you can change U.S.
immigration law for refugees in the near future.
Thank you.
[The prepared statement of Mr. Gyamtso follows:]
Statement of Amchok Thubten Gyamtso, Refugee from Tibet
Chairman Brownback and other Senators, it is an honor to speak
before you today about the problems facing refugees who seek asylum in
the U.S. My name is Amchok Thubten Gyamtso. I am a refugee from Tibet,
and I have been granted asylum in this country.
In Tibet, my family opposed the Chinese occupation of Tibet, and
for that we suffered harsh persecution for many years. My father had
been a Tibetan government minister and was executed for opposing
Chinese rule and resisting the Chinese invasion. My family was labeled
an enemy of the communist regime, and I was expelled from school when I
was ten years old. I entered a Buddhist monastery when I was fourteen
years old. As a Buddhist monk, I distributed literature about the Dalai
Lama, and peacefully advocated for Tibetan independence. I had hoped to
bring about more freedom for Tibetans, who like myself, were denied the
same rights as Chinese citizens. Because of my activities, the Chinese
government held me in prison for three years and four months. During
those years, they tortured me.
Fortunately, I managed to escape to this country, and arrived in
November 1995, before there was such a thing as expedited removal and
the filing deadline. With the help of the Lawyers Committee for Human
Rights, I won asylum in 1997. Last year, lawyers at Latham & Watkins
helped me to found Song Tsen Tibetan Community Outreach, a Tibetan
community organization based in New York City. As President of Song
Tsen, I work to inform the Tibetan refugee community about the 1996
immigration law's asylum filing deadline. In a survey that Song Tsen
conducted with 600 Tibetan refugees in New York City, we found that
more than half did not know about the one year filing deadline. I have
worked with many Tibetan refugees who missed the filing deadline or did
not know that it exists.
Just recently, I worked as an interpreter with pro bono attorneys
representing one Tibetan refugee who, like me, was detained and
tortured by the Chinese authorities because of his peaceful activities
on behalf of Tibetan independence. After arriving in the United States,
he did not apply for asylum immediately because he could not speak
English, and did not know about the one year filing deadline. He was
also suffering from the effects of torture, and had difficulty talking
about what had happened to him. As a result, he missed the filing
deadline. In March of this year, his asylum claim was rejected by the
INS based on the filing deadline. I also know of other Tibetan refugees
whose asylum claims have been rejected on the same basis.
Through my work, I have also heard of Tibetan refugees who have
come to the United States to seek asylum but were turned away after
being stopped by the INS at J.F.K. International Airport. For instance,
I have heard of two Tibetan monks and a Tibetan nun who were not
permitted to apply for asylum and deported after arriving at JFK
airport. I don't know what has become of them.
I have also recently visited a Tibetan refugee who is currently
detained at the Elizabeth Detention Center in Elizabeth, New Jersey. He
is a farmer who had peacefully protested when the Chinese removed the
Dalai Lama's picture from a local monastery. As a result, he was wanted
by the Chinese authorities. Fearing arrest and torture, he fled to the
United States. He arrived at JFK Airport on New Year's Eve, 2000. No
interpreter was provided for his interview with INS, and since he
speaks almost no English, he had difficulty communicating with INS
officers. Right now, he is the only Tibetan in detention, and it is
hard for him to communicate with other detainees because he doesn't
speak English. He has told me that he feels isolated and extremely
lonely.
Detention, expedited removal, filing deadlines-I am very grateful
that these laws were not in place when I fled to this country. But you
should also know, Senators, that even those fortunate refugees who
overcome the many hurdles and are granted asylum must wait a long time
before they can get legal permanent residence. For example, although I
applied in 1999, I still have not been granted my permanent residence
status.
Thank you, Senators, for this opportunity to share my experiences,
and the difficulties of Tibetan refugees affected by the 1996
immigration law. I hope you can change U.S. immigration law for
refugees in the near future.
Chairman Brownback. Thank you, Amchok. A year ago in
January, I was in Katmandu, Nepal, and personally interviewed
around 15 Tibetans who had fled over the Himalayas in the
winter to get away from the Chinese oppression in Tibet--there
were children and the aged. It was an incredible situation that
they fled and all they had gone through just to get to that
point. It is such a shame that upon reaching our shores more
problems would be added to them. Each of them had individual
stories of being locked up, of being beaten, of family members
being persecuted. And it was just incredible the hardship they
went through to walk over some of the regions in the
wintertime. The human spirit present was just indomitable. It
was compelling to see.
I want to ask each of you about documentation when you
reached America. Patrick, if I could ask you first, when you
reached America, what sort of documentation did you have with
you? I am presuming none was available since you were fleeing
the regime in Zaire.
Mr. Mkhizi. Yes, I had no documents. Since I came and
arrived in Philadelphia, the INS inspectors, they interviewed
me, but it was difficult to communicate with them. And it was
my understanding that there was United Nations for Refugees, so
I ask, I want to see them, and they say we are going to provide
for you. But, otherwise, I did not have any documents.
Chairman Brownback. And it would have been impossible for
you to have had any documents.
Mr. Mkhizi. Yes, because the day the soldiers came to my
house, they just like attacked the house and came inside the
room and found the pamphlets from my father, which is active in
the political party against Mobutu. And so the same day they
tried to--they beat me, they beat my father, and my mother and
two sisters, they were outside, they escaped the same day. So I
cannot get the documents. There is no time to get the
documents.
Chairman Brownback. Mina, your family has had a lot of
education, and you have stated in your testimony that you
feared traveling in Afghanistan with any documentation for fear
of being captured and determining who you are. So you could not
have brought any with you to verify to the INS what you have
been through. Is that correct?
Ms. Burhani. That is why I did not have any documents with
me, because I did not want to be recognized by the Taliban.
Chairman Brownback. And I take it that this is a fairly
typical situation for most people fleeing persecution and
seeking asylum. They are trying to get away from people who
seek to do them harm or to kill them.
Ms. Burhani. Yes.
Chairman Brownback. Amchok, was that the case with you as
well regarding any sort of documentation that you had when you
left Tibet?
Mr. Gyamtso. Yes, with my experience under the Chinese law
as a Tibetan, we generally did not receive any passport or like
that. But since I am personally involved in political issues
and since the Chinese Government wanted at that point, it is
very hard to get legitimate documents. And as you said right
now, I fled to Nepal, eventually to India, and from there
seeking asylum, and the Indian Government denied my application
for asylum. From there, the only option I have is to use a fake
document in order to come to United States.
Chairman Brownback. Let me ask if any of you have
suggestions from your experiences. Also, I apologize for the
nature of what you have experienced once you arrived here. What
would you change? How would you change the system, based on
what you experienced once you reached the United States?
Mr. Mkhizi. I think they should change to provide first in
the airport, provide someone who is fluent in translation, like
if it is French or any language of the world, provide a
translator and privacy and give him the time, the refugee, to
express his fear and all the confidential, because it is
difficult. Our country, if the government is against you, it is
difficult to come up here and to say anything against your
government. For example, if I was in my country, I would be
killed. So if you give me time, I can explain more, and you
provide a lawyer and provide a translator so they can help.
Another thing is to improve the system of detention. You should
not detain. For safety and security reasons, it should not be
even about a week. If somebody has a family outside, let them
go to the family. You have the address. The security I believe
is good. So that is how the system can be improved.
Chairman Brownback. You will learn that in the United
States you can freely speak out against the Government. Many
people do this very well.
Mina, do you have any suggestions?
Ms. Burhani. I agree with him, what he said. I am not a
legal expert. I do not know, but I think it should be at least
fair to the asylum seekers. I do not think they are fair with
them. That is all I can say.
Chairman Brownback. Amchok?
Mr. Gyamtso. I think my experience, if someone is seeking
asylum, I think they should not be detained, and they should
provide legal assistance and interpreter. And one with my
experience as a Tibetan community leader, as I mentioned in my
statement, we have a very difficult problem with the expedited
removal, the filing deadline. For instance, in this past year,
I have several friends who missed the filing deadline. One in
particular was the monk from Tibet who came with a group of
monks to the United States, and the group of monks were going
to visit in nearly 30 States doing--created some Buddhist
lectures, and after that project finished, he is 1 year and 1
month, and he applied late last year, and early this year INS
rejected his asylum application because--based on the filing
deadline, which makes it very difficult for the refugees
because while it takes nearly 2 or 3 years and during this
period of time you are not eligible to legally work, and, for
instance, if you have wife or child, you will be separated from
your family members for nearly 6 or 7 years. Like my own, I
came in 1995, and at that time the filing deadline was not yet
placed. But I did apply in 1996 and still I did not receive
that legal status, the permanent residence, which means I
cannot travel, I cannot visit my mom, you know, which is a very
difficult and devastating situation. So that monk, he is very
devastated. He may be deported back to China because the case
is much more difficult. And while nearly 2 years you have to
wait, with no legal permission, you cannot work, and
financially it is very difficult to this individual.
I think there is a way probably to provide some kind of a
short--and definitely I think people should not be detained.
Chairman Brownback. Those are excellent suggestions on your
part, and we will look to see if we can incorporate them.
I want to thank the panelists for being here; you provide
tremendous stories. I look forward to hearing from each of you
twenty years from now and to knowing what your American journey
becomes like. It has been a rough start for you, I realize, but
many times in this country, the rough start causes you to sink
your roots deeper and grow taller in the end. Thanks for being
here.
Mr. Gyamtso. Thank you.
Chairman Brownback. The final panel, I would like to have
them come forward. Dr. Donald Hammond is a senior vice
president for World Relief, which is a humanitarian
distribution arm for the National Association of Evangelicals.
Leonard Glickman is president of the Hebrew Immigrant Aid
Society, one of the oldest refugee advocates and resettlement
organizations in America. And Dan Stein is the executive
director of the Federation for American Immigration Reform. I
look forward to the witnesses' testifying.
Dr. Hammond, thank you for joining us, and I look forward
to your testimony.
STATEMENT OF DONALD HAMMOND, SENIOR VICE PRESIDENT, WORLD
RELIEF, WASHINGTON, D.C.
Mr. Hammond. Thank you, Senator Brownback. I would like to
have my full testimony, the written testimony, submitted for
the record.
Chairman Brownback. Without objection, and all of you can
summarize. Your full testimony will be included in the record.
Mr. Hammond. Thank you. I especially thank you for the
opportunity to address you today. In the brief time of your
leadership of the subcommittee, you have been bringing up many
issues that are important to asylum seekers and people that we
have seen and heard from today.
My voice will not be as powerful as theirs. Those are the
ones that we need to listen to carefully, and we need to
respond very carefully to what they are saying to us. Our
country is a great country, and we cannot allow this to keep
going on. We believe that there are critical changes that need
to be made, and we have heard about them today very
articulately.
We are here today, I am here today to represent a segment
of the U.S. constituency that has bipartisan roots, one that is
concerned with justice, human dignity, and freedom. The issues
that we are here to discuss have both common, shared concerns
among those who want U.S. policy to reflect the great history
that this country has been built on--a history of democracy, of
liberty, and safety from oppression.
World Relief is the relief, development, and refugee
assistance arm of the National Association of Evangelicals. We
are owned by 49,000 evangelical churches that represent various
ethnic backgrounds within over 50 denominations in the United
States. World Relief's historically conservative constituency
is one that has modeled the evolution of immigration and
refugee concerns.
In 1994, an evangelical was one of the primary authors of
Proposition 187 in California that barred undocumented
immigrants from critical public services. But the categories
and definitions of liberals and conservatives are fading away.
This past year, the National Association of Evangelicals
surveyed its members and found that almost 70 percent thought
that immigrants are beneficial to our society--a stark change
from writing a law that denies services to undocumented people
in our society.
Just weeks ago, at their annual convention, the NAE passed
a resolution supporting asylum and refugee issues, such as the
Refugee Protection Act, and in November of 2001, this fall, the
World Evangelical Fellowship, the umbrella of evangelical
associations worldwide, is holding its first ever evangelical
consultations on refugees in Turkey. So this is an issue that
our constituency is concerned about, and it has been raised to
a level that, in my 20 years of working on these issues, has
not been there before.
Of great concern to our constituency are the thousands of
people of faith who are forced to flee their homes due to
religious persecution. The INS has not provided statistics on
how many expedited removal cases are claiming religious
persecution, but the link between asylum seekers and religious
persecution cannot be denied. It is very clear.
When we hear of rape and torture and death due to religious
persecution, are we to point our finger back at those
persecuted and say, as we so sometimes in expedited removal,
``Yes, we know you are persecuted, but stay there in your
country and things will work out''? No, I think there is a
better thing for us to do.
A Chinese pastor that was defended by the Rutherford
Institute was recently granted asylum. Speaking of the
repression he faced at the hands of the government for his
evangelical Christian beliefs, he stated, ``that despite the
Chinese Government's release of high-profile dissidents, the
Chinese Government has become more strict with regard to
individuals involved with religious activities and that
religious individuals are feared more than political
demonstrators.''
This pastor was fortunate to be processed before the new
expedited removal was implemented in 1997. Had he gone through
the process a year later, even 6 months later, he might have
been summarily removed and sent back.
Karen Musalo's report on the implementation of expedited
removal lists more than 100 nationalities with the highest
numbers of people being sent back to their countries of origin.
Of those countries, almost 40 percent appear on this year's
Open Doors World Watch List of countries that severely restrict
religious freedom.
Without more information from the INS, we cannot draw the
correlation directly, but the link between asylum and religious
persecution cannot be dismissed.
Mr. Chairman, in 1997, this body heard similar information
of the link between asylum and religious persecution during the
consideration of the International Religious Freedom Act. At
that time, an effective coalition of conservative and liberal
actors rose up to highlight these issues. It brought together
those on the left and those on the right, faith-based and non-
sectarian communities, and those concerned with freedom and
democratic principles, and set out in cooperation to demand
reforms. Through the bipartisan efforts of many faithful and
passionate people, the International Religious Freedom Act
passed successfully through Congress. However, unfortunately,
at that time the Senate declined to take action on asylum. Now
is the time to resurrect that discussion on asylum and deal
with the unfinished business.
It is time for the U.S. to take a hard look at the drastic
changes it made in the 1996 immigration policy and make sure
that the lasting legacy is not one that causes death and
further persecution and the mishandling that we heard of of
people here on our shores and the further persecution of those
that risk their lives for freedom. It is time for the pendulum
to swing to the middle and for the U.S. to limit the tremendous
authority given to the INS in 1996. It is time to limited
expedited removal and restore due process to refugees.
Mr. Chairman, I have heard some say, ``Why don't we only
spare those who are fleeing from religious persecution and send
back everyone else?'' To that I say if our law needs to be
changed, then they must be changed for all--all who are truly
persecuted, whether it is for reasons of race, religion,
nationality, membership in a social group, or political
opinion, and who have risked their life and limb to come to our
shores to find safety. Those are the ones that we need to
change the law for.
Consider the story of Dominic, a political refugee, the son
of an outspoken Liberian statesman. He fled the regime that
murdered his parents and sisters as they lay sleeping in their
beds during the Liberian civil war. After 7 years of living
undercover in Monrovia and fleeing to the Ivory Coast, Dominic
stowed away on a ship without even knowing its destination.
When the ship docked in New York, he was taken to the INS
Wackenhut Detention Center in Jamaica, Queens, and incarcerated
for almost 2 years. Members of a local evangelical church, the
Redeemer Presbyterian Church in Manhattan, befriended him and
provided him modest support and arranged for lawyers from Yale
and other places to give him pro bono advocacy. His
applications for asylum were lost several times and delayed,
and he came close, despairingly close, to being released. As a
story that we heard, he was put on a plane and was taken off at
the very last second before he was sent back to the Ivory
Coast, where he would have very easily been repatriated
forcibly back to death in Liberia.
He now awaits--it took phone calls from several of us and
other people, and faxes, to Commissioner Meissner at INS to
reverse him being sent back that very day. And he was removed
from the plane after our interventions. He now awaits his
asylum hearing.
This is only one story, and the story goes on and on and on
with many examples that we could give you, but time is
pressing.
Mr. Chairman, in most faith traditions, caring for the
stranger plays a central role in the living out of one's faith.
My Muslin colleagues have told me many times that in Islamic
tradition, anyone who dies a refugee holds a special position
in heaven because of the hardship he or she experiences in
life. The Jewish tradition speaks very highly of the strangers
and how they are to be treated in Leviticus and Deuteronomy, as
the law is laid out to them. We have heard about the Matthew 25
passage, and it is in my testimony, and several people that
have talked about it.
For Christians, Jesus is very clear about how we are to
live our faith out. There is no question about what we are to
do. We are to care for those who are hungry, someone who needs
a drink, to provide food and to care for the strangers and
aliens in our midst. And when we do that, we are doing it as
unto him. That call is so strong in our lives that we cannot
let it pass.
I am passionate about that in my life. I have spent 20
years dedicated to that. I want to see our country reverse
these rules that keep our country from doing that as well. We
must as Christians cry out to our country to change these laws.
And we will be there to help you and advocate on behalf of the
changes that need to be made.
If we seek justice, then we must seek justice for all. We
should be in the business of protecting all those who are
persecuted. If we save the Chinese pastor who fled abuse
because of his religion, we are compelled to save Dominic, who
was persecuted for his family's political involvement.
Mr. Chairman, only with political will can we change our
laws to protect the persecuted. It was done in 1997 for victims
of religious persecution, it was done last year for victims of
sex trafficking, and now it must be done for refugees.
I was told a story by a friend--and I will close with
this--from Britain who told me a story of how he is convinced
that the United States is the only entity that hold
international leadership on issues of refugees, that people of
other countries around the world look to us to what they should
do. They follow our example. We need to take leadership, sir,
and we will be here to help you and to work with you in that
regard.
[The prepared statement of Mr. Hammond follows:]
Statement of Donald Hammond, Senior Vice President, World Relief
Introduction: The Refugee Crisis
Mr. Chairman, thank you for the great work you have done during the
short time you have been in leadership with the Immigration
Subcommittee. You have called attention to so many issues, including
refugee resettlement and protection. We believe this is the year to
make critical changes; as assistance to and protection for refugees
falls to a critical low, the needs of those escaping from persecution
and conflict continues to increase.
The first reason we need to act now is the deteriorating conditions
in refugee camps and other places around the world. Refugee needs are
consistently underfunded and paid scant attention. Without resources
from developed countries and other donors, obligations to the displaced
are unmet. Such neglect can be seen in the increasing level of violence
and insecurity in many refugee camps. Humanitarian groups cannot be
expected to guarantee the safety of refugees when their own staff are
being targeted by hostile armed groups. These working environments
ultimately result in detrimental consequences for those who most need
assistance and protection.
As a timely example--and one of which I am sure you are aware--is
the condition of Sierra Leonean refugees in Guinea which worsens with
each passing day. Those who fled for their lives from the civil
conflict in Sierra Leone and crossed into Guinea are now clamoring to
return home, despite the fact that the war being waged by the
Revolutionary United Front (RUF) rebels is still continuing. For
refugees to want to go back to a place from which they escaped is
telling of the conditions they are facing in the host country. Such
circumstances are unacceptable in light of the resources available from
donors around the world.
In the Congo, war is also taking its toll on the civilian
population. Just at the point when security in and access to more
remote areas in the country seem to be improving, the U.S. government
has pulled back on funding new initiatives. The Office of Foreign
Disaster Assistance has almost reached its $15 million cap for the
Congo, and Administration officials have indicated there are no plans
to increase assistance to the area. We must do a better job at
protecting refugees and displaced persons. We cannot continue to under-
fund assistance in explosive areas.
