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U.S. Detention of Asylum Seekers: Whats the Problem? Whats the Solution?
By Bill Frelick
Whats the Problem? The detention of asylum seekers in the United States has been justified largely by the assertion by Immigration and Customs Enforcement (ICE) that aliens, including asylum seekers, who are released from ICEs custody overwhelmingly run away and are never seen again, adding to a burgeoning population of illegal aliens. This assertion, therefore, must be the starting point for any examination of the detention of asylum seekers in the United States. Certainly, if asylum seekers who are released from custody generally do not show up for their hearings, the presumption of the risk of absconding would have to be high. This would provide a reasonable rationale for measures, including detention, to ensure that they do, in fact, appear. Citing a no-show statistic that was used repeatedly in 2003 and 2004, ICEs ten-year strategic plan, released in mid 2003, asserted, The appearance rate of individuals released from ICE custody is estimated to be 15 percent and the program does not have the resources to identify, locate, apprehend, and process the remaining 85 percent.1 This article will show that this statement was untrue at the time it was made, was repeatedly asserted, and was not corrected until February 2005 and even that correction is of doubtful validity. How was the original statement untrue? It referred to appearance rates, which means aliens still in immigration proceedings. There are two distinct groups of deportable aliens not in ICE custody: first, persons whose claims are still pending before immigration courts, including asylum seekers; second, persons whose claims and appeals have been rejected, who have final orders of removal. On February 8, 2005, the U.S. Commission on International Religious Freedom (USCIRF) issued a Report on Asylum Seekers in Expedited Removal, which showed the mirror image of ICEs 85 percent breakdown of absconders from immigration courts. In fact, citing data provided directly from those very courts the Executive Office of Immigration Review (EOIR), which houses immigration judges and the Board of Immigration Appeals (BIA) USCRIF found a 22 percent no-show rate before immigration courts for asylum seekers who had been released after establishing a credible fear. The appearance rate, therefore, was 78 percent.2 The ICE response to the USCIRF report, issued the same day, and citing the Department of Justice Inspector General rather than EOIR as its source, revised its statistic, saying that approximately 30 percent of the aliens released or paroled into the community pending their immigration court hearings to include individuals claiming they are here to seek asylum do not even show up for their court hearings. While anything less than a 100 percent appearance rate is cause for concern, a 22 or 30 percent no-show rate is not a problem of nearly the magnitude as 85 percent. Prompted by the USCRIF report, ICE finally distinguished between absconders during proceedings and absconders with final orders of removal. ICE defined the latter group as the remaining alien population that does appear for hearings, are paroled or released on conditions, and are ultimately denied relief, to include asylum and convention against torture, by an immigration or federal court judge. For this category, ICE now used the 85 percent figure it had previously used for aliens who had not appeared for hearings. On this occasion, ICE provided an estimate of the fugitive alien population in excess of 400,000, including asylum applicants who were found to not have been truthful before a judge. Before addressing the 400,000 figure, a word must be said about ICEs characterization of failed asylum

2 1

Endgame: Office of Detention and Removal Strategic Plan, 2003-2012: Detention and Removal Strategy for a Secure Homeland, (Form M-592, August 15, 2003), at 2-6.

Report on Asylum Seekers in Expedited Removal. United States Commission on International Religious Freedom, February 2005. The report is available at http://www.uscirf.gov/reports/ERSrpt/VolumeI.pdf.

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applicants as not having been truthful. Asylum seekers are not necessarily rejected for not having been truthful before a judge. While some asylum seekers are certainly rejected for lack of credibility, many others are rejected because their claims of harm do not reach the persecution standard in the refugee definition or because they are not able to link the persecution they have or will face with one of the five protected grounds in the refugee definition: race, religion, nationality, membership in a particular social group, or political opinion. It should also be noted that once an asylum seekers claims and appeals have been rejected, and he or she has been found not to be in need of international protection, that persons detention and deportation is legitimate and not objected to by international human rights and refugee rights standards. Human rights principles are in no manner compromised by the apprehension and detention of rejected asylum seekers or other deportable aliens who have exhausted their legal remedies if they flee after receiving final orders of removal. Human rights standards hold, however, that such persons should be treated humanely and not be held indefinitely. The recent Clark v. Martinez Supreme Court decision,3 like the Zadvydas v. Davis decision before it,4 addresses the issue of indefinite detention of aliens with final orders of removal whose home countries are unwilling to accept them. The court found that they cannot be held indefinitely if they cannot be removed in the foreseeable future, and set a six-month time limit for their detention. Justice Sandra Day OConnor, in a concurring opinion, noted that under some circumstances it is permissible to detain for longer than six months, if a longer period is reasonably necessary to effectuate removal of the alien, or if the alien poses a security risk. She further noted that aliens released per Zadvydas or Martinez would be subject to the conditions of supervised release, and could be redetained, and subject to criminal penalties, for failure to adhere to those conditions. Keeping these two groups separate, therefore (1) aliens, including asylum seekers with pending claims who are said to have a 22 or 30 percent no-show rate for immigration court appearances; and (2) aliens,

