Thursday, Jan. 26, 2006
8:30 a.m. – 10:00 a.m.
National Press Club
Washington , D.C.

Fortress America: Asylum and Refugees
Part two of a four-part series
Presented by the ABA’s Section of Individual Rights and Responsibilities

Welcome:
Paul Igasaki , Chair, Section of Individual Rights and Responsibilities, American Bar Association

Moderator:
Eleanor Acer, Director of Asylum, Human Rights First

Panelists:
Bo Cooper, Paul, Hastings, Janofsky & Walker, LLP
Mark Hetfield, United States Commission on International Religious Freedom
Cheryl Little, Executive Director, Florida Immigrant Advocacy
Jonathan Nelson, The Christian Legal Society
Rachel B. Tiven, Executive Director, Immigration Equality
Wendy Young, Director of Government Relations, Commission on Refugee Women and Children
Stephen Yale-Loehr, True, Walsh & Miller, LLP

Paul Igasaki:
I’m Paul Igasaki, Chair of the Individual Rights Section and my day job, I am Executive Director of the Rights Working Group. A coalition of human, civil and immigrant rights organization committed to restoring the rights restricted in the wake of 9/11/01, including many of the issues our panel will address here today. The Individual Rights Section of the ABA is dedicated to civil and human rights on behalf of America’s lawyers. This Section has played a leadership role in immigration, immigrant rights issues going back to its beginning. When I first arrived in D.C. 15 years ago, I served as an advocate for civil rights and I testified as a representative from this Section in defense of fair and family immigration policy. Immigration has always played a critical role in defining this nation. Indeed, we are a nation of immigrants, and addition to many coming to this country seeking opportunity our role as a nation dedicated to freedom led many fleeing oppression and even death to come here in hopes of life and justice. President Wilson once said, ‘This is a country that experiences constant rebirth.’ Other countries depend on the multiplications of their own native people. This country is constantly drinking strength out of new sources by the voluntary association with it of men and women of different lands. By the gift of free will and independent people, we are being constantly renewed generation to generation of the same process which was originally created. It’s as if humanity was determined to see that this great nation, founded for the benefit of humanity, could not lack for the allegiance of the people of this world. In recent years, we’ve seen debate over this renewal of America’s future. What we face in this new year, is something far more radical than what we have seen before. We have seen ethics criminalizing with reason and to criminalize those who would help those in dire need. This has even affected those people who are fleeing the oppression we say we are against. Asylum would be restricted with higher standards and greater limitations as to the central reason of the persecution. Women particularly would be disadvantaged and unrealistic standards are being set, consistency in the words of people desperate to leave hostile countries. As America’s leaders preach for liberty in countries around the globe, we are seeing efforts to limit that liberty at home. In the name of security and the face of terrorism, some seek to give up forms of liberty that we are fighting for. As Ben Franklin once said, ‘By giving up that for safety we will get neither.’ Our section of ABA through our Committee of Rights of Immigrants, we say that it is essential that we understand that new proposals, law and practices that would change the very essence of America. The ABA, ironed in traditions, and importantly the role of law and due process must be maintained. Our first panel on this topic explained the need for a complete approach of immigration reform. This panel will be moderated by Eleanor Acer of the Human Rights Fund; Human Rights First, excuse me. She will address how the asylums and refugees are affected in this atmosphere of dramatic cutbacks and due process immigration general. Following this, we will have panels that will address detention and the admission of immigrants. It will be a very interesting panel and I thank you all for being here today.

Eleanor Acer:
Thank you very much for that introduction. Good morning and thank you all for joining us here this morning. I would also like to thank the American Bar Association for organizing this presentation and our panelist for being here today. My name is Eleanor Acer. I am the director of the Refugee Protection Program at Human Rights First. The concept of asylum has very deep roots in this country. The pilgrims themselves fled to these shores in search of a safe haven where they could practice their religion freely. In the wake of World War II, countries came together and drafted a new treaty and protocol through which they pledge to never again return those who flee from persecution back into the hands of their persecutors. The United States chose to take on this commitment. The U.S. has, in many ways played a leading role in the efforts to protect refugees who are at risk around the world. And we extend this protection to some of these refuges who have formal resettlement programs. But how does the U.S. treat those refugees who flee to our shores or our airports in search or protection or to quote Amalazerous, ‘yearning to breathe free.’ Are we living up to these commitments? How does September 11 th affected those who need protection? And how have the new policies, practices and laws that have been implemented in the wake of the attacks effected asylum? Asylum and immigration responsibilities were transferred from the old INS to the new Department of Homeland Security nearly three years ago. How is the department of Homeland Security and the Department of Justice, which on continues to oversee the immigration court system, handling their responsibility of asylum seekers? What reforms have been recommended and what changes need to be made to ensure that the United States lives up to its commitment to provide asylum to those who are in need of protection. Our panelists here today are going to help us grapple with those questions. Our first speaker is Bo Cooper, former General Counsel of the Immigration and Naturalization Service and a professor at the University of Michigan Law School. Thank you Bo.

