Note: The views expressed are those of the author alone, and do not necessarily reflect the views and policies of Amnesty International.
The issue of detaining asylum seekers has recently risen on the U.S. political agenda. Terrorism-related security measures increasingly appear to infringe on the right of refugee claimants to pursue their asylum claims. Members of Congress have introduced legislation both to limit grounds for asylum, arguing that terrorists use the asylum system to gain a foothold in the United States, and to expand detention of aliens, including asylum seekers.
In 2004, Congress passed the Intelligence Reform and Terrorist Prevention Act, which included authorization for the construction of up to 40,000 additional immigration detention bed spaces over the next five years.
While the President's fiscal year (FY) 2006 budget request includes a seven percent increase generally for the Department of Homeland Security (DHS), the Detention and Removal Office (DRO) within DHS's Immigration and Customs Enforcement (ICE) saw a 19 percent increase, a boost of $176 million. The President's requested budget enhancements in his FY 2006 budget include $90 million for additional detention bed space and related personnel costs.
Human rights advocates are particularly concerned about the likely expansion of detention of asylum seekers for two principal reasons. First, detention often has the effect of infringing on asylum seekers' ability to exercise their right to seek asylum, particularly since asylum seekers in the United States do not have the right to government-funded legal representation, and detention facilities are often located in remote areas where relatively few pro bono attorneys are available. Second, many asylum seekers are highly traumatized people who have survived torture and other severe abuses for whom detention, particularly prolonged detention in jails, is particularly harmful.
ICE's primary justification for detaining asylum seekers is that they may escape into the U.S., joining the ranks of the undocumented. Human rights advocates counter that the number of asylum seekers who actually do not report for their hearings is quite low.
Human Rights and Asylum
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."
International standards are clear that detention of asylum seekers is understood to be the exception, not the rule.
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.
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.
Importantly, this means that international standards — and refugee and human rights advocates — do not insist that asylum seekers and refugees can never be detained. On the contrary, when necessary and on grounds prescribed by law, detention of asylum seekers is permitted. However, international standards are clear that detention of asylum seekers is understood to be the exception, not the rule.
The Asylum Process
In the U.S., the Refugee Act of 1980 essentially adopted the international definition of refugee found in the 1951 Convention and 1967 Protocol and authorized aliens in the United States, irrespective of their legal status, to apply for asylum. The Refugee Act also gave the Attorney General discretion to grant asylum according to procedures that he would establish.
Following the procedures established for the granting of asylum, the adjudicator's job is one of discovery. This is a process to recognize whether the claimant does, in fact, have a well-founded fear of being persecuted on account of his or her race, religion, nationality, membership in a particular social group, or political opinion.
Because an asylum seeker whose claim to refugee status is still pending might, in fact, be a refugee, the protections afforded to refugees under the 1951 Convention and 1967 Protocol — most notably, not to be forcibly returned (the principle of nonrefoulement) — extend to the asylum seeker as well (see this article for more on refugees).
If, on the other hand, an asylum seeker's claims and appeals are rejected, and he or she has been found not to be a refugee, and therefore not in need of international protection, that person's detention and deportation are generally regarded as legitimate and not objected to by international human rights and refugee rights standards. The major exceptions are for aliens held for prolonged periods because their removal cannot be effectuated or for those held in inhumane conditions.
Human rights principles are in no manner compromised by the apprehension and detention of rejected asylum seekers not in need of international protection or other deportable aliens who have exhausted their legal remedies if they flee after receiving final orders of removal.
Absconders: Asylum Appearance Rate Statistics
Estimates of how many refugees and asylum seekers are likely to abscond vary widely. ICE, the division of DHS responsible for detention and deportation, has circulated the highest absconder rates.
In a 2003 report, Endgame: Office of Detention and Removal Strategic Plan, 2003-2012, ICE stated that the appearance rate of individuals released from ICE custody was about 15 percent and that "the program does not have the resources to identify, locate, apprehend, and process the remaining 85 percent." For the next two years, ICE officials repeatedly cited the 85 percent no-show rate when asking Congress for additional resources or when justifying broader detention.
More recently, the U.S. Commission on International Religious Freedom (USCIRF), a federal government commission, issued a report on asylum seekers in expedited removal that presented a very different appearance rate.
ICE, the division of DHS responsible for detention and deportation, has circulated the highest absconder rates.
Citing data provided by the Executive Office of Immigration Review (EOIR), the agency that houses the immigration courts, USCIRF reported a 22 percent no-show rate before immigration courts for asylum seekers who had been released after establishing a credible fear. The appearance rate was 78 percent, compared to the 15 percent ICE cited.
In response to the USCIRF report, ICE cited the Department of Justice Inspector General for an appearance rate that was more in line with the rate reported by USCIRF: a no-show rate of approximately 30 percent and an appearance rate of 70 percent. The movement to an agreed upon appearance rate resulted from ICE distinguishing between two distinct groups of deportable aliens: absconders during proceedings and absconders with final orders of removal.
ICE defined absconders with final orders of removal 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 uses the 85 percent figure it had previously used for all aliens who had not appeared for hearings.
Interestingly, the appearance rates presented by both ICE and USCIRF with respect to the absconders during proceedings (with an estimated 22 or 30 percent no-show rate for immigration court) are not supported 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, 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.
