[Congressional Record Volume 145, Number 163 (Wednesday, November 17, 1999)]
[Senate]
[Pages S14701-S14704]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. LEAHY (for himself, Mr. Brownback, Mr. Feingold, Mr. 
        Kennedy, Mr. Kerry, Mr. Jeffords, and Mr. Lautenberg):
  S. 1940. A bill to amend the Immigration and Nationality Act to 
reaffirm the United States' historic commitment to protecting refugees 
who are fleeing persecution or torture; to the Committee on the 
Judiciary.


                       the refugee protection act

  Mr. LEAHY. Mr. President, today Senators Brownback, Feingold, 
Kennedy, Kerry, Jeffords, and I are introducing the Refugee Protection 
Act of 1999, a bill to limit and reform the expedited removal system 
currently operating in our ports of entry.
  In 1996, I introduced an amendment that would have only authorized 
the use of expedited removal at times of immigration emergencies. The 
bill I introduce today--with the cosponsorship of two Republican and 
three Democratic Senators--is modeled on that proposal. That amendment 
passed the Senate with bipartisan support, but was omitted from the 
bill that was reported out of a partisan, closed conference. As a 
result, expedited removal took effect on April 1, 1997. America's 
historic reputation as a beacon for refugees has suffered as a 
consequence.
  Expedited removal allows INS inspections officers summarily to remove 
aliens who arrive in the United States without travel documents, or 
even with facially valid travel documents that the officers merely 
suspect are fraudulent, unless the aliens utter the magic words 
``political asylum'' upon their first meeting with American immigration 
authorities. This policy is fundamentally unwise and unfair, both in 
theory and in practice.
  First, this policy ignores the fact that many deserving asylum 
applicants are forced to travel without papers. For example, victims of 
repressive governments often find themselves forced to flee their 
homelands at a moment's notice, without time or means to acquire proper 
documentation. Or a government may systematically strip refugees of 
their documentation, as we saw Serb soldiers do in Kosovo earlier this 
year.
  Second, expedited removal places an undue burden on refugees, and 
places too much authority in the hands of low-level INS officers. 
Refugees typically arrive at our borders ragged and tired from their 
ordeals, and often with little or no knowledge of English. Our policy 
forces them to undergo a secondary inspection interview with a low-
level INS officer who can deport them on the spot, subject only to a 
supervisor's approval. By law, anyone who indicates a fear of 
persecution or requests asylum during this interview is to be referred 
for an interview with an asylum officer. But no safeguards exist to 
guarantee that this happens, and the secondary inspection interviews 
take place behind closed doors with no witnesses. Indeed, this 
interview often becomes unduly confrontation and intimidating. As the 
Lawyers Committee for Human Rights has documented, refugees are 
detained for as long as 36 hours, are deprived of food and water, and 
are often shackled. If they are lucky, they will be provided with an 
interpreter who speaks their language. If they are unlucky, they will 
receive no interpreter at all, or an interpreter who works for the 
airline owned by the government that they claim is persecuting them. 
Such a system is a betrayal of our ideals, and is already producing a 
human cost.
  Indeed, only a few years into this new regime, there are 
extraordinary troubling stories of bona fide refugees who were turned 
away unjustly at our borders. I will talk about two such refugees 
today.
  ``Dem'' (a pseudonym) was a 21-year-old ethnic Albanian student in 
Kosovo. In October 1998, Serbian police seized him and tortured him for 
10 days, accusing him of terrorism and threatening to kill his family. 
Immediately after this experience, Dem fled Kosovo, without travel 
documents. He traveled through Albania to Italy, where he purchased a 
Slovenian passport. In January of this year, he flew via Mexico City to 
California, hoping to find refuge in the United States.
  Dem's hopes were not realized. The INS referred him for a secondary 
inspection interview and provided for a Serbian translator to 
participate by telephone. Since Dem could speak only Albanian, the 
interpreter was useless. Instead of finding an interpreter who could 
speak Albanian, the INS officers simply closed Dem's case, handcuffed 
his hands behind his back and put him on a plane back to Mexico City. 
In other words, Dem--a victim of an ethnic conflict that was already 
front page news in America's newspapers--was removed from the United 
States without ever being asked in a language he could understand 
whether he was afraid to return to Kosovo. Luckily, Dem succeeded in a 
second attempt to enter the United States, has since been found to have 
a credible fear of persecution, and is now awaiting an asylum hearing. 
One can only wonder how many refugees in Dem's position never receive 
such a second chance.
  While Dem was arriving in Los Angeles this January, a Tamil from Sri 
Lanka named Arumugam Thevakumar arrived at JFK Airport in New York 
seeking asylum. Mr. Thevakumar had escaped from Sri Lanka and its 
bloody civil war, but only after being persecuted by the army because 
he is a Tamil. When he had his secondary inspection interview, he told 
the interpreter that he was a refugee and sought asylum. The translator 
laughed and said that he was unable to translate Mr. Thevakumar's 
request into English. In addition to battling a language barrier and an 
uncooperative translator, Mr. Thevakumar's ability to convince the INS 
of his sincerity was further handicapped by the fact that he was 
handcuffed and shackled for significant portions of the interview.
  Following his interview, Mr. Thevakumar was briefly detained and was 
allowed to telephone a cousin, who arranged for a lawyer. The lawyer 
contacted the INS to clarify that Mr. Thevakumar wanted to apply for 
asylum. But the INS sent Mr. Thevakumar back to Istanbul, where his 
flight to New York had originated, without affording him even the 
opportunity to show that he was deserving of asylum. Indeed, the INS 
faulted him for not making his intention to apply for asylum clear 
during his secondary inspection interview.
  Mr. Thevakumar's ordeal did not end there. When he landed in Turkey, 
he was jailed for four days by immigration officials, who beat and 
interrogated him before handing him over to regular police. When he was 
finally released by the police, he was referred to a United Nations 
office in Ankara, halfway across the country from Istanbul. After 15 
days of travel wearing clothes that were completely unsuitable for the 
Turkish winter, he finally arrived at the U.N. office and requested 
refugee status and asked not to be sent back to Sri Lanka. He is 
currently living in a Red Cross facility in Turkey.
  These stories--just two of the many stories demonstrating the human 
cost of expedited removal--go a long way toward showing the inhumanity 
of the new immigration regime that Congress imposed in 1996. But 
refugees are not the only people affected by expedited removal. Human 
rights groups have also documented numerous cases where people 
traveling to the United States on business, with proper travel 
documents, have been removed based on the so-called ``sixth sense'' of 
a low-level INS officer who suspected that their facially valid 
documents were fraudulent. In other words, the damage done by expedited 
removal also threatens the increasingly international American 
economy--if businesspeople from