The second reason we need to act now is because actual refugee
admissions numbers have fallen dramatically. Over the eight years of
the Clinton administration, refugee admissions fell over 40 percent
from their historically high levels of the 1980s. For FY2001, the
admissions ceiling was set at just 80,000. Inefficiencies in the
refugee pipeline have resulted in even fewer refugees arriving annually
than are allowed for under the admissions ceiling.
Thirdly, we must act now to change U.S. refugee policy, as asylum
and refugee protection laws are reflecting a harsher and more
restrictive approach to immigration and asylum proceedings.
The immigration laws enacted in 1996 put in place mechanisms that
barred many people from pleading their cases before immigration judges.
Individuals and families seeking asylum in the U.S. can now be turned
away from our borders by low-level INS officers at ports of entry.
Legitimate refugees have been forced to return to the conditions from
which they were escaping.
We believe these challenges must be overcome, and we welcome your
efforts to consider what changes are needed, and to put in place those
actions which will result in the increased protection and assistance
for refugees seeking peace and stability within our shores.
the bipartisan nature of refugee issues
Thank you also for the chance to present our experience and
knowledge of the asylum process. We are here today to represent a
segment of the U.S. constituency that has bipartisan roots, one that is
concerned with justice, human dignity, and freedom. The issues that we
are here to discuss have become common, shared concerns among those who
want U.S. policy to reflect the great history that this country was
built on--a history of democracy, liberty, and safety from oppression.
World Relief is the relief, development, and refugee assistance arm
of the National Association of Evangelicals (NAE), which is owned by
49,000 evangelical churches, that represent various ethnic backgrounds
within over fifty denominations in the U.S. World Relief's historically
conservative constituency is one that has modeled the evolution of
immigration and refugee concerns, changing its stance from being anti-
immigrant to welcoming those who seek refuge in the U.S. Back in 1994,
an evangelical was one of the primary authors of Proposition 187 in
California, which barred illegal immigrants from being eligible for
critical public services. This past year, however, the NAE surveyed its
members and found that almost 70% thought that immigrants are
beneficial to our society. Just weeks ago at their annual convention,
the NAE passed a resolution supporting asylum and refugee issues, and
urged the introduction and passage of legislation to limit expedited
removal. In November 2001, the World Evangelical Fellowship, the
umbrella for evangelical associations worldwide and a leader in the
demand for religious liberty, will host the first-ever evangelical
consultation on refugees in Turkey.
the link to religious persecution
Of great concern to our constituency are the thousands of people of
faith who are forced to flee their homes due to religious persecution.
The INS cannot provide statistics on how many expedited removal cases
were claiming religious persecution, but the link between asylum
seekers and religious persecution cannot be denied. When we hear of
rape, torture, and death due to religious persecution, are we to point
the finger back at those persecuted to say, ``Yes, we know you are
persecuted, but stay there and endure it in your country.?'' A Chinese
pastor, defended by the Rutherford Institute, was recently granted
asylum. He faced repression from the government of the People's
Republic of China for his evangelical Christian beliefs and states,
``that despite the Chinese government's release of high-profile
dissidents, the Chinese government has become more strict with regard
to individuals involved with religious activities and that religious
individuals are feared more than political demonstrators.''
Mr. Chairman, in 1997 this body heard similar arguments during
consideration of the International Religious Freedom Act. At that time,
an effective coalition of conservative and liberal actors rose up to
highlight these and other issues. It brought together those on the left
and the right, the faith-based and non-sectarian communities, and those
concerned with freedom and democratic principles, and set out in
cooperation to demand reforms. Through the bipartisan efforts of many
faithful and passionate people, the International Religious Freedom Act
passed successfully through Congress. However, at the time the Senate
declined to take action on asylum.
Last year, many of the same actors came together in another
successful coalition effort coalesced around the sex trafficking
legislation. The shared conviction that the sale and bondage of women
and children is morally unacceptable and repudiates universally
recognized human rights brought feminist organizations together with
religious congregations and academic institutions, to call for an end
to the practice of present-day slavery. Women and children who fled to
our shores found that their lack of legal documentation put them in the
category of ``criminal'' rather than victim. The successful passage of
the sex trafficking legislation gave them status and has made our laws
treat them with the care that they deserve.
Now is the time to recommit ourselves to the passage of the Refugee
Protection Act and deal with the business left unfinished from years
past. Some of the same groups that fought for religious liberty and
against human trafficking are now working together to secure the same
safety and refuge for those fleeing from a ``well-founded fear of
persecution,'' be it political, religious, or any other reason. It is
time for the U.S. take a hard look at the drastic changes in made in
1996 immigration policy and ensure that the lasting legacy is not one
that causes death and further persecution to those who risk their lives
for freedom. It is time for the pendulum to swing to the middle and for
the U.S. to limit the tremendous authority give to the INS in 1996. It
is time to limit expedited removal and restore due process for
refugees. Karen Musalo's report on the implementation of expedited
removal conducted by the University of California lists the 101
nationalities with the highest numbers of people being sent back to
their countries of origin. Of those 101 countries, almost 40% also
appear on this year's Open Doors World Watch List of countries that
severely restrict religious freedom. In other words, over a third of
those who were subject to expedited removal from the U.S. were being
sent back to countries which are known to persecute Christians. And
these numbers do not even reflect those who are subject to persecution
for other beliefs or faith traditions.
In Laos, for example, there has been a significant and marked
increase in the degree of persecution over the past year. These
dramatic changes have resulted in Laos becoming the country with the
second highest rate of religious persecution in the world, compared to
its ranking of 19th in 1999, according to Open Doors. The
situation in Indonesia also showcases the increased religious tension
in many parts of the world. Although inhabitants of Maluku province
have lived together peacefully for years, recent deadly campaigns by
fundamentalist Muslim warriors have caused tensions to rise on the
island. In China, the efforts of Falungong members to exercise their
right to ``worship'' have elicited a strong response from the
government, which has embarked on a campaign against ``evil cults.''
Indeed, religious disturbances seem to unsettle Chinese leaders more
now than political demonstrations for democracy. And in Sudan, one of
the countries the U.S. Commission for International Religious Freedom
deems the world's most egregious abusers of religious freedom,
Christians and animists--as well as Muslims who do not support the
National Islamic Front regime--are systematically persecuted, to the
extent that humanitarian relief agencies providing assistance to
southern civilians are routinely targeted by government bombs.
The above examples indicate the extent to which the expedited
removal process has undermined the United States' historical commitment
to protect and assist those who are fleeing from their countries of
origin. As a nation founded by those who were escaping religious
persecution, it is only fitting that our doors remain open to others
who are in search of safety from oppression. Let us not turn our backs
on those who need our help the most. Let us live up to the ideals and
promises upon which this nation was established and institute changes
which will restore hope and healing for refugees and asylum-seekers in
this country.
treatment for refugees fleeing all forms of persecution
Mr. Chairman, I have heard some say, ``Why don't we only spare
those who are fleeing from religious persecution.'' To that I say, if
our laws need to be changed, then they must be changed for all--all who
are truly persecuted and who have risked life and limb to come to our
shores to find safety must be protected.
Consider the story of Dominic, the son of an outspoken Liberian
statesman, who fled the regime that murdered his parents and sisters as
they lay sleeping in their beds during the bloody Liberian civil war of
1990. After seven years of an undercover, hand--to- mouth existence in
Monrovia and Ivory Coast, Dominic stowed away on a ship without even
knowing its destination. When the ship docked in New York, he was taken
to the INS Wakenhut Detention Center in Jamaica, Queens and
incarcerated for almost 2 years, one of the longest incarcerations on
record. Members of Redeemer Presbyterian Church in Manhattan befriended
him and provided modest support. Human rights lawyers and Yale Law
students became his legal advocates, pro bono. His applications for
asylum were lost and delayed, and he came close to despairing of ever
being released. Then in May 1999, with just a half hour's notice, he
was released on to the streets of New York City. Though Dominic was
granted witholding status to protect him from deportation to Liberia
and given work authorization for 12 months, the immigration judge left
open the possibility of a forced return to Ivory Coast. That became
reality in April 2000, when he received notice to appear at INS for
deportation to Ivory Coast, a country where he had no family or support
networks, and where he would be in danger of being forcibly transported
to Liberia, a fate that would mean certain death. Denied contact with
his lawyer, he was sneaked onto a plane at JFK airport bound for Ghana
without being given any travel documents by INS. Fortunately for
Dominic, his friends and advocates were able to get him off the plane
and released from detention. He awaits a final asylum hearing.
In most faith traditions, caring for the stranger plays a central
role in the living out of one's faith. My Muslim colleagues have told
me that the spine of Islam is to care for refugees. It is said that
anyone who dies a refugee holds a special position because of the
hardship he/she experience in life. In the New Testament, Jesus tells
us in Matthew 25, ``I was hungry and you gave me something to eat, I
was thirsty and you gave me something to drink, I was a stranger and
you invited me in.'' In the Old Testament we are told of the Jewish
tradition of a special consideration for sojourners.
closing comments
If we seek justice, then we must care for all who are persecuted.
We cannot save the Chinese pastor who fled abuse because of his
religion, but send Dominic to certain death. Mr. Chairman, only with
political will can we change our laws to protect the persecuted. It was
done in 1997 with victims of religious persecution, it was done last
year for the victims of sex trafficking, and now, it must be done for
refugees who seek freedom and safety from persecution on our shores.
Chairman Brownback. Thank you, Dr. Hammond, and that was
excellent testimony. Thank you for your hard work, too. It is
great work that you are doing.
Mr. Glickman?
STATEMENT OF LEONARD GLICKMAN, PRESIDENT AND CHIEF OPERATING
OFFICER, HEBREW IMMIGRANT AID SOCIETY, NEW YORK, NEW YORK
Mr. Glickman. Thank you, Mr. Chairman. My name is Leonard
Glickman. I am president and CEO of the Hebrew Immigrant Aid
Society. Today I am also testifying on behalf of the American
Jewish Committee, the Anti-Defamation League, B'nai B'rith
International, the Jewish Council for Public Affairs, the Union
of American Hebrew Congregations, and United Jewish
Communities. These are all sister agencies within the Jewish
community who are deeply involved with the community's efforts
to protect refugees.
Chairman Brownback. Mr. Glickman, pull that microphone up
more to you. I am sorry. It is very directional.
Mr. Glickman. I am told my voice carries.
Chairman Brownback. It does, but only to me and nobody in
the back can hear you.
Mr. Glickman. As HIAS celebrates its 120th anniversary, we
would like to thank you, Chairman Brownback, for your
leadership in the area of refugee protection and for convening
this vitally important hearing and for giving us the
opportunity to share a Jewish perspective on the U.S. asylum
system.
The Jewish community is greatly concerned about the major
changes that were instituted in the U.S. asylum system in 1996,
changes that we believe threaten to undermine refugee
protection and U.S. global leadership in this area. This
testimony presents a very brief overview of several problem
areas in U.S. asylum law, highlights the issues from cases
represented by HIAS attorneys and other advocates, and it
reflects on the Jewish community's historical experience and
this history's impact on our refugee protection concerns.
As has already been reviewed in detail, the changes to
asylum law in 1996 that created expedited removal, mandatory
detention of asylum seekers, and the 1-year filing deadline
have caused grave harm to individuals fleeing persecution. As
an agency that assists asylum applicants and other immigrants,
HIAS is also concerned that the provision permitted only 10,000
asylees per year to adjust their status to that of lawful
permanent resident stands as just one more unjust hurdle for
victims of persecution. This cap should be eliminated. It
serves no real purpose, and that asylees can now begin the
process of integrating into our country. Furthermore, while
U.S. policy on asylum is critically important in the lives of
thousands of asylum seekers who are looking for safe haven in
our country, our actions do have, as Don mentioned, a global
impact of a magnitude that overshadows even these crucial
domestic concerns.
As the United States argues that nations around the world
should open their doors and create camps for thousands of new
refugees and that countries of first asylum should integrate
these refugees into their societies, it will require a
consistent policy of refugee protection on our part to
successfully press for greater contributions from others.
Similarly, if other countries can show that the United States
is retreating from maintaining the highest standards of
treatment for asylum seekers, they will have an excellent
excuse to ignore our criticism of their own policies in this
area.
HIAS' perspective on these central issues in U.S. asylum
law is based in large measure on our century-old experience
providing representation to asylum seekers and other
immigrants. Our staff of lawyers and other advocates provides
assistance to applicants who are affirmatively applying for
asylum before the INS, as well as in the courts when necessary.
In recent years, out staff has assisted or represented hundreds
of asylum seekers being held in detention under the expedited
removal system.
We have already heard about Anna Smirnova who is a victim
of the 1-year filing deadline, a former HIAS client. Today with
us are Denis and Tatiana Boulankine, and I would like to ask
Denis and Tatiana to stand.
Chairman Brownback. Welcome.
Mr. Glickman. Denis and Tatiana are a married couple from
southern Russia near Chechnya. Denis is a lawyer. He opposed
the violence and the human rights abuses in the Russian war in
Chechnya. Because of his activism, the military authorities
harassed his entire family and threatened to send him either to
the front lines of the war or to a filtration camp.
On October 9th of 2000, Denis and Tatiana fled Russia using
fake Hungarian passports with the intent of going to Canada,
where they planned to apply for asylum. While transiting
through Newark Airport, INS stopped them and detained them at
the Elizabeth Detention Center. Notwithstanding having a U.S.
citizen uncle living in New York City, Denis and Tatiana were
kept in detention until their asylum case was granted, a total
of over 5 months. During this time, despite being married, they
were denied all contact visits except for two joint meetings
with their HIAS legal representatives.
Two other HIAS clients could not be here with us for this
hearing. They are 16-year-old Mohamed Boukrage from Algeria and
15-year-old Congolese girl we call L.K. Both of these children
are asylum seekers who are currently incarcerated in New Jersey
and New York adult detention facilities.
This past Monday, an ecumenical delegation of over 20
religious leaders toured the Wackenhut Detention Center in
Queens, New York, to see firsthand the devastating impact of
these policies. HIAS was pleased to join with colleagues from
the Lutheran Immigration and Refugee Service and with the
Lawyers Committee in organizing this event. I would like to ask
that a copy of the religious leaders' joint statement and LIRS
paper on alternatives to detention as well as the statements of
Tatiana and Denis be included in the record.
Chairman Brownback. Without objection.
Mr. Glickman. Thank you.
[The statements follow:]
Statement of Ralston H. Deffenbaugh, Jr., President, Lutheran
Immigration and Refugee Service
I thank Senator Brownback and the other Members of the Subcommittee
on Immigration for this opportunity to present testimony on our
nation's treatment of asylum seekers. As a religious refugee service
agency, Lutheran Immigration and Refugee Service (LIRS) is deeply
concerned about the prolonged detention of asylum seekers who are
forced to flee their homelands without proper travel documents. I take
this opportunity to present the response of a group of religious
leaders who have witnessed these detention practices just three days
ago and put forth two proposals for humane and cost-effective
alternatives to present practices.
On April 30 LIRS, in cooperation with Hebrew Immigrant Aid Society
and other faithbased service agencies, coordinated a tour for religious
leaders of the Wackenhut Detention Center in Queens, New York, near
John F. Kennedy Airport. These leaders, coming from Christian, Jewish,
Muslim, Buddhist and Hindu faiths, were shocked that the United States
would subject people seeking asylum who have no criminal convictions to
months and sometimes years of such harsh conditions. In the attached
joint statement following the tour, they call upon Congress and the
Administration to correct these practices.
Under current law, asylum seekers can be released on parole after
passing a ``credible fear'' screening shortly after their arrival. Yet,
thousands of asylum seekers are being unnecessarily detained, sometimes
for long periods, in detention centers and jails across the United
States. This costs taxpayers millions of dollars, and prolongs and
exacerbates the suffering of asylum seekers who have come here seeking
freedom. LIRS's attached proposal describes a humane and cost-effective
alternative that would enable INS to release 2,500 asylum seekers to
private nonprofit agencies. The model is based upon very effective
programs tested in several communities across the country, all of which
have appearance rates for all hearings of 93% or better. If Congress
appropriates $7.3 million for this program, we project that the
government will save a net $11.6 million through reduced detention
costs.
Lastly, I include LIRS's proposal for NGO legal orientation
presentations for immigration detainees. This is another ``tested and
proven'' program that helps to identify persons with meritorious claims
for relief, convinces those without legitimate cases to accept removal,
reduces tension and improves security in detention facilities and saves
the government money by making the judicial process more efficient and
reducing the need for prolonged detention. An appropriation of just
$2.8 million would allow this program to expand to 10 sites and save
the government $10 million.
I urge Congress to correct the policies and practices that lead to
the prolonged detention of asylum seekers and, in particular, urge the
Members of this Subcommittee to ask your colleagues on the Subcommittee
for Commerce, Justice and State Department Appropriations to fund these
two worthwhile programs.
Statement From Faith Representatives Following April 30 Tour of the
Wackenhut Detention Center
As representatives of diverse faith traditions that lift up
hospitality to the stranger as a fundamental principle, we are deeply
troubled by the way our country is treating people who come to our
shores fleeing persecution in their homelands. Today, we call upon
Congress and the Administration to end policies and practices enacted
in 1996, which seriously undermine our nation's commitment to refugee
protection. We are particularly concerned about the impact of expedited
removal and detention on adults and children seeking asylum here.
Historically, our nation has been a beacon of hope and freedom for
the oppressed. Many of our ancestors fled religious and other
persecution and were welcomed here. Yet today, low-level officials have
the power to turn asylum seekers away at our borders through on the
spot, unmonitored interviews. Thousands of asylum seekers, including
children, are also imprisoned in INS detention centers and county jails
while they await decisions on their claims. Women, men and children who
have suffered torture and imprisonment, witnessed the murder of their
families and destruction of their homes, and endured long and dangerous
journeys to reach freedom find themselves behind bars. Some remain
there for months or even years, with little access to legal, social,
and spiritual care.
As a just and generous country that has traditionally stood for the
protection of human rights around the world, we can and must do better.
We urge Congress and the Administration to take immediate steps to
correct the policies enacted into law in 1996 that are causing such
severe human suffering.
Signed
The Rev. Dr. Stephen P. Bouman, Bishop of the Metropolitan New York
Synod of the Evangelical Lutheran Church in America; Member of LIRS
Board of Directors
Mr. Ralston H. Deffenbaugh, Jr., President, Lutheran Immigration
and Refugee Service--LIRS, Baltimore, Maryland
Imam Salihou Djabi, Timbucktu Interfaith Center, New York
The Rev. Dr. Bob Edgar, General Secretary of the National Council
of Churches, New York
Mr. Leonard Glickman, President, Hebrew Immigrant Aid Society--
HIAS, New York
Ms. Mala Kadar, Ilankai Tamil Sangam, an association of American
Tamils Tri-State Area
The Venerable Michael S. Kendall, Archdeacon for Mission Episcopal
Diocese of New York
The Bishop Ernest S. Lyght, Resident Bishop, New York Area, The
United Methodist Church
The Rev. John McCullough, Executive Director, Church World Service,
New York
Mr. C. Richard Parkins, Director, Episcopal Migration Ministries,
New York
Rabbi Dan Polish, Director of the Joint Commission on Social Action
of Reform Judaism, New York
Carol J. Fouke-Mpoyo, Chair, Riverside Church Sojourners Ministry
With Detained Immigrants, New York
Rabbi Arthur Schneier, Park East Synagogue, New York; President,
Appeal of Conscience Foundation; Member of HIAS Board of Directors
The Msgr. Kevin Sullivan, Chief Operating Officer, Catholic
Charities, Archdiocese of New York
The Right Rev. Orris G. Walker Jr., Bishop of the Episcopal
Archdiocese of Long Island, New York
Alternatives to Detention
overview
The 1996 immigration laws drastically increased the number of
immigrants subject to mandatory detention. INS' daily detention
capacity has expanded from 8,279 beds in 1996 to approximately 20,000
today, and over 60% of those beds are in county jails. INS's detention
and removal budget is now over $1 billion. However, INS is still
detaining thousands of people who by law could be released. Two such
groups are asylum seekers without sponsors or family to care for them
and people whose removal orders are over 90 days old and who pose no
danger to the community.