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including rejected asylum seekers found not to be in need of international protection, who have final orders of removal and who are said to have an 85 percent no-show rate what do these statistics actually mean? There are important reasons for regarding both statistics with a degree of skepticism. The appearance rates presented by both ICE and USCIRF with respect to the first group (with a supposed 22 or 30 percent no-show rate for immigration court) are contradicted by EOIR asylum statistics for FY 2003 and FY 2004. EOIR reports that 4,287 claims were abandoned out of 67,370 cases completed by immigration courts in FY 2003, a no-show rate of only 6.4 percent,5 and that 3,820 claims were abandoned out of 66,501 completed cases in FY 2004, for a no-show rate of only 5.7 percent.6 These statistics relate only to asylum seekers, which may be a category narrower than that captured by the ICE statistic (which looked at all aliens with immigration court dates) and wider than that captured by the USCIRF (which looked only at those asylum seekers who entered the system through the expedited removal process and passed credible fear screening). The category of asylum seekers is important, however, rather than wider or narrower categories because the detention of all asylum seekers (not just those who arrived via expedited removal) is of particular concern to human rights advocates as possibly infringing on their ability to exercise their right to seek asylum. Whether ICEs statistic represents asylum seekers or a wider group of aliens in immigration proceedings, the agency uses this statistic to justify the incarceration of asylum seekers.

U.S. Department of Justice, Executive Office for Immigration Review, Immigration Courts, FY 2003 Asylum Statistics (unpublished, on file with the author). The statistics show 75,939 asylum claims pending on October 1, 2002 and 64,176 applications received. Actions taken included: granted (10,870); conditional (2,175); denied (20,922), abandoned (3,820); withdrawn (14,716); other (13,998). At the close of FY 2004, 79,057 asylum claims were pending with immigration courts. U.S. Department of Justice, Executive Office for Immigration Review, Immigration Courts, FY 2003 Asylum Statistics (unpublished, on file with the author). The statistics show 89,844 asylum claims pending on October 1, 2003 and 55,714 applications received. Actions taken included: granted (12,379); conditional (840); denied (22,103), abandoned (4,287); withdrawn (14,384); other (13,377). At the close of FY 2003, 72,745 asylum claims were pending with immigration courts.
6

Clark v. Martinez, No. 03-878, 2005 WL 50099, January 12, 2005. Zadvydas v. Davis, 533 U.S. 678 (2001).

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Therefore, it is particularly important to note that the EOIR asylum statistics for FY 2004 and FY 2005 stand in marked contrast to the 85 percent no-show rate for immigration court appearances that ICE was touting in FY 2003, as well as the 30 percent figure it is using in 2005 (as well as the 22 percent no-show rate cited in the USCIRF report). The actual numbers from EOIR on asylum seeker appearances in immigration courts are presented in footnotes 5 and 6. It would be helpful if ICE would do the same when presenting its appearance rates rather than presenting percentages without the actual numbers. Immigration law practitioners also suggest that cases could be administratively closed (usually for failure to appear) and later reopened, but that EOIR statisticians would not necessarily go back and correct the earlier reported abandoned claim. This might be more likely to happen if the no-show and reopening occurred in different fiscal years. This could happen for a variety of reasons, such as notices to appear not having been delivered properly. It could also occur because of simple mistakes made by well-intentioned foreigners who have great difficulty navigating the complex immigration enforcement and adjudication system. In February 2005, the author visited a Guatemalan woman being held in the Hampton Roads Jail near Richmond, Virginia who had no legal representation. She told the author that on the day of her scheduled appearance at the Arlington immigration court she mistakenly went to the ICE district office in Arlington instead. She thought that was where she was supposed to go for her hearing, and signed in when she entered the building. No allowance was made for her mistake; ICE apprehended and detained her, and EOIR no doubt entered her as part of its no-show statistic. There are other problems with no-show statistics on asylum appearance rates. USCIRFs report indicates that no-shows by asylum seekers might well represent abandonment of claims in the United States by asylum seekers whose preferred country of asylum was Canada all along. For example, Sri Lankans released after credible fear had an 81 percent no-show rate (in contrast to Chinese nationals with a no-show rate of only 7 percent). At the time of the study, the evidence indicated that most Sri Lankans proceeded to Canada after release from US immigration detention, as Canada appeared to have been the preferred destination for lodging their asylum claims. The statistics show that in the years FY 2000 through FY 2003, 909 Sri Lankans released after credible fear determinations did not show for their hearings in U.S. immigration courts. During the three-year period, 2001-2003, UNHCR statistics

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show that 2,729 Sri Lankans applied for asylum at ports of entry along the U.S.-Canada border (as well as another 2,729 inland and at airports). Most of the Sri Lankans who did not appear in U.S. immigration courts, therefore, probably did not remain in the United States as undocumented absconders, but, in fact, went to Canada and lodged asylum claims there.7 What about the 85 percent no-show rate for aliens with final orders of removal and the estimate of more than 400,000 such alien absconders (also often called alien fugitives)? Despite reporting that it has apprehended 3,409 alien absconders with final orders of removal in 2003 from March 1, 2003 (the creation of ICE) to September 30, 2003 (the end of the fiscal year) and 11,063 in FY 2004,8 ICEs estimate of the number of alien absconders has continued to grow. In 2003, ICE widely publicized a 314,000 figure of alien absconders with final orders of removal.9 In 2004, ICE pointed to a growing backlog of more than 400,000 absconders.10 In a 2004 Congressional hearing, the head of ICE, Assistant Secretary Michael Garcia, cited the 400,000 figure, and defined absconders as individuals who have violated U.S. immigration laws, were ordered deported, and fled before they could be deported from the United States.11 While the number looks huge, it is in no way certain that a good portion of the fugitives in question have any idea that they are absconders. A General Accounting Office study released about the same time as the 314,000 figure, entitled Homeland Security: INS Cannot Locate Many Aliens Because It Lacks Reliable Address Information, said that the

This path may largely be blocked with implementation of the US-Canada Safe Third Country Agreement on December 29, 2004.
8

ICE Detention and Removal Sets Record for Fiscal Year 2004: Alien Removals Increase by 12,000; Fugitive Alien Apprehensions Climb 112 Percent, ICE News Release, November 16, 2004. (ICE deported a total of 157,281 aliens in FT 2004.)
9

See Endgame, supra note 1.