[[Page S14702]]

around the world are treated disrespectfully at our ports of entry, 
they are likely to take their business elsewhere.
  But perhaps the most distressing part of expedited removal is that 
there is no way for us to know how many deserving refugees have been 
excluded. Because secondary inspection interviews are conducted in 
secret, we typically only learn about mistakes when refugees manage to 
make it back to the U.S. a second time, like Dem, or when they are 
deported to a third country they passed through on their way to the 
U.S., like Mr. Thevakumar. This uncertainty should lead us to be 
especially wary of continuing this failed experiment.
  As I said, my bill would limit the use of expedited removal to times 
of immigration emergencies, defined as the arrival or imminent arrival 
of aliens that would substantially exceed the INS' ability to control 
our borders. The bill gives the Attorney General the discretion to 
declare an emergency migration situation, and the declaration is good 
for 90 days. During those 90 days, the INS would be authorized to use 
expedited removal. The Attorney General is given the power to extend 
the declaration for further periods of 90 days, in consultation with 
the House and Senate Judiciary Committees. s
  This framework allows the government to take extraordinary steps when 
a true immigration emergency threatens our ability to patrol our 
borders. At the same time, it recognizes that expedited removal is an 
extraordinary step, and is not an appropriate measure under ordinary 
circumstances.
  This bill also provides safeguards that will ensure that refugees are 
assured of some due process rights, even during immigration 
emergencies. First, aliens would be given the right to have an 
immigration judge review a removal order, and would have the right both 
to speak before the immigration judge on their own behalf and to be 
represented at the hearing at their own expense. To make these rights 
meaningful, immigration officers would be required to inform aliens of 
their rights before they are removed or withdraw their application to 
enter the country. This provision takes away from low-level INS 
officers the unilateral power to remove an alien from the United 
States.
  Second, expedited removal will not apply to aliens who have fled from 
a country that engages in serious human rights violations. The Attorney 
General, in consultation with the Assistant Secretary of State for 
Democracy, Human Rights, and Labor, will develop and maintain a list of 
such countries. This will help ensure that even during an immigration 
emergency, we will provide added protection for many of our most 
vulnerable refugees.
  Third, this bill reforms the procedures used to determine whether an 
applicant who seeks asylum has a credible fear of persecution. If an 
asylum officer determines that an applicant does not have a credible 
fear of persecution, the applicant will now have a right to a prompt 
review by an immigration judge. The applicant will have the right to 
appear at that review hearing and to be represented, at the applicant's 
expense. In addition to providing procedural guarantees, the bill also 
redefines ``credible fear of persecution'' as a claim for asylum that 
is not clearly fraudulent and is related to the criteria for granting 
asylum. In combination, these changes will make it easier for aliens 
requesting asylum in the United States to receive an appropriate asylum 
hearing before an immigrant judge.
  Fourth, the bill clarifies that the Attorney General is not obligated 
to detain asylum applicants while their claims are pending. Asylum 
seekers are not criminals and they do not deserve to be imprisoned or 
detained against their will. There may be cases where detention is 
appropriate, and this bill allows for such cases, but I believe that 
that power should only be used in very rare cases. After all, these 
applicants have by definition demonstrated a credible fear of 
persecution. Moreover, detaining asylum applicants imposes a 
significant burden on the taxpayers, who of course must foot the bill 
for the detention. This bill also gives the Attorney General the 
ability to release an asylum applicant from detention pending a final 
determination of credible fear of persecution.
  Finally, this Refugee Protection Act also addresses a few other 