Alternatives to detention are arrangements between INS and private,
nonprofit agencies to supervise and refer people to community services
rather than detain them at public expense. To establish an alternatives
program, INS contracts with nonprofit agencies that have strong
community ties and significant expertise in dealing with refugees and
immigrants. The private agency screens potential participants, finds
housing, coordinates the necessary services for participants outside of
detention, and facilitates compliance with INS and court proceedings.
INS retains authority over the program to decide whom to release to the
program, to set reasonable reporting and other requirements for program
participants, and to re-detain those who do not comply with those
conditions or are ordered removed.
If Congress appropriates $7.3 million for alternatives to
detention, some 2,500 people eligible for release could be placed in
such programs which have demonstrated 93% and higher appearance rates
at all hearings. The federal government would save a net $11.6 million.
background
The U.S. Commission on Immigration Reform expressly recommended
that ``Alternatives to detention should be developed so that detention
space is used efficiently and effectively.'' In particular, the
Commission noted that ``detaining individuals who have met an initial
threshold demonstrating their likelihood of obtaining asylum is not a
good use of scarce detention resources.\1\
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\1\ U.S. Commission on Immigration Reform, Becoming an American:
Immigration and Immigrant Policy, September 1997, pp. 139, 140.
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Asylum seekers are legally eligible for release on parole but some
have no one to sponsor them upon release, and remain imprisoned even
though they have committed no crime. In detention, they will have
difficulty finding legal assistance and may suffer additional trauma.
According to the Vera Institute of Justice, which tested supervised
release for asylum seekers under contract with INS over three years,
``Detention of asylum seekers is particularly unnecessary and unfair
since they are so willing to attend their hearings and since so many of
them win their cases.'' \2\
---------------------------------------------------------------------------
\2\ Vera Institute of Justice, Testing Community Supervision for
the INS: An Evaluation of the Appearance Assistance Program, June 7,
2000, Volume I, p. 32.
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Other detainees have been ordered removed due to relatively minor
convictions in the distant past but cannot actually be sent back.
Although many no longer pose any danger to the community, they face
indefinite detention and prolonged separation from their families for
whom they may be the primary breadwinners. Alternatives to detention
can humanely achieve INS' goal of ensuring community reintegration for
this population.
Alternatives tested in several locations have all achieved 93% or
better appearance rates. INS funded the Vera Institute of Justice, a
New York-based nonprofit agency, to test supervised release as an
alternative to detention. The 3-year pilot program showed that 93
percent of asylum seekers released to supervision appeared for all
court hearings, and saved the federal government almost $4,000 per
person.\3\ Other nonprofit agencies have tested alternatives with equal
success. In New Orleans, INS releases asylum seekers and people with
over 90-day-old removal orders to a program run by Catholic Charities
with a 96% appearance rate.\4\ In another program coordinated by
Lutheran Immigration and Refugee Service, INS released 25 Chinese
asylum seekers from detention in Ullin, Illinois to shelters in several
communities. This program also achieved a 96% appearance rate.\5\ INS
officials have praised both programs.\6\
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\3\ Vera Institute of Justice, Volume I, p. 66.
\4\ Joan Treadway, ``Detainees get chance to change their lives,''
New Orleans Times Picayune, Jan. 22, 2001, p. B-3.
\5\ Esther Ebrahimian, ``The Ullin 22: Shelters and Legal Service
Providers Offer Viable Alternatives to Detention,'' Detention Watch
Network News, August/September 2000, p. 8.
\6\ Joan Treadway, New Orleans Times Picayune, p. B-3 (quoting INS
New Orleans District Director Christine Davis); Esther Ebrahimian,
Detention Watch Network News, p. 8 (citing INS Field Operations chief
Michael Pearson).
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Key Elements of Successful Alternatives
Following is an outline of how alternatives to detention work, how
responsibilities are divided between INS and the nonprofit and why
these elements are important to achieving successful appearance rates
in immigration proceedings. Attached is documentation with more
detailed descriptions of the Vera Institute's Appearance Assistance
Program (AAP), Catholic Charities' alternative in New Orleans and the
release of Chinese asylum seekers from Ullin, Illinois.
STEP ONE: Group screening in detention by nonprofit agencies. In a
few detention facilities, private nonprofit agencies have worked with
INS and the courts to ensure that group legal orientation presentations
are conducted for everyone in detention. These presentations ensure
that detainees have information about the proceedings and whether or
not they may be eligible for relief from removal or for release from
detention. This first contact between the nonprofit agency staff and
people in detention is a good time to gather initial information about
potential candidates for an alternative. In the case of the Chinese
asylum seekers detained in Ullin, Illinois, INS paid the expenses for
nonprofit legal representatives to conduct legal orientations for all
88 detained Chinese. The information gathered proved critical to
organizing effective services and evaluating release options.\7\
---------------------------------------------------------------------------
\7\ Esther Ebrahimian, Detention Watch Network News, p. 2.
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STEP TWO: Individual screening before release to an alternative INS
has the authority to decide whom to release to an alternative to
detention. However, an indepth interview by a nonprofit representative
can improve the Service's ability to make this decision. The nonprofit
agency interviews each potential participant to ensure that the person
meets the program's criteria and understands the responsibilities of
participants in the program. Through this interview, the nonprofit may
discover important information that affects the release decision. For
example, the person may have family, in which case INS can consider
releasing the person to his or her family instead of to an alternative.
Such screening interviews were found to be critical to the success of
Vera's Appearance Assistance Program.\8\
---------------------------------------------------------------------------
\8\ Vera Institute of Justice, Volume I, p. 6.
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STEP THREE: Provision of services to individuals released to the
alternative Access to assistance upon release--such as legal, social,
medical, mental health and job placement services--can help ensure
compliance with immigration proceedings.\9\ The nonprofit agency makes
use of its community links to find available services. It also helps
integrate each individual into the community (for example, by helping
participants make contacts in their ethnic and/or religious
communities). The nonprofit's ability to access these services depends
on longestablished links with other agencies in the community. The
services needed will vary depending on the population being served and
on the individual. For example, asylum seekers are newcomers to the
country. Help learning how to live in the United States and find legal
assistance can be a critical factor in their making their court
appearances.\10\ Long-term detainees usually already have experience
living in this country, but may need intensive support to help them re-
start their lives and integrate into the community.\11\
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\9\ Vera Institute of Justice, Volume I, p. 73.
\10\ Vera Institute of Justice, Volume I, p. 31.
\11\ Sue Weishar, ``NGOs and INS Establish Successful Alternative
in New Orleans,'' Detention Watch Network News, August/September 2000,
p. 4 and Joan Treadway, New Orleans Times Picayune, p. B3.
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INS must grant work authorization to all those released, including
asylum seekers, so that they can support themselves instead of relying
on government or community sources to cover housing and living
expenses. It also helps them use their time productively, contributing
to the community instead of remaining idle. INS is granting work
authorization in New Orleans to everyone released to Catholic
Charities, and this is critical to the success of the program.\12\ The
nonprofit agency running the alternative organizes temporary housing
for those released, and assists them in finding a job and locating a
place to live more permanently, all with the goal of helping the
released person become self-sufficient.
---------------------------------------------------------------------------
\12\ Sue Weishar, Detention Watch Network News, p. 8.
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STEP FOUR: On-going assistance, monitoring and informati Providing
information about how the legal system works, detailing the
requirements for compliance and describing how to meet them, explaining
the consequences of not attending a court hearing, helping locate legal
assistance and building a relationship of trust all help to ensure
compliance.\13\ Immigration proceedings can be very confusing even for
people who have lived in this country, let alone newly arrived asylum
seekers. The opportunity to talk with a neutral party experienced in
working with refugees and accessing services they need, greatly helps
keep an asylum seeker engaged throughout the legal process. In New
Orleans, program participants voluntarily contact Catholic Charities to
ask questions, discuss problems and receive advice and assistance. In
the Ullin project, community shelters reminded participants of their
hearings and scheduled check-ins with INS, organized transportation and
accompanied them to these appointments.\14\
---------------------------------------------------------------------------
\13\ Vera Institute of Justice, Volume I, p. 7.
\14\ In addition to the documentation attached, LIRS gathered
information about the operation of these alternatives via telephone
interviews with Catholic Charities and the shelters housing the Chinese
released from Ullin.
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STEP FIVE: Enforcing final orders of deportation
People released to alternatives to detention are more likely to be
able to stay legally in the country at the conclusion of their
proceedings. This is due to effective screening and increased access to
legal representation outside of detention with the help of nonprofit
agencies. More than half of the asylum seekers in the Appearance
Assistance Program (AAP) won their cases.\15\
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\15\ Oren Root, ``The Appearance Assistance Program: An Alternative
to Detention,'' Detention Watch Network News, August/September 2000, p.
3.
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It is inevitable, however, that some people in alternatives to
detention will lose their cases and be ordered removed. It remains the
responsibility of INS, not the nonprofit agency, to enforce such
orders. In order to achieve this, INS may re-detain at any time a
person who does not comply with the conditions of an alternatives
program. Conditions may include participants reporting to INS in person
on a regular basis, showing up at all court hearings, and keeping INS
informed of their actual address of residence. INS may also re-detain a
participant upon issuance of the removal order. Participants in the AAP
still appeared for their hearings 93% of the time even though they were
informed that they would be re-detained if ordered removed in
court.comparison group that did not face the possibility of such re-
detention had substantially poorer appearance rates.\16\
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\16\ Vera Institute of Justice, Volume I, p. 3.
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For asylum seekers who lose their cases in court and are ordered
removed, Vera Institute suggests that INS could re-detain the person at
the hearing, but release them again to a more intensive level of
supervision if they decide to appeal.\17\ At earlier stages of
proceedings, the Vera Institute's experience shows that asylum seekers
need very minimal supervision, if any, in order to ensure good
compliance rates. Vera Institute explains, ``When they are placed in
proceedings, they understand that they must seek ...protection through
the U.S. justice system and attend immigration court hearings.'' \18\
Vera Institute does not recommend that asylum seekers be detained
throughout the appeals process.
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\17\ Vera Institute of Justice, Volume I, p. 32.
\18\ Vera Institute of Justice, Volume I, p. 29-30.
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Partnership with Nonprofit Agencies
The Vera Institute recommends that the INS ``release to
alternatives (such as community supervision) as many people as it can,
as quickly as it can, while they complete their immigration court
hearings'' \19\ and favors contracting with non-governmental
entities.\20\ We agree.
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\19\ Vera Institute of Justice, Volume I, p. 72.
\20\ Vera Institute of Justice, Volume I, p. 74.
Immigrants inside and outside detention are more likely to trust
representatives who do not work for the government, and will
therefore be more likely to cooperate with them. Trust and
confidentiality are important benefits of having non-
governmental entities involved in alternatives.\21\ Once
immigrants have the trust of a nonprofit representative, they
may reveal information that they would not have readily given
to INS or to a prison official. The information they receive
from the nonprofit is also more trusted. In the process of
release of Chinese asylum seekers detained in Ullin,
nongovernmental representatives interviewed the entire group of
88 in detention, a step that was critical to the eventual
release of some 33 of them.\22\
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\21\ Vera Institute of Justice, Volume I, p. 72.
\22\ Esther Ebrahimian, Detention Watch Network News, p. 2.
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Nonprofit agencies have the necessary information and expertise to help
people access needed services, leading to greater compliance.
It takes a good deal of work to find out what legal, social and
pastoral services a person needs, and to help them access them.
This has been critical to success of all three programs to
date.\23\ Merely giving released individuals a list of
available services is not sufficient. Certain nonprofit
agencies, such as refugee resettlement agencies, have mufti-
lingual, mufti-cultural staff with legal and social work
backgrounds, as well as strong, established links in the
community that facilitate service provision and job placement.
These agencies also have solid ties to immigrant and faith
communities, both of which can be important in avoiding
isolation.
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\23\ Oren Root, Detention Watch Network News, p. 9.
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Help in understanding the legal process, and the consequences of not
showing up at INS check-ins and court hearings, is crucial to
ensuring that people comply. Such help has been shown to be
most effective when it comes from a non-governmental
representative who has gained the trust of the released
individual.\24\ The nongovernmental agencies involved in these
projects have spent a good deal of time working with
participants to explain proceedings to them, remind them of
meetings with INS and the courts, and even transport them to
those meetings and hearings. They are also able to answer
questions on an on-going basis once someone is released,
helping the participant to overcome fears and misinformation
that otherwise might have caused him or her to stop complying.
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\24\ Vera Institute of Justice, Volume I, p. 73.
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Facilitating access to legal representation is a critical role of a
non-governmental agency implementing an alternative to
detention. While INS cannot fund legal representation, adequate
legal assistance can help reduce delays in proceedings (for
example, due to a lack of information on the part of the
immigrant), help ensure compliance, and lead to a fairer
process. For vulnerable populations such as asylum seekers,
legal representation is particularly crucial, and it is hard to
find in detention. Attorneys who do represent people in
detention encounter much greater difficulties preparing these
cases.\25\
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\25\ Esther Ebrahimian, Detention Watch Network News, p. 8.
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In the case of the Chinese asylum seekers released from Ullin,
nonprofit agencies found pro bono attorneys for all of those
released to community shelters. Locating quality representation
was a time-consuming process, and was only possible because of
the longestablished relationships that the nonprofit agencies
had with bar associations, law firms, and the pro bono legal
community. Even after representation was secured, the nonprofit
agencies played a critical role answering the questions of
attorneys and helping ensure good communication between the
attorneys and the immigrants. For example, the local legal
service agencies assisting those released from Ullin helped
find volunteer interpreters for attorneys to interview their
clients--critical assistance to busy attorneys working on pro
bono cases. Good communication between an attorney and his or
her client also helps make sure the immigrant is engaged in the
process, increasing the likelihood of compliance.
A good working relationship between INS officials, the
nonprofit agency carrying out the alternatives program, and
other key community members is essential. An alternative to
detention requires significant cooperation between INS and the
nonprofit to structure the program, work out logistics and
respective responsibilities, and work out creative ways to
address situations as they arise. Success in doing so depends
critically upon these good relationships. In New Orleans, INS,
Catholic Charities and community leaders met on a quarterly
basis for a number of months, establishing communication, trust
and cooperation, before the alternative program was even
conceived.\26\
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\26\ Sue Weishar, Detention Watch Network News, p. 8.
Justification of Costs/Demonstration of Savings
costs
The Vera Institute of Justice, which conducted the AAP pilot from
1997-2000 in the New York metropolitan area, carefully documented the
costs involved in running an alternative to detention. Our costs and
savings estimates are based on this documentation with one notable
exception. The Vera model included a labor-intensive reporting
requirement which was found not to contribute to the appearance rate of
asylum seekers. According to Vera, ``the most consistent factors [in
hearing compliance] are having community and family ties in the United
States, and being represented by counsel . ... Participant asylum
seekers achieved a higher appearance rate than those released on parole
because the program more effectively screened for community ties.''
\27\ Screening for community ties and facilitating access to counsel
are two aspects that will be notably enhanced with the participation of
NGOs with substantial refugee resettlement experience, community
involvement and legal referral networks. Indeed, the even higher
appearance rates obtained by the Ullin and Catholic Charities examples
confirm this. In the AAP program about half of the staff time was
devoted to the extraneous reporting requirement.\28\ Accordingly, at
least the variable costs of Vera's projected program could be halved by
eliminating that function, amounting to an average cost of $710,000 per
site.\29\ At that rate, it would cost about $7.1 million to serve a
total of 2,500 persons who otherwise would have to be detained. A
national coordinating center to conduct training and maintain
consistent quality control would cost an additional $200,000 bringing
the total annual cost of the program to $7.3 million.
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\27\ Vera Institute of Justice, Volume I, p. 7.
\28\ Telephone conversation with Oren Root, Senior Associate, Vera
Institute, April 24, 2001.
\29\ Vera projected $1.1 million for a site serving 250 persons.
Vera Institute of Justice, Volume II, Appendix V, p. 3. This includes
$320,000 in fixed costs and $780,000 in variable costs, conservatively
estimated. Halving the latter and adding it to the former yields
$710,000.
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savings
The average cost of detaining an asylum seeker through his or her
hearing is $7,259.\30\ The cost of using an alternative is $2626 per
case heard (including the costs of detention prior to screening and re-
detention later, if necessary).\31\ Thus, the government can save the
difference, or $4,633 for each asylum seeker released to the
alternative program. If 2,500 asylum seekers are released to
alternatives, these savings would amount to more than $11.6 million.
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\30\ Vera Institute of Justice, Volume I, p. 66.
\31\ Vera Institute of Justice, Volume II, Appendix V, p. 5. The
AAP's $12 per day cost is adjusted to $8, reflecting the fact that the
streamlined model proposed costs 66% of the projected AAP, similarly
expanded, i.e., $7.3/11 million.
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Another group that could be released to the program is those who
have already been ordered removed but whose removal cannot be carried
out because INS cannot obtain travel documents from the home country.
They are eligible for release beginning 90 days after their removal
orders. Catholic Charities in New Orleans already successfully serves
this group, along with asylum seekers, without the reporting
requirements used by the AAP. (Savings from releasing people in this
group are likely to be even higher than for asylum seekers, because
many might remain in detention indefinitely without these programs.
Because firm figures are not available for savings for this population,
however, we conservatively base our figures on asylum seekers.)
Legal Orientation for Immigration Detainees Program Implementation Plan
Prepared by:
Florence Immigrant and Refugee Rights Project
Lutheran Immigration and Refugee Service
This document lays out a plan for implementing legal orientation
presentations to be conducted by private sector nonprofit agencies in
immigration detention centers. Legal orientations reduce government
costs and increase efficiency in immigration proceedings. They also
help secure the due process rights of persons detained during
immigration proceedings and ensure that those with meritorious claims
for asylum or other relief from removal can adequately present them.
A 1998 U.S. Department of Justice pilot project found that legal
orientation presentations successfully reduce detention time, speed up
immigration court proceedings, increase their efficiency and improve
security in detention centers. The U.S. Senate and the U.S. Commission
on Immigration Reform have recommended that such programs be funded and
implemented nationwide.
With an appropriation of $2.8 million, private sector nonprofit
agencies can implement legal orientations at ten major detention sites,
generating net projected savings of $10 million.
background of the problem
With the passage of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRAIRA), Congress greatly expanded the
number of people the Immigration and Naturalization Service (INS) must
detain. From 1996 to 2000, INS increased its detained population from
8,279 to over 20,000 immigrants and asylum seekers on any given day;
annually, the figure is over 200,000.
The detention and removal process is enormously expensive with a
budget over $1 billion annually, including an average detention cost of
$65.61 per bed-day. Reducing the length of immigration removal
proceedings saves money by significantly lowering the number of bed-
days that individuals spend in detention.
The efficiency of the system suffers when unrepresented individuals
seek repeated continuances to find counsel, when extra time is required
to identify and narrow the relevant legal issues and when hearing times
are extended because of unfamiliarity with the court procedures. Under
these circumstances, judges are often hesitant to proceed in the
absence of representation. Facilitating access to legal advice and
representation can improve the efficiency of removal proceedings while
strengthening the courts' commitment to due process.