Bo Cooper:
Good morning and thanks very much. It is a pleasure to be here and to share the panel with my colleagues here. We are going to talk this morning about concerns to explore concerns about diminished performs in this country of our protection function. I would like to focus on one particular and central aspect of our asylum system and that is how we decide who is a refugee. How we decide who it is who is in need of this countries protection, because they can’t get protection from the government of their homeland. And to set a foundation for our discussion this morning, I would just like to have a quick glance backward over the last 15 years and see how asylum protection has evolved in the last decade and a half. We certainly had asylum laws in place and asylum program before 1990, but I think it’s fair to say that the U.S. government was not doing as good as one would hope at figuring out who was a refugee. And so in around 1990 the government undertook some very extensive reforms to the asylum programs to take much more seriously this job of identifying its refugees and bestowing protection on them and got much better. It recruited a core of asylum officers and trained them specially and established a sophisticated source of information for them about country conditions and human rights circumstances around the world and so forth. I think it got much better at identifying refugees in its asylum process. But it wasn’t so good during that period at deciding that efficiently and the system began to quickly collapse under its own weight. So in 1995, it undertook a pretty widespread overhaul of the system to try to maintain its ability to identify refugees effectively, maintain its approved ability to do that and at the same time become much more efficient so the system wouldn’t draw unnecessary fabricated claims, so that true refugees could be provided protection more quickly and essentially to rescue the system from a near state of crumble at the time. It did, I think, succeed in large measure at becoming more efficient. It made change like having far more adjudicators, making decisions much more quickly so that asylees could gain their full range of protection more quickly, better establishing links to the immigration courts for deportation proceedings for those found not in need of protection and making a less automatic link between the mere filing of an asylum application and permission to work so that there wouldn’t be an inordinate draw on the system by those who are more in need of employment than in need of protection. Those reforms, I think, were enough of a success when Congress really overhauled the immigration statute in 1996 in a very restricted way. It did make a couple of changes that affected the asylum system, changes that we will explore this morning. One is the establishment of an expedited removal system and the second was an imposition of a one year deadline on filing asylum claims. But with those exceptions, for the most part, it left asylum essentially alone. It didn’t make nearly the kinds of expansive and restricted changes in the asylum area that it saw fit to make in other aspects of the immigration policy arena. Instead it simply codified what the agency had done in 1995. Another thing happened though during the 1990s. I think it’s fair to say the government placed a lot of focus on this question of how it should decide who is a refugee and it forged a fairly broad interpretation to that question and took a role, in my view along with a handful of other countries, as a leader internationally in deciding who is a refugee and providing those persons with protection. So for example, you saw the government take positions that those inflicted with an incurable disease like HIV could be entitled to refugee protection if they were being persecuted on that basis and couldn’t get protection at home. You saw the government taking a position at risk because of their sexual orientation. If they couldn’t get protection from their own government could be entitled to refugee status. Those at risk of ritual mutilation. In short the government approached news kinds of asylum questions that were different from this sort of classic political persecution circumstance in a way that was relatively broad. Remember, this at the time, it was the position of the INS and a lot of countries, a lot of the other countries that were taking these fairly broad positions, it was more that the courts would come up with these conclusions than the executive agency would be dragged kicking and screaming along towards those conclusions. But in this instance it was really the INS taking a comparatively broad approach to these questions about who is a refugee. That, I think, seems now to be changing and I think that change has to do as much with governmental structure as it does with what many consider to be the post 9/11 climate. The Department of Homeland Security was built on the idea that a better governmental structure will yield better governmental decision making but I think in the asylum context the process has become more effective, I’m sorry, more complicated and less effective rather than more. I think that’s for a couple of reasons. One, there is a much more divided and complex structure for decision making. Within the Department of Homeland Security you’ve got two entirely distinct bureaus, one that has immigration enforcement as its responsibility and one that has immigration benefits. There’s not as ready a process for taking and evaluating and combining the views of those two agencies and coming up with a unified view within DHS. Now once that’s done though, then there’s the process of coordinating with the Department of Justice that retains some very important asylum decision making functions. The immigration courts rest in the Department of Justice and litigators that present the views of the United States in the federal courts reside within the Department of Justice. I don’t think we’re seeing an effective coordination amongst those various pieces with respect to asylum and refugee interpretation decision making. Let’s take an example. What does that mean actually? That means, I think, that there is no consensus within the executive branch about who’s the primary decision maker with respect to who is a refugee. That is, who has the primary or first voice in inter-agency discussions about how the refugee definition is interpreted? Or in litigation context, who is really the client? So if we look at, for example, of how someone could gain asylum on the basis of domestic violence, that’s a long unsettled question. A claimant who’s making that claim, if they went before the asylum offices of citizenship and immigration services, it’s quite likely to be granted asylum if she could show she can’t gain the protection of her government. If that claim goes before the immigration courts then there’s not going to be clear guidance to the immigration judges or even to ice trial attorneys about which position to take. So it’s much less certain about what’s going to happen there. If that claim reaches the federal court, it’s quite certain, or quite likely at least, that the government litigators are going to take the view that that’s not going to be basis for asylum. So what you wind up with is a splinter process for deciding what the government thinks on these key issues and that makes a day to day real life high stakes difference for many thousands of asylum seekers. To wrap up, clearly the government has got to do much better at its performance in their enforcement and security realms in immigration. There’s no doubt about that and the government owes it to it’s citizenry, to all those in this country to improve those functions. The government is showing very important signs in being able to balance the needs for those improvements with the needs to fulfill the other functions of the immigration statute. For example, just last week Secretaries Rice and Chertoff announced a joint initiative that was aimed both at improving securities and facilitating student visitor, cultural, and other critical travels to the United States. I don’t think that we’re seeing the same kind of careful balance between enforcement and protection functions in the government today either in Congress or in the executive branch. Protection is just as much a part of our immigration law as enforcement.

Eleanor Acer:
Thank you very much Bo. Our next speaker is Mark Hetfield, the Director of International Refugee Issues at the U.S. Commission on International and Religious Freedom.

