Give Us Your Tired, etc., etc., etc.

By William Fisher

One year after the U.S. Department of Homeland Security (DHS) announced plans for a wide-reaching overhaul of America’s long-mismanaged immigration detention system, human rights and immigration advocacy organizations are charging that the U.S. government has yet to make significant progress toward the underlying goal of detention reform – a true shift from a penal to a civil approach to immigration detention.

One such group, Human Rights First (HRF), is taking aim at a particularly sensitive aspect of the detention debacle: the plight of refugees seeking asylum.

Annie Sovcik, Advocacy Counsel for HRF’s Refugee Protection Program, told IPS, “Of the approximately 400,000 immigrants held in U.S. immigration detention annually, a few thousand are refugees -- individuals who have fled persecution for political, religious and other reasons and are seeking protection in the United States.”

“Upon arrival, these refugees are shackled and transported to immigration detention centers where they are held in jail-like conditions and where they may remain isolated for months without adequate due process safeguards as their claims for asylum protection are adjudicated,” she charges.

Sovcik says this practice “undermines commitments the United States has made to protect refugees, violates obligations the United States has assumed under international law, and creates a barrier for refugees to access a fair asylum adjudication process.”

The Department of Homeland Security has pledged to reform the immigration detention system and move away from a jail-like system to one that is more civil in nature. HRF and other organizations welcomed this announcement in 2009 and also encouraged DHS to commit to reform its practices related to how decisions of who to detain or release are made.

But, Sovcik asserts, “Since the August 2009 announcement, while DHS has slowly worked on fulfilling its promise, 33,400 immigrants are held everyday in facilities that officials at the highest levels recognize is chronically flawed but have remained essentially unchanged.”

She added, “It is time for DHS to move toward implementing real improvements in the detention system and truly make the shift away from facilities modeled on the penal system. Everyday these reforms are delayed, more people continue to suffer.”

The DHS commitment to shift the immigration detention model from one based on correctional standards toward a civil model of detention was welcomed by most in the immigration community. They agreed that detained asylum seekers and other detained immigrants should not be held in prison-like conditions. “The purpose of immigration detention is limited to ensuring that detainees show up for their hearings and comply with removal orders. Immigration detention should not be punitive," said HRF’s Ruthie Epstein.

HRF’s Annie Sovcik said, "ICE should require changes to be implemented at existing facilities by the end of 2010."

The U.S. immigration detention system holds up to 33,400 detainees -- including asylum seekers -- every day. These detainees are currently held in a sprawling network of approximately 250 facilities (down from 341 a year ago) across the country. Some of these facilities are operated by Immigration & Customs Enforcement (ICE), the enforcement arm of DHS; others are run by private corrections companies or county jail systems.

Last year, DHS acknowledged that its detention beds were located in facilities "largely designed for penal, not civil, detention." Key among its 2009 reform plans was a commitment to shift to a non-penal, or "civil," model of immigration detention.

DHS's announcement in 2009 came on the heels of two government reports that had concluded that the U.S. immigration system was inappropriately modeled on correctional systems. One was from Dr. Dora Schriro, former Director of the Arizona and Missouri state corrections systems and currently Commissioner of Correction for New York City, and the other from the bipartisan U.S. Commission on International Religious Freedom.


HRF’s recommendations for new civil standards and changes to existing facilities include:

Allow asylum seekers and other immigrant detainees to wear civilian clothing rather than prison jumpsuits; contact visits with family and friends in all facilities; true outdoor recreation space, and expanded access throughout the day; and increased freedom of movement within secure facilities.

Stop detaining asylum seekers and other immigrants in penal facilities, and create nationwide alternatives to detention.

DHS should work with the Department of Justice (DOJ) to provide all detained asylum seekers with access to custody hearings so that the need for their continued detention can be assessed by an immigration court.

Another serious glitch in the asylum-seeking process is the application deadline imposed by Congress. A new study has revealed that one in five refugees seeking protection in the United States is denied asylum because they do not apply within one year of their arrival and thus miss the 12-month deadline imposed by Congress, according to a study of the Board of Immigration Appeals' (BIA) asylum decisions.

"The one-year deadline results in the denial of asylum, a basic human rights protection, because of a technicality," said Mary Meg McCarthy, executive director of the Heartland Alliance's National Immigrant Justice Center.

"The BIA is making a bad law worse by arbitrarily denying exceptions to the deadline and putting the lives of men, women, and children at risk," she added.

The study's conclusions are detailed in a new report, “The One-Year Asylum Deadline and the BIA: No Protection, No Process.” The report was prepared by Heartland Alliance's National Immigration Justice Center's National Asylum Partnership on Sexual Minorities; Human Rights First; and Penn State University’s Law Center for Immigrants' Rights. The report is the first to examine how the asylum deadline is handled by the BIA, the highest level of administrative appeal available to asylum seekers.

In addition to the 20 per cent of asylum cases denied because of filing after the deadline, in 46 percent of the 662 filing deadline denials, the BIA did not provide any reason for the denial of the asylum application other than that it was submitted after the filing deadline.

And of the 662 filing deadline denials, the BIA did not recognize any exceptions to the filing deadline. When an immigration judge granted an exception to the one-year deadline, the BIA affirmed that decision 75 percent of the time. By contrast, when an immigration judge denied asylum based on the one-year deadline, the BIA affirmed the decision 96 percent of the time.