An estimated 90 percent of immigration detainees go unrepresented
due to poverty and the remote locations of detention sites.\1\ These
individuals, often with limited education and proficiency in English,
alone must navigate the labyrinths of U.S. immigration law, which has
been compared to the U.S. tax code in its complexity. Many are confused
about their rights, options and prospects. Some unnecessarily delay
their cases even though they are not eligible for relief, while others
with meritorious claims erroneously waive their rights and are wrongly
deported.
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\1\ Margaret H. Taylor, Promoting Legal Representation for Detained
Aliens: Litigation and Administrative Reform, 29 Corm. L. Rev., 1647,
1663 n.60 (1997) (citing FY 96 EOIR statistics entitled ``Immigration
Judge Decisions in FY 96 by Custody and Representation Status'').
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legal orientation presentations
The Florence Immigrant and Refugee Rights Project, Inc. in 1989
created the model legal orientation process at the Florence (AZ) INS
Service Processing Center. The program consists of a live presentation
for all detainees before or at the time of their initial hearing with
follow up screening and case assessment for those without private
counsel. Additional legal assistance, referral or representation is
provided when available.\2\
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\2\ Christopher Nugent, Strengthening Access to Justice: Prehearing
Rights Presentations For Detained Respondents, Interpreter Releases,
Vol. 76, No. 27, July 19, 1999.
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The Florence Project's lepl orientations benefited the INS and the
Court by increasing the efficiency of the process.\3\ The U.S. Senate
and U.S. Commission on Immigration Reform have recognized the value of
such programs.\4\
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\3\ Immigration Control: Immigration Policies Affect INS Detention
Efforts, United States General Accounting Office Report, GAO/GGD-92-85,
June 1992.
\4\ Senate Resolution 284, 1034 Congress 2d Session, 1994
(enacted); Letter from U.S. Senators Dennis DeConcini, Orrin Hatch,
Edward M. Kennedy, Paul Simon, and Alan K. Simpson to Attorney General
Janet Reno, November 14, 1994; U.S. Commission on Immigration Reform,
Becoming an American: Immigration and Immigrant Policy, September 1997,
pp. 135-37.
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During fiscal year 1998 the U.S. Department of Justice funded a
pilot project through EOIR to document the benefits of legal
orientations. The project was implemented at three detention sites by
three private sector nonprofit agencies \5\ over a three-month period.
Based on case data from the pilot period, the evaluators from EOIR
found that legal orientations save both time and money for the
government while also benefiting detainees. They determined that legal
orientations reduced overall bed days in detention by 4.2 days per
detainee and found that ``[d]uring the pilot, cases were completed
faster and detainees, with potential meritorious claims to relief, were
more likely to obtain representation.'' In addition, they found that
such programs were useful management tools that ``strengthen the
capability of INS to operate safer detention facilities.'' In
conclusion, the evaluators recommended that the government should
expand legal orientations to all INS detention facilities.\6\
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\5\ The agencies and detention sites included the Florence Project
at the Florence INS SPC in Florence, AZ, Catholic Legal Immigration
Network (CLINIC) at the San Pedro Detention Center near Los Angeles,
CA, and South Texas Pro Bono Asylum Representation Project (ProBAR), a
project of the American Bar Association, at Port Isabel Detention
Center in Harlingen, Texas.
\6\ U. S. Department of Justice, Executive Office for Immigration
Review, ``Evaluation of the Rights Presentation,'' 1998.
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rationale for pubic-private partnership in legal orientations
Private sector nonprofits with demonstrated legal expertise in
immigration matters, experience in working with detained immigrants and
ability to refer cases to pro bono counsel are best suited to provide
independent professional advice to detained individuals and have
spearheaded limited efforts to assist immigrants in removal
proceedings. They do not, however, have the resources to sustain
funding of this type of systemic initiative on their own nor are there
sufficient alternative private sector resources.\7\ The government is
statutorily barred from funding legal representation in immigration
proceedings.\8\ The scope of the statute, however, does not prohibit
fundin? items and programs that facilitate immigrants obtaining
representation such as legal orientations.\9\
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\7\ Letters from officers of the Open Society Institute, the Ford
Foundation, the Fund for Immigrants and Refugees, the Lawyers Trust
Fund of Illinois and the New York Community Trust, August--September
2000.
\8\ Immigration and Nationality Act '240(b)(4)(A); 8 U.S.C. 1229a.
\9\ David A. Martin, INS General Counsel, Memo, ``Funding of a
Pilot Project for the Representation of Aliens in Immigration
Proceedings,'' December 21, 1995.
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objectives
To implement legal orientation programs at 10 detention
facilities so that all at those sites receive legal
information, evaluation and counseling as well as referral for
representation when available
To measurably increase the efficiency of immigration court
proceedings, decrease the duration of detention and reduce
tension and behavioral problems in the facilitie
To measurably increase detainees' ability to make a timely
decision about their cases through early and accurate legal
information and orientation
To provide information, training, technical assistance and
ongoing advice through a National Support and Training Center
to private nonprofit agencies conducting legal orientations at
designated sites
To evaluate and quantify the costs, savings, benefits, and
other effects of the legal orientations and evaluate the merits
of expansion to other sites
Through an interagency national working group, to develop
system-wide procedural recommendations for the INS, EOIR, and
private nonprofit agencies to improve justice and efficiency
through legal orientation programs
program implementation
A. National Implementation
EOIR will administer the program at the national level using the
standard government ``Request for Proposal'' (RFP) process. The agency
will select the appropriate organizations and be accountable for
ensuring that all proposed activities are carried out.
An interagency working group should be established at the national
level, bringing together the INS, EOIR, and the designated agencies
share information and ensure consistent implementation of the program.
Such a group has met several times in past years to discuss the
feasibility of such program and would be ready to build on those
relations and that practical experience. This working group will also
address the movement of detainees, access to facilities and court
procedures, and will provide oversight and guidance to the local sites
of the project.
The establishment of a National Legal Orientation Support and
Training Center will also help ensure quality, consistent
implementation of legal orientations nationwide. The Center will offer
the nonprofit agencies training and consultation in program development
and substantive legal issues, will coordinate evaluations and will
assist EOIR and the interagency working group to develop standards for
the programs. The original model for legal orientations has been
developed and refined over a ten-year period at the Florence INS
Service Processing Center in Florence, AZ. The D.O.J. pilot project
found that this model was effectively used at all three pilot sites and
recommended its replication at other sites to standardize the provision
of information and evaluation. The agency chosen to carry out the
training should have significant expertise in implementing this model.
B. Local Implementation at Each Detention Site
At each detention site, the nonprofit agency will be in charge of
implementing the program and will be primarily responsible for the
screening, assessment and referral functions. These tasks will include:
To review the charging documents filed with the court of those
attending the orientation
To give a presentation to all detainees before or at the time
of their initial court appearance, integrating questions and
answers throughout
To briefly screen each respondent at the end of the
orientation to determine whether he or she wants to accept
removal, seek voluntary departure or have an individual
interview with the nonprofit's staff
To conduct individual interviews when requested to assess
potential relief from removal and release eligibility
To distribute additional written orientation materials at the
conclusion of the interview
To orient pro se respondents before each additional court
hearing
To provide further legal assistance, referral or
representation when available and at no expense to the
government
A basic formula for core staffing includes at least one attorney
and paralegal per courtroom in addition to one full-time clerical
support person and part-time supervisory support. For example, in a
detention facility with 500 beds and two courtrooms, at least 5.5 staff
members are required (including attorneys, paralegals, clerical and
part-time supervisory support). The lead agency will supervise and
educate the core staff. Legal staff would maintain time records to
ensure that government funding is not used for direct representation.
C. Keys To Success
Previous assessments of successful legal orientations have
identified several key elements that are necessary to make the project
a success. These include:
Cooperation: Effective implementation of legal orientations
requires cooperation between all parties at both the local and national
levels. Adjustments to sometimes long-standing operating procedures are
a necessary element of the model, particularly information-sharing and
access to detainees. Accordingly, each site will form a local working
group, bringing together the Officer-inCharge of the detention
facility, the EOIR court administrator, the INS trial attorneys and the
nonprofit agency as well as INS District level staff when necessary.
This working group will set initial site-specific base-line conditions,
program goals and cooperative operating procedures will continue to
meet over the course of the program to address concerns or problems
that arise.
Access and Collaboration: In preparation for implementation, the
local working groups will review the facility operating procedures and
access rules to ensure that they meet the guidelines set forth in the
INS Detention Standards. The program will respect the distinct roles
and obligations of the stakeholders. It will be the responsibility of
the nonprofit agency at each site to make postorientation decisions
regarding service, representation or referral. No federal government
entity will make such determinations.
Securi: The program will respect the security and custodial
obligations of the INS and EOIR within the guidelines set forth in the
INS Detention Standards.
Lead Agency: A single ``lead agency'' will be identified at each
detention site to provide the continuous presence of a core staff to
implement the legal orientations, centralize key functions, provide
continuity in the court and a central, accountable clearinghouse for
problem solving. Each of the local sites will have a single agency as
the point of contact with primary oversight for the screening,
assessment and referral functions, representing the interests of all
local nonprofit agencies. A core staff from the lead agency will be
present at all master calendar hearings.
measuring success
The local working groups at the ten detention sites, in
consultation with the national working group, will measure the effect
of legal orientations upon the following:
The efficiency of the immigration courts
The provision of legal screening/advice and an appropriate
level of legal services to all immigration detainees in the
selected sites
The efficiency of deportation of individuals with no legal
recourse
Number of detention days
Number of security incidents
Qualitative assessment of improvements in detainee access to
justice and due process rights
At the end of the twelve-month period, the national interagency
working group, in coordination with the local groups, would report to
EOIR on their findings. In addition, the agencies will produce a
written report of their activities at each site.
expansion to additional detention sites
The plan proposes implementation of legal orientation programs to
ten detention sites during a oneyear period. This is based on a
realistic assessment of how many legal orientation programs could be
implemented in one year. However, expansion to additional detention
sites in future years will take advantage of the efficiencies, savings,
and protection of due process rights afforded by legal orientations.
The year-end reports conducted by the private sector nonprofit agencies
and the national interagency working group will assist in evaluating
the merits of expansion to other sites. The reports will also provide
guidance to the various governmental and nongovernmental agencies in
their efforts to continue to improve justice and efficiency through the
continued expansion of legal orientations.
Justification of Costs/Demonstration of Savings
overview
With $2.8 million appropriated for legal orientation presentation
programs at ten major detention facilities, the government will save
$12.8 million in detention costs for a net savings of $10 million.
$2.2 million covers the costs of legal orientation presentations at
$200,000 per site, and includes an additional $200,000 for the training
center. INS and EOIR expenses at the sites are estimated at $600,000
yielding a total cost of $2.8 million. Using EOIR's FY 2000 immigration
court processing figures at ten major facilities, the per person cost
of the presentations is $63, about the average cost of one night in
detention. According to EOIR's evaluation, those who attendsuch
presentations spend an average of 4.2 fewer days in detention.
Consequently, the program can yield net savings of over $200 per
person, or about $10 million if implemented at 10 detention centers.
program costs
Grants to NGOs
It will cost an estimated $200,000 for a non-governmental
organization to carry out legal orientations at a detention facility
for a year. This is based on a site with two courtrooms. Personnel
costs are estimated at $133,000, and include a project director at .5
FTE ($25,000), two attorneys at .5 FTE each ($40,000), two paralegals
at.5 FTE each ($25,000) and administrative support staff at .5 FTE
($10,000), and benefits estimated at 33% of salary. Non-personnel costs
include 50% of yearly operating costs, and are estimated at $67,000.
This includes office rental, telephone, purchase of two laptop
computers, a photocopier and a fax machine and other basic office
expenses.\10\
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\10\ The EOIR pilot project grants were approximately $20,000 each
to cover 3 months of presentations, implying an annual cost of $80,000
per site. However, this figure cannot be extrapolated to a larger,
nationwide program. The three agencies in the pilot had existing
programs and were supplemented by privately-raised funds. This is not
sustainable and would not ensure consistent legal orientation for all
detainees at a facility. Agencies will still need to raise their own
funds to cover other activities that cannot be government-funded, such
as legal representation for people in immigration proceedings.
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Costs of the national training center are estimated at $200,000
annually. Personnel costs of $80,000 include a training coordinator at
1.0 FTE ($50,000, including benefits) and an administrative assistant
at 1.0 FTE ($30,000, including benefits). Office operations are
estimated at $50,000 a year. Costs of organizing and hosting trainings
for NGO staff at all sites and travel for site visits are an estimated
$70,000.
Cost to INS and EOIR
EOIR reports in its evaluation of the 90-day pilot project that at
one site, INS incurred a cost of $20,000 over the 3 months to pay for
guards to bring detainees to court the evening before their hearing for
the presentation. These costs were not reported at the other two sites,
but two court administrators reported that hosting the presentations
required some time for court support staff.\11\
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\11\ ``Evaluation of the Rights Presentation,'' Executive Office of
Immigration Review, 1999, p. 14.
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We doubled the one site's cost figure to cover unreported costs and
to allow for the possibility that more than one-third of the facilities
would incur such costs and estimate, therefore, that combined costs
amount to $40,000 over three months at three sites, for an average of
$54,000 per site per year. For ten sites, this adds up to $540,000. For
administration of the program at the national level, EOIR will require
a small percentage of program costs, estimated at 3% of $2.2 million or
$66,000. Thus, the total cost to the government is estimated at
$606,000, rounded to $600,000.
savings resulting from the program
EOIR's evaluation estimates a savings of approximately $8 million
were the program to be expanded to 16 detention sites, based on the
pilot's average savings of 4.2 detention bed-days for every detainee
who attends a rights presentation, an average cost of $65.61 per bed-
day, and a total of 29,131 detainees appearing in court at 16 detention
facilities in FY 1999.\12\
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\12\ ``Evaluation of the Rights Presentation,'' Executive Office of
Immigration Review, 1999, p. 12.
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To estimate savings for legal orientations at ten sites, we choose
ten courts at detention facilities for which the Yearbook provides
figures of ``immigration matters received.'' These are all facilities
at which INS detention standards are now in force (they are all INS-
operated or contracted facilities, not county or local jails). These
standards require the facilities to allow legal orientation
presentations by non-profit organizations. The total number of
immigration matters received at these ten courts in FY 2000 was
46,392.\13\
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\13\ Statistical Yearbook, Executive Office of Immigration Review,
January 9, 2001, Table 1, p. B3. Detention facilities included are:
Batavia SPC, Eloy Bureau of Prisons Facility, Florence SPC, Houston
SPC, Krome North SPC, New York Varick SPC, Oakdale Federal Detention
Center, Otay Mesa, Port Isabel SPC, and San Pedro SPC. This total is
larger than the FY 1999 figure EOIR used in the rights presentation
evaluation for 16 facilities. The 2000 Statistical Yearbook documents
an overall increase of immigration matters received at all courts of
10% over FY 1999 figures (p. B2).
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If legal orientations save an average of 4.2 bed-days per detainee
at $65.61 per bed-day, and 46,392 people attend presentations, INS'
gross savings amount to $12.8 million. If, as described above, it costs
a total of $2.8 million to carry out legal orientation presentations at
ten sites for a year, the net savings to the federal government is an
estimated $10 million.
As legal orientations cost about $63 per person, and, as EOIR's
evaluation demonstrates, save an average of 4.2 days in detention, the
net savings per person is about $212.
Based on the statistics from the EOIR evaluation, however, it is
likely that on average, legal orientations save more than 4.2 bed-days.
The report arrived at this figure by comparing how long it took at the
three sites to complete a case before the pilot period, with how long
it took during the pilot period. The average difference between the
number of completed cases before and during the pilot for all three
sites was 4.2 bed-days.\14\ However, legal orientation presentations
were occurring in the same manner at Florence before and during the
pilot. Therefore, at Florence there is not much difference between the
number of completed cases before and during the pilot. Therefore,
including Florence in the calculation brings the average down.\15\
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\14\ ``Evaluation of the Rights Presentation,'' Executive Office of
Immigration Review, 1999, pp. 11-12.
\15\ While the EOIR evaluation does not provide a breakdown of
these figures by site, it does provide a breakdown of another set of
figures that supports the assertion that the average number of bed days
per person would be the same before and during the pilot. On page 8,
statistics are presented per site regarding the length of time it took
to process unrepresented detainees who did not apply for relief from
removal. This is not the same as the figures used to calculate the 4.2
average--those figures include all cases, represented and unrepresented
and including those who applied for relief. For unrepresented detainees
not applying for relief, at both San Pedro and Port Isabel (where
presentations had not taken place before) it took on average 9 days
less during the pilot project to process these cases. At Florence, it
only took 23 days less, which is not a substantial difference. As the
report itself states, this is because Florence was conducting rights
presentations before as well as during the pilot.
---------------------------------------------------------------------------
Support for Legal Orientation for Immigration Detainees
``We urge you to actively pursue such a pilot program and to
seriously consider the Florence Service Processing Center Project as a
model. It is our understanding that the project at the processing
center in Florence has not only cut the time and costs associated with
the deportation of aliens, but at the same time has ensured that aliens
are apprised of their rights in deportation proceedings.''
--Senators Dennis DeConcini, Orin Hatch, Edward Kennedy, Paul Simon and
Alan Simpson, Letter to Attorney General Janet Reno, November
14, 1994
``In our view. . .INS is not prohibited from expending appropriated
funds for things that will facilitate aliens' obtaining
representation.''
--INS General Counsel David Martin, December 21, 1995 Memorandum
``The system suffers further because many aliens are unrepresented
and thus do not receive advice on whether to go forward because they
have a chance of being granted relief. . .. the removal process works
much more efficiently when aliens receive advice of counsel. Those with
weak cases generally do not pursue relief through proceedings if they
understand from counsel that they will be wasting their time.''
--The U.S. Commission on Immigration Reform, Becoming a Citizen:
Immigration and Immigrant Policy, September 1997
``The Executive Branch should be authorized to develop, provide,
and fund programs and services to educate aliens about their legal
rights and immigration proceedings. Such programs should also encourage
and facilitate legal representation where to do so would be beneficial
to the system and the administration of justice. . . the alien would
not have a right to appointed counsel but the government could fund
services to address some of the barriers to representation.''
--The U.S. Commission on Immigration Reform, Becoming a Citizen:
Immigration and Immigrant Policy, September 1997
``I strongly support the work of the Florence Project and the need
for similar efforts in INS detention facilities around the country.. .
.I can tell you with certainty that the detainee population here
suffers from less anxiety and stress, which are major causes of unrest,
than detainees at other SPCs. . . . As the Officer in Charge it is
extremely helpful in managing the facility to have the Project staff on
hand to work with those who need special attention.''
--Donald B. Looney, Officer in Charge, Florence INS SPC, 27-year
veteran of INS, Letter of May 5, 1998
``Based on case data from the pilot period, the rights presentation
has the potential to save both time and money for the government while
also benefiting detainees. During the pilot, cases were completed
faster and detainees, with potential meritorious claims to relief, were
more likely to obtain representation. Moreover, the rights presentation
is a useful management tool for controlling a detained population. As a
result, the rights presentation may strengthen the capability of INS to
operate safer detention facilities.''
--Evaluation of the Rights Presentation, U.S. Department of Justice,
Executive Office for Immigration Review
Statement of Denis and Tatiana Boulankine
My name is Denis Boulankine. My wife, Tatiana, and I are from
southern Russia, near Chechnya. I have relatives in Chechnya, and
support the Chechen people's right to self-determination. I was
involved in protests against the war in Chechnya, and was persecuted by
the Russian military who threatened to send me to a filtration camp,
from which I would likely never return.