problems that have arisen under the restrictive immigration laws 
Congress passed in 1996. First, it gives aliens the opportunity to 
demonstrate good cause for filing for asylum after the one-year time 
limit for claims has expired. By definition, worthy asylum applicants 
have arrived in the United States following traumatic experiences 
abroad. They often must spend their first months here learning the 
language and adjusting to a culture that in many cases is 
extraordinarily different from the one they know. Therefore, although I 
can understand the desire to have asylum seekers submit timely 
applications, we must apply the one-year rule with some discretion and 
common sense. Indeed, when the Senate passed the 1996 immigration law, 
it contained a broad ``good cause'' exception that did not survive to 
become part of the final legislation. The Senate should take up this 
issue again; we were right in 1996, and the need is still there today.
  In a similar vein, the bill allows asylum applicants whose claims 
have been rejected to submit a second application where they can show 
good cause. No one wants to allow aliens to submit repeated 
applications and drain the resources of our INS officers and 
immigration courts. But there are exceptional cases where a second 
application is justified, beyond the ``changed circumstances'' 
exception that exists under current law. For example, extraordinarily 
worthy asylum applicants, unfamiliar with the United States and its 
legal system, might submit an application without the benefit of 
counsel and without an understanding of the legal requirements of a 
successful asylum claim. Such people deserve a second chance to 
demonstrate that they deserve to receive asylum.
  In conclusion, I point out that even in 1996, a year in which 
immigration was as unpopular in this Capitol as I can remember, this 
body agreed that expedited removal was inappropriate for a country of 
our ideals and our historic commitment to human rights. And that 
agreement cut across party lines, as many of my Republican colleagues 
voted to implement expedited removal only in times of immigration 
emergencies. I urge them, as well as my fellow Democrats, to support 
this legislation and to work for its passage before the end of the 
106th Congress.
  Mr. BROWNBACK. Mr. President, I join my distinguished colleagues from 
Vermont, Senator Leahy and Senator Jeffords, among others, to introduce 
this bill entitled The Refugee Protection Act of 1999, which restores 
fairness to our treatment of refugees who arrive at our shores seeking 
freedom from persecution and oppression. This bill should dramatically 
reduce incidences where refugees are wrongly returned to their 
countries to face imprisonment, torture, and even death.
  It was about 400 years when the refugee Pilgrims arrived in this new 
land seeking religious liberty. Defined by such events since the 
earliest days of the Republic, America has provided asylum to those 
fleeing tyranny and seeking liberty. George Washington urged his fellow 
citizens ``to render this country more and more a safe and propitious 
asylum for the unfortunates of other countries.'' In his 1801 First 
Annual Message, President Thomas Jefferson asked, ``Shall oppressed 
humanity find no asylum on this globe?''
  In 1996, Congress changed the procedures by which arriving asylum 
seekers ask for protection in the United States, which our legislation 
corrects. Previously, arriving asylum seekers presented their claims 
directly to an immigration judge at an evidentiary hearing. The 
applicant could present witnesses and documentation to support their 
claim. Decisions by the immigration judge were subject to 
administrative and judicial review.
  The new 1996 law did away with these fundamental due process 
protections, and instead, granted lower level INS officers the power to 
make life and death decisions that previously were entrusted to 
professional immigration judges. This new, unfortunate system of 
``expedited removal'' presently allows for the immediate deportation of 
individuals who arrive without valid travel documents, such as a 
passport and visa. It can even be used against an individual who has a 
facially valid visa that INS inspectors suspect was obtained under 
false pretenses. In short,

