By William Fisher
The United States is a country that has been built on immigration and by immigrants. For more than two centuries, people have come from all over the world to be Americans. And for all that time we have taken pride in our ability to integrate people from many backgrounds into one – E Pluribus Unum! Why, we even have a statue in the harbor of our largest city to welcome those from foreign lands: Give me your tired, your poor, Your huddled masses, et cetera.
So it should be no surprise that we wonder how our immigration authorities ever managed to get their work so totally screwed up.
Undoubtedly, illegal immigration has a lot to do with this situation. We can’t seem to control our borders, a thing that every nation needs to be able to do. And, especially in times of economic distress, we tend to get maddest at those who have taken advantage of this deficiency of ours.
But a lot of us were mad long before our economy got into distress. Some people just don’t like the idea of foreigners flouting our laws. Others believe that these illegals are taking jobs away from Americans. Still others complain that they are driving down the wages of American workers. Then there are those who simply don’t like folks who are “not like us” –who they claim are raising the violent crime rate in our country.
Still, wouldn’t you think that after a couple of hundred years of immigration, we’d have figured out how to run this system?
Well, there’s lots of evidence that we haven’t. There are some 12-14 million undocumented workers and their families in the U.S. today. We keep telling one another we can’t possibly deport all of them. Yet our immigration authorities keep running raids on the places where these undocumented folks are working, and rounding up hundreds to be deported. Now, we’ve even got a program that gives local law enforcement officers the authority to arrest and detain suspected illegals.
These people are often whisked away from their families to detention centers, which can be federal facilities built for illegal immigrants, state prisons, or county, town or private jails. These facilities are frequently far from the places where their apprehension took place, so the detainees often have no access to the records they’ll need to plead their cases for staying in the U.S. They also have no access to lawyers, to telephones, or to their families. Due process is in pretty short supply in the immigration maze.
Immigration authorities detain more than 300,000 men, women and children every year in a network of some 400 private facilities and state and local jails. Unlike other federal incarceration systems, there are no binding regulations that govern the conditions in those facilities.
And, those conditions can only be described as subhuman – dangerously filthy, and without the most rudimentary sanitary facilities or basic medical care.
Those occupying these hell-holes include thousands of legitimate refugees and asylum seekers — who pose no danger to the United States and who have committed no acts of wrongdoing. They are being labeled “terrorists” and their applications for protection are being denied or delayed because of overly broad “terrorism” provisions in the Immigration and Nationality Act (INA). More than 18,000 refugees and asylum seekers have been directly affected by these provisions to date.
The detention and deportation issue is further complicated by immigration judges, many of who were political appointees during the George W. Bush administration and who have little or no experience in immigration law.
Most immigrants who appeal their cases to the Board of Immigration Appeals can not afford lawyers, though reliable data concludes that legal representation significantly increases their chances of winning, especially in cases where the immigrant is seeking asylum in the U.S.
While immigration officials are promising to clean up this disgraceful act – and Congress is slowly getting involved to make that happen – we learn of yet another Kafkasque regulation.
Each year, the US government sends officials overseas to interview thousands of people displaced by persecution and conflict, classifies a select number as refugees in need of resettlement, and brings them to the United States. After a year in the United States, every resettled refugee is required to apply for lawful permanent resident (LPR) status, more familiarly known as a "green card," in a procedure known as "adjustment."
The government does not formally notify them of the upcoming deadline and the refugees' limited English, ignorance about the requirement, confusion over the legal process, and lack of resources often keeps them from filing on time.
It will be hard to believe, but some of these refugees are actually jailed and held indefinitely for missing the paperwork deadline. And their detentions continue to be selective and arbitrary, and in violation of international human rights law.
We know about this newest Emma Lazarus nightmare because Human Rights Watch just published a report about it -- "Jailing Refugees: Arbitrary Detention of Refugees in the US Who Fail to Adjust to Permanent Resident Status.”
The 40-page report examines the detention of refugees for failure to file for lawful permanent resident status, even though US immigration officials already put them through a thorough vetting process at the time they were recognized as refugees.
The report recommends changing US law to close the legal loophole that allows for detaining these refugees and to give them lawful permanent residence when the US grants them asylum or admits them to the country under its overseas refugee resettlement program.
"For the US government to bring persecuted refugees to this country and then turn around a year later and jail them because they didn't file immigration forms is ironic to the point of absurdity," says Bill Frelick, refugee policy director at Human Rights Watch. "This mindlessly bureaucratic policy unnecessarily traumatizes refugees and their families, not to mention wasting the government's resources."