In many ways, I had a promising future in Russia. I recently
graduated from law school and got married. However, my life was in
danger due to my political views, and my wife and I made the difficult
decision to leave Russia. Due to the fact that military officers were
looking for me, there was no way we could legally leave the country. My
in-laws paid a smuggler for fake passports. When we reached Newark
airport on October 12, 2000, we were stopped by an immigration officer
and requested political asylum.It was a surprise when we were taken to
an immigration detention center, where we lived like prisoners. It was
especially painful to be separated from my wife Tatiana. At the time we
arrived, we had only been married for five months. While in detention,
we were only allowed to visit with a plexiglass wall between us,
speaking over a telephone. The only time we were allowed to be in the
same room together was when our legal representative from the Hebrew
Immigrant Aid Society (HIAS) was preparing us for our hearing in
court.My attorney filed a parole request for us. My uncle Boris, who is
a US citizen, would have been happy to support us if we were released.
However, the INS denied the request. We remained in detention for five
and a half months, until the immigration judge granted us political
asylum in the United States on March 30, 2001. We are grateful to have
asylum, but hope that other people will not have to endure the pain of
separation and prolonged detention.
Mr. Glickman. HIAS, its sister Jewish community
organizations, and other faith-based organizations approach the
issues of asylum and refugee protection based on our commitment
to biblical imperatives to ``defend the stranger'' and to
``redeem the captives.'' The lessons of Jewish history, rife
with persecution and wanderings, impress upon us the importance
of preserving an open door for individuals seeking protection
and refuge. American immigration policy has at times allowed
the Jewish community to find a home and the chance to live
freely, to practice our faith and to build a strong community.
However, at other times, the Jewish community has had to watch
as fellow Jews perished overseas without the hope of safe haven
in this country. We cherish the opportunities that we have
here, and we have learned the painful lessons taught by periods
in our history when the doors were closed.
HIAS and much of our community trace our involvement with
refugee protection to efforts to help Russian Jews during the
final years of Czar Alexander II's reign from 1870 to 1881. It
was in 1881 that HIAS was born, in part for this reason. In a
letter to American Jews, the Russian Jewish pleaded for help,
writing: ``We ask you, we pray, we implore, we beseech you to
come to our rescue, to take us out of our bondage, out of our
misery; to give us a chance in your great and glorious land of
liberty, whose broad and trackless acres offer an asylum and a
place for weary hearts and courageous souls willing to toil and
by the sweat of the brow earn their daily breads...''
The values that these refugees expressed--a longing for
liberty, safety, and an opportunity to work--are at the heart
of the movement of immigrants to the United States in the late
19th, early 20th centuries. This wave of immigration brought
the ancestors of many in today's Jewish community, as well as
countless other Americans, to this country.
As President Bush recently noted at the U.S. Holocaust
Memorial Museum, ``History records many atrocities before and
after the 1930's and 1940's. But it was the Holocaust that
forced us to find a new term for horrors on such a scale--a
crime against humanity. Human evil has never been so ambitious
in scope, so systematic in execution, and so deliberate in its
destruction...In places like this, the evidence has been kept.
Without it, we might forget the past, and we might neglect the
future...''
President Bush's call to memory is one that the Jewish
community takes as a solemn mission.
Our colleague, Abe Foxman, a survivor of the Holocaust and
national director of the Anti-Defamation League and a former
HIAS client, superbly expressed the connection between the
lessons of the Holocaust and contemporary refugee policy in a
Miami Herald op-ed. He wrote about the plight of the more than
900 Jews on the ship that you mentioned, Mr. Chairman, earlier
in your opening remarks, the St. Louis, which in 1939, while
fleeing Nazi persecution, came within view of our coast, but
were ultimately sent back to Europe where most of them
perished. In discussing current expedited removal, Foxman
wrote:
``It was a dark moment, when fear of foreigners led us to
betray one of our most cherished traditions: providing safe
haven for the persecuted. In the years since the end of World
War II, one principle has been at the core of America's policy
toward refugees; never another St. Louis....'' He later
concluded, ``We can't go back and change the fact that the St.
Louis was turned away. But we should learn from the sad history
of America's indifference to refugees from Nazism. We can stop
its modern sequel.''
Tragically, the modern sequel to the St. Louis continues
every day at the expedited removal system is implemented and
asylum seekers are denied a fair process.
As we reflect on these and other lessons and their
relevance to contemporary asylum policy, there is a cruel irony
in the fact that Congress honors Holocaust hero Raoul
Wallenberg with a statue in the Capitol building while at the
same time maintaining such a harsh expedited removal process at
our own borders.
At the heart of the story of Swedish diplomat Raoul
Wallenberg were his efforts to provide Swedish protective
passports to Jews. These documents were essential in helping
these refugees to escape from Nazi-controlled Hungary. These
false papers meant the difference between life and death for
thousands. Wallenberg, whose courage and cunning saved so many
lives, disappeared at the end of World War II. In 1981, the
U.S. conferred honorary U.S. citizenship on him, an honor only
Winston Churchill shares. Wallenberg was also honored in 1986
by the renaming of a portion of a street in Washington as
``Raoul Wallenberg Place,'' and in 1995 with the dedication of
a Wallenberg statue in the Capitol.
The lesson of this story--that desperate times for refugees
require desperate measures such as falsification of documents--
sadly has not been learned. Expedited removal is triggered by
the absence of documents or the suspicion that the documents
being used are fraudulent. And yet refugees who have opposed
their government's actions or fled persecution and violence may
not be able to obtain valid documents before they seek this
entrance to the United States. Thus, refugees begin the process
in America facing a system that utterly fails to respond to
their basic need for protection.
Just as the Russian Jews of the 1880's called upon the
American Jewish community and the U.S. Government to free them
from their bondage and offer them a chance for a new life,
refugees continue to call out to us to provide safety and a
hope for a future. To respond to this call, the Jewish
community strongly recommends that refugee protection--refugee
protection--be placed at the core of U.S. immigration policy.
Chairman Brownback, I once again would like to express our
great appreciation for your work defending refugees and asylum
seekers and to acknowledge Senator DeWine's efforts as well.
Your efforts with the Subcommittee will go a long way in
building a seamless web of protection for those fleeing
persecution and violence.
Thank you.
[The prepared statement of Mr. Glickman follows:]
Statement of Leonard Glickman, President and CEO, Hebrew Immigrant Aid
Society
Mr. Chairman and Distinguished Members of the Subcommittee:
My name is Leonard S. Glickman, President and CEO of the Hebrew
Immigrant Aid Society (HIAS). Today I am also testifying on behalf of
the American Jewish Committee, Anti-Defamation League, B'nai B'rith
International, Jewish Council for Public Affairs, Union of American
Hebrew Congregations and United Jewish Communities--sister agencies
within the Jewish community who are deeply involved with the
community's efforts to protect refugees.
As the oldest international migration and refugee resettlement
agency in the U.S., HIAS, the migration arm of the organized American
Jewish community, played a major role in the rescue and relocation of
Jewish survivors of the Holocaust and of Jews from Morocco, Ethiopia,
Egypt and the communist countries of Eastern Europe. More recently,
since the mid-70s, HIAS has helped more than 300,000 Jewish refugees
from the former Soviet Union and its successor states, as well as many
thousand non-Jews seeking refuge in the United States, to escape
persecution and rebuild their lives in this country. This life-saving
resettlement work is undertaken in partnership with local Jewish
communities throughout our country. The most recent example of this
effort is the Tucson Jewish Family and Children's Services resettlement
of Sudanese youth who, after years of wandering and living in terrible
conditions in refugee camps are now making new lives for themselves in
America.
As HIAS celebrates its 120th anniversary, I would like
to thank you--Chairman Brownback--for your leadership in the area of
refugee protection, for convening this vitally important hearing, and
for giving us the opportunity to share a Jewish perspective on the US
asylum system. We also greatly appreciate Senator Kennedy and other
members of this subcommittee who have also made crucial contributions
to defending refugees both at home and abroad. As this year progresses,
you and your colleagues on this subcommittee will play a critical role
in shaping the United States' response to the international refugee
crisis--both through refugee resettlement and assistance, and through
our domestic policy towards asylum seekers.
The Jewish community is greatly concerned about the major changes
that were instituted in the U.S. asylum system in 1996, changes that we
believe threaten to undermine refugee protection and US global
leadership in this area. This testimony presents a very brief overview
of four problem areas in U.S. law, the human side of the issue based on
cases represented by HIAS attorneys and other advocates, and
reflections on the Jewish community's historical experience and this
history's impact on our refugee protection concerns.
Selected Problems in the U.S. Asylum System
Three crucial changes to the United States' asylum law that were
enacted in 1996, as well as the continued use of an older provision
relating to the adjustment of status of asylees, stand in direct
opposition to America's historic role as a refuge for the persecuted.
How these policies are addressed will have a tremendous impact not only
on individuals seeking protection in this country, but also on the
international refugee protection system as a whole.
expedited removal
Under the Illegal Immigration Reform and Immigrant Responsibility
Act (IIRIRA) of 1996, individuals fleeing persecution and oppression
are no longer afforded one of the fundamentals of due process--the
right to present their case before a judge. Unlike today, previous law
permitted asylum seekers time to prepare their cases, find legal
counsel and appropriate translators, and adjust to the difficult
process of reliving and retelling past trauma and current fear.
Under the new expedited removal system, INS inspectors are placed
in a position to make life or death decisions with only the most
cursory review from a supervisor. Any person who arrives in the United
States without valid travel documents, or even with facially valid
travel documents that the inspector merely suspects are fraudulent, may
be immediately removed. If the person, who may have been kept for many
hours in shackles and other extremely difficult conditions, asks for
asylum or expresses fear he or she is supposed to receive an interview
with an asylum officer. However, if the person cannot communicate
adequately in English, or fails to articulate fear, he or she could be
immediately returned to a country of persecution. Thus, many refugees
may not be able to make their claim because of trauma suffered in their
home country, or because of cultural barriers on speaking freely with
uniformed officials.
The cruel reality of this system is that refugees fleeing
persecution often rely on false papers and may well be too afraid to
speak when confronted by an INS official at a port of entry. Since
expedited removal nearly always occurs without any independent
monitoring, we cannot say conclusively how many bona fide refugees have
been removed through this process. However, cases of immigrants who
were removed and later returned and were granted asylum have been
identified. When dealing with the life and death issues confronting
many refugees, the price of making a mistake is too high to justify an
expedited process when a full and fair examination of the facts is
required to guarantee protection.
detention of asylum seekers
Also under the 1996 IIRIRA law, asylum seekers who are subject to
expedited removal face mandatory detention while waiting for a credible
fear interview with an asylum adjudicator. While those who pass this
interview may be paroled and allowed to join close family and friends
who will assist them as they pursue a full asylum hearing, the INS
often keeps asylum seekers locked up in detention despite findings that
they do not pose a threat to society and are not a flight risk.
Asylum seekers who are denied parole have no avenue to appeal this
decision of an INS district director to an immigration judge and are
held for months or even years in a variety of prison facilities--
including local jails. In these facilities, asylum seekers who have not
committed crimes are often housed with criminal inmates. While in
detention, asylum seekers face harsh conditions, inadequate health
services, and severe restrictions on their ability to fully pursue
their claims. Many, including those who have obtained legal assistance,
may be moved to facilities in other states because of overcrowding at
INS facilities, taking them far away from their lawyers who are thus
hampered in providing representation.
INS has not pursued a broad policy of alternatives to detention.
The vast majority of asylum seekers, individuals who are not criminals,
would be much better and more cheaply served through a non-prison
oriented sheltering system. A system that detains so many asylum
seekers in prisons and prison-like environments is inappropriate for
people who are seeking to avail themselves of the United States'
protection.
the one-year asylum filing deadline
While not part of the expedited removal system, the one-year filing
deadline for asylum applications, also enacted in 1996, is a similarly
draconian rule when dealing with victims of persecution. This arbitrary
deadline, with only extremely limited exceptions, threatens refugees
with removal to their country of persecution for purely bureaucratic
reasons despite the many legitimate reasons for missing the deadline.
Already thousands of claims have been rejected based on this provision.
Among the reasons why an asylum seeker might miss this one-year
deadline are, lack of familiarity with the US immigration system,
including what type of applicant might qualify for political asylum, or
even understand the basics of the English language itself.
Additionally, arriving immigrants must find work to support themselves,
and then try to find legal assistance to help them prepare their
applications, a difficult undertaking due to the shortage of
representation for poor applicants. Some may also miss the deadline
because they hope conditions in their homelands will change, or because
their families would be at risk if they made their claims public. Most
importantly, many asylum applicants who suffered torture, rape or other
forms of extreme persecution may need more time to prepare themselves
emotionally for the trauma of reliving these horrors. Besides the
humanitarian arguments for permitting victims of persecution to present
their claims, the one-year deadline is a poor use of resources since it
focuses on investigating the timeliness of an application rather than
reviewing the persecution claim to determine if it warrants a grant of
asylum.
asylee adjustment cap
A fourth area of U.S. asylum law that warrants review is the use of
a numerical cap on the adjustment of status to lawful permanent
resident (LPR) for asylum seekers. The Immigration and Nationality Act
establishes a limit of 10,000 asylees each fiscal year whose status may
be adjusted to that of an LPR. This has resulted in a current backlog
of over 50,000 pending asylee adjustment applications. Unlike the much
more rational process that permits refugees who were adjudicated abroad
to apply for LPR status with no cap after one year of residence in the
United States, asylees may apply after one year but are subject to this
arbitrary cap.
The use of the cap has no impact on the number of applicants who
are granted asylum and are offered protection in the United States--
these asylees are part of our country and will ultimately become
citizens. The question is whether these deserving individuals should be
permitted to begin the process of integrating into American life or if
they will be required to wait in limbo for years before their dreams of
citizenship can even begin. Sadly, the backlog in asylee adjustment
ends up being another hurdle placed in the path of asylees who have
already survived persecution and the difficult process of obtaining
protection in the United States.
the worldwide impact of u.s. asylum policy
US policy on asylum is critically important in the lives of the
thousands of asylum seekers who are looking for safe haven in this
country. But decisions made in the United States have a global impact
of a magnitude that overshadows even these grave domestic concerns.
As the United States argues that nations around the world should
open their doors and create camps for thousands of new refugees, and
that countries of first asylum should integrate these refugees into
their societies, it will require a consistent policy of refugee
protection on our part to successfully press for greater contributions
from others. Similarly, if other countries can show that the United
States is retreating from maintaining the highest standards of
treatment for asylum seekers, they will have an excellent excuse to
ignore our criticism of their own policies in this area.
The Humanitarian Imperative for Reform
HIAS' perspective on these central issues in U.S. asylum law is
based in large measure on our nearly century old experience providing
representation to asylum seekers and other immigrants. Our staff of
lawyers and other advocates provides assistance to applicants who are
affirmatively applying for asylum before the INS, as well as in the
courts when necessary. In recent years, our staff has assisted or
represented hundreds of asylum seekers being held in detention under
the expedited removal system.
A sampling of recent HIAS clients--some of whom are here with us
today--who after suffering persecution in their homelands suffered
again at the hands of the U.S. asylum system are attached to this
testimony as Appendix A. These cases highlight several key injustices
of the current U.S. asylum system including: use of expedited removal
for individuals who enter using false documents despite this being the
only way many refugees can escape persecution (Boulankine and ``Mussa
''); separation of families, including married couples, for extensive
periods of time (Boulankine); extremely long periods of detention
(Abass); detention of children (Boukrage and LK); harsh, threatening
and degrading conditions while being processed under expedited removal
(Mussa); hostile conditions while in detention (Boukrage); inadequate
translation resources and medical care in detention (LK); transferring
of asylum applicants to distant facilities thereby hampering
preparation of their asylum claim (Abass); INS opposition to legitimate
asylum claims based solely on failure to comply with the one year
filing deadline (Smirnova); denial of parole requests of non-dangerous
applicants with no opportunity to appeal to an Immigration Judge
(Boulankine, Abass, Boukrage, and LK); and limbo in the asylee
adjustment backlog (Boulankine and Abass).
The Jewish Community, Support for Refugee Protection and the Legacy of
the Holocaust
american jews and refugee protection
HIAS and its sister Jewish community organizations approach the
issues of asylum and refugee protection based on its commitment to
biblical imperatives to ``defend the stranger'' and to ``redeem the
captives.'' The lessons of Jewish history, rife with persecution and
wanderings, impress upon us the importance of preserving an open door
for individuals seeking protection and refuge. American immigration
policy has at times allowed the Jewish community to find a home and the
chance to live freely, to practice our faith and to build a strong
community. While at other times the Jewish community has had to watch
as fellow Jews have perished overseas without the hope of safe haven in
this country. We cherish the opportunities we have here, and have
learned the painful lessons taught by periods in our history when the
doors were closed.
HIAS, and much of the American Jewish community, trace our
involvement with refugee protection to efforts to help Russian Jews
during the final years of Czar Alexander II's reign (1870 to 1881). In
a letter to American Jews, the Russian Jews pleaded for help, writing:
``We ask you, we pray, we implore, we beseech you to come to our
rescue, to take us out of our bondage, out of our misery; to give us a
chance in your great and glorious land of liberty, whose broad and
trackless acres offer an asylum and a place for weary hearts and
courageous souls willing to toil and by the sweat of the brow earn
their daily bread. . .''
The values these Jews expressed--a longing for liberty, safety and
an opportunity to work--are at the heart of the movement of immigrants
to the United States in the late 19th and early
20th centuries. This wave of immigration brought the
ancestors of many in today's Jewish community, as well as countless
other Americans, to this country.
closing the gates and the holocaust
Today, just a few weeks after Holocaust Remembrance Day, the Jewish
community is very aware of the tragic consequences of the United
States' decision in the early 1920s to close the doors to large-scale
immigration. When Europe's Jews needed a place of refuge, America had
shut its gates.
A few excerpts from HIAS' annual reports from that period offer a
contemporaneous chronicle of the catastrophic effects of U.S.
immigration policy of that time.
``Due to an outcry against immigrants, the after-effects of the war,
and the consequence of a general hysteria of fear that the
country would be overrun by hordes of aliens, the immigration
restrictionists succeeded in having passed by Congress, what is
known as the Three Percent Immigration Law. We, who believed
that no danger was threatening the United States from an
avalanche of immigrants; we, who knew by the infallible test of
history that immigrants benefited America, just as America has
benefited them, opposed the Bill. We saw in its passage the
great hardship which will be inflicted upon the immigrants, we
foresaw the impossibility of setting up an administrative
machinery which would function justly and righteously . .
..''--1922
``It is totally fallacious to contend that closing of the gates tends
to solve the economic problems from which a country is
suffering. Economists of the highest caliber are already
sounding a note of warning of the baneful effects of the
continuance of a policy of restriction . . ..''--1932
``Under the impact of 1938 events, European Jewry is, with small
exceptions, a vale of fears and tears. The paramount hope of
scores of thousands in the German and Austrian concentration
camps or even of those who are, so to speak, at liberty, is
linked with their chance to emigrate . . ..Rescue through
emigration is not a mere phrase which has been coined to
dramatize the situation. These words spell the very last hope
upon which the physical existence of hundreds of thousands of
men, women and children . . .hinges.''--1938
``At this time our eyes are focused on some 200,000 displaced Jews in
Europe who are still languishing in camps. Wondering what the
free world expects to do with them . . .The number of refugees
fleeing persecution in Poland trebled; the long-awaited
solution to the Palestine question failed to materialize;
President Truman's directive to permit the entrance of 39,000
refugees to the United States fell far short of its goal, and
governments, in general, moved sluggishly and apathetically in
migration matters.''--1946
This story of closed doors and the failure to protect refugees is
chillingly and succinctly depicted in a graph of the numbers of
immigrants over the history of the United States. In the early 1940s--
when the need was so great--the absolute level of immigrant admission
was lower than at any point in U.S. history, except for the mid 1830s.