[[Page S14703]]

the process is so expedited and summary that it has resulted in the 
improper deportation of refugees fleeing persecution and torture. 
Simply put, our legislation restores the pre-1996 due process 
procedures, including a judicial review.
  Last year, Congress addressed the problems of religious persecution 
which continues to be a serious problem worldwide. Enactment of the 
International Religious Freedom Act was the first time in the history 
of democracy that any country had adopted comprehensive, national 
legislation on religious liberty. That legislation ensures that 
religious liberty will be an important factor in our nation's foreign 
policy considerations. In the May 17, 1999 final report to the 
Secretary of State and to President of the United States, the Advisory 
Committee on Religious Freedom Abroad said:

       Putting an end to such (religious) persecution cannot be 
     accomplished without providing meaningful protection to the 
     victims of religious persecution. We must upgrade domestic 
     procedures that identify and protect refugees and asylum 
     seekers fleeing religious persecution. We must strengthen our 
     overseas refugee processing mechanisms to reach those in need 
     of rescue. . . And, here at home we must eliminate processes 
     such as ``expedited removal'' that can make victims of those 
     fleeing religious persecution rather than providing access to 
     protection.

  Consistent with this commitment to protect international religious 
liberty, we must also ensure that persons fleeing religious persecution 
are not wrongly turned away at our shores because of unfair procedures. 
This will be accomplished through this Act.
  The Refugee Protection Act returns fairness to the system by limiting 
expedited removal procedures only to emergency situations. An 
``emergency'' must be declared as such by the Attorney General, and 
typically involves large numbers of immigrants arriving en masse, so as 
to overwhelm the INS review system. In the event that ``expedited 
removal'' is employed, the Act requires an immigration judge to review 
the summary deportation order. Also, it permits claims for asylum to be 
filed beyond the one-year deadline created by the 1996 legislation, if 
there is good cause for the delay or when consideration of the claims 
is clearly in the interest of justice.
  Our refugee asylum system reflects both the best and the worst 
policies, throughout our history as a nation. In 1939, more than 900 
Jews aboard the SS St. Louis, who were within sight of Miami, were 
rejected and forced to return to Europe where they were murdered in 
concentration camps. Yet when World War II ended, the United States led 
the effort to establish universally recognized fundamental rights. As a 
result of this advocacy, the General Assembly of the United Nations 
adopted the Universal Declaration of Human Rights on December 10, 1948 
which recognized a right of asylum.
  Over the next 30 years the United States provided refuge to numerous 
people fleeing communism, including to those involved in `underground' 
democracy movements in Hungary, Cuba, and Southeast Asia. Yet it was 
not until 1980 that Congress enacted a comprehensive asylum system 
using the criteria of the 1951 Convention Relating to the Status of 
Refugees. The Convention defines a refugee as someone with a ``well-
founded fear of being persecuted for reasons of race, religion, 
nationality, membership of a particular social group or political 
opinion.'' Under the procedures of this Refugee Act of 1980, requests 
for asylum were decided by an immigration judge, thus providing a 
fundamental due process protection. Notably, this judicial review was 
stripped in the 1996 legislation, and is a flaw which our legislation 
seeks to correct.
  Fair procedures are critically important in making life or death 
decisions, as asylum cases can be. At a June 24, 1999 hearing of the 
Senate Subcommittee on International Operations and Human Rights, Ms. 
Lavinia Limon, Director of the Office of Refugee Resettlement at the 
Department of Health and Human Services, noted:

       Once released, torture victims often attempt to flee to 
     countries such as the United States to become invisible and 
     safe, and to survive. But they retain the impact of 
     torture: they are not able to speak of their experiences 
     for fear officials will not believe them or understand 
     them or will regard them as criminals. They often cannot 
     express themselves effectively in asylum interviews 
     because they cannot speak articulately of their 
     experiences and they feel vulnerable to all officials. 
     They have learned to fear government and the police and 
     they do not trust any government officials and authorities 
     to help them. They have been weakened and disabled 
     psychologically from the torture. Many times the victims 
     must flee alone, enduring long periods of separation from 
     their families who might otherwise provide emotional 
     support.

  Today the need for proper asylum reviews is greater than ever. 
Worldwide, religious intolerance and ethnic strife turn religious 
leaders and ordinary citizens into desperate asylum seekers. According 
to Amnesty International, government-sanctioned torture is practiced in 
125 countries.
  This legislation helps those fleeing intolerable injustices in the 
name of religious freedom and democracy. Placing the decision squarely 
in the hands of an immigration judge does not impose an unreasonable or 
impossible burden on the government. Congress should enact the Refugee 
Protection Act because it restores the fundamental due process 
protections needed to ensure that legitimate asylum seekers are not 
wrongly turned away.
  Mr. FEINGOLD. Mr. President, I rise today to join my distinguished 
colleagues, Senators Leahy, Brownback, and Jeffords, to introduce a 
bill that will reduce the likelihood that people fleeing genuine 
persecution in their homelands and seeking refuge in America will be 
unfairly returned to their countries.
  Mr. President, as you know, our nation has been built by people who 
arrived on our shores from all over the world. Immigrants have enriched 
our nation economically, culturally, and in so many other invaluable 
ways. I don't think anyone can dispute that, of all the countries in 
the world, our nation has the deepest, richest commitment to welcoming 
all people who want to make a new home and a new life.
  At the same time, Mr. President, our nation also has a deep tradition 
of welcoming those who are fleeing oppression in their native land. 
From the pilgrims who set foot in present day Massachusetts and 
Virginia, to the Kosovars who fled brutality in their homeland earlier 
this year, America has been a safe refuge for those fleeing 
persecution. Our nation's first president, George Washington, said: 
``America is open to receive not only the opulent and respectable 
stranger, but the oppressed and persecuted of all nations and 
religions.'' George Washington said those words in 1783. One hundred 
and one years later, France would present our country with a gift, a 
statue called ``Liberty Enlightening the World.'' In 1884, that title 
was a profound statement of our nation's past, our present and hope for 
the future. ``Liberty Enlightening the World'' later became known as 
the Statue of Liberty. The Statue of Liberty has these words inscribed 
on her:

     . . . Give me your tired, your poor,
     Your huddled masses yearning to breathe free,
     The wretched refuse of your teeming shore.
     Send these, the homeless, tempest-tost to me,
     I lift my lamp beside the golden door!

  Unfortunately, Mr. President, our current asylum and immigration laws 
have nearly slammed the door shut on victims of persecution, even those 
who are sure to suffer if returned to their home countries. Current law 
originates with the passage in 1996 of the Illegal Immigration Reform 
and Immigrant Responsibility Act. That law was an attempt to combat 
illegal immigration. But in the process, Congress denied victims of 
persecution the protection that our nation historically has offered. 
The current system provides for the immediate deportation of 
individuals who arrive without travel documents precisely in order. 
Now, Mr. President, it's appropriate that we require these documents, 
but people who have fled torture and great brutality may not have 
proper documentation because of the circumstances under which they fled 
their homelands. As a result, genuine victims of persecution face the 
risk of being turned away at our borders and put on the next plane back 
to face imprisonment, torture or death. The 1996 law effectively 
empowers low level INS officers to summarily make the life and death 
decision as to whether to deport an asylum seeker. Prior to 1996, those 
decisions were made by an immigration judge. We must return a judicial 
role to the review of asylum claims.