Mark Hetfield:
Thanks. I directed the study on asylum seekers and expedited removal for the bi-partisan U.S. Commission on International and Religious Freedom. The study was released on February 8 of last year and is available on our website at uscirf.gov. In 1996, concerned that improperly documented aliens could entire the U.S. and then disappear while waiting for a hearing, Congress enacted legislation creating expedited removal. A procedure which allowed immigration officers to summarily remove aliens who arrive without proper travel documents. Prior to that time, an individual could only be removed with a hearing before an immigration judge. As we know most famously from Earl Rosenberg who issued 20,000 false Swedish passports to Hungarian Jews to rescue them from the Holocaust, the persecuted often rely on false documents to flee and claim asylum. Acknowledging this as well as our treaty obligations under the Refugee Convention, Congress and the Department of Justice created screening procedures for expedited removal to prevent bona-fide asylum seekers from being expeditiously removed to their persecutors. The expedited removal process, however, occurs behind closed doors without outside monitoring, lawyers, or judicial review. The process is deliberately swift and opaque. In order to verify that asylum seekers are being protected as intended, Congress authorized my commission to conduct a study on the process. The Departments of Justice and Homeland Security cooperated with the study and our experts observed more than 400 inspections at seven ports of entry, reviewed more than 900 case files, surveyed 19 detention facilities and all seven asylum offices. In FY 2003, the last year for which we have available data 177,000 aliens were subjected to expedited removal at ports of entry. Of those 5,376 were referred to an asylum officer. What did we find in our study? DHS procedures require that the immigration officer read a script to the alien explaining that if he fears return for any reason he should explain that to the immigration officer without delay. Yet in more than 50 percent of the expedited removal interviews that we observed, this information was not conveyed to the applicant, even with us in the room. DHS procedures require the alien to review this sworn statement taken by the immigration officer, make any necessary corrections for errors in interpretation, et cetera. and then sign the statement. We found, however that while aliens sign the statement almost 100 percent of the time, 72 percent of the time they were not actually given the opportunity to review the statement. We found that sworn statements taken by the officers are not verbatim, are not verifiable, often attribute information conveyed to the alien which was never in fact conveyed and sometimes contained questions that were never asked. These sworn statements look like verbatim transcripts but are not. Yet, we also found that in 32 percent of the cases where immigration judges found an asylum applicant was not credible the immigration judges specifically relied on these sworn statements in denying the claim. DHS regulations also require that when an alien expresses a fear of return he must be referred to an asylum officer to determine whether he has a credible fear. Yet in nearly 15 percent of the cases, we observed again with us in the room, aliens who expressed a fear of return were nevertheless removed without a referral to an asylum officer. DHS, it seems trains their officers in requirements to protect asylum seekers and refugees but then fails to verify that the officers are actually following those procedures. While DHS has established national criteria to determine when asylum seekers and expedited removals should be release from detention, we found no evidence that this criteria is being implemented. We found wide variations in release rates across the country; specifically New Orleans releases only 0.5 percent or released only 0.5 percent of asylum seekers prior to their hearing. New Jersey released less than percent and New York percent. Yet San Antonio released 94 percent of their asylum seekers, Harlington percent, and Chicago 81 percent. The average alien with credible fear released after 60 days, one-third are held 90 days or more. Congress also asked whether or not these asylum seekers are detained under inappropriate conditions. Based on our surveys and visits to the largest of these facilities, we found that the facilities where asylum seekers are detained resembled in every essential respect conventional jails. Many facilities are in fact jails and prisons and some of those facilities asylum seekers are sleeping alongside convicts serving criminal sentences or alongside criminal aliens even though ICE detention standards do not permit non-criminal detainees to be co-mingled with criminals. ICE has experimented with alternatives to detention and has opened one secure facility in Bryer County, Florida which does not resemble a penal institution. Bryer, however unfortunately remains the exception. The overwhelmingly majority of asylum seekers referred for credible fear are detained for weeks or months and once in a while years in penal facilities or jail-line institutions. Finally, the study expressed concerns in whether or not asylum seekers are granted asylum depends largely on whether the asylum seeker is able to afford legal representation or find pro-bono counsel. We found that one in 4 asylum seekers who are represented aren’t granted asylum, whereas only one in 40 unrepresented asylum seekers succeed. The outcomes of the asylum seeker’s case also seem to depend largely on luck that is the immigration judge in which asylum seeker is assigned. Among immigration judges sitting in the same city who hear a significant number of asylum cases some grant close to zero percent while others grant over 80 percent. While asylum seekers can appeal one cannot rely on the appeal process to correct these disparities among immigration judges. We found that the Board of Immigration Appeals reverses immigration judges in asylum places in only two to four percent of cases brought by the alien. While we were conducting the study DHS expanded expedited removal authority to include not just immigration inspectors at ports of entry but to border patrol agents in the Tuscan and Loredo sectors along the southern border. When this study was released on February 8 of last year, we urged the department not to further expand expedited removal until the serious flaws we identified had been addressed and noted that all the commissions’ recommendations could be enacted without legislation. Since that time, DHS has further expanded expedited removal authority to border control agents across the entire southern border. Yet to our knowledge, not a single one of the studies findings have been addressed. This is both alarming and disappointing. We were optimistic originally that reforms would be enacted after the extensive media coverage received by the study, after good meetings with the leaders from the Executive Office for Immigration Review as well as Secretary Chertoff and after the Senate had raised the study in confirmation hearings for several DHS officials. In July, Secretary Chertoff wrote the Commission to indicate that he would be implementing one of the Commission’s recommendations, specifically he agreed to appoint a high level asylum refugee policy coordinator to correct the problem, in which Bo spoke about a few minutes ago, that there was no one at DHS short of the Secretary and the Deputy Secretary who had the authority to address the problems identified by the study. Since the three DHS bureaus which are involved in expedited removal report to the secretary through different chains of command. The senior asylum refugee policy coordinator has yet to be named. We are still awaiting a response from DHS on other findings and recommendations. In terms of DOJ and the immigration courts after September 26 front page article in the New York Times on the handling of asylum cases by immigration judges the attorney general announced an intensive review of the immigration courts. We hope this review will be an opportunity to address the concerns in which we also identified on the inconsistent treatment of asylum seekers. Thank you.