Knowing how many lives were at risk during those years makes this
valley on the graph even more poignant. [a copy of the graph is
attached]
lessons of the holocaust
As President Bush recently noted at the United States Holocaust
Memorial Museum: ``History records many atrocities before and after the
1930s and 1940s. But it was the Holocaust that forced us to find a new
term for horrors on such a scale--a crime against humanity. Human evil
has never been so ambitious in scope, so systematic in execution, and
so deliberate in its destruction. . .In places like this, the evidence
has been kept. Without it, we might forget the past, and we might
neglect the future. . .''
President Bush's call to memory is one that the Jewish community
takes as a solemn calling.
Our colleague, Abraham Foxman, a survivor of the Holocaust,
National Director of Anti Defamation League and a former HIAS client,
superbly expressed the connection between the lessons of the Holocaust
and contemporary refugee policy in a 1999 Miami Herald Op Ed. He wrote
about the plight of the more than 900 Jews on the ship the St. Louis
who in 1939, while fleeing Nazi persecution, came within view of the
Florida coast, but were ultimately sent back to Europe where most
perished. In discussing current expedited removal, Foxman wrote:
``It was a dark moment, when fear of foreigners led us to betray
one of our most cherished traditions: providing safe haven for the
persecuted. In the years since the end of World War II, one principle
has been at the core of America's policy towards refugees: never
another St. Louis. . ..'' Foxman later concluded, ``We can't go back
and change the fact that the St. Louis was turned away. But we should
learn from the sad history of America's indifference to refugees from
Nazism. We can stop its modern sequel.''
Tragically, the modern sequel to the St. Louis is continuing daily
as the expedited removal system is implemented and asylum seekers are
denied a fair process.
As we reflect on the lessons of the Holocaust and their relevance
to contemporary asylum policy, there is a cruel irony in the fact that
Congress honors Holocaust hero Raoul Wallenberg with a statue in the
United States Capitol building while at the same time maintaining a
harsh expedited removal process at United States' borders.
At the heart of the story of Swedish diplomat Raoul Wallenberg were
his efforts to provide Swedish protective passports to Jews. These
documents were essential in helping these Jews to escape from the Nazis
controlled Hungary. These false papers meant the difference between
life and death for thousands of Jews. Wallenberg, whose courage and
cunning saved so many lives, disappeared at the end of World War II and
is believed to have died in Soviet custody. In 1981 the United States
conferred honorary US citizenship on Wallenberg, only the second person
in history after Winston Churchill to receive this honor. Wallenberg
was also honored in 1986 by the renaming of a portion of a street in
Washington as ``Raoul Wallenberg Place,'' and in 1995 with the
dedication of a Wallenberg statue in the U.S. Capitol.
The lesson of the Wallenberg story--that desperate times for
refugees require desperate measures such as falsification of
documents--sadly has not been learned. Expedited removal is triggered
by the absence of documents or the suspicion that the documents being
used are fraudulent. And yet, refugees who have opposed their
government's actions or have fled persecution and violence may not be
able to obtain valid documents before they seek entrance to the United
States. Thus refugees begin the process in America facing a system that
utterly fails to respond to their basic need for protection.
While we are grateful to the United States Congress for marking
Raoul Wallenberg's brave contribution to Jewish, American, and world
history, I believe that the highest honor we could bestow would be for
our refugee and asylum policy to honor his memory by providing the
greatest degree of protection to those who seek safety in our country.
Conclusion and Recommendations
Just as the Russian Jews in the 1880s called upon the American
Jewish community and United States government to free them from bondage
and offer them a chance for a new life, refugees continue to call out
to us to provide safety and a hope for a future. Whether they are
contemporary Russian Jewish refugees, Sudanese boys seeking
resettlement in locations like Tucson, Colombians fleeing guerrilla and
paramilitary violence, or asylum seekers appearing at our border
looking for protection, the Jewish community supports efforts to place
refugee protection at the core of U.S. immigration policy.
We therefore recommend the following:
1. Expedited removal should be repealed. At a minimum, the use of
expedited removal procedures should be limited only to immigration
emergencies as declared by the Attorney General. Even in emergency
situations, expedited removal should not be used in connection with
individuals fleeing from countries with poor human rights records. Non-
governmental organizations and independent researchers should be
afforded reasonable access to monitor and evaluate the secondary
inspection process.
2. Immigration Detention should be overhauled, specifically by:
Mandating a parole policy for asylum seekers to ensure that
compassion is applied toward individuals forced to flee their
homelands to escape war and human rights abuses, and bringing
U.S. detention policy into compliance with international
principles of refugee protection and basic notions of decency
and compassion;
Mandating the development and consistent implementation of
alternatives to detention of asylum seekers, including by
parole under the asylum parole criteria, supervised release,
and the creation of shelters operated by appropriate
nongovernmental organizations;
Providing for independent review by an immigration judge of a
decision to detain;
Encouraging the Department of Justice, after appropriate
review, to issue regulations facilitating the parole of asylum
seekers, specifying the criteria for their release, providing
for immigration judge review, and ensuring the release of
individuals granted ``withholding of removal'' who present no
danger to the community; and
Creating an Office of Detention Oversight within the
Department of Justice to monitor detention facilities and
enforce detention standards.
3. The filing deadline for asylum applications should be repealed.
4. The annual cap on the adjustment of status of asylees should be
eliminated.
For future consideration, we also commend to the subcommittee's
attention the difficult circumstances that asylum seekers face while
waiting for their cases to be decided, frequently struggling without
work authorization for extended periods of time.
Chairman Brownback, I once again would like to express our great
appreciation for your work defending refugees and asylum seekers. Your
efforts with the subcommittee will go a long way in building a seamless
web of protection for those fleeing persecution and violence.
Thank you again for the opportunity to testify today on this
crucial issue.
APPENDIX A
asylum seekers--case summaries
Denis & Tatiana Boulankine from Russia
Denis and Tatiana Boulankine are a married couple from southern
Russia near Chechnya. Denis, a lawyer, took part in student protests
against the war, and spoke at several rallies. He was then called to
the local military office, detained for a day and roughed up. The
military threatened to send him to the front of the war, or to a
filtration camp (these are concentration camps, and a major site of
human rights abuses). He toned down his activities a bit (still going
to protests, but not speaking), but was again threatened by the
military. This time, they illegally changed his military rank and draft
status to insure that he would go to Chechnya. Military officers came
to his parents' house looking for him, and harassed them. Based on
their opposition to the war and the human rights abuses being carried
out by the Russian military, the Boulankines, with the help of
Tatiana's parents, hired a smuggler who got them fake Hungarian
passports with the intent of going to Canada, where they planned to
apply for asylum.
They were transiting through Newark Airport, when INS stopped them
on October 12, 2000. They asked for asylum and were detained at the
Elizabeth, NJ detention center. On November 15, 2000, they had credible
fear interviews, and on December 5, 2000 were found to have credible
fear. HIAS made a parole request on December 21, 2000, with an
affidavit of support from their U.S. citizen uncle, a New York City
resident. The INS was in possession of a very large number of their
original documents and had found at the credible fear interview that
their identity was determined. Nonetheless, the Boulankines received a
form-letter rejection of the parole request on Jan 31, 2001 with this
item checked off: ``Based on the particular facts of their cases,
including manner of entry, INS cannot be assured that they will appear
for immigration hearings or other matters as required.'' The couple
then was kept in detention until their asylum case was granted on March
30th--a total of over five months--where, despite being married, they
were denied all contact visits except for one joint meeting with their
HIAS representative.
``Mr. Mussa'' from Sierra Leone
``Mr. Mussa,'' a national of Sierra Leone, was a school teacher and
active member of the local teacher's union. Rebel forces captured him
in 1997, shortly after the coup against President Kabbah. He was held
as a suspected government sympathizer for about six months. After
managing to escape, he was captured by Komojors, a pro-government
militia, and held as a rebel sympathizer, since he had come from rebel
territory, for nearly a year. He then escaped from the Komojors and
eventually made his way to Mali, and from there to the U.S. Upon
arrival at JFK, he was found to be holding a fraudulent passport and
detained. He was held from Saturday morning, November 13, 1999, and was
transferred to the Elizabeth Detention Center in the early morning
hours of Monday, November 15. He was kept chained to a bench most of
this time, except for brief bathroom breaks and to speak to INS
officers. He was only fed once each day. He did not receive a full INS
interview until Sunday morning and was repeatedly threatened that he
would be sent back immediately. ``Mr. Mussa'' was detained until
January 19 2000, over two months total time, and was then paroled to
his brother, who is a lawful permanent resident and a New York City
high school teacher.
Mohammed Abass
Mohammed Abass was born in Iraq in 1974. He was arrested for
connections to antigovernment demonstrations in Iraq, interrogated and
beaten. He had serious health problems for some time as a result of
this beating. He also had further problems with security forces--
harassment, pressure to join the Ba'ath Party, etc. While he was in
hiding, his father was arrested and interrogated about his whereabouts.
Through the help of his cousin, he was able to leave Iraq in late 1999,
traveling via Jordan, Turkey, Cuba and Ecuador--arriving in NY on Dec
2, 1999. Upon requesting asylum, he was detained at the Wackenhut
Detention Facility in Queens, New York.
The Immigration Judge denied Mr Abass asylum on April 21, 2000. As
Mr Abass had difficulties with his initial private attorney, HIAS took
over the case and wrote the appeal brief. While his appeal was pending,
Mr Abass was transferred to a county jail in York, Pennsylvania, far
away from his attorney and friends. Despite the fact that he had a U.S.
citizen friend willing to sponsor him, he was unable to obtain parole.
Mr. Abass' transfer to York made it much more difficult for his
attorneys to prepare the case and to monitor the conditions of
detention for their client. Ultimately, the Board of Immigration
Appeals remanded the case to the Immigration Judge who granted Mr
Abass' request for asylum on March 21, 2001. When finally released, Mr.
Abass had spent over a year in detention.
Mohamed Boukraize from Algeria
Sixteen-year-old Mohamed Boukrage came to the United States on
October 23, 2000 aboard a ship and was placed in INS custody. Mr.
Boukrage left his home village at the age of ten after a bomb killed
his parents and younger sister. Mr. Boukrage fled Algeria because his
father was viewed as a French sympathizer. Mr. Boukrage had told the
interviewing officer his birthday was June 25, 1984. When Mr. Boukrage
arrived at Newark airport his teeth were checked by a doctor who
claimed that the test determined that he was over18 years old. Because
of this, he was transferred to Elizabeth Detention Center in Elizabeth,
New Jersey. Mr. Boukrage has been in detention ever since.
Mr. Boukrage has had a very difficult time in this adult detention
facility. As the smallest and the youngest person in the detention
center, Mr. Boukrage has been attacked and threatened by other inmates.
Due to this harassment, Mr. Boukrage has spent a significant amount of
time in solitary confinement where he is not permitted to participate
in any activities with other detainees. As an orphaned youth, Covenant
House in Newark, New Jersey has offered to care for Mr. Boukrage. After
surviving a considerable amount of trauma in his young life, Mr.
Boukrage has been forced to endure detention instead of receiving
protection in a safe environment while his asylum case is heard.
L.K. from the Democratic Republic of Congo
Fifteen-year-old L.K. arrived in the United States via Abidjan,
Cote D'Ivoire on January 20, 2001 at the JFK International Airport. Ms.
K fled the Congo because one day her entire family was taken away by
government troops for being supporters of the deposed President Mobutu.
When her family was arrested she fled to Brazzaville, Republic of
Congo, and waited for a plane ticket and passport from her mother who
is in Canada. She arrived in the United States alone, but expected to
continue on to Toronto to meet her mother. However, she was stopped at
JFK Airport and questioned by US INS officials. After a brief dental
examination, the INS asserted that Ms. K was over eighteen years of age
and transferred her to the Wackenhut Detention center in Queens, New
York--an adult facility. Concerning Ms. K's age, notes in her medical
records declared first that she was 23 years old, on the next day that
she was 22 years old, and three weeks later that she was approximately
17 years old--once again a minor--all the while keeping her in the
Wackenhut Detention center.
Ms. K's stay in detention has not been easy because of her health
and age. When Ms. K arrived in the United States she was diagnosed with
malaria, and had to undergo medical treatment at the detention center
medical facility. Ms. K complained several times that she did not
understand the type of treatment that she was getting. She also called
her attorney on two occasions complaining that she did not understand
why she had to take certain medications because the medical procedure
was not explained to her (Ms. K. is French-speaking with no English
language ability). Ms. K still does not understand why she is detained
at Wackenhut, and does not even fully understand the concept of
political asylum. She knows, however, that her life will be threatened
if she returns to the Congo.
Anna Smirnova from Russia
Anna Smirnova, a national of Russia, fled from Russia fearing
persecution based on her mixed nationality. She is part Jewish, and
also part Arab and part African-American (her great-great grandfather
had been a prominent American civil rights leader). Anna arrived in the
United States on April 17, 1998. She gave birth later that year, and
began caring for the new infant. She missed the one-year filing
deadline due to the burdens of being pregnant (a physical condition
that should have satisfied one of the exceptions to the filing
deadline), and the resulting burden of caring for a new infant as a
single mother. And, like many refugees, she was unaware of the
deadline. However, once she became aware of the one-year requirement
she immediately filed her claim, which was received by the INS on April
22, 1999. Despite extensive documentation of her fears of persecution
and of her pregnancy, the INS rejected Anna's asylum claim based solely
on the asylum filing deadline. Although an immigration judge eventually
granted her claim, the INS has appealed that decision based in part on
her failure to file within the one-year filing deadline. While her
attorneys at HIAS are opposing the appeal, the INS still maintains that
her claim is barred by the filing deadline.
APPENDIX B
Chairman Brownback. Thank you, Mr. Glickman. I appreciate
your testimony. I also want to say thank you to your
organization: for over 100 years it has stood for those who did
not know the system, did not understand the system, could not
advocate for themselves; yet you stood there with them,
regardless of their background, other than that they wanted to
be free and to be in the U.S. Thanks for doing that.
Mr. Glickman. Thank you, Mr. Chairman.
Chairman Brownback. Mr. Stein, thank you for joining us in
the committee.
STATEMENT OF DAN STEIN, EXECUTIVE DIRECTOR, FEDERATION FOR
AMERICAN IMMIGRATION REFORM, WASHINGTON, D.C.
Mr. Stein. Mr. Chairman, thank you very much for the
opportunity to be here today. My name is Dan Stein. I am
executive director of FAIR, the Federation for American
Immigration Reform, the Nation's leading organization working
for what we feel are improved immigration laws, improved
immigration enforcement, overall reductions in overall
immigration levels, consistent with U.S. population
stabilization, and an end to illegal immigration.
Mr. Chairman, I appreciate your willingness to hear our
point of view in these hearings, and I am hopeful that we are
able to find some areas of common ground as the years progress.
I do believe that our position, while at some variance with the
testimony we have heard today, is nevertheless, I hope, a
legitimate point of view that deserves some credence and is
broadly reflective of what we feel is not only the views of our
70,000 members all across the country but the broad sense of
the American people in general that immigration laws have to
serve the needs of this country, first and foremost, and other
priorities be established second.
That said, numbers do matter, both in immigration and
refugee policy. The Census Bureau is now projecting that with
today's high immigration levels, our population is likely to
exceed 400 million by 2050, an additional 130 or 140 million
people today, and, frankly, given the findings of the 2000
census, those numbers are likely to be low in terms of
projections. As far as we can tell, the country has not made
any adequate provision for the infrastructure, schools, roads,
transportation, housing, and other assorted things that would
be required for all those additional people have not been
planned out, and we see the effects of that gap between the
immigration policies of the country and their residual impacts
on highways and schools and other things all across the country
even today.
Numbers do matter, but legitimate and merit-based refugee
and asylum admissions deserve our highest priority and
attention as a Nation. They are the ultimate fulfillment of the
purpose of immigration in a country like ours. Arguably, they
should take priority over virtually every other migration
policy decision that we make as a Nation.
Nevertheless, because of today's high levels of
immigration, legal and illegal, we have to consider asylum and
refugee policy within the framework of any effort to regulate
the overall admission of people, and we do believe that our
asylum policy can continue to be implemented with rationality
and discipline, and still fall within generally accepted
international norms for asylum policy.
Matthew talked a good deal about the stranger. Matthew did
not talk a lot about temporary protected status, deferred
departure, parole, expedited removal, and all the other
immigration bits of alphabet soup that people try to deal with.
The asylum system of this country is something that
ultimately reflects the broad balance that has to be made
between the huge numbers of people who have an enormous
incentive to come to this country through fraudulent means
while exercising our obligation to try to provide protection
for people who truly need it.
Now, Mr. Chairman and Senator DeWine, we got into this
situation today as a result of the immigration policy, the
asylum policy having basically broken down as a result of a
series of decisions beginning in 1980 and taking us up to 1993,
which, when Senator Kennedy commented in the Washington Post,
he said, ``The asylum system has broken down, and it's up to
Congress and the administration to fix it.'' According to
former INS Commissioner Doris Meissner, ``The problem we have
faced in recent years''--this is March 1994--``is that people
with no legitimate claim to asylum are applying in record
numbers, some brought by smugglers, some using fake documents,
and some overstaying the visas granted to them as visitors.''
Before expedited removal was passed and the credible fear
reforms were made and additional improvements made
administratively by INS, the no-show rate for asylum seekers
who were paroled was over 50 percent, with virtually no
sanction for their failure to appear.
Now, Mr. Chairman, it would be great if we could give O.J.
Simpson's procedural process to every alien who shows up on our
jurisdiction asking for political asylum. But ultimately there
have to be some practical limitations in what the taxpayer can
provide in the way of resources. Freedom House estimates now
that there are well over 3 billion people living under
conditions that we would consider not free. And so ultimately
our asylum policies have to be integrated within our refugee
policies and other policies which also provide humanitarian
admissions. Let's recognize that asylum policy also operates
coincident with policies like the Cuban Adjustment Act that
provide a virtually on-demand parole for people who come here
from Cuba, for example. The refugee admissions, which are the
result of a more orderly consultation process which operates
through the State Department, and these broad temporary
protected status grants or class-based release grants that are
ultimately then transformed into some kind of rolling amnesty
or relief provision--we have had a number of these in the last
5 or 6 years--that while we do not get credit internationally
or from the U.N. High Commission on Refugees, still represent
part of our humanitarian commitment as a Nation in admitting
people. So we basically believe that asylum policy should
adhere to these basic principles.
Asylum policy is designed to provide temporary protection
here for persons to work for positive political change back
home. The goal is to strike a balance between providing
protection for those who need it while encouraging people,
where possible, to stay home to work for positive political
change.
Now, suppose Thomas Jefferson, great Founding Father that
he was, had said, Well, the United States is great, but, you
know, the war started and I do not really know who is going to
win, so maybe I will take my chances and stay in France. Well,
ultimately we want people who are dissatisfied and discontented
with conditions in their home country to stay and bloom where
they are planted and improve conditions where they are. So
ultimately you are trying to strike a balance between providing
protection for people who need it while not draining off all
the political opposition to a regime that actually might be
there to try to stay and improve conditions. And I think we see
that policy operating quite strongly to effect in Cuba, where
anyone who might have disagreed with Castro has been encouraged
to move to the United States by our very broad admissions
policies with that particular country.
Asylum policy should be integrated with refugee policy to
provide a single unitary statutory scheme. Asylum standards
should not create incentives for persons to get within U.S.
jurisdiction first with the expectation of preferred treatment
over similarly situated persons applying as refugees overseas
for the obvious reason that it would then create an incentive
for people to come here to apply for asylum because of the
enormous procedural or legal advantages that come with getting
onto U.S. jurisdiction first.
