Friday, February 11, 2005


By William Fisher

In the same week that the U.S House of Representatives passed restrictive new legislation that would make it far more difficult for refugees to gain asylum in the U.S., another arm of government, the U.S. Commission on International Religious Freedom (CIRF), issued a report charging that asylum-seekers are often jailed for long periods, treated like criminals, deported in a capricious and inconsistent manner that shows “extreme disparities” in who is granted asylum or deported, and are likely win asylum only if they have lawyers.

The House passed the REAL-ID Act, authored by conservative Republican James Sensenbrenner of Wisconsin by a vote of 261 to 161, with 42 Democrats joining 219 Republicans in the majority. President Bush endorsed the measure, but did not actively lobby for its passage. Instead, he is pressing for a ‘guest worker’ program that would facilitate the entry of more immigrants, especially from Mexico and elsewhere in Latin America, who provide low-cost labor for jobs Americans do not seem to want.

The REAL-ID bill now goes to the U.S. Senate, where it is likely to face stiff bipartisan opposition. Sensenbrenner introduced a similar bill in the last session of Congress as part of the intelligence reorganization legislation designed to implement the recommendations of the 9/11 Commission, but immigration provisions were largely stripped from the final bill by the Senate as a compromise to assure passage of the broader legislation.

The bill would block states from issuing driver's licenses to illegal immigrants, restrict asylum , and complete a controversial border fence between San Diego, California, and Tijuana, Mexico. The White House said in a policy statement issued hours before debate began that the bill would "strengthen the ability of the United States to protect against terrorist entry into and activities within the United States." But immigration advocates, groups supporting civil and privacy rights, and state government organizations opposed the bill. They said it would make it harder for those fleeing persecution to seek asylum in this country and would endanger public safety and national security by denying driver's licenses to millions of illegal immigrants.

Meanwhile, the U.S. Commission on International Religious Freedom (CIRF), established under the International Religious Freedom Act of 1998 (IRFA), announced results of a study of how a new immigration procedure – Expedited Removal – was affecting asylum-seekers.

The study found that asylum-seekers are consistently detained in jails or jail-like facilities, along with criminals and aliens who have committed criminal offenses.

Immigration judges, the study concluded, had significantly different rates of granting or denying asylum claims, even within the same court, and immigration officers sometimes improperly encouraged asylum-seekers to withdraw their applications for admission.

In 15 percent (12/79) of observed cases, the study said, when an arriving alien expressed a fear of return to the inspector, the alien was not referred for a hearing. “Among these twelve cases were several aliens who expressed fear of political, religious, or ethnic persecution, which are clearly related to the grounds for asylum. In seven of these twelve cases, the inspector incorrectly indicated on the sworn statement that the applicant claimed he had no fear of return.”

Most DHS procedures lack effective quality assurance measures to ensure that they are consistently followed, the study declared. “Consequently, the outcome of an asylum claim appears to depend not only on the strength of the claim, but also on which officials consider the claim, and whether or not the alien has an attorney.“ Asylum-seekers without a lawyer had a much lower chance of being granted asylum (2%) than those with an attorney (25%).

While DHS policy favors the release of asylum-seekers who have established credible fear, identity, community ties, and no likelihood of posing a security risk, implementation of these criteria also varies widely from place to place. The study found there was little documentation in the files to allow a determination of how these criteria were actually being applied.

The study said that in denying asylum applications on the basis of credibility, immigration judges frequently cited documents the study found to be unreliable and incomplete.

It added that there are serious impediments to communication and information-sharing within DHS. Unreliable and/or incomplete documentation “is susceptible to being misinterpreted”, or “misapplied by the immigration judge, and may ultimately result in the denial of the asylum-seeker’s claim.”

The study noted that the Board of Immigration Appeals (BIA) sustained 24% of Expedited Removal asylum appeals in fiscal year 2001, only 2-4% of such appeals have been granted since 2002, when the court began allowing the issuance of “summary affirmances” rather than detailed decisions. “It is highly unlikely that any asylum seeker denied by an immigration judge will find protection by appealing to the BIA.”

It noted that Expedited Removal has been expanded twice in recent years, “without first addressing the flaws in the system which undermine the protections for asylum seekers”.

The study recommended that the incoming Secretary of Homeland Security “ensure that it is no longer he – but a high ranking official who reports to him – who is responsible for coordinating refugee and asylum matters among the various bureaus. Without day-to-day oversight of asylum policy and its implementation department-wide, the flaws in the system identified in this study cannot be effectively addressed”, leaving asylum-seekers “at risk of being returned to countries where they may face persecution.”

The study also recommended that the DHS should: Create an office -- headed by a high-level official --authorized to address cross-cutting issues related to asylum and expedited removal; ease the burden on the detention system, the immigration courts, and bona fide asylum seekers by allowing asylum officers to grant asylum in approvable cases at the time of the credible fear interview; promulgate regulations to promote more consistent implementation of existing parole criteria to ensure that credible asylum-seekers are released from detention; reconcile conflicting field guidance to require that any expression of fear at the port of entry must result in either a referral for a credible fear determination or contact with an asylum officer to speak to the alien via a telephonic interpretation service to determine whether or not the alien needs to be referred; facilitate legal assistance for asylum seekers subject to expedited removal; and implement and monitor quality assurance procedures to ensure more reliable information for homeland security purposes, and to ensure that asylum seekers are not turned away in error.

CIRF is an independent, bipartisan federal agency created to monitor religious freedom in other countries and advise the President, Secretary of State and Congress on how best to promote it.

The two key government departments in immigration matters – the DOJ and the DHS – have new leadership in the second Bush term. Former White House Counsel Alberto Gonzales has become the new Attorney General, and a former DOJ official and now a Federal Judge, Michael Chertoff, is expected to be confirmed next week to head the DHS. Both have been criticized by human rights groups for helping shape post 9/11 U.S. policies on immigrant detention and prisoner abuse.