  As my colleagues who were here in 1995 and 1996 may recall, the 1996 
law

[[Page S14704]]

was enacted in reaction to a flurry of concern that our border controls 
were too lax. The debate on the 1996 law was fueled by legitimate 
concern over criminals who managed to enter the country and commit acts 
of terrorism or other crimes. In response, the INS began a sensible 
tightening of the asylum process. In 1994 and 1995, the INS ceased 
issuing work authorizations at the border. Instead, asylum seekers had 
to wait until an adjudication of their case before receiving work 
authorization. As a result, claims for asylum dropped dramatically--
those who were seeking work but did not have a legitimate fear of 
persecution were no longer claiming asylum. The INS reforms were 
effective. But the 1996 law went too far. In our rush to keep 
undesirable asylum applicants out, Congress created a system where 
those with bona fide asylum claims face the great risk of being 
immediately deported to face the wrath of oppressive home governments 
without a real chance to make their case.
  Because an INS officer has the authority to deport refugees 
immediately, with no record keeping requirement, it has been difficult 
to determine exactly how many genuine refugees with a valid fear of 
persecution in their home countries have been turned away at our 
airports and borders as a result of the 1996 law. Organizations like 
the Lawyers Committee for Human Rights, however, have been able to 
collect some data on the extent of the problem.
  One of the most troubling stories is the case of a 21-year-old 
Kosovar Albanian known as ``Dem.'' In October 1998, Serb police seized 
Dem at his home, beat him, and threatened to kill his family. This 
abuse occurred over a period of ten days. When the Serb police finally 
released Dem, he fled Kosovo. He eventually made his way to the United 
States in January of this year, landing in California via Mexico City. 
When he arrived, the INS arranged for a Serbian translator to assist by 
telephone with its questioning of Dem. But Dem, a Kosovar Albanian, 
could not speak Serbian. After the translator spoke with Dem, the 
translator said something to the INS officer. The INS officer promptly 
handcuffed and fingerprinted Dem and then put him on a plane back to 
Mexico City.
  Fortunately, Dem was not returned to Kosovo. Dem tried re-entering 
the United States and on this second attempt, he was allowed to apply 
for asylum. But the facts supporting Dem's asylum claim had not 
changed. We must fix a system that produces such arbitrary results 
where people's lives, and American ideals, are at stake.
  We don't know exactly how many victims of real persecution have been 
immediately deported, and we obviously don't know exactly what has 
happened to each victim since enactment of the 1996 law. What we do 
know is that an asylum seeker who is fleeing torture, abuse or death 
faces the risk of being kicked out of our country, without even 
obtaining a perfunctory hearing before an immigration judge.
  The Refugee Protection Act of 1999 will return fairness and due 
process to the treatment of asylum seekers. For non-emergency migration 
situations, the bill would restore the pre-1996 law, when immigration 
judges were involved in the decision to deport someone who claimed 
asylum. The current process will continue to apply in emergency 
migration situations and would designate the Attorney General as the 
official with authority to determine when an emergency migration 
situation exists. The bill also would provide that an emergency cannot 
exist for more than 90 days, unless the Attorney General, after 
consultation with the Senate and House Judiciary Committees, determines 
that the emergency situation continues to exist.
  Mr. President, this is a sensible bill that allows us to scrutinize 
those who come to our borders, but honors our best traditions and 
returns fairness and humanity to our treatment of those who are fleeing 
persecution. I urge my colleagues to join me and Senators Leahy, 
Brownback and Jeffords in fighting for basic human dignity, decency and 
justice. Let us lift the torch of ``Liberty Enlightening the World'' 
once again. Let us not reflexively turn away those whose very lives may 
depend on a fair hearing as they seek refuge in the United States.
                                 ______