Thursday, December 30, 2004


By William Fisher

The law to reorganize US intelligence services was passed at the 11th hour in the last Congress partly because of a compromise that eliminated a number of controversial anti-immigration provisions. But the sponsor of those provisions says he intends to reintroduce them as “must pass” legislation “on the first day of the 109th Congress in January.” With President Bush, many human rights groups, most Democrats, and a number of civil libertarian conservatives arrayed against measure, the action is destined to trigger a fierce battle on Capitol Hill.

Said Congressman James Sensenbrenner, a Republican from Wisconsin and powerful chairman of the House of Representatives Judiciary Committee: “These common-sense provisions are aimed at preventing another 9/11-type attack by plugging holes in our homeland security efforts. We must address these vulnerabilities very soon because we know America’s enemies diligently probe our vulnerabilities to carry out their deadly intentions.”

Most media coverage of last session’s immigration proposals focused on such issues as establishing uniform security standards for drivers’ licenses and border security, such as closing the three-mile hole in the U.S./Mexico border fence near San Diego, California.

But the provisions that are far more worrying to human rights groups and civil libertarians relate to tightening asylum regulations. For example, the legislation would allow immigration judges to determine witness credibility in asylum cases with significantly reduced opportunity for appeal, stipulate that all terrorism-related grounds for inadmissibility are grounds for deportation, and provide for the ‘expedited deportation’ of immigrants and visitors, even to countries where they are likely to face prison torture.

Human rights groups have been unanimous in their opposition to these provisions.

According to Susan Benesch of Amnesty International USA, the Sensenbrenner provisions “would prevent refugees from finding save haven in the United States and erode their chance for due process in presenting their asylum claims.” She told IPS in an email interview that “these anti-refugee and anti-immigrant measures were not recommended by the 9-11 commission for good reason -- they would not improve our national security. On the contrary -- they would deny safety to people whose own security is in danger.” Amnesty, she added, “also opposes the outsourcing of torture - - the United States is bound by the UN Convention Against Torture to prevent or punish torture, certainly not to facilitate it.”

The legislation reorganizing the intelligence community was based on the recommendations of the 9/11 Commission, established to investigate the attacks of September 11, 2001. The Sensenbrenner recommendations were not part of the Commission’s recommendations.

Much of the controversy surrounding the Sensenbrenner immigration provisions stems from the widespread round-ups of primarily Arab and Muslim immigrants and visitors after the 9/11 attacks and again just prior to the 2004 presidential election. More than 5,000 people were arrested, and many detained for long periods with access to legal counsel. None were charged with any terror-related crime. Many were deported, some to countries where they were likely to be arrested again and face torture in detention. The US Department of Justice (DOJ) has refused to disclose the names of any of the detainees.

But Amnesty’s Benesch says her organization “would be equally opposed if no Muslims had been rounded up” because the government was denying long-established asylum rights.

Mark Dow, author of ‘American Gulag: Inside US Immigration Prisons told IPS, “even sympathetic observers continue to believe that though the post-911 roundup failed to catch terrorists, it was intended to do so. This ignores the evidence that roundups were at least in part a cover to make it look like the Justice Department was doing something.” He added: “It is less the case, as is commonly asserted, that roundups of Arabs and Muslims were intended to fight terrorism than that terrorism was used as a pretext to justify the roundups -- a pattern that is in full force today around the country”. The INS was separated into three agencies, one of which is the U.S. Immigration and Customs Enforcement (ICE). All are now part of the new Department of Homeland Security.

One of the few Sensenbrenner provisions that made it into the final law increased the numbers of beds in detention facilities. Of this, Dow calls it “unconscionable to give DHS more detention capacity. Instead, Congress should establish a permanent independent oversight system to review the legality and humaneness of all current and future immigration detainee cases, and to monitor the treatment of all detainees. Ultimately, detention authority should be removed from DHS except in emergencies and for strictly limited periods. The immigration service has shown its unwillingness and inability to run a humane and lawful detention system.”