These statistics, however, relate only to asylum seekers, a category that may be narrower than that captured by the ICE statistics, which looked at all aliens with immigration court dates. "Asylum seekers" as a category may also be wider than that captured by the USCIRF, which looked only at those asylum seekers who entered the asylum system through the expedited removal process and passed credible fear screening.
In presenting the appearance rates before immigration courts, neither ICE nor USCIRF provided the actual numbers from the Inspector General or EOIR, on which they based their reported 22 or 30 percent no-show rates. In the interest of accurately assessing the real extent of a problem, it is vitally important that the actual numbers are presented and that the rates presented are clearly defined.
While anyone not appearing for his or her hearing in immigration court is a problem, the scope of the problem — and the solutions needed to address it — will differ depending on whether 85 percent, 30 percent, 22 percent, or only 5.7 percent of asylum seekers do not actually appear for their hearings.
Numbers of Detained Asylum Seekers
The greater precision in defining who and how many are likely to abscond has weakened ICE's case for detaining asylum seekers who are still in the midst of court proceedings. Against this backdrop, the ongoing detention of asylum seekers is of particular concern to the human rights community.
Even before September 11, detentions of asylum seekers had been steadily increasing between FY 1999 and FY 2001. Following the events of September 11, two important facts emerged.
The first was a reduction in 2002 of the total number of asylum seekers in the United States. This was likely due to the more stringent interdiction and interception methods employed by the U.S. government. This reduction suggested that fewer victims of human rights abuse were able to escape their persecutors and gain access to territories where their refugee claims could be examined.
Second, although the total number of asylum seekers fell, 95 percent of those with a credible fear (who entered through the expedited removal procedure) were detained along with 83 percent of those with defensive asylum applications (who appeared before immigration courts).
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 3.5 years.
ICE reported to Congress that it detained 230,000 aliens in FY 2003, of whom six percent were asylum seekers. These numbers suggest that far more asylum seekers are being detained in the United States than necessary — necessity being the only internationally accepted ground for detaining asylum seekers.
Release of Asylum Detainees
The authority to grant parole rests with ICE, the same authority that detains asylum seekers. Currently, there is no independent review of parole decisions, not even by an immigration judge. 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." 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.
This guidance, however, is merely advisory and has never been issued as a regulation or law. Consequently, there are wide discrepancies in the exercise of this discretion and no legal mechanism for enforcing compliance.
The 2005 USCIRF report 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.
International Standards and U.S. Practices
Although UNHCR's Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers are not binding, they 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. While the Guidelines call the detention of asylum seekers "inherently undesirable," they nevertheless contemplate circumstances in which detention of asylum seekers becomes necessary. These circumstances include when identity cannot be determined and when the applicant has committed fraud with the intention of misleading or refusing to cooperate with the authorities. Detention is also acceptable prior to a preliminary interview to determine the elements of the refugee claim and to protect national security and public order.
The UNHCR Guidelines are unambiguous: "Conditions of detention for asylum-seekers should be humane with respect shown for the inherent dignity of the person."
With respect to how asylum seekers should be treated when it is necessary to detain them, the Guidelines are unambiguous: "Conditions of detention for asylum seekers should be humane with respect shown for the inherent dignity of the person." The Guidelines maintain that "the permissible exceptions to the rule that detention should normally be avoided must be prescribed by law."
Yet, the U.S. criteria for the detention and release of asylum seekers nor the standards establishing acceptable conditions of detention are prescribed in law or regulations.
Furthermore, 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.
U.S. detention practices contradict a number of the specific UNHCR guidelines. For example, 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."
ICE policy, however, is to use detention as a deterrent to other would-be asylum seekers. The ICE response to the USCIRF report states, "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." UNHCR has roundly and often specifically criticized the U.S. government for contradicting this particular point.
In New Orleans, which has a disproportionately large number of undocumented boat arrivals subject to mandatory detention as a result of this policy, only 0.5 percent of persons who have passed credible fear screening are released on parole.
The Guidelines call for "the use of separate detention facilities to accommodate asylum seekers," and state flatly, "The use of prisons should be avoided."
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."
In stark contrast to the UNHCR Guidelines, about half of U.S. asylum seekers in detention are held in county jails, where, according to the USCIRF report, they are usually mixed in with the general criminal inmate population.
Conclusion: Alternatives to Detention
The human rights community generally views detention as an impediment to the right to seek asylum. Many also object to jailing asylum seekers on the simple humanitarian ground that many asylum seekers are survivors of torture and other trauma, for whom detention — particularly in harsh correctional facilities designed for and populated by criminals — is particularly oppressive.
UNHCR Guidelines recommend alternatives to detention, including release on bail, open collective accommodation centers, and imposing periodic reporting or residency requirements.
A number of pilot projects demonstrating alternatives to detention have met with great success. Non-governmental organizations under contract to the immigration service have provided supervision, and, in some cases, housing in community shelters and assistance in locating pro bono attorneys to help with their claims.
These projects have shown their effectiveness in cost savings and in ensuring that asylum seekers appear for their hearings. As such, they suggest an approach that satisfies both the U.S. government's 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.
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