10

Ice Expands Pilot Project to Detain Deportable Aliens, ICE Press Office, March 26, 2004.

11

Statement of Michael Garcia, Bureau of Immigration and Customs Enforcement, before the House Subcommittee on Crime, Terrorism, and Homeland Security, February 3, 2004.

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Immigration and Naturalization Service (INS ICEs predecessor) lacks procedures and controls for maintaining complete and current change of address records. As a result, INS cannot determine whether an alien has complied and, therefore, cannot issue certificates of no record with the required degree of certainty.12 In August 2002, the INS acknowledged that about two million documents filed by aliens, including about 200,000 change-of-address forms, were sitting unprocessed in a warehouse in Missouri.13 Although, the 314,000 missing aliens were entered into the Deportable Alien Control System (DACS) used for the Absconder Apprehension Initiative,14 the GAO report noted, Change of address information submitted to the INS is not used to update address information in the DACs.15 That the estimated number of alien absconders continued to grow in 2004 and 2005 suggests that the problem however defined has not been solved. Jeanne Butterfield, the executive director of the American Immigration Lawyers Association, wrote in the January 16, 2005 Washington Post: The immigration agency is notoriously poor at updating its address databases, so it often sends hearing notices and other correspondence to outdated or incorrect addresses. Equally troubling is that our immigration laws allow such hearings to be conducted without the immigrant being present. In other cases, immigrants have been mislabeled absconders as a result of other agency errors. For example, a physician in rural Alabama recently was picked up as an absconder. He had sent a letter years earlier to the immigration service withdrawing his

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April 1, 2005
application for asylum. He then had returned to his country, obtained a work visa, and returned legally to the United States. But our immigration system never placed the letter withdrawing his asylum application into his permanent file. As a result, it sent a notice of his asylum interview a notice he never received and held an in absentia hearing during which the judge ordered him deported.16

Another reason to regard the 400,000 figure with skepticism is that the Department of Homeland Security (and the INS prior to March 2003) has not adequately developed the capacity for alien exit-entry tracking. Aliens who are not in custody who learn that their appeals have been denied often leave the country on their own ticket, not waiting to be apprehended and deported. The author recently experienced a case where this happened. The author learned of the case when it had been remanded from a federal appeals court to the Board of Immigration Appeals. The claimant, a Bosnian refugee who had adjusted to permanent resident status, committed a minor crime (shoplifting), and was ordered deported. Not understanding that his appeal was still alive, the man thought he had to leave, bought a ticket, and flew back to Bosnia. If his lawyer had not gone to the trouble of investigating the whereabouts of his client, and informing the authorities that his client had left the country, and had his appeal failed, he likely would have been added to the alien absconder population, although all he did was save ICE the cost of deporting him. The Push for Detention ICEs presentation of the problem of absconders is often made in the context of pleading inadequate resources and asking for more funding, as in the Endgame strategic plan example, cited above (the program does not have the resources to identify, locate, apprehend, and process the remaining 85 percent.). ICE has been very successful in making the case for ever-increasing levels of funding for detention. ICEs budget grew by 10 percent from FY 2004 to FY 2005 with an increase of $108 million for detention and

12

Homeland Security: INS Cannot Locate Many Aliens Because It Lacks Reliable Address Information, U.S. Government Accounting Office (GAO-03-188, November 2002), at 18.
13

INS Backlog Shows Folly of Casting Too Large a Net, Portland Press Herald, August 7, 2002, at 8A.

See memorandum from the Deputy Attorney General, January 25, 2002, Guidance for Absconder Apprehension Initiative.
16 15

14

GAO report, supra note 12, at 23.

Jeanne Butterfield, Too Quick to Judge Absconders Washington Post, January 16, 2005, at B6.

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removal.17 The Intelligence Reform and Terrorist Prevention Act of 2004 included authorization for the construction of up to 40,000 additional immigration detention bed spaces over the next five years.18 While the Presidents FY 2006 budget request includes a 7 percent increase generally for DHS, the Detention and Removal Office (DRO) within ICE enjoys a 19 percent increase, a boost of $176 million.19 The President's requested budget enhancements in his FY 2006 budget include $90 million for additional bed space and related personnel costs, and $5.4 million enhancement in the Intensive Supervision Appearance Program to expand the alternatives to detention program from eight to ten sites. 20 One thing is clear immigration detention is a growth industry. On any given day in 2004 about 23,000 foreigners were in ICE detention.21 Between fiscal years 1996, when the was enacted (and 2004 the average daily population of individuals in ICE detention grew 153 percent, from about 9,000 to about 23,000.22 By contrast, the number of persons, on average, in immigration detention in 1994, before the Illegal Immigrant Reform and Immigrant Responsibility Act (IIRIRA) was about 6,800. The turning point was passage of the IIRIRA, which significantly expanded the crimes for which noncitizens