Washington sources believe most of the original Sensenbrenner proposals are likely to make it into the new bill. These include:

·“Expedited Removal” – allowing immigration enforcement officers to deport without a hearing any non-citizen not admitted to the U.S. by immigration authorities and who has been here for less than five years. This could result in the summary deportation of people who could face serious harm if deported. According to Human Rights First (HRF), an advocacy group, “These provisions place broad uncontrolled power in the hands of immigration officers whose decisions are not subject to formal administrative or judicial review.”

·Summary deportation of battered spouses, children whose unlawful entry into the U.S. was connected to the abuse they suffered, and victims of human trafficking and victims of serious crimes such as rape, torture, trafficking, incest, domestic violence, sexual assault, involuntary servitude, kidnapping, and abduction.

·“Preventing Terrorists from Obtaining Asylum” is, according to HRF, “is NOT about preventing terrorists from getting asylum. Terrorists are already barred from asylum.” This section, the group says, would allow genuine refugees to be denied asylum if they were unable to document relevant conditions in their countries through State Department reports, could not prove their persecutor’s central reason for harming them, or had any inconsistencies between statements made to any U.S. government employees and their testimony before an immigration judge.

·Permitting adjudicators to deny asylum because they are unable to provide corroborating evidence of “certain alleged facts pertaining to the specifics of their claim.” This provision, says HRF, “would disproportionately harm asylum seekers who are held in jails and detention facilities, and the many who are not represented by legal counsel.”

·Giving adjudicators broad leeway to deny applicants asylum based on factors such as their perceived “demeanor”.

·Allowing an asylum applicant to be denied asylum on grounds of credibility if the abuse suffered or feared was not documented in the annual country conditions reports of the Department of State.

·Eliminating stays of removal pending judicial review, allowing refugees to be returned to the persecution they fear while their cases are pending in federal court. According to HRF, “This provision, applicable to ALL immigration cases, would have a particularly devastating impact on refugees and persons facing torture if they are deported.”

·Eliminating all judicial review for persons claiming protection from removal under the Convention Against Torture (CAT) who are barred from direct review by the court of appeals.

·Requiring that anyone not deported be detained indefinitely. This provision, says HRF, “runs afoul of international legal standards against arbitrary detention. In addition, the Supreme Court has already stated that ‘a statute permitting indefinite detention of an alien would raise a serious constitutional problem’.”

·Allowing the Department of Homeland Security to designate as a “specially dangerous alien” and detain indefinitely anyone who is barred from withholding of removal but has not been granted any protection against removal, while requiring the indefinite detention—without any showing or even allegation of dangerousness.

While the US media has largely focused on border security issues, US asylum policy has come under less scrutiny. However, “The New York Times” wrote in a September 25, 2004 editorial: “In jails and prisons across the United States, thousands of people are detained who have never been accused of crimes. The guards treat them like criminals, and the criminals they bunk with often abuse them. They are held for months, sometimes even years, but unlike the criminals, they do not know when their sentences will end. They receive this treatment because they are foreigners who arrived in the United States saying that they were fleeing persecution at home… They come here chasing America's promised liberty, and they end up in chains…locking up thousands of people who pose no risk and are accused of no crimes is expensive, unnecessary and a betrayal of America's commitment to the persecuted.”

For years, the INS has failed to furnish accurate numbers of asylum-seekers to the Congress, despite a Federal law requiring this data. Thus precise data is difficult to come by. The US Government suggests that there are about 22,000 detainees in US immigration prisons at any one time, and that on average several thousand of these will be asylum-seekers. Non-governmental sources estimate the numbers as many times higher. Other sources have estimated that in 2001, 86,180 people sought asylum in the United States; 68,400 applications were reportedly granted. Yet other sources report that in 2000, there were 48,054 asylum-seekers to the US, and 47,584 cases in the first nine months of 2001. Only a few hundred of the Muslims and Arabs rounded up after September 11th, 2001, were asylum-seekers, but many more were reportedly refugees.

President George W. Bush opposed some of the Sensenbrenner proposals, as well as measures introduced by others, in the bill he signed into law earlier this month. However, it is unclear whether he did so only to facilitate the compromise that allowed the bill to pass. The immigration issue is further complicated by President Bush’s own proposal for a ‘guest worker’ program. This program would grant multi-year work permits to non-citizens, including illegal aliens. The idea has drawn widespread bi-partisan opposition in Congress.