Eleanor Acer:
Thank you very much, Mark. Our next panelist is Stephen Yale-Loeher, Professor at Cornell University Law School and author of Immigration Law and Procedure. Thank you, Stephen.

Stephen Yale-Loeher:
I teach at an asylum clinic at Cornell Law School, so I have firsthand experience in dealing with asylum seekers. I also chair the Refugee Steering Committee for Amnesty International, U.S.A. So with that background, I want to give you a short lecture 101 on asylum law. Asylum law is one of the most complex sub-specialties in immigration law. I don’t really teach as part of my basic immigration law classes because I consider it to be too complex that I have a whole different seminar on it. And yet, when you get into the real world of representing asylum seekers, too many of them are not represented. Moreover, as Bo has already pointed out the asylum system structure and recent changes make it hard for a deserving asylum applicant to win relief. As background, people who are in the United States who fear persecution can either apply affirmatively to an asylum officer by citizenship and immigration services or defensively as we say, through an immigration judge. I want to focus on the immigration judge side of the system this morning. There are 215 immigration judges nationwide. They’re not independent like federal judges; they work for the Executive Office for Immigration Review which is a branch for the Justice Department. Some immigration judges are good, some are not so good. They are all very busy. They handled 350,000 matters last year. Not all asylum, but a lot of different immigration matters. That’s over 1,600 cases per judge per year that they’re responsible for. A Los Angeles Times study a few years ago, found that only 41 percent of the people appearing before immigration judges have lawyers. Only one percent of the applicants who did not have attorneys received favorable rulings compared to 23 percent who did have legal counsel. That means immigrants with lawyers are 17 times more likely to avoid deportation than those without them. Also as Mark just pointed out, like his study the Los Angeles Times study found a wide discrepancy in asylum approval rates among judges ranging between one and 80 percent. Here’s an example, in New York City an immigration judge named William Jankin, who is a former INS trial attorney, has approved only about 1.4 percent of the thousands of asylum cases that he has considered. Among the rejected applicants was a Jewish woman from Abestiskan who claimed she was beaten twice and fired from her job because of her religion. During her asylum hearing she cried, grasped her hand and played with the chain she wore around her neck. In denying her asylum request Judge Jankin mentioned that she fiddled with her jewelry and wondered whether, quote “her actions were showing that she was not being credible to the court.” Luckily, Judge Jankin’s decision was overturned on appeal and the woman was eventually granted asylum. The federal appeals court in Philadelphia wrote recently that it has in time and time again have been forced to rebuke immigration judges for their intemperate and humiliating remarks. The court noted a quote, ‘disturbing pattern,’ end quote of misconduct in asylum denials. The immigration court had this to say about an immigration judge in Newark, New Jersey, ‘the tone, the tenor, the disparagement and the sarcasm of the immigration judge seemed more appropriate to a court television show than a federal court proceeding.’ The federal court returned that asylum case back to a different judge for a rehearing. In addition to problems at the immigration judge level, there are also problems at the Board of Immigration Appeals. Appeals from the immigration judges are taken to the BIA, as it’s called, which is an administrative body that sits in Falls Church, Virginia. Like immigration judges, BIA members are not independent. They are employees of the Justice Department. Through the 1980s, the BIA had only five members yet was able to keep up with its workload. Over time, however the BIA began to build a backlog. At its peak in 2001, the BIA had a backlog of over 57,000 immigration appeals. To try to keep up with that backlog the Justice Department added BIA members. At its maximum the BIA had 19 members. To try to deal with the backlog of immigration appeals in 1999 the Justice Department issued a regulation to streamline the BIA’s procedures. Among other things, the regulation authorized the board to designate some cases as suitable for review by single board members as opposed to the usual three board member panels. It also authorized those single board members to affirm immigration judge decisions in certain circumstances without writing an opinion. Those are called summary affirmances without opinion. In 2002, Attorney General John Ashcroft expanded streamlining to basically all immigration appeals including asylum cases. The 2002 regulation makes single member adjudication the norm rather than the exception. The regulation also reduced the number of board members to 11. Some people at the time wondered how chopping the number of BIA members almost in half would help get rid of the backlog. It’s like saying we’re going to reduce traffic congestion by changing a four lane interstate into a two lane road. Over time the BIA has reduced its backlog through the extensive use of these affirmances without opinions but its just pushed the backlog onto the federal courts. I’m co-author of a new article about immigration appeals to the federal court published in the Georgetown Immigration Law Journal next month and which was mentioned in the New York Times article last month. We write in our law review article, that immigration appeals to the federal courts have increased dramatically over the last few years and the charts that are on the handouts show this huge increase. The problem is particularly bad for the federal appeals court for New York and California. For example, five years ago about 10 percent of all appeals to the federal appeals court in California were immigration appeals. Now immigration appeals constitute 40 percent of all appeals in California. While the surge is simply part of a result of the mere volume of BIA decisions it’s also a cause of the increase in percentage of BIA decisions that are being challenged. Federal courts are taking notice. For example, the seventh circuit which is the federal appeals court for Illinois and surrounding states, wrote that over the last year quote, ‘different panels of this court reversed the Board of Immigration Appeals in whole or in part a staggering 40 percent of the time. The adjudication of these cases at the administrative level has fallen below the minimum standards of legal justice.’ Thank goodness the federal courts are reviewing immigration appeals carefully, because of the streamline at the BIA federal court review is now often the only careful review that asylum applicants receive. As Mark has pointed out, the Justice Department has taken notice of this criticism and on January 9, Attorney General Alberto Gonzalez issued a memo chastising immigration judges for quote, ‘intemperate or even abusive’ conduct towards people seeking asylum. His review is now continuing and we’ll see what happens. To wrap up here are my five recommendations for what the attorney general and Congress should do. First, we should increase resources for immigration judges. They have too many cases and not enough staff. Second, we should increase resources for the Board of Immigration Appeals and we should add more BIA members. We should make sure that asylum cases are decided by panels of three BIA judges and not just one judge. Asylum cases are too important to do otherwise. More importantly, doing so will increase the likelihood of well-reasoned decisions. A little time and money spent at the administrative level will save money at the federal court level. Third, we should make sure that asylum seekers are represented attorneys or non-profit groups that are knowledgeable about asylum law. We require lawyers to represent defendants in criminal cases even if it’s for a minor crime like shop lifting. The same should be true for asylum cases where the stakes are much higher. Fourth, the BIA should not issue summaries of affirmances without opinions in asylum cases. And finally, Congress must preserve adequate judicial review for asylum seekers. Thank you.