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can be removed and imposed mandatory detention for most criminal aliens and other categories of noncitizens, as well as mandatory detention for aliens arriving with improper documents who became subjected to expedited removal.23 In fact, according to ICE, about 80 percent of all immigration detainees, the majority of whom ICE calls criminal aliens, are held on a mandatory basis.24 Congressional mandates are part of the reason for increased and increasing immigration detention, but Congress is influenced, at least in part, by a corrections industry that has become ever more dependent on federal detention contracts. One of the biggest private ICE detention contractors is the Correctional Corporation of America (CCA). Reeling from the loss of state contracts, the firm came close to a financial meltdown: Its stock lost 93 percent of its value in 2000, and its accountants reported a fourth-quarter loss of more than a third of a billion dollars.25 But the federal government stepped in with new contracts that provided CCA a virtual bailout.26 Writing for The American Prospect, Judith Greene reported that without the federal contracts, John D. Ferguson, the companys new CEO, frankly admits, CCA would likely have been forced into bankruptcy. Greene observed, The private-prison industry has excellent connections with the federal government[G]enerous campaign contributions and the best lobbyists that money can buy have spread the influence of private-prison companies beyond the personal networks of their executives and board members to the halls of Congress.27 The profit motive for detaining aliens led Michael Welch, author of Detained: Immigration Laws and the Expanding INS Jail Complex, to write of a

17

DHS Press release, FY 2005 budget-in-brief, February 2, 2004, available at http://www.dhs.gov/dhspublic/display ?content=3133
18

Section 5209, Intelligence Reform and Terrorism Prevention Act of 2004, Conference Report 108-796, December 7, 2004. (The Act authorizes the Secretary of Homeland Security to increase by not less than 8,000, in each of the fiscal years 2006 through 2010, the number of beds available for immigration detention and removal operations. The money for this expansion has yet to be appropriated.)
19

23 See The Detention Mandates of the 1996 Immigration Act: An Exercise in Overkill, by Donald Kerwin and Charles Wheeler, 75 Interpreter Releases 1433-1440, October 19, 1998. 24

DHS Budget-in-Brief for FY 2006, available at http://www.dhs.gov/interweb/assetlibrary/Budget_BIBFY0 6_2-7-05.pdf.

20

ICE Response to the U.S. Commission on International Religious Freedoms Report on Asylum Seekers in Expedited Removal, February 8, 2005.

Id.
25

Alison Siskin, Immigration-Related Detention: Current Legislative Issues, CRS Report for Congress, Congressional Research Service, April 28, 2004, at 1 (as of March, an average of 22,812 were being held on an average day in FY 2004).
22

21

See Judith Greene, Bailing Out Private Jails, The American Prospect, Vol. 12, Issue 16, September 10, 2001, at 3 of print-friendly, on-line version, available at: http://www.prospect.org/web/printfriendly-view.ww?id=5871
26

Id., at 5. Id., at 3.

Id., at 12.

27

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Corrections-Industrial Complex, an echo of President Eisenhowers warning of the growing power of a military-industrial complex. Welchs book, published in 2002, shows that immigration detention has been a financial windfall for many county governments, calculating that at an average cost of $58 per day per detainee, the INS spends nearly a half-million dollars each day to house its detainees in local jails.28 About half of immigration detainees are farmed out to county jails. Hard-pressed county coffers and local economies in remote, job-scarce locations have found a similar bailout in the form of federal contracts for immigration detention. Alisa Solomon, writing for the Village Voice, wrote that the Hastings Correctional Center (HCC) in Hastings, Nebraska had announced to its employees that it would be closing in June 2002 because of lack of State funding and too many empty beds. Then salvation came, wrote Solomon. Days after HCC closed as a state prison in June, it reopened as an INS detention center.29 She found that the State of Nebraska, collecting $65 per day from the immigration service, turns a yearly profit of about $1 million. She reported that Office of the Inspector General found that the York County Jail, in Pennsylvania, which was holding 750 to 800 alien detainees on average, and charging $60 per detainee, was overcharging, and suggested that $39 would be fair based on what the facility actually spent to maintain the detainees.30 The average cost has climbed significantly since the time of Welchs book and Solomons reporting. The cost per day for each detainee rose to $75 a day in FY 2000 through FY 2002.31 The budgeted per day cost in FY 2004 rose to $80 per detainee.32 Citing the EOIR Legal Orientation Executive Summary, the USCRIF report reports that the average current cost per immigration detainee per day in 2005 is $85, although various facilities report widely varying costs from $30

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to $200 per detainee per day.33 The Detention of Asylum Seekers

April 1, 2005

ICE reported to Congress in FY 2003 that it detained 230,000 aliens, of whom 6 percent were asylum seekers.34 ICE reported to Congress on detained asylum seekers for each of the four preceding years, in FY 1999, FY 2000, FY 2001, and FY 2002, that the number of asylum seekers in detention grew steadily from FY 99 through FY 2001, at a time when the total number of asylum seekers was also on the rise, but then fell in FY 2002:35 Total number of asylum seekers detained/not detained: [Legend: affirmative asylum claims are made by asylum seekers who file claims with US Citizenship and Immigration Services offices; credible fear claims refer to asylum seekers who are apprehended as arriving aliens, placed into expedited removal, and pass a credible fear screening; defensive asylum seekers are those who file asylum claims with the Executive Office of Immigration Review in the course of removal proceedings.] 1999: 17,067 of the 57,980 asylum seekers were detained. (376 of the 38,739 affirmative asylum seekers were detained; 6,289 of the 6,491 credible fear asylum seekers were detained; 10,402 of the 12,750 defensive asylum seekers were detained) * 2000: 23,014 of the 79,686 asylum seekers were detained. (327 of the 54,082 affirmative asylum seekers were detained; 10,030 of the 10,336 credible fear asylum seekers were detained; 12,657 of the 15,268 defensive asylum seekers were detained)

33 28

Michael Welch, Detained: Immigration Laws and the Expanding INS Jail Complex, Temple University Press, Philadelphia, 2002, at 160.
29

USCIRF report, supra note 2, at 184.