The report is based on interviews with 17 refugees in immigration detention in Arizona and Pennsylvania and with legal aid providers in Arizona, Pennsylvania, Maryland, New York, and Washington, DC, all of who worked with refugees detained for failure to adjust their status.
Sebastian Nyembo (a pseudonym) was only eight when he was resettled from the Democratic Republic of Congo. He did not know about the requirement. "I was eight years old," Sebastian told Human Rights Watch. "My father passed away. When I got older I realized I needed it, but I didn't know it was mandatory."
When Human Rights Watch visited him in August 2009 at the remote Eloy Detention Center in the Arizona desert, he had not spoken to his two children, ages 7 and 4, since his arrival four months earlier. His son has sickle cell anemia, which requires expensive medical care, but Sebastian had been unable to provide for the children since his detention. "My wife, she been going through a lot," he said. "My house went for foreclosure."
Although the law is not applied uniformly, ICE interprets section 209(a) of the Immigration and Nationality Act as mandating detention of all refugees who have been in the US for 12 months who have not filed to adjust their status, until they have filed for adjustment and their applications have been adjudicated. In Arizona, where Human Rights Watch conducted most of its interviews, refugees were sometimes detained for several months in remote, desert locations, and in some cases for longer than a year, without being formally charged with any legal offense.
The majority of resettled refugees interviewed by Human Rights Watch said that before their detention, they were unaware that they were required to file for adjustment of status. Most believed that filing for adjustment of status was optional, and were unaware of any potential legal repercussions for failure to file after one year.
"These people are no danger to their communities, nor are they a flight risk," Frelick said. "But detaining them separates them from spouses and children, interrupts their education and costs them their jobs - not to mention the new trauma for those with post-traumatic stress disorder."
The US is a state party to the International Covenant on Civil and Political Rights, which states that no one shall be subject to arbitrary arrest or detention (Article 9). This prohibition means that a person may be deprived of liberty, even if provided for under domestic law, only to meet a legitimate aim, and only in cases where it is necessary and proportionate, such as when alternatives to detention are not possible. An arrest or detention is arbitrary if not carried out in accordance with domestic law, or if the law is itself arbitrary or extremely broadly worded.
Failure to adjust immigration status is not a chargeable criminal or civil offense. So unlike sentences of a specific length imposed for criminal convictions, the length of detention for resettled refugees is indefinite. When people are detained for this reason, they are held until they complete their application and the application has been fully adjudicated. This may take 4 to 6 months, and in some cases longer than a year.
"Jailing Refugees" urges the US Congress to change the law that currently permits ICE to detain these refugees and calls on Congress to grant legal permanent residence to all recognized refugees in the US, given that their cases have already been considered in depth as part of the asylum or refugee resettlement process. In the meantime, it also calls on ICE to stop detaining these refugees and to permit them to file for adjustment from their own homes and communities.
The experience of being detained often without understanding why or how to get out of detention can cause great anxiety and depression. Sebastian Nyembo told Human Rights Watch "I'm a good person, a good hearted person, but I'm gonna give up. I don't have no fight in me."
Some might argue that the current law should remain unchanged because it gives US immigration authorities an opportunity to examine refugees after one year to see if they should be removed because of criminal behavior. "Jailing Refugees’" central recommendation that refugees be admitted with lawful permanent resident status would still allow US immigration authorities to put criminals into removal proceedings. "Under existing law, US immigration authorities have ample grounds for initiating removal proceedings against lawful permanent residents convicted of crimes and for detaining them during those proceedings," said Frelick.
Now, none of this will come as news to the Department of Homeland Security, the super-bureaucracy that runs our immigration machinery, and its Immigration and Customs Enforcement (ICE) unit. The Secretary of DHS, Janet Napolitano, has already taken a lot of heat for the incredibly poor performance of ICE. She has outlined her plans to improve and reform conditions for thousands of refugees currently being held in detention.
And there have been a few other changes as well. For example, Attorney General Eric Holder has recently reversed a Bush-era order that said immigrants facing deportation do not have an automatic right to an effective lawyer. He said the government would appoint lawyers for immigrants contesting their deportation.
This may be a notch or two better than the silence we heard under President Bush, who tended who have a “heck of a job” attitude toward Michael Chertoff, DHS secretary during the second Bush term.
But one could be forgiven for being just a tad cynical about real reform any time soon. Because even the Obama Administration knows that undocumented immigrants don’t vote.
This article originally appeared in Truthout.com.