Eleanor Acer:
Thank you, Steve. Our next panelist is Jonathan Nelson, a member of the Christian Legal Society.

Jonathan Nelson:
The Christian Legal Society through its center for Law and Religious Freedom defends religious liberty and the right of life from courts to Congress but the specific views and opinions I voice today are my own as a member of the Christian Legal Society. I thank the American Bar Association and you for allowing me to express a religious perspective in the public forum. My aim is to stimulate discussion and quicken hearts, not to turn you all into Presbyterians. I’ll start with a couple of Bible verses reminding us of how and why the golden rule applies to immigration policies that we pursue. Deuteronomy 10:18-19 says, ‘He, (meaning God) defends the cause of the fatherless and the widow and he loves the alien, giving him food and clothing. And you are to love those who are aliens for you yourselves were aliens in Egypt.’ In Exodus 23:9 it says, ‘Do not oppress an alien you yourself know how it feels to be aliens because you were aliens in Egypt.’ In the New Testament the Good Samaritan and the woman at the well were aliens. Jesus identified the Good Samaritan, that is the alien, as the example to follow rather than the callous and self-interested legal and religious figures who had no time to do justice for the injured man on the road. He also identified the woman at the well despite her apparent falls and shortcomings as worthy of his redemptive counsel and assistance. His teachings remind us that at our best we are all aliens set out to help other aliens find a place of safety in this world. These commands have universal moral authority. Indeed the world’s refugee laws, including America’s Refugee Act of 1980, were enacted out of a sense of shame that the nation largely failed to live up to these standards during the second World War. The Board of Protection Bill passed last month also misses the mark. Sections 203 and 604 of the bill would make unlawful presence in the United States an aggravated felony punishable up to one year and one day of imprisonment and permanently exclude any alien who has misused a social security number or an identity document. They would turn 11 million aliens into the worst class of criminals with a stroke of a pen. They would also make them ineligible to apply for asylum or almost any other kind of relief for removal. Surely, our security needs do not require us to justify us in the oppression of the aliens. America’s motto is ‘In God We Trust.’ If we trust God for our security then in enacting security laws should we not also honor God’s clear commands to respect and love the aliens among us. Another provision of the Border Protection Bill, Section 202, seems to expand existing prohibitions on alien smugglings to criminalize potentially pastors, doctors, and attorneys helping needy refugees and other fellow humans. This bad Samaritan provision could subject them or us to prison sentences for up to 20 years. We are already seeing criminal prosecutions in the United States of good samaritans who find aliens who are dying in the desert and take them to a hospital. These prosecutions under current law seem unwise. So does the proposal to extend the law to authorize the criminal prosecution of more good samaritans? In America, we have the right to practice our religions freely. Congress has directed the foreign governments to be judged by similar standards in the International Religious Freedom Act of 1998 or ERFA. CLS cosponsored and supported the enactment of ERFA, but CLS has become deeply concerned that administrative judges have been ignoring the findings, policies, and guidelines of ERFA in religious asylum claims and that government lawyers in the Office of Immigration litigation had been urging judges to contravene United States policy as expressed in ERFA. Last August, for example, the Fifth Circuit Court of Appeals upheld a Board of Immigration Appeals decision in the case of Lee v. Gonzales. That case involved a Chinese Christian who was punished for worshipping in a house church instead of the state approved church. The board had found that the government of China was not engaging in religious persecution by criminally prosecuting and beating Mr. Lee. The board found instead that China was exercising a legitimate sovereign right because it had not criminalized Mr. Lee’s beliefs but only his way of practicing his religion. The American religious community expressed outrage over this decision and the U.S. Commission on International Religious Freedom intervened for the first time ever in an individual case. CLS and others filed amicus briefs urging the court to reconsider its ill-advised decision. In October and November, the board and the court vacated their decisions in Lee, but the board has not yet repudiated its reasoning in that case and other similar problems are still occurring in other cases across the country. A Syrian case that has been cited in materials that have been published by the United States Commission on International and Religious Freedom are just an example of these. To address another issue that affects asylum applicants Christian values seem violated by the notion that we should have zero tolerance for immigration violators. This slogan of zero tolerance does not seem to reflect the way Christian thinks we should treat other people because we know we may be judged by the standards that we apply to others. The Christian tradition is to forgive sin and current repentance and restitution, acknowledge rehabilitation and rejoice in redemption. U.S. immigration laws reflected these values until about 10 years ago. I’d urge congress to restore these values throughout the immigration system. Employment authorization is one area where forgiveness might be built back into the system. Asylum applicants and other eligible aliens must apply for a new employment card every year but government processing delays and mistakes and ineffectiveness on part of aliens and their lawyers often cause gaps in employment authorization. Aliens have to work like the rest of us in order to live but if an alien works even one day without authorization he/she forfeits important immigration rights. There are also situations where the government refuses to issue employment documents, for example, when asylum cases are suspended for repapering. I’d like to see congress enact a law that permitting aliens including asylees to apply for retroactive authorization to work during their gap periods, and clearly require employment authorization for all asylum applicants whose cases have been pending for more than 90 days. This morning I have argued that our immigration laws have profound religious implications. One court recognized this fact, last year when government lawyers argued for a kind of zero tolerance interpretation of the naturalization laws. The court rightly said that such an interpretation ‘would require a holding that Congress had enacted a legislative doctrine of predestination and eternal damnation whereas the statutes contemplate rehabilitation.’ Section 612 of the Border Protection bill would change the law to enact the very interpretation that the court rejected with that language. I hope that Congress might leave questions of predestination and eternal damnation to the Almighty. As fallible humans, we should all do well to remember that God told even his chosen people that they were not to imitate the Egyptians who oppressed them but to love the aliens among them. If Americans wish God’s blessings upon us should we not do the same? Thank you.