34

Alisa Solomon, Detainees Equal Dollars: The Rise in Immigrant Incarcerations Drives a Prison Boom, The Village Voice, August 14-20, 2002. Id. Siskin, supra note 21, at 13. Id.

Detained Asylum Seekers, Fiscal Year 2003: Report to Congress, prepared by U.S. Immigration and Customs Enforcement, Department of Homeland Security, Management Directorate, Office of Immigration Statistics, and ICE Office of Detention and Removal Operations, and cited in USCIRF Report, supra note 2, at 180.

30

35

31

32

Detained Asylum Seekers: Report(s) to Congress, (fiscal years 1999, 2000, 2001, and 2002), U.S. Immigration and Customs Enforcement, Department of Homeland Security, Management Directorate, Office of Immigration Statistics, and ICE Office of Detention and Removal Operations.

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2001: 27,093 of the 111,441 asylum seekers were detained. (381 of the 81,888 affirmative asylum seekers were detained; 12,650 of the 12,963 credible fear asylum seekers were detained; 14,062 of the 16,590 defensive asylum seekers were detained) 2002: 18,450 of the 100,690 asylum seekers were detained. (163 of the 80,097 affirmative asylum seekers were detained; 9,260 of the 9,749 credible fear asylum seekers were detained; 9,027 of the 10,844 defensive asylum seekers were detained) Average time for asylum seekers in detention: 1999: avg length of detention (for those released): 84.6 days (affirmative); 79.9 days (CF); 145.1 (defensive) 2000: avg length of detention (for those released): 53.6 days (affirmative); 57.9 days (CF); 99.6 (defensive) 2001: avg length of detention (for those released): 36.4 days (affirmative); 48 days (CF); 78.2 (defensive) 2002: avg length of detention (for those released): 32.6 days (affirmative); 43.5 days (CF); 79.4 (defensive) In FY 2002 (starting in October 2001, in the immediate aftermath of the 9/11/2001 attacks), the total number of asylum seekers fell, as did the number in detention. In FY 2002, while the number of affirmative applicants remained at about the same level as the previous year (presumably most of the affirmative applicants entered prior to 9/11), the more significant drop in total asylum seekers in FY 2002 were of the two groups who were apprehended, the credible fear (arriving aliens) and defensive cases. This is significant, because the lowest percentage of asylum seekers detained are affirmative applicants, while in FY 2002, 95 percent of credible fear asylum seekers were detained and 83 percent of defensive asylum applicants were detained, about the same percentage of credible fear and defensive claimants as were detained the previous year. This suggests that although the total number of detained asylum seekers fell from FY 2001 to FY 2002, this reduction is due to the decrease in the total number of credible fear and defensive claimants (presumably because of enhanced pre-screening at foreign airports and other forms of interdiction/interception preventing asylum seekers from reaching the United States) rather than any diminution in the policy of detaining the overwhelming majority of credible fear and defensive asylum seekers. The data from FY 2003 and FY 2004 will have to be studied before a complete assessment of the impact of 9/11 on asylum seekers can be made.

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These statistics suggest a marked improvement in the average time asylum seekers spent in detention from 1999 to 2002 (but the author did not have access to the data for 2003 and 2004, which would show whether this trend continued after the 9/11 terror attacks).36 For all immigration detainees, ICE reported an average stay of 64 days in 2003 (32 percent for 90 days or longer). It should be noted, however, that the Physicians for Human Rights study, From Persecution to Prison: The Health Consequences of Detention for Asylum Seekers, found that the asylum seekers in their study (held in New York, Newark, and Pennsylvania) who eventually were granted asylum spent an average of 10 months in detention, with the longest period being 3 1/2 years. Release of Asylum Seekers from Detention Although parole from detention is discretionary, ICE policy, as set forth in a March 1997 memorandum on implementing expedited removal, is that once an alien has established a credible fear of persecution or is otherwise referredfor a full removal hearing , release of the alien may be considered under normal parole criteria.37 In December 1997, the INS issued written guidance that release on parole should be a viable option for asylum seekers 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.38 The policy to favor release of aliens found to have a credible fear of persecution, provided that they do not pose a flight risk or danger to the community was reiterated in 1998.39 This guidance has never been promulgated as a regulation; consequently, there are wide discrepancies in the exercise of this discretion. The USCIRF report

36

Detained Asylum Seekers, Fiscal Year 2003: Report to Congress, cited in USCIRF Report, supra note 2, at 180. Memorandum from the Office of INS Deputy Commissioner, Implementation of Expedited Removal, March 31, 1997, reprinted in Interpreter Releases, April 21, 1997. Memorandum from Michael A. Pearson, INS Executive Associate Commissioner, Office of Field Operations, Expedited Removal: Additional Policy Guidelines, December 30, 1997. Memorandum from Michael A. Pearson, INS Executive Associate Commissioner, Office of Field Operations, Detention Guidelines Effective October 9, 1998, October 7, 1998.

37

38

39

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shows, for example, that in Newark, only 3.8 percent of the people who have passed credible fear screening are released on parole; in New York, 8.4 percent are released. By contrast, release rates for the same category of asylum seekers in Harlingen, Texas is 97.6 percent and 94 percent in San Antonio. The authority to grant parole rests with ICE, the same authority that detains asylum seekers. There is no independent review of parole decisions, not even by an immigration judge. Immigration judges, in turn, have seen their discretion to grant releases on bond to eligible categories of asylum seekers increasingly curtailed. For example, in October 2002, an immigration judge ruled that Haitian teenager David Joseph, who had recently arrived on a wooden boat should be released to his uncle, a legal resident living in Brooklyn, N.Y., who was willing to post a $2,500 bond. The judge found that David posed no threat if released. Finding his asylum claim to be credible, the judge said he was unlikely to abscond. The government appealed, but the Board of Immigration Appeals (BIA) affirmed the judges ruling to release David. It found that the judge correctly applied the rules regarding release on bond to avoid unnecessary, prolonged detention. Then, Attorney General John Ashcroft stepped in. Citing his decision regarding David as a precedent ruling, he decided that all Haitian boat arrivals should be jailed. He invoked national security as his rationale, not because David Joseph himself ever harmed or threatened anyone, but so that a surge of other boat people from Haiti would not injure national security by diverting valuable Coast Guard and DOD (Department of Defense) resources from (their) counter-terrorism and homeland security responsibilities.40 Since the time of Ashcrofts ruling, expedited removal, which mandates detention, has been expanded to include all unauthorized boat arrivals (except Cubans), as well as land arrivals within 100 miles of the borders within two weeks of arrival. Therefore, if another asylum seeker like David arrived today by boat, an immigration judge wouldnt be able to consider a bond request at all, even under Ashcrofts blanket rule. In New Orleans, which has a disproportionately large number of undocumented boat arrivals, only 0.5 percent

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of persons who have passed credible fear screening are released on parole. International Standards Relating to the Detention of Asylum Seekers and U.S. Practices Asylum is a right of last resort for people who cannot count on their own governments to protect them, and are forced to flee their homelands and seek the protection of other governments. The right to seek and enjoy asylum from persecution is enshrined in Article 14 of the Universal Declaration of Human Rights. The 1951 Convention relating to the Status of Refugees and the 1967 Protocol define who refugees are and establish their rights in their country of refuge. Altogether, 145 states, including the United States, have signed either one or both of these UN instruments. Human rights law, including Article 9 of the Covenant on Civil and Political Rights, prohibits arbitrary detention, requiring that any detention must be in accord with procedures established by law. Article 31(2) of the Refugee Convention limits restrictions on the movements of refugees who enter territories illegally to those which are necessary. The Executive Committee of the UN High Commissioner for Refugees (UNHCR), comprised of State Parties to the Refugee Convention, issues formal Conclusions that interpret the Convention and confirm international consensus on state practice with respect to refugees. Executive Committee Conclusion 44 of 1986 set forth the agreed standards for detention of refugees and asylum seekers: Detention should normally be avoided. If necessary, detention may be resorted to only on grounds prescribed by law to verify identity; to determine the elements of which the claim to refugee status or asylum is based; to deal with cases where refugees or asylum-seekers have destroyed their travel and/or identity documents or have used fraudulent documents in order to mislead the authorities of the State in which they intend to claim asylum; or to protect national security or public order.41

41

Attorney General John Ashcroft, In re D-J-, quoted by Susan Benesch, Haitians Trapped by War on Terrorism, Amnesty Now, Volume 29, Number 3, Fall 2003, at 13.

40

Conclusion No. 44 (XXXVII), Detention of Refugees and Asylum-Seekers, Conclusions on the International Protection of Refugees Adopted by the Executive Committee of the UNHCR Programme. United Nations High Commissioner for Refugees, 1986 (Executive

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In addition to stressing that conditions of detention, when necessary, must be humane, Conclusion 44 also recommended that detention of asylum seekers and refugees be subject to judicial or administrative review. UNHCRs Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers call the detention of asylum seekers inherently undesirable. While the Guidelines are not binding, they nevertheless represent how UNHCR, the agency charged with supervising the application of the Refugee Convention, believes asylum seekers should be treated. They are largely derived from UNHCR Executive Committee Conclusion 44. The Guidelines state, Detention of asylum-seekers as part of a policy to deter future asylum-seekers, or to dissuade those who have commenced their claims from pursuing them, is contrary to the norms of refugee law.42 In direct contradiction to this guideline, Attorney General Ashcrofts rationale for detaining all undocumented boat arrivals was explicitly to deter new arrivals. ICE restated this policy in its February 8 response to the USCIRF report: Aliens who arrive by boat are subject to a national policy of continued detention post-credible fear in order to deter others from taking the life-threatening boat trip and ensure our maritime defense assets are not diverted from their national security mission.43 The Guidelines recommend alternatives to detention, including, inter alia, release on bail, open collective accommodation centers, and imposing periodic reporting or residency requirements.44 The Guidelines also contemplate circumstances in which detention of asylum seekers becomes necessary, such as when identity cannot be determined, when the applicant has committed fraud with the intention of misleading or refusing to cooperate with the authorities, prior to a preliminary interview to determine the elements of the

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refugee claim, and to protect national security and public order45. The Guidelines maintain, however, that the permissible exceptions to the rule that detention should normally be avoided must be prescribed by law.46 The criteria for detention or release of asylum seekers in the United States, to the contrary, have not been enshrined in either law or regulation, and are, therefore, beyond the reach of legal enforcement mechanisms. Similarly, U.S. standards relating to the conditions of detained aliens, which were agreed upon in 1998, are merely advisory, and have not been put into the form of regulations or law.47 While a step forward, the INS (now DHS) Detention Standards are not specific to asylum seekers, but rather apply to all immigrant detainees. They, therefore, do not take into account the special needs of asylum seekers, particularly those among them who might be suffering the effects of torture. With respect to how asylum seekers should be treated when it is necessary to detain them the UNHCR Guidelines are unambiguous: Conditions of detention for asylum-seekers should be humane with respect shown for the inherent dignity of the person. They should be prescribed by law.48 The Guidelines call for the use of separate detention facilities to accommodate asylum-seekers, and state flatly, The use of prisons should be avoided.49 When separate detention facilities cannot be avoided, the Guidelines say asylum-seekers should be accommodated separately from convicted criminals or prisoners on remand. There should be no co-mingling of the two groups.50 As shown above, about half of U.S. asylum-seekers in detention are held in county jails, where they are usually co-mingled with the general criminal inmate population (although normally with color-coded jumpsuits to show

45

Id, Guideline 3. Id.

Committee37th Session).
46 42

Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers, February 1999, UN High Commissioner for Refugees. Guideline Number 3. See also, Introduction, Section 1. (Hereafter, Guidelines.)
43

47

INS Detention Standards, available in the DHS Detention Operations Manual, available at: http://www.ice.gov/graphics/dro/opsmanual/index.htm
48

ICE Response to the U.S. Commission on International Religious Freedoms Report on Asylum Seekers in Expedited Removal, February 8, 2005, at 4.
Guidelines, Guideline 4.

Id. Id.

49

44

50

Id.

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their degree of criminality, and to create some level of segregation amidst an essentially co-mingled population: as a rule, blue means noncriminal; orange is criminal; and red is serious criminal; blue can mix with orange, but not red; orange can mix with blue or red). Within the USCIRF report was a second volume of individual expert reports by the Commissions key researchers. Craig Haney contributed a report on conditions of confinement for detained asylum seekers subject to expedited removal. He found that in more than half of the facilities in the study sample (13 of 18), male aliens were co-mingled with persons with criminal convictions. In ten of 13 facilities where women were detained women with criminal convictions and women with no criminal background were held together. Of the facilities that housed both criminal and noncriminal detainees, 11 not only allowed co-mingling but also included shared sleeping quarters for the two groups. Among the eight facilities in the study sample that housed non-ICE jail inmates (either sentenced or awaiting trial), seven permitted contact between them and four included shared sleeping quarters.51 While Haney, and others, have noted wide variety in the treatment of asylum seekers in detention, variations that would be lessened if the detention standards were put into enforceable regulatory or statutory form, he also notes their fundamental similarity: [I]n most critical respects, the DHS detention facilities are structured and operated much like standardized correctional facilities. Indeed, in some instances, actual criminal justice institutions in this case, county jails are operated as dual use facilities that simultaneously house asylum seekers and criminal offenders, side-by-side [W]hether they were county jails, DHS-run facilities, or private contract facilities, there were operated in more or less the same way . [T]he facilities employed similar rules, with similar conditions of confinement that greatly resembled traditional correctional settings.52 Conclusion: Whats the Solution?

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U.S. treatment of asylum seekers in detention falls well below international standards as set forth in the UNHCR Guidelines. The fundamental principle of those guidelines is: There should be a presumption against detention.53 International standards carry such a presumption because detention is regarded fundamentally as an impediment to the right to seek asylum.54 On simple humanitarian grounds, detention of asylum seekers is also discouraged because many asylum seekers are survivors of torture and other trauma, for whom detention is particularly onerous.55 But the detention of asylum seekers continues apace in the United States. Driven by a corrections industry hungry for federal government contracts and by the inflated claims of the federal bureau that jails them, members of Congress, ever mindful of showing vigilance in protecting U.S. borders, are easily convinced that spending more and more money to detain more and more aliens is the optimum solution. But it isnt. A number of pilot projects demonstrating alternatives to detention have met with great success, demonstrating high appearance rates of 93 to 96 percent.56 These projects involved nongovernmental organizations under contract to the immigration service providing supervision, and in some cases housing in community shelters and assistance in locating pro bono attorneys to help with their claims. One such project, the Vera Institutes Appearance Assistance Program, not only reported a 93 percent appearance rate for the asylum seekers under its care, but also reduced the cost of supervision by 55 percent compared to the cost of detention.57

53

Guidelines, Guideline 3.

54

Universal Declaration of Human Rights, Article 14: Everyone has the right to seek and enjoy in other countries asylum from persecution. See especially, From Persecution to Prison: The Health Consequences of Detention for Asylum Seekers, Physicians for Human Rights and the Bellevue/NYU Program for Survivors of Torture, June 2003. See In Libertys Shadow: U.S Detention of Asylum Seekers in the Era of Homeland Security, Human Rights First (2004), at 41. Id., at 42.

55

51

Craig Haney, Ph.D., Conditions of Confinement for Detained Asylum Seekers Subject to Expedited Removal, Study on Asylum Seekers in Expedited Removal, USCRIF, February 2005, at 184.
52

56

Id., at 189.

57

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These projects have shown their effectiveness not only in terms of cost savings and in ensuring that asylum seekers appear for their hearings, but also insofar as they have provided a humane alternative to locking away and further traumatizing victims of persecution and abuse. As such, they suggest an approach that satisfies both the U.S. governments legitimate concern that asylum seekers comply with legal requirements as well as the concern of the human rights community that asylum seekers right to pursue their claims for protection is not subverted by intolerable and unnecessary detention. For further reading: Amnesty International USA. United States of America: Lost in the Labyrinth: Detention of Asylum-Seekers. New York: AIUSA, 1999. Amnesty International USA. United States of America: Why Am I Here? Children in Immigration Detention. New York: AIUSA, 2003. Benesch, Susan. Haitians Trapped by War on Terrorism. Amnesty Now. Fall 2003, 12-15. Dow, Mark. American Gulag: Inside U.S. Immigration Prisons. Berkeley: University of California Press, 2004. Haney, Craig. Conditions of Confinement for Detained Asylum Seekers Subject to Expedited Removal. Report on Asylum Seekers in Expedited Removal. Washington, DC: United States Commission on International Religious Freedom, 2005. Helsinki Watch. Detained, Denied, Deported: Asylum Seekers in the United States. New York: Helsinki Watch, 1989. Human Rights First. In Libertys Shadow: U.S. Detention of Asylum Seekers in the Era of Homeland Security. New York: HRF, 2004. Kerwin, Donald and Charles Wheeler. The Detention Mandates of the 1996 Immigration Act: An Exercise in Overkill. Interpreter Releases 75, no. 40 (1998): 1433-1440. Lutheran Immigration and Refugee Service. American: A Freedom Country. Baltimore: LIRS, 2004. Physicians for Human Rights and the Bellevue/NYU Program for Survivors of Torture. From Persecution to Prison: The Health Consequences of Detention for

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Asylum Seekers. Boston: PHR, 2003. Siskin, Alison. Immigration-Related Detention: Current Legislative Issues. Congressional Research Service. Washington, DC: CRS, 2004. Solomon, Alisa. The Gatekeeper: Watch on the INS: Detainees Equal Dollars: The Rise in Immigrant Incarcerations Drives a Prison Boom. The Village Voice, August 14-20, 2002. United Nations High Commissioner for Refugees. Conclusions on the International Protection of Refugees Adopted by the Executive Committee of the UNHCR Programme. Geneva: UNHCR, 1995. United Nations High Commissioner for Refugees. Convention and Protocol Relating to the Status of Refugees. Geneva: UNHCR, 1996. United Nations High Commisssioner for Refugees. Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees. Geneva: UNHCR, 1992. United Nations High Commssioner for Refugees. UNHCR Revised Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers. Geneva: UNHCR, February 1999. United States Commission on International Religious Freedom. Report on Asylum Seekers in Expedited Removal. Washington, DC: USCIRF, 2005. United States Department of Homeland Security: U.S. Immigration and Customs Enforcement. Detention Operations Manual. Washington, DC: ICE, 2005. Available from the World Wide Web: (http://www.ice.gov/graphics/dro/opsmanual/index.ht m). United States Department of Homeland Security. Endgame: Office of Detention and Removal Strategic Plan, 2003-2012: Detention and Removal Strategy for a Secure Homeland. Washington, DC: ICE: Office of Detention and Removal Operations, 2003. United States Department of Homeland Security. ICE Response to the U.S. Commission on International Religious Freedoms Report on Asylum Seekers in Expedited Removal, Washington, DC: USICE, February 8, 2005.

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United States Department of Homeland Security. Report to Congress: Detained Asylum Seekers Fiscal Year 1999, Washington, DC: USICE: Office of Detention and Removal Operations, 2004. (The same Reports to Congress are on file with the author for FY 2000, FY 2001, and FY 2002.) Welch, Michael. Detained: Immigration Laws and the Expanding INS Jail Complex. Philadelphia: Temple University Press, 2002. **** Director, Refugee Programs, Amnesty International USA. The views expressed are those of the author alone, and do not necessarily reflect the views and policies of Amnesty International. An abridged version of this article appeared in the Migration Information Source, Special Issue on Migration and Human Rights, March 1, 2005. Available at: http://www.migrationinformation. org/Feature/display.cfm?id=296.

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ATTENTION READERS

Any reader interested in sharing information of interest to the immigration bar, including notices of upcoming seminars, newsworthy events, war stories, copies of advisory opinions, or relevant correspondence from the DHS, DOJ, DOL, or DOS should direct this information to Daniel M. Kowalski, 111 Congress, Fourth Floor, Austin, TX 78701; fax: 512-692-2621, email: dan@cenizo.com, or Ellen Flynn, Practice Area Editor, Benders Immigration Bulletin, 744 Broad Street, Newark, NJ 07102, fax: (973) 820-2626, email: ellen.m.flynn@bender.com.
If you are interested in writing for the BULLETIN, please contact Daniel M. Kowalski at 512-370-3155, or via email at

dan@cenizo.com.