Because asylum allows an alien to line-jump in front of
millions of other people who are waiting in line for their
visas, and, theoretically, hundreds of millions of people who
would like to live here as well, the grant must be made with
care, consistent with the statutory scheme. The management of
asylum policy must take into account the enormous worldwide
backlogs for visas on waiting lists and the incentives to gain
residency through false claims.
I wish it were a perfect world, Mr. Chairman. I wish that
every person who makes self-serving and uncorroborated
declarations without any documentary evidence, who has
destroyed transit documents en route, not between the home
country and this country but between the last safe country they
left and this country, could be believed as telling the truth.
But the bottom line is the asylum claim often turns on the
credibility of the asylum claimant, without any independent
documentary evidence of veracity for the claim. Someone wiser
than I once speculated if only refugees are admitted, then
everyone will be a refugee.
Other than for countries of first asylum, which were
generally Mexico and Canada--there are a few others by boat--
temporary asylum should be restored to its original purpose: to
provide temporary protection for persons who are here legally
who, as a result of unforeseeable changed circumstances can no
longer return home. Certain evidentiary presumptions are
appropriate in certain cases where a claimant is from a
particular religious group or social group and we possess very
little home-country information that would allow verification
of claims.
Asylum is to be a temporary status for people to work here
for positive political change back home. Matthew talks about
welcoming the stranger. What I think the Lord is telling us is
that we have an obligation to minister to the stranger, to help
the stranger, to provide food, take him into our house as a
guest, to provide temporary protection and shelter where
needed, and then do what we can to help restore the status quo.
Taking everybody in need into your own home is not a fit
solution and ultimately not a realistic way of helping people.
Most people this country has to help has to do it through
helping them where they are, improve their conditions where
they are and encourage repatriation as soon as possible. So
asylum is not to be viewed as a regular alternative to regular
immigration. It is great to hear these wonderful human interest
stories about how well people are doing, but ultimately asylum
is not about people coming here and going to college. It is
about providing people temporary protection generally for
reasons they could not have foreseen when they originally
entered to try to bring about positive political change back
home. Ultimately resettlement here over time is appropriate if
there is no possibility of repatriation, but let's not view
asylum as a back-door immigration program.
Asylum seekers should not be subject to preferred
procedural or legal standards that give an advantage to the
would-be asylum seeker to get to the U.S. to make the claim.
The credible fear pre-screening standard for summary return
must remain in the law and be actually used by the government.
Frankly, Mr. Chairman, the data are so weak in terms of what is
going on in asylum procedures, and the exercise of detention
standards and the nature of the asylum claims being granted and
under what kinds of claims, that it is almost impossible to
make a judgment about how these programs are working, but
ultimately the summary exclusion provision seems to be
operating, barely used, if at all--how much time do I have? I
will move it along here.
Chairman Brownback. Yes, if you could wrap it up, that
would be good, Mr. Stein, particularly if you have any specific
policy recommendations or changes.
Mr. Stein. All right. Well, asylum seekers should be
expected to make a claim for protection at the first available
opportunity in the country of refuge. Asylum claimants should
not forum-shop or otherwise be allowed to pick and choose where
they make their claim, passing through several safe-haven
countries before making their claim when they get to the U.S.
The legal standard for asylum should be consistent with
international obligations.
We recommend that one legislative change is that state
action must be at the core of the claim of persecution. The
newly evolving standards that allows claims to be made on
behalf of an alleged absence of state protection for entire
classes of social groups is fraught with peril, is
unmanageable, and an invitation to fraud. We believe also that
the category ``membership in a social group'' is now being
defined beyond what is realistically administered in an asylum
procedure, involving classes, wholesale classes of people who
are subject to disparate treatment in their home society under
cultural norms and rules that may have prevailed for thousands
of years. This is not the original purpose of political asylum.
As a practical matter, under our current system,
adjudicating claims often involves allegations of abuse that
took place tens of thousands of miles away. Objective evidence
that may be entirely lacking in the entire claim may rest on
the subjective judgment of an asylum officer. Where the
procedural, legal, or evidentiary standards become unworkable,
it is up to Congress to intervene and reassert proper standards
to ensure a manageable program.
Ultimately a lot of our asylum problems are going to have
to be dealt with on a multilateral basis. All the countries
that are targets of asylum claims--and they tend to fall within
the same nine or ten countries--have to work together to try to
ensure that the handling of fraudulent claims through things
like expedited removal discourage forum shopping and minimize
fraud.
I have some examples in my testimony, some really glaring
examples of fraud, of people posing as other people, claiming
very specific allegations of membership in particular tribes
that it turned out they were actually impostors, which actually
were marquis cases brought to try to advance new asylum
standards, all the way up through the appellate process, and
the fraud was not even detected. When people show up without
documents, Mr. Chairman, we do not know who they are. We have
no idea who they are. We have not done a positive ID check. The
Government has an obligation to detain these people until they
can figure out who they are talking about. And as we see from
many of these high-profile claims, we do not know, even after
they have gotten asylum and been here for years, we have not
even figured out who they are.
Chairman Brownback. Mr. Stein, if we could go ahead and get
the policy recommendations, I think my colleague here needs
to--
Mr. Stein. All right. Those are all included by reference.
I think I pretty much have mentioned them all. We would like to
see--
Chairman Brownback. My colleague needs to get going here.
Mr. Stein. Asylum needs to be decoupled from permanent
residence, and deportation needs to be enforced if, you know,
the asylum decision is ultimately decided against the claimant.
There are others, but I will leave it at that.
Thank you very much, Mr. Chairman. I appreciate the
opportunity to testify and hope this will be an ongoing dialog.
[The prepared statement of Mr. Stein follows:]
Statement of Dan Stein, Executive Director, Federation for American
Immigration Reform
Introduction
Thank you, Mr. Chairman for the opportunity to present the views of
the Federation for American Immigration Reform (FAIR) on the important
issue of asylum policy and problems with regard to implementation of
the law as it exists today. I am Dan Stein, FAIR's executive director.
FAIR is a national, non-profit organization of 70,000 concerned
citizens nationwide promoting better immigration controls and a return
to a moderate level of legal immigration to insure that today's
policies serve the current and future best interests of the American
people. FAIR does not receive any federal grants, contracts or
subcontracts.
fair stands by these principles:
Illegal immigration can and must be substantially reduced by humane
measures that are consistent with our democratic ideals;
immigration should not be permitted to undermine opportunities for
America's poor and disadvantaged to improve their wages and working
conditions;
our immigration laws must be fairly and effectively enforced; there
should be no favoritism toward or discrimination against a person on
the basis of race, religion or ethnicity;
all immigration should come within a single, stable ceiling which
is periodically reviewed on the basis of reasoned, explicit population
goals for the U.S.
three criteria should guide the selection of immigrants: our fair
share of refugees for resettlement, our national manpower policy and
concerns for the maintenance of intact nuclear families;
the United States should not contribute to a brain drain that
entices away the skilled and talented who are desperately needed in
their homelands; we should meet our need for skilled professionals by
training and retraining our own;
the United States should make greater efforts to encourage
population size stability, economic development and alleviation of
poverty worldwide and especially in countries of great out migration;
the era of mass international migration as a solution to national
problems has come to an end; problems of poverty and overpopulation
must be vigorously confronted where people live, rather than Postponing
their solution by either the exportation or importation of masses of
people;
we should determine our own immigration and population policy
broadly and democratically, as a sovereign right and responsibility of
our nation.
Mr. Chairman, the American people are extremely hospitable to
immigrants and refugees, and our nation's record of generosity and
compassion to people in need of special protection from war, anarchy,
or natural disaster is exemplary. We have maintained a very munificent
refugee resettlement pattern over the years, even though many of the
people we have taken in are not considered true refugees by the United
Nations High Commissioner for Refugees. The problem comes when the
policies established become unrealistically broad or unintended avenues
for abuse.
mr. chairman, fair suggests these principles in asylum policy:
1) Asylum policy should work to provide temporary protection here
for persons to work for positive change back home. The goal is to
strike a balance between providing protection for those who need it
while encouraging people to--where possible--stay home to work for
positive change.
2) Asylum policy should be integrated with refugee policy to create
a single, unitary statutory scheme. Asylum standards should not create
incentives for persons to ``get within U.S. jurisdiction first'' with
the expectation of preferred treatment over similarly situated persons
overseas.
3) Because asylum grants allow an alien to line jump in front of
millions of other people, the grant must be made with care, consistent
with the statutory scheme. The management of asylum policy must take
into account the enormous worldwide migration pressure, the long
waiting lists and backlogs, and the incentives that exist to gain
residency through false claims. Someone wiser than I speculated ``if
only refugees are admitted then everyone will become a refugee.''
4) Other than for countries of first asylum, the grant should be
restored to its original purpose: to provide temporary protection for
persons here legally who, as a result of unforeseeable, changed
circumstances can no longer return home. Certain evidentiary
presumptions are appropriate in certain cases where a claimant is from
a particular religious or social group and we possess very little home
country information that would allow verification of claims. Asylum is
to be a temporary status; it is to allow persons to work here for
positive political change back home.
5) Asylum should not be viewed as an alternative to regular
immigration.
6) Asylees should not be subject to preferred procedural and legal
standards that give an advantage to the would-be asylum-seeker to get
to the U.S. in order to make the claim. The ``credible fear'' pre-
screening standard for summary return should remain in the law and be
actually used by the government.
7) Asylum seekers should be expected to make a claim for protection
at the first available opportunity in the first country of refuge.
Asylum claimants should not forum shop or otherwise be allowed to pick
and choose where they make their claim-passing through several safe-
haven nations before getting to the U.S.
8) The legal standards for asylum must be consistent with our
international obligations. There should be some ``State Action'' at the
core of the claim of persecution. The newly evolving standard that
allows claims to be made on the basis of an alleged absence of state
protection for entire classes of ``social groups'' is fraught with
peril as unmanageable and an invitation to fraud.
9) The definition of ``membership in a social group'' must be
defined narrowly enough that it retains some standard beyond the
subjective parameters of an imaginative immigration bar.
10) As a practical matter, under our current system, adjudicating
asylum claims often involves allegations of abuse that took place tens
of thousands of miles away; objective evidence may be entirely lacking
and the entire claim may rest on a subjective judgment of the Asylum
Officer. Where the procedural, legal or evidentiary standards become
unworkable or an invitation to fraud, it is up to Congress to intervene
to re-assert the proper standards to insure a manageable program.
Background of the Mid-1990s Asylum Reform
Our generosity and compassion must be reserved for those who are
truly deseiving of it. That is the reason that there was widespread
resentment at the revelations in the middle of the 1990's that the
nation's asylum policy had become a major loophole for gaining illegal
residence in the United States. So many foreign travelers were arriving
in New York and other airports without entry documents and requesting
asylum, that the INS had largely shut down efforts to decide the
legitimacy of the asylum claims and was waiving the asylum claimants
into the country, issuing them work permits and filing away their
asylum applications to gather dust. So notorious was the practice that
awareness of the loophole spread beyond the alien smuggling rings, and
the backlog of pending asylum cases rose into the hundreds of
thousands. It appeared to be so easy to get a green card by filing an
asylum application that the practice even spread to ``green-card''
fixers in the United States who began enticing Mexicans who were here
illegally to begin filing asylum applications.
As Sen. Kennedy commented in the June 13, 1993 Washington Post,
``The asylum system has broken down, and it's up to Congress and the
administration to fix it.'' According to former INS Commissioner Doris
Meissner, ``The problem we have faced in recent years (she told the
March 30, 1994 Washington Post) is that people with no legitimate claim
to asylum are applying in record numbers, some brought by smugglers,
some using fake documents, and some overstaying the visas granted to
them as visitors.''
Against this background of fraudulent use of the asylum system,
abusing the generosity and compassion of the American people, the
Clinton Administration and the Republican-led Congress finally acted in
1995 to reestablish the integrity of the asylum process and reassure
the American public that only people who truly feared persecution were
able to gain the nation's protection. The Administration acted first,
trying to forestall a change in the law. Those changes in the screening
system included a enlarged Asylum Corps, halting the automatic issuance
of a work permit to new asylum applicants, and an accelerated
processing of asylum applications. On July 9, 1995, Commissioner
Meissner told the Post, ``After years in which fraudulent asylum claims
were routinely used as a backdoor way to enter the United States, the
Immigration and Naturalization Service finally has sufficient staff and
resources to stop the abuse and ensure that legitimate asylum-seekers
no longer pay the price for those who seek to misuse the system.''
These measures were supplemented by Congress in 1996 to add new
expedited removal procedures, but the protection against removing
someone who feared persecution if returned to his homeland was
protected by requiring a screening of all asylum claims by a member of
the Asylum Corps. A recent example of the operation of this procedure
was demonstrated when a surge of Colombians began arriving in the
United States on transit visas--meaning that they were not documented
to enter the United States--began requesting asylum in an effort to
bypass consular screening of Colombian travelers to determine if they
were intending immigrants. While it is certainly true that life is
difficult in Colombia because of drug-related violence and a breakdown
in the government's ability to assure order, most of the arriving
Colombians were not targets for persecution. The Embassy in Bogata was
able to suspend the issuance of transit visas for the U.S., this kind
of thing demonstrates abuse potential. We hope that the Asylum Corps
was able to meet this surge in frivolous asylum claims and, as a
result, discourage recourse to this attempt to circumvent the U.S.
immigration law. But the evidence is clear: if you create the
opportunity for a loophole, it will be exploited.
Earlier, in a similar fashion the Asylum Corps was pressed into
service screening Cuban and Haitian ``rafters'' seeking to enter the
United States. If the United States had continued to accept anyone who
sought an opportunity for a better life, the stream of Cubans and
Haitians setting sail for our country would have become enormous, and
they would likely have been joined by nationals of countless other
countries in the area.
Other provisions adopted in 1996 reduce the ability of immigration
lawyers to continue to seek sequential reviews of removal orders until
they find a sympathetic judge and to use an asylum claim as a defense
against removal if the alien has been living illegally in the United
States for more than a year without initiating an asylum claim. These
changes were adopted to redress the imbalance in favor of the asylum
applicant at the expense of the American public.
Asylum Reform Judged Largely Successful
The asylum reform effort of the mid-1990s has been largely
successful. The number of frivolous asylum claims have dropped off
sharply. From a total of 127,000 claims in FY'93, the level in FY'99
was about 32,000. However, there are still problems. Even with careful
prescreening of asylum applicants by trained asylum officers, a large
majority of asylum claimants who present a convincing enough claim to
get referred to an Immigration Judge are still found meritless. The
disapproval rate in FY'99 for claims before Immigration Judges was 62
percent. There is no guarantee that people who get asylum are in fact
bona fide asylees.
The asylum process is still being used as a backdoor route for
gaining illegal residence in the United States is the fact that the
number of asylum applications is on the upswing again. From the 32,000
in FY'99, the number jumped by about 28 percent in FY'00 to nearly
41,000.
In addition, the INS has no system in place to assure that the
denied asylum applicants ever leave the United States. There is every
reason to believe that these persons who have been trying to take
advantage to the generosity of the American people stay on in the
country illegally and hope to gain legal residence by enactment of
another amnesty for illegal aliens. We should remember the warning of
Barbara Jordan, former member of the House Judiciary Committee and
Chairman of the Commission on Immigration Reform. She said in testimony
in the House on February 24, 1995 ``. . .for the system to be credible,
people actually have to be deported at the end of the process.''
Mr. Chairman, I recognize that immigration lawyers are unhappy with
the current state of the asylum screening process, because some asylum
applicants at ports of entry may be sent back home without ever gaining
access to the services of a U.S. immigration lawyer. If the purpose of
the asylum provisions of the immigration law were intended to maximize
the number of persons gaining permanent residence in the United States,
that concern might have some logic. However, that is not the purpose of
the asylum provision. The reason that asylum was created was to deal
with people who would qualify for refugee status if they were abroad,
but who were temporarily located in this country. It is clear today
that most of the persons being accorded asylum in the United States
would not be granted refugee status to the United States if they were
outside of this country. Because asylum has proven to be a backdoor
route to residence in the United States, policymakers have a
responsibility to the American people to minimize the possibility that
it is abused.
The Shift in Legal Standards: Who Qualifies?
Mr. Chairman, last December the nation learned from an INS leak
that Adelaide Abankwah, a Poster child for granting asylum to prevent
female circumcision (or genital mutilation), was an imPoster. (See
Abankwah v. INS, 185 F.3d 22 (2d Cir. 1999). In fact, she had assumed
the identity of another woman, had invented a story that her mother was
the queen of a tribe in Ghana and she was due to succeed to that
position--which would lead to the genital cutting ceremony. She
succeeded in posing as an entirely different person throughout the
entirely of the case--all the way through appellate review.
What this case highlighted (in addition to a judicial willingness
to second guess matters committed firmly by law to agency discretion)
is that asylum procedure allows people to destroy identity documents
during the trip over and fabricate stories out of whole cloth. Although
the credible fear procedure was supposed to prevent this, the current
asylum system does not insure that the INS even gets a ``positive ID''
on the alien. It does not allow us to take into account behavior by the
alien before arrival--in committing calculated fraud and forum
shopping--when determining the credibility of a claim. Limitations of
resources prevent the State Department in the home country from
individually investigating the claims of individual asylum claimants in
the U.S.
The invitation for false claims is compounded by the now
unmanageably broad definitions of who is an asylee. The problems
presented by broader and broader definitions of who can get asylum is
sending this country into new and uncharted waters, especially over the
question of who qualifies for a claim based upon membership in a
particular social group. The asylum standard codified in U.S.
immigration law in 1980 was based on the internationally accepted
refugee definition. Whether a person had been persecuted or had a well-
founded fear of persecution if repatriated could be evaluated
reasonably objectively when the criteria turned on the persons' race,
religion, nationality or political opinion. Congress judged in 1980 on
the basis of past experience that the maximum number of asylum
claimants in a year would not reach 5,000, so they set that as a
ceiling. However, experience has taught us what we should already have
known: ``if you build a new avenue for admission, they will come.'' By
1990, more than 15,000 approved asylum applicants were waiting in a
backlog, and Congress doubled the annual ceiling.
Today, we are facing a replay of the 1990 situation. Again there is
a backlog of approved asylum claims in excess of the quota for three
years. Legislation has been introduced in the House to again increase
the ceiling (H.R.1560). Why has the number of asylum applicants been
increasing? Is it because persecution is becoming more widespread? I
don't think that is the explanation. In our view, it is more likely
because of a systemic problem and because of the stretching in practice
of the scope of eligibility for asylum coverage.
Part of the explanation for the increasing number of asylum
claimants is due to a prevailing culture in the INS that creates a much
greater onus on an asylum officer or an immigration judge who denies an
asylum application than if the application is approved. That appears to
explain approval of the fraudulent Abankwah case. The INS said all
along that it had doubts about the bona fides of her asylum claim, but
extensive interest by the press and politicians in the case apparently
overcame the INS professionals' good judgment.
Another part of the explanation involves legislative and judicial
expansion of asylum coverage. The congressional action occurred with
the addition to the asylum definition of China's family planning policy
as a form of political persecution by Sec. 601 of the 1996 Illegal
Immigration Reform and Immigrant Responsibility Act (IIRAIRA).