Eleanor Acer:
Thank you, Jonathan. Our next panelist is Cheryl Little, the Executive Director of the Florida Immigrant Advocacy Center.

Cheryl Little:
Thanks so much Eleanor, it’s a pleasure to be with you all this morning. In South Florida, we see many asylum seekers who fled their homeland by boat in a desperate attempt to seek protection in the United States. Since September 11, deterrent measures undertaken by the United States has undermined the basic rights of many such persons. Haitians perhaps more than any other group seeking asylum have faced the toughest obstacles. Following the public arrival of more than 200 Haitians in Hibiscus, Florida on October 2002 our government suddenly insisted it must keep the Haitians in detention for purposes of national security. Although the Haitians were eligible for release and bond, INS kept them in detention by invoking a controversial post 9/11 regulation even after immigration judges had determined that the Haitians could be released because there was no suspicion of criminal or terrorist activity. Following a decision by the Board of Immigration Appeals which clearly called into question the Haitian detention policy, Asia Hutchinson, then DHS Under Secretary urged the attorney general to issue a directive denying the Haitians release. On April 17, 2003, Attorney General John Ashcroft did just that. Attorney general concluded that releasing the Haitian could precipitate a mass exodus and that there were insufficient resources to adequately screen persons who might include those who present a threat to national security. He also relied on a State Department memo which implied that Pakistanis and Palestinians were using Haiti as a staging ground to invade our borders. Suggesting that releasing Haitians would encourage terrorist views towards Haiti to invade our shores. Haitian government officials quickly denied this claim and U.S. diplomats were reportedly puzzled as well. The Florida Immigrant Advocacy Center filed a request under the Freedom of Information Act for all documents indicating that Palestinians, Pakistanis and others were using Haiti as a staging ground to invade our borders. The National Security Agency informed Free Act that they only had one, one page document but it was top secret. About a month ago, the State Department Appeals Review panel provided the Free Act with documents initially withheld. These documents, we believe, made clear that there was no justification whatsoever for discriminating against the Haitians on the basis of national security. Recently, attention has focused on the dry foot/wet foot policy and applied to 15 Cuban nationals who landed in an old seven mile bridge in the old Florida Keys on January 4. The bridge is owned by Florida. Moreover, the U.S. Coast Guard’s own website indicates that someone is dry foot ‘they touch U.S. soil, bridges, piers or rocks.’ Yet our government has taken the indefensible position that because of the section of the bridge that the Cubans landed on no longer connects to land and therefore the Cubans can be forcefully repatriated and so arguing the government has further limited the circumstances under which both persons are entitled to due process in the United States. Persons interdicted both in the high seas and within U.S. territorial waters are frequently denied a meaningful opportunity to obtain refugee status. They’re forced to make their case for asylum to Coast Guarders under the worst of circumstances. Cuba’s human rights record has been repeatedly condemned by Amnesty International, Freedom House, and many other human rights group. Yet less than 3 percent of Cubans who are intercepted between May 1995 and 2005 were determined to have a credible fear of persecution. This stark contrast, the statistics revealing that 75 percent of Cubans who filed for refugee status in the fiscal year 2004 were approved. In February 2004 as the brewing political crisis in Haiti exploded, President Bush directed the U.S. Coast Guard to return all Haitian refugees in clear violation of U.S. and international law. Today, Haitians aboard the cutters must aggressively express their fear of return, the so called show test, in order to just get a preliminary interview. Of the 1,850 Haitians interdicted at sea in fiscal year 2005 only nine were granted preliminary interviews with asylum officers and only one of the nine was determined to have a credible fear. Those few Haitians and Cubans who successfully qualify for refugee status aren’t brought to the United States even if they have close family ties here. Instead, they languish at Guantanomo while we look for third countries such as Guatemala, Honduras, Nicaragua, or Australia to take them in. Our government justifies this treatment by claiming that there’s a need to discourage persons from risking their lives at sea, but in so doing we’re putting lives at even greater risk. In attempting to reach dry land, desperate immigrants resort to unscrupulous smugglers or jump overboard after sighting land and how many Haitians and Cubans have been persecuted upon return after being denied due process in the United States. On March 16, 2004, SEAC along with two Harvard Law School clinics requested the OAS Inter-American Commission on Human Rights to adopt precautionary measures to help protect the rights of Haitian boat people. On May 20, 2004, the Commission created critical precedent in recognizing asylum claimant’s rights to fair hearings even when interdicted in international waters and fond that the government had failed to do so. The OAS subsequently ordered the U.S. government to provide bi-monthly reports about the Haitian interdiction policy. On September 9, 2004, the U.S. government informed the OAS it respectfully inclined to do so and argued despite overwhelming evidence to the contrary, the conditions in Haiti had improved. Concerns about the interdiction policy are more important than ever given that interdiction have recently reach levels not seen in over a decade. Well, some Haitians and Cubans may flee their homelands to escape political oppression this cannot justify denying protection to bona-fide refugees. Moreover, economic failures in countries such as Haiti and Cuba are frequently the result of political failures. In some deterrent measures to prevent asylum seekers from fleeing must not undermine the principle of refugee protection. Such measures not only violate international and domestic law, they reflect poorly in a country that prides itself in a respect for human rights and which for more than two centuries has given hope to millions of people who’ve had nowhere else to turn. Thank you.

Eleanor Acer:
Thank you, Cheryl. Our next panelist is Rachel B. Tiven, the Executive Director of Immigration and Equality.

 
Rachel B. Tiven:
Thank you. The flattening review that my fellow panelists have described is particularly dangerous for asylum seekers who are bringing claims that may be unfamiliar for asylum officers and immigration judges. Particularly for people seeking asylum in the United States because they are lesbian, gay, bisexual or transgender that they may also have a barrier based on their reluctance to come forward even in the best of circumstances as Mark described, even if they are asked in expedited removal process if they have a credible fear. Someone who is fleeing a country where punishment for being gay is death, is not likely to volunteer that information to the man in the uniform so there’s a structural barrier that is exacerbated by the flattening of review. An immigration judge in New York, Noel Brennan said at a panel that Immigration and Equality hosted last September. She was asked, ‘Well how do you determine if someone is gay?’ She sort of indignantly answered, ‘Well, I make a credibility determination, that’s my job. I make a determination whether or not they’re gay the same way I make a determination whether I believe they really supported the political party they claimed to have supported or whether they really wanted more than one child or whatever the basis of their claim is.’ So unfortunately, despite this attitude from some judges, gay, lesbian, transgender and bisexual asylum seekers are at a high risk at encountering disbelief and disrespect from the immigration judges and asylum officers that they encounter. They often hear comments like, ‘Well you don’t look gay to me,’ often based on stereotypes on what a gay person might look like. Often questions like, ‘Well why can’t you just go home and be in the closet,’ and at worst, implications that the treatment was essentially deserved. For example, a 2003 BIA decision where a Venezuelan gay man had his claim denied, because the BIA found that his rape by the police didn’t amount to government persecution. So I’m going to briefly talk about three cases in which we really see a system unequipped to provide sufficient review for asylum cases like these. First case is a man whom I’ll call Adan, a man from Iran. In Iran, as people may be aware, gay and lesbian people are subjected to government sponsored murder, kidnap, torture. The conditions are as severe as one can imagine. Adan applied for asylum shortly after arriving in the United States in 2001 and in his initial asylum interview, the officer didn’t ask him any questions about his sexual orientation but she said to him, ‘Well you’re not feminine in any way, how am I supposed to know you’re gay,’ and did not grant the asylum application. It was referred to immigration court. In immigration court, Adan’s boyfriend who was an Iranian living in the United States testified on his behalf and talked about their relationship, and ultimately when the case was denied the immigration judge explained that he had discredited the boyfriend’s testimony because the boyfriend wasn’t out to his own Iranian family which the immigration judge took as proof that the relationship could be concealed and he said, ‘Well if you can conceal it then you won’t have a problem in Iran.’ Ultimately despite extensive documentation on appeal the BIA affirmed without opinion in that case. In another case currently pending a man whom, again I can’t give you his real name, but I’ll call him Martin, he’s from Guyana. He’s currently in immigration detention where he’s been for five years. His initial convention against torture claim was granted. It’s a slightly more limited form of relief. It was said the government repealed case and it was subsequently revoked despite that he had also been raped by the police in Guyana. The claim was denied because although Martin said he would live as an openly gay man if returned to Guyana the immigration judge said, ‘Well you don’t seem like a particularly communicative person so I don’t think that you would find a boyfriend so how could you be openly gay?’ Lastly, a case that has gotten some publicity in the Eighth Circuit, a man named William Kumamanway from Zimbabwe got a very disturbing two to one decision from the Eighth Circuit Court of Appeals. He was in Zimbabwe arrested and jailed at age 15 when he was caught in a compromising position with another teenager. The police told him when he was arrested that he was being arrested for ‘being gay in public,’ which is a crime in Zimbabwe and the government at his initial hearing in the immigration court, the government lawyers didn’t dispute that he was gay and they didn’t dispute that Robert Guganway who runs Zimbabwe has called people sub-human, worse than dogs, pigs, and has vowed to rid the country of gay people. Despite this the immigration judge found that Mr. Kimamway’s problems were not based on his sexual orientation. They simply resulted from his prohibited engaging in sexual conduct. So leaving aside that under American law that kind of status conduct discrimination is invalid after Lawrence v. Texas, more to the point in the immigration context there was no evidence presented to suggest that he was arrested for engaging in prohibited sexual conduct with the other boy. He was told and testified extensively the police told him he was arrested for being gay and that there was nothing untold to it between the two of them which was what the immigration judges suggested. The Board of Immigration Appeals affirmed the circuit and in dissent, the one judge in the Eighth Circuit who dissented noted that the immigration judges ignored, mischaracterized or downplayed all of the evidence that Mr. Kumamway had presented. So in closing, my recommendations for improving the situation are training for immigration judges on how to recognize lesbian, gay, bisexual and transgender asylum claims, how to ask questions that are necessary to the process respectfully, and as others have mentioned, access to quality representation is crucial, the distinction between civil and criminal law is based on a belief that criminal law your life is at stake and therefore you are entitled to representation. In the cases I have described above people’s lives are absolutely at stake and representation is crucial. Thank you.

Eleanor Acer:
Thank you, Rachel. Our final panelist is Wendy Young, the Director of Government Relations at the Office of United Nations High Commissioner for Refugees.

Wendy Young:
Good morning I’m pleased to be part of this panel to address some of the critical protection challenges facing refugees and asylum seekers around the world today. UNHCR is the UN refugee agency, our mandate under the 1951 Refugee Convention and its 1976 Protocol is to lead the international community in achieving world wide protection of refugees and the resolution of refugee problems. This mandate has become increasingly difficult in an era of mass migration movements around the globe combined with growing public intolerance of the other, and government’s prioritization of national security. UNHCR recognizes countries’ desires to regulate who crosses their borders but believes that this can be done at the same time that international principles of refugee protection are respected. As the High Commissioner said to the UNHCR Executive Committee last October, terrorism must be fought with total determination but asylum is and must remain an essential tenant of democracy. You’ve heard quite a bit from prior speakers about changes in U.S. law, policy, and practices with regard to the treatment of individuals who ask United States for asylum particularly after 9/11. I would like now to step back a bit from that analysis to emphasize the refugee protection and migration generally are not problems that are unique to the United States. Indeed, the vast mass majority of the worlds displaced are in countries close to their home. Some do not even make it across an international border but have been displaced internally inside their countries of origin. There are over 19 million persons formally identified as being concerns of UNHCR, including refugees, asylum seekers and the internally displaced and there are millions of others who have also fled their homes that are not under our care. Most are in Africa, the Middle East, and Asia. Nations with per capita income of less than 2,000 dollars host more than two-thirds of refugees and the internally displaced. Nations with incomes of 10,000 dollars or more host a mere 5 percent. In fact, the number of asylum seekers arriving in western asylum countries such as the United States has dropped dramatically in recent years. During the first nine months of 2005, the most recent statistics collected by UNHCR indicate the top 36 industrialized countries experienced a 17% drop in the number of asylum requests from the same period in 2004 and a 35 percent drop compared to the same period in 2003. In North American the drop from 2003 to 2005 was 38 percent. Yet it is western asylum countries that we are witnessing an escalation in restriction policies, grounded more in concern about keeping people out than in international principles of refugee protection. Intolerance must be defeated and refugees understood as victims of terrorism and oppression. Numbers, however, do not paint a true picture when addressed in isolation. Behind every number is a human face. It is a child forced to care for her younger siblings because she lost her parents to war, sacrificing her own education so that her brother can attend school. It is a woman in Darfur who is raped on her way to collect firewood, because the community has made the difficult choice to send women for firewood because they run only the risk of rape while their husbands would face murder. It is the family who arrives in the U.S. believing that here finally they have found safety only to be torn apart at the border and placed in different detention centers unable to communicate, uncertain whether refuge is truly theirs or whether they will be sent home to face again the ravages of war and violation of their human rights. The rights and needs of refugees should be the primary consideration during the public debate over migration, refugee protection, and national security. The U.S. has a proud tradition of extending a welcoming hand to the world’s persecuted through both its asylum and refugee resettlement systems. UNCHR itself has many times appreciated the U.S. voice in the international refugee debate and its willingness to support UNHCR’s efforts to promote protection around the globe. We have moreover witnessed some improvements in U.S. policy during hotly contested political debates. Children who arrive alone in the U.S., for example, are now much more likely to be housed in appropriate settings for children rather than be locked in jails which were the case for many children prior to the changes in the law that took place in 2003. It is hope that the Department of Homeland Security will issue clear and well reasoned regulations that will keep the door open to consideration of asylum claims based on the violation of women’s rights such as domestic violence. When international refugee law was first crafted after World War II, such claims were not considered and it is the leadership of such countries like the United States that has created the opportunity for women and children’s rights to be viewed as human rights equally deserving of protection. These changes are not insignificant, 80 percent of the world’s refugees are in fact women and children. But challenges remain and must be met, detention, expedited removal, interdiction, the failure to provide legal representation and the other policies mentioned here today collectively tarnish the U.S. tradition of welcome. They create barriers, both physical and procedural, that prevents asylum seekers from obtaining protection here. Without access to U.S. territory and respect for basic due process once here the