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February 8, 2005
Event Summary
Background
Expedited Removal, established in 1996 by legislation, allows immigration inspectors at ports of entry to detain and immediately deport improperly documented aliens without allowing them to consult legal counsel or present their claims before an immigration judge. To ensure that refugees would not be caught up in the procedures and returned to face persecution, which would be a violation of US law and treaty obligations, Congress included a number of protections for asylum seekers. Under Expedited Removal, an inspector at the port of entry must refer an arriving alien who expresses a fear of repatriation to an asylum officer in order to establish a "credible fear" of persecution. If an asylum seeker establishes "credible fear," and almost all of those referred do so he or she may not be removed without first having the opportunity to make an asylum claim before an immigration judge.
Summary of Panelist Remarks
The US Commission on International Religious Freedom (USCIRF) was authorized by Congress to appoint experts on refugee and asylum to examine the Expedited Removal process. The resulting major study was based on extensive data collected from observations of inspections, case files, detention facilities, interviews, and other information sources. In presenting the study, the experts introduced the following four main questions which the USCIRF asked them to answer, along with brief findings relating to each one.
(1) Are immigration officers improperly encouraging asylum seekers to withdraw their applications for admission?
According to Department of Homeland Security (DHS) regulations, withdrawal of an application for asylum is strictly voluntary. However, the study found that at one particular port of entry, Houston, immigration officers forcefully encouraged asylum seekers to withdraw applications.
(2) Are immigration officers incorrectly failing to refer asylum seekers for an interview by an asylum officer for a determination of whether they have a credible fear of persecution?
The study found that among arriving aliens observed, 15 percent of those who expressed a fear of return were not referred to a credible fear interview. In several cases, asylum seekers expressed fears which are clearly related to grounds of asylum (such as fear of political, religious, or ethnic persecution), but inspectors did not correctly record such remarks.
(3) Are immigration officers incorrectly removing asylum seekers to a country where they may be persecuted?
This question focuses on asylum seekers who are ordered removed by asylum officers either after the credible fear interview, as well as those ordered removed by immigration judges during asylum hearings. The study found that asylum officers reach a negative credible fear determination on only one percent of all cases referred to them. However, inadequate documentation at this stage was found to account for a significant percent of denials by immigration judges. The study also found that asylum seekers with access to an attorney had a 25 percent approval rate, versus 2 percent for those without an attorney. For those denied asylum, the "summary affirmances" process put in place since 2002 has resulted in only 2 to 4 percent of cases being granted appeals, and it is highly unlikely that those granted appeal will be granted asylum.
4) Are immigration officers detaining such asylum seekers improperly or under inappropriate conditions?
The study found that asylum seekers were often detained inappropriately in jails or jail-like facilities, often commingled with criminal inmates. One-third of asylum seekers were placed in confinement for more than 90 days. Although the Immigration and Customs Enforcement field guides have outlined a set of criteria for allowing parole which favors the asylum seekers, in practice there is no consistent application across locations. In a number of places, almost no asylum seekers are paroled.
However, the study found examples of detention facilities which confinement was humane and consistent with security concerns. Moreover, such examples proved to be relatively cost efficient.
The study lastly put forth five main recommendations:
1) Establish a DHS office that would assume overall responsibility for asylum matters
2) Allow asylum officers to grant asylum for approvable cases at the time of the credible fear interview, as they are already are given approval to do for asylum seekers not subject to the Expedited Removal process.
3) Establish DHS standards for detention standards and conditions appropriate for asylum seekers
4) Expand existing private-public partnerships to increase access to legal assistance for asylum seekers, and improve quality assurance to increase consistency in asylum determinations by judges.
5) Implement quality assurance procedures to ensure reliable information
Summary of Question and Answer Session
The first question from the audience was about follow-up to ensure the implementation of the study's recommendations. In response, panel members reiterated that the study had requested official reactions from the Department of Homeland Security and Department of Justice, and that the US Commission on International Religious Freedom (a federal agency) had given approval to the findings. One panelist mentioned that, if resources allowed, additional research should be conducted on ports of origin.
Another point of discussion focused on how current legislation to increase the burden of proof for asylum seekers (such as in the REAL ID ACT) should be evaluated in light of the study's findings. The asylum process, panelists reiterated, includes extensive security checks and chances for detention, therefore making it one of the immigration channels that was least susceptible to terrorists. If there was a chance for someone with terrorist motives to enter through the asylum system, lax rules would not be the cause. Rather, knowledge of the systems inconsistencies, such as the high release rates of detainees in particular areas, would contribute to such a breach. One audience member encouraged panel members to present their findings in this context, as proposed legislation could influence the implementation of the study's recommendations. Another point of discussion concerned the flight risk of asylum seekers granted parole while awaiting a hearing. Panelists said that a 40 percent no-show rate presented in an earlier GAO report was an exaggerated and widely misapplied figure.
In a related discussion about public perception of the asylum system, panelists expressed concern over the image of asylum seekers as law breakers. In the USCIRF's efforts to promote religious liberty around the globe, it has heard much criticism of US asylum policies.
Several audience members were interested in whether there is bias in the system against asylum seekers with certain characteristics, such as a particular gender or nationality. Panelists responded that the ICE data which they used did not give indications about whether such bias was used to support decisions for removal.
Several comments related to the use of attorneys in the asylum process. In response to an audience member's proposal to rethink whether or not the adversarial elements of the asylum process were appropriate, one panelist reiterated the Study's recommendations to authorize asylum officers to grant asylum. Another argued for increasing representation as a way to make the system more favorable to asylum seekers. In response to another proposal for government funding of attorneys, panelists suggested other cost-efficient methods for increasing representation, such as moving detention facilities closer to urban areas where pro bono efforts were available, as well as increasing "know your rights" sessions for asylum seekers. One audience member put forth the importance of increased funding to non-profits engaged in pro bono activities.
One question focused on language barriers faced by asylum seekers. Panelists noted that although most cases are conducted in a language that asylum seekers know, there are significant challenges with variations in the quality of translators and translations services available via telephone.
In response to concerns over resource implications of the Study's recommendations, panelists stated that although the bottom line was not calculated, recommendations were made with costs in mind. While there is evidence that certain actions such as improving conditions of detention would be more cost efficient, the costs needed for others such as those aimed at improving consistency were less predictable.
A final questioner asked where the proposed office for oversight of the asylum process should be established within DHS. Panelists noted that it would have to be sufficiently close to the Secretary's, as that was the only level at which all DHS components dealing with asylum issues currently had recourse for resolving inter-agency conflicts.
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