FAIR expressed it's concern that this change in the law would be
another loophole phenomenon, i.e., that it would lead to an increase in
fraudulent Chinese asylum applicants. We have been proven correct. In
FY'96 there were 1,509 Chinese asylum applications. In FY'2000 there
were 5,541 Chinese applications. There would have been even more except
the United States began intercepting Chinese smuggling ships and
diverting them to ports in neighboring countries where the smuggled
Chinese could not gain entry making asylum based on claims of fear of
family planning persecution. In these cases, the neighboring countries
brought in representatives from the UN High Commissioner for Refugees
and the International Organization for Migration to screen the Chinese
for possibly valid asylum claims and found only a miniscule number of
possibly valid claimants. If the same Chinese had succeeded in arriving
in the United States, the 1996 provision in our law would likely have
led to large numbers receiving asylum and few if any removals. That has
been the experience with a surge of asylum claims from Chinese illegal
entrants as coached by the Chinese snakehead smuggling rings. So called
``one child per family'' claims were also asserted after the fact on
behalf of the still detained smuggled Chinese from the Golden Venture.
Increasingly over the past several years, asylum has been granted
to people claiming to fear generalized social customs or conditions,
such as female circumcision, and even social ostracism based on sexual
orientation, disease or disability. While these practices are at best
inconsistent with Western notions of decency and at worst
reprehensible, they hardly fit the intended definition of political
persecution as contemplated by the Geneva Convention or our other
international obligations. The expansive nature of asylum grants over
the past several years have moved us from the murky area of rendering
judgments about the actions of foreign governments to the even murkier
area of judging social and cultural practices that are at odds with our
own. Asylum law has deviated from cases where there is direct State
Action in perpetrating persecution to the hazy area of a government's
alleged generalized failure to provide certain protections for
marginalized groups.
If the United States has sometimes been viewed as the world's
policeman, these recent expansions of political asylum are moving us
toward the role of trying to be the international nanny--of a nation
trying to insure that no person encounters the vexations of life's
misfortunes. How can the United States monitor what is taking place in
every village square and in every bedroom around the world?
Virtually everyone who is subjected to any injustice, whether
perpetrated by a government, social group, or even a father or an aunt,
can seek asylum protection by the United States--even if there is no
plausible reason to explain why this particular alien is here making
the claim in this particular country at this particular time. And, the
most troubling aspect of this trend is that increasingly there are no
objective criteria to assist the asylum officers and immigration judges
in evaluating these claims in order to be able to limit asylum grants
to truly meritorious cases. Despite the lessons learned in the early
1990's, there is still very little ``discipline in the system'' to
insure that claims without merit are not approved. If advocates are
concerned about claims with merit being denied (and there's little
evidence of that fact), what about the problem of merit-less claims
being granted? Isn't that a problem, too?
As if this were not already a difficult enough situation, and one
that has already fueled more asylum claims than were ever contemplated
when the asylum law was adopted, a last 'gasp effort of the preceding
administration bequeathed us a new avenue for asylum claims. Under this
parting proposal, women around the world who are battered by their
spouses may become eligible to receive residence in this country--and
asylum generally now seems to mean de facto permanent residence.\1\ We
have asked the Bush Administration to withdraw these proposed w rules.
Already, the asylum provision, intended to protect people from
persecution by their governments, has been broadened to include a whole
range of people who might be subjected to objectionable cultural and
social practices.
---------------------------------------------------------------------------
\1\ See also, Aguirre-Cervantes v. INS, No. 99-70861,2001 WL 274698
(9th Cir. Mar. 21, 2001). In this case, the Mexican
Government was held to be unable or unwilling to provide adequate civil
remedies and protective facilities for battered spouses, and that the
family was the social group involved--where one member (the father) was
abusing another member (the daughter).
---------------------------------------------------------------------------
It is unfair to the American people to ask them to embrace a policy
that attempts to right every wrong and rectify every misfortune,
wherever it occurs, no matter who is responsible by bringing the
victims into the United States for permanent residence and giving them
instant access to welfare programs, housing assistance, and other
taxpayer-supported public assistance programs that are available only
to the neediest Americans.
Moreover, unlike political persecution, which can be assessed
objectively, rendering judgments about cultural and social practices is
highly subjective. It forces the United States into a position of
passing judgment on social practices and cultural mores in every
society on earth. If ostracism due to sexual orientation is grounds for
asylum, how is a line to be drawn to exclude asylum claims from women
who in Islamic societies are required to wear veils, or denied the
right to drive a car or work outside the home? At that point asylum
ceases to be a mechanism to protect the persecuted, and becomes a
process of imposing our values on others or using the asylum law to
obtain ``legitimacy'' for some international cause.
In a world of 6 billion people, most of whom live under political
systems and cultures that leave a lot to be desired, real world
conditions mean we must be selective in granting asylum protection.
Political asylum must not become social asylum, or it will destroy our
ability to help anyone. One test: try to apply the asylum standard
contemplated to international refugee resettlement screening. If the
standard produces refugee eligibility for tens or hundreds of millions
of people, then the standards is probably not tenable.
Fair's Recommendations
Mr. Chairman, as I have outlined above, the gains in control over
asylum abuse adopted beginning in 1995 are again beginning to weaken as
a deterrent to fraudulent claims. Part of this, as I noted, is a
culture in the INS bureaucracy that makes it more difficult to deny an
asylum claim than to approve it. Another part of the problem is the
process over the past few years of expanding the scope of eligibility
for asylum. That not only complicates the asylum adjudication process,
it attracts additional claimants.
Now we are faced once again with a backlog of approved asylum
claims as in 1990. The socalled ``ABC'' backlog has been dealt with--
even though most of those claimants were never able to perfect asylum
claims.\2\ The question is what is an appropriate policy response.
Another increase in the asylum admissions ceiling is not the solution.
FAIR opposes that approach and believes that the American people would
be ill served by that measure. The solution to the mounting immigration
pressure cannot always be to raise numbers.
---------------------------------------------------------------------------
\2\ The ABC backlog illustrates the need for speed in asylum
adjudications. Backlogs among claimants inside the U.S. will soon
obtain the equities to insist that their right to remain be determined
on factors other than the merits of the asylum claim itself.
---------------------------------------------------------------------------
The objective we should be striving to achieve is continued assured
protection for asylum applicants who fear persecution from governments
or from organized non-governmental elements that are oppressing people
with the tacit backing of their government, while discouraging the
abuse of the American people's hospitality and compassion. We believe
that three reforms would serve that purpose.
The first of the reforms would decouple the grant of asylum from
permanent residence. International practice demonstrates that there is
no standard requiring us to grant permanent residence to asylees. There
is no reason that a bona fide asylum applicant can not be admitted as a
nonimmigrant with the right to work in the United States. That status
should not be adjusted to permanent residence until after a minimum of
five years. There is no reason that a person who has shown the
resourcefulness to get to the U.S. to ask for asylum should be accorded
welfare benefits and other public assistance that should be reserved to
our most needy citizens. As international circumstances change, the
asylum status should be periodically reviewed to determine whether the
original circumstances that led to the asylum grant have been reversed.
In that case, when the fear of persecution is no longer valid, the
asylees should be required to return home. Similarly, an asylum grantee
should face a presumption that a fear of persecution no longer exists
if he or she travels back to the home country.
The advantage of the adoption of this reform is that it would
discourage the still sizable number of asylum applicants who see asylum
as a way to permanent residence in the United States, even if their
main objective is not the public assistance that comes with a grant of
asylum.
The second reform proposal is an amendment to the refugee and
asylee definition to delete the reference to ``membership in a
particular social group.'' This change would preserve the scope of
asylum protection for the traditional range of persecution, i.e., for
race, religion, nationality and political opinion, while ending the
expansion of asylum claims into areas of social policy never intended
by the framers of the law. Asylum claimants should be judged by the
same standards as persons screened as refugees overseas.
The third proposed reform is to put an end to the quasi-asylum
status of Cubans who arrive illegally in this country. The Cuban
Adjustment Act is an anachronism of the Cold War that treats all Cubans
as if they were fleeing persecution. In our current practice, we
recognize that is not the case any longer. Those Cubans who are
intercepted attempting to enter?the United States illegally are given
the opportunity to request asylum and are given a hearing if they
present a convincing case that they have been persecuted or will be
persecuted if they are returned to Cuba. However, most of the
intercepted Cubans fail this test and are returned to Cuba, where
follow-up programs have convincingly demonstrated they are not
subjected to persecution. If the Cuban Adjustment Act is abolished,
Cubans will be put on an equal footing with Haitians and all others who
arrive illegally in the United States and seek to stay. They will have
to present an asylum claim, and if they are not entitled to that
protection, they will be removed.
Even if this reform were not inherently logical in it's own right--
which it clearly is--it is essential to restoring the even-handedness
and fairness of our asylum policy. It will assure persons from other
countries who today are denied the opportunity to stay in the United
States accorded only to the Cubans--that our policy is not
discriminatory against them.
Conclusion
The context in which we make these recommendations is the overall
rise in immigration to a level never contemplated by the legislators
who created the current system of immigration in 1965. From moderate
levels of immigration between a quarter of a million to a third of a
million admissions per year during most of the past century,
immigration today is averaging closer to one million admissions per
year, and it is well above that level when illegal residents are
included. That massive influx is clear from the 2000 Census numbers.
The net increase of over ten million immigrants during the 1990's
demonstrates a trend that also drives the rapid increase in the overall
population of the country. FAIR, like the U.S. Commission on
Immigration Reform, is concerned that the preservation of a welcoming
climate for new immigrants will be difficult unless the level of
immigration is scaled back to a more moderate level.
Legitimate, merits-based refugee and asylee admissions deserve our
highest priority and attention. They should get first priority in
admissions. However, as long as there is no real definable national
interest or objective governing our immigration policy, we will
continue to be unable to make trade-offs in order to reallocate
priorities. Therefore, asylum policy, too, must be looked at critically
as part of any effort to scale back the level of immigration. As I
noted above, FAIR thinks that asylum claims can be reduced without any
jeopardy to the policy of protecting persons who fall within generally
accepted international norms for asylum. We urge on behalf of our
members and the American public in general that the pressure from
advocates for improper widening the admissions criteria for asylum
applicants be resisted, and further reform of the asylum process be
adopted in order to assure continued public understanding and support
of this program which, when it is properly administered, is a necessary
humanitarian program.
Chairman Brownback. And we will be happy to receive your
entire testimony into the record.
Mr. DeWine, I want to turn to you for questions first
because I have had the chance to question the other panel
earlier.
Senator DeWine. Mr. Chairman, I do not have any questions.
I missed Mr. Hammond's and I will read his testimony. I
appreciate it very much. I just want to say that I found Mr.
Glickman's testimony extremely compelling, and we appreciate
that very much.
Chairman Brownback. Thanks.
I have a couple questions, if I could, for the panelists.
Mr. Hammond, Dr. Hammond, I believe you identified 40 countries
in your testimony, substantial religious persecution was
occuring. I wonder if you could help us in identifying those.
What was your source for those?
Mr. Hammond. It is the Open Doors World Watch List. They do
a yearly report on religious freedom around the world, and it
is published every year. It is used within the context of the
State Department religious freedom initiative. So that is
available, and I could get that for you.
Chairman Brownback. If you would, I would appreciate having
that. One of the other roles I have is chairing the
Subcommittee on the Near East and South Asia, and there is a
great deal of religious persecution that occurs within that
region. I constantly get comments from individuals on religious
persecution; I think it would be good for us to have the
documentation here to show that.
Mr. Glickman, we heard earlier testimony that detention
varies from place to place across this country. Apparently this
is because of the decentralization within the INS Service, so
that there is a lot of local decisionmaking. We have also heard
a number of compelling cases, extraordinary cases of people
being detained that should not have been, and did not need to
be detained, and also programs that are in the alternative.
Is there a way that this can be addressed without
legislation so that action can take place more quickly? Can
there be more standardization or a local option of working with
non-governmental organizations to take care of asylum seekers?
Mr. Glickman. Mr. Chairman, I think the centralization--
Chairman Brownback. Pull that microphone closer.
Mr. Glickman. I think the centralization versus
decentralization of the INS is woven within the whole fabric of
the INS structure and the need to reorganize the entire agency.
I think the prior Commissioner did try to take this on a little
bit in trying to rein in, as it is known, some of the district
directors. She was not successful in that effort, and I do
think it is going to take some guidance from Congress to apply
uniform standards within all of the districts.
I think the treatment of asylum seekers is a national issue
and demand national standards. And I think if--
Chairman Brownback. Well, I agree with you there. It is
just that Congress takes time to act, and in the mean time
there are a lot of people sitting in detention that are seeking
asylum. The only reason they are there is because it is being
interpreted, at least locally that they should be there rather
than trusted out with a non-governmental organization.
Mr. Glickman. We heard examples earlier of some pilot
projects where NGO's were used to care for asylum seekers and
they were released into the community, and we heard some really
fantastic statistics about the positive effect that had been.
Now, obviously, from where I sit, I would strongly advocate
increasing use of NGO's to deal with this problem. I think it
should be an issue for the new Commissioner, and I would
encourage, as the confirmation process goes through on the new
Commissioner, that this issue be put before him or her.
Chairman Brownback. I think that is a good point.
Mr. Glickman. And now it is official, right?
Chairman Brownback. What is that?
Mr. Glickman. It is official now. It is a him.
Chairman Brownback. Yes. I think it is official it is a
him.
Mr. Hammond. Mr. Chairman, I would invite you also to look
at the report that Mr. Glickman asked to be put in from the
Lutheran Immigration Refugee Services. That has some good ideas
that are not in my head right now of how regulations could be
shifted, different categories people could be put out into once
they have gone through a certain process. There is also some
stuff on kids, on children, in their report. That would be very
helpful.
What it takes is someone in the administration to say this
is something that we want to happen. These are regs that need
to be put into the Federal record to see if we can get them
through.
The NGO's have stood very firm behind their interest in
helping and being accountable to what happens in the process.
We did it with Cubans when they came in and were incarcerated.
Some of us helped with that process, and we are very open to
providing help for them. Churches stepped up to the plate in
many instances. So the NGO community, the private sector, is
prepared. It just needs to be some changes in regulations and
some careful looks at what groups could or should be let out
into the public with work documentation.
Mr. Glickman. I think Don is right. I think all of us in
the NGO community are not only prepared to help in this regard,
but we are prepared on accountability standards and to be
accountable for our actions.
Chairman Brownback. Good. Mr. Stein, you have often talked
about leaving people in their countries to help change the
political system, and I understand that point of view. Do you
deem that if people are being persecuted for their faith in
their home country, they should be encouraged to stay in that
home country when they are being persecuted for their religious
faith?
Mr. Stein. That is a good question. Ultimately, it breaks
down into the whole question of what is persecution as a
factual matter. We are talking about--
Chairman Brownback. Being killed, family members being
killed.
Mr. Stein. Well, obviously, a person who is working for
positive political change who is under life-threatening
circumstances who finds themselves needing refugee or asylum
protection needs that protection.
Chairman Brownback. You would agree then with asylum for
that.
Mr. Stein. Sure. I mean, I think FAIR has tried to make
this point, that our asylum and refugee laws which need to be
integrated are also a high priority for bona fide refugees. But
an individual who dislikes generalized social conditions of
hostility to a particular faith and does not want to live their
any longer because the government has a bias, that kind of
class-based asylum claim, it is not practical to provide asylum
for that kind of a factual claim.
Chairman Brownback. You have heard mention here of some 40
countries of persecution for faith, various types of faith. You
have heard statements from a Tibetan refugee. I personally have
interviewed Tibetans there, some jailed, who could not get
work, and who fled for those reasons. They also wanted to be
able to worship in freedom. Do you believe they should be
entitled to refugee status?
Mr. Stein. Not everybody who disagrees with the government
policy or does not live under freedom as we understand it is
going to be able to come here and get asylum as a practical
matter. The numbers matter in terms of the manageability of the
claim. All the Baha'i in Iran could not come here and claim
asylum, and it does not serve their purposes or ours,
ultimately, to try to--
Chairman Brownback. If they could get here, would they be
deserving of asylum?
Mr. Stein. All of them?
Chairman Brownback. If they could get, here would they be
deserving of asylum?
Mr. Stein. All the Baha'i in Iran? Probably--
Chairman Brownback. If whoever could get here, is the
question. If you will hear the question, if who could get here
and they have been persecuted for their faith and members have
been jailed, some who are on death row, would they be entitled
to asylum status in the United States?
Mr. Stein. People who would be entitled to--I mean, I
dislike by definition handling hypotheticals. People who are
politically active trying to work for positive change, who are
being targeted by the government for persecution, need that
protection. Everybody else does not.
Chairman Brownback. So you would say that unless they are
personally targeted by the government, even though they cannot
practice the faith the way they choose to--
Mr. Stein. Our asylum laws cannot deliver everyone from the
vexations and misfortunes of human conflict as a practical
matter. No nation can, no community can. That is the great
balance we have to achieve in determining asylum policy. How do
you--
Chairman Brownback. What if there was--
Mr. Stein. You are doing hypotheticals again.
Chairman Brownback. Well, let's do close to a hypothetical,
because I think here lies the rub: It is the great American
tradition to be a refuge for those seeking it. This country was
founded by those who were seeking simply to be able to practice
their own faith as they saw fit. While we did not have borders
or laws then, they came here. God bless them that they did. So
now, what if we had 800 Baha'i in a boat from Iran, 200 of whom
had been targeted by the government, and they somehow got to
our shores: should they be granted asylum?
Mr. Stein. The appropriate thing is to provide, if they are
coming as a country of first asylum, a screening process to
determine if they have got a basis for state-action-targeted
persecution, those people--
Chairman Brownback. I think the Baha'i in Iran would.
Mr. Stein. But can you give asylum to everyone who says
they would be better off living here versus living elsewhere?
That is the great charge of the statesmen and the policymakers
to figure out where the balance lies.
I mean, the St. Louis is an interesting case in point. We
have mythologized it. But even under U.S. asylum laws and
standards, the Jewish children on that boat would not
necessarily have qualified for asylum if they had the ability
to return to another safe country. And the countries that they
were returned to were not at that time under Nazi occupation.
Our asylum laws are not able to divine the future and have all-
knowing omnipotence about future events. The best we can make
is sound judgments based on a balancing pattern while
discouraging fraudulent claims or the preferential treatment
someone might get if they go to a refugee--if they go to a U.S.
embassy overseas and apply for refugee status and the claim is
not valid under the State Department determination, that is the
end of the discussion, or if they go to the UN-sponsored
screening agency near an area of conflict. The U.S. ability to
help the most people for the most amount of money, rationally,
is to try to help people where they are, near the site of a
conflict, with expectation of ultimate repatriation. We have
not solved the problem in Cuba with an unduly broad migration
policy between here and Cuba. What we have done is prolong
Fidel Castro's occupation there.
Chairman Brownback. On the St. Louis case, I do not think
anybody can rationally say that, in looking back on that, we
should have rejected that ship. And I think--
Mr. Stein. I did not say that.
Chairman Brownback. Those chapters, though--but you will
not categorically say we should have absolutely accepted them.
Mr. Stein. Who?
Chairman Brownback. The people on the St. Louis.
Mr. Stein. Knowing what happened to them?
Chairman Brownback. What is that?
Mr. Stein. Knowing what happened to them?
Chairman Brownback. Yes.
Mr. Stein. Of course we would accept them.
Chairman Brownback. We should--but we are turning back now
a number of people, and we know they are going back into tough
conditions. But I hope--
Mr. Stein. Mr. Chairman, we are not aware of anyone who has
been sent back under summary exclusion who then suffered any
direct political persecution. We are aware of an awful lot of
people who have gotten asylum who probably did not deserve it.
And where you balance those interests is, I guess, a subjective
judgment in the end. We care about both these issues.
Chairman Brownback. We have a vote on the floor. I thank
you all for being here, and I appreciate it. The hearing record
will remain open for the requisite number of days. Thank you
very much.
The hearing is adjourned.
[Whereupon, at 4:13 p.m., the Subcommittee was adjourned.]
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