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Concerns About Current Asylum Policy and Practices
Updated May 2005
Asylum in the United States
According to the U.S. Citizenship and Immigration Services (USCIS), every year thousands of people come to the United States in need of protection because they have been persecuted or fear they will be persecuted on account of their race, religion, nationality, membership in a particular social group, or political opinion. Those found eligible for asylum are permitted to remain in the United States.
Unlike the U.S. Refugee Program, which provides protection to refugees by bringing them to the United States for resettlement, the U.S. asylum program provides protection to qualified refugees who are already in the United States or are seeking entry into the United States at a port of entry. Asylum-seekers may apply for asylum in the United States regardless of their countries of origin. There are no quotas on the number of individuals who may be granted asylum each year (with the exception of individuals whose claims are based solely on persecution for resistance to coercive population control measures).
This issue brief identifies several key aspects of the U.S. asylum system, and highlights the roles of various components of the Department of Homeland Security (DHS) in processing asylum seekers.
The REAL ID Act
In January 2005, legislation known as the REAL ID Act was introduced in the House of Representatives. It is comprised of several controversial anti-refugee and immigration measures that were initially included in the House version of the 9/11 Commission Report implementing legislation, but dropped prior to its passage due to widespread opposition. The REAL ID Act (H.R. 418) will have a harmful impact on the ability of asylum seekers to find safe haven in the U.S., as well as make other significant changes to the immigration system. For example, one provision allows for a negative credibility finding based on inconsistent statement of facts immaterial to the asylum claim. The legislation was passed by the House without hearings or significant debate and then attached to supplemental spending legislation to fund U.S. troops overseas and aid tsunami victims. While some changes to soften the asylum provisions of the REAL ID Act were made at the last minute, it remains largely intact and final passage, as part of the supplemental spending bill, is expected in mid-May.
Asylee Adjustment Cap
While there is no limit to the number of individuals who can be granted asylum, current law places an arbitrary annual cap on the number of asylees who may adjust their status to that of a lawful permanent resident (green card holder) – only 10,000 per year. This policy forces asylees to wait an unjustifiably long period of time in order to receive their green card – an essential step to becoming a citizen. The waiting period for adjustment of status is estimated at over 15 years for asylees granted status today. The treatment of asylees stands in marked contrast to refugees admitted from abroad who are treated in a fair manner and are permitted to apply one year after arrival. Without lawful permanent residence status, asylees face extensive delays in becoming citizens, attaining full integration into American society, and obtaining access to essential immigration and social benefits.
Lifting the asylum adjustment cap will not lead to a direct increase in immigration, as asylees are already physically present in the U.S. Further, lifting the cap could contribute to the nation’s security by screening individual asylees as part of their adjustment process. Nearly 100 national organizations from across the political spectrum – including 12 Jewish organizations – have signed a statement calling for the end to the asylum cap and two other related provisions that restrict the opportunity of victims of persecution to obtain citizenship in a timely fashion.
Fortunately, this particular issue appears likely to be resolved by the enactment of the REAL ID Act. While the majority of the Act’s provisions will have a negative affect of individuals seeking asylum, the legislation also contains a measure to lift the cap on adjustment of status for asylees.
One-Year Filing Deadline
In 1996, legislation was enacted that requires individuals fleeing persecution to apply for asylum within one year of arriving in the United States. Many would-be asylum seekers arrive in the U.S. traumatized by past persecution and without adequate resources to care for themselves, let alone prepare an asylum claim. Furthermore, a lack of government-funded counsel for aliens compounds the problem, making timely asylum filing that much more difficult. On top of this, there is a nationwide shortage of pro bono counsels for aliens. As a result, numerous asylum seekers are denied access to protection because they were not aware of the one-year filing deadline.
Expedited Removal
Because asylum seekers are fleeing persecution, they frequently arrive at U.S. ports of entry without appropriate entry documentation. Those individuals detected by immigration officials from the DHS Bureau of Customs and Border Protection (CBP) are placed into the “expedited removal” process – a system developed in 1996 to quickly remove arriving aliens without full processing before an immigration judge. Many of these individuals have suffered torture or other severe trauma in their home country and are justifiably cautious and frightened when confronted by immigration authorities. Yet, under the “expedited removal” process, would-be asylum seekers must affirmatively request political asylum or express a fear of returning home to an inspection officer; otherwise they risk being returned to their home country or country of last embarkation.
At ports-of-entry, inspection officers, who are not experts in the detailed body of asylum law, determine whether or not an individual will be given the opportunity to move forward in the asylum process. Individuals placed in “expedited removal” have no right to the presence of counsel during the inspections process. In fact, the entire inspection process occurs without the independent monitoring by non-governmental organizations. There is virtually no reliable independent accounting of the integrity of the entire inspections process that is occurring at U.S. ports-of-entry.
On August 10, 2004, the Department of Homeland Security announced that it would be expanding expedited removal to include aliens who are apprehended within 100 miles of the Mexican or Canadian borders, who cannot demonstrate that they had entered legally, and have been present in the United States for 14 or fewer days. CBP asserts that it will not be using the expedited removal process for Mexican and Canadian nationals. While expanding expedited removal is authorized by U.S. law, HIAS’ general concerns regarding the level of due process permitted under this program are applicable in this context, as is the fear that border patrol agents will not be sufficiently trained or sensitive to the needs of asylum seekers to ensure that they are not returned to their country of persecution. Questions remain on how expedited removal will be implemented, and how the border patrol will choose individuals to approach within the border region.
In February 2005, the U.S. Commission on International Religious Freedom (USCIRF) released the findings of its study on the expedited removal system. This study, authorized by Congress, documents a number of failings relating to the treatment of asylum seekers in expedited removal proceedings, as well as in the conditions endured by detained asylum seekers. USCIRF found that there are significant problems in implementing and maintaining safeguards for asylum seekers in the expedited removal process. The Commission also found that a sylum seekers are detained in jails and jail-like facilities that are inappropriate for non-criminal aliens and that these detention conditions create a serious risk of psychological harm.
Detention of Asylum Seekers and Credible Fear Proceedings
When the inspections officer permits an individual to pursue his or her asylum claim, the individual is then placed in detention by immigration authorities. A series of laws enacted in 1996 mandate the detention of asylum seekers who are placed in the “expedited removal” process. At this point the detained alien has the right to counsel, but at no expense to the U.S. government, effectively restricting legal assistance in many cases. Within a matter of days, the detained alien is interviewed by a specially trained asylum officer who determines whether or not the alien has a “credible fear” of returning to his or her home country or country of embarkation. If the individual passes his or her “credible fear” interview, he or she has the right to have his or her full asylum claim heard before an immigration judge. The overwhelming number of applicants who undergo “credible fear” interviews are given the opportunity to have their full asylum claims heard before an immigration judge.
Immigration and Customs Enforcement (ICE) incarcerates asylum seekers at a variety of facilities including detention facilities that are owned and operated by ICE, contract facilities, and local, state, county or federal facilities. In some parts of the country, asylum seekers are incarcerated in criminal facilities, and oftentimes inter-mingled with the general prison population. In other settings, a detention facility may be exclusively comprised of asylum seekers. Acute problems detained asylum seekers encounter include: isolation, language barriers, lack of legal counsel, a lack of monetary resources, a lack of social services, and the re-traumatization of the victim of torture on account of their continued incarceration in the United States.
Access to Parole for Detained Asylum Seekers
Once an individual is determined to have a “credible fear” for asylum purposes, he/she is eligible to be released from detention under a discretionary authority known as parole. Parole determinations are vested exclusively with the local ICE Field Directors who have jurisdiction over the detained alien. Within the DHS, local directors of the ICE maintain exclusive authority over detention release decisions.
Parole determinations are made on a case-by-case basis. The determinative factors in releasing an individual on parole are: his or her health concerns; the local presence of family members and/or community ties; and a determination of the likelihood that the alien will be a threat to society or abscond before his or her hearing takes place before an immigration judge. However, parole determinations have been inconsistently applied throughout the United States. In certain parts of the country, asylum seekers are routinely paroled from detention, but in other parts of the country, asylum seekers are unlikely to be paroled from detention even though they would appear to be good candidates for release.
Individuals denied parole are likely to remain detained throughout the pendency of their proceedings. Many detained asylum seekers remain incarcerated for months, or even years.
At various times, asylum seekers from certain countries or regions of the world have been declared categorically ineligible for parole – recently including Haitians and, during the Iraq war, all asylum seekers from Arab and Muslim countries. HIAS has advocated that all asylum seekers be provided an individualized hearing to determine if they are a flight risk or pose a threat to society.
In lieu of paroling otherwise eligible asylum seekers, there has been a recent trend to use “soft detention,” whereby individuals are equipped with monitoring devices and released under significant restrictions on their freedom of movement. While clearly better than standard detention practices, soft detention should not become a substitute for parole, but should be reserved as an alternative for those individual asylum seekers who do not meet the traditional parole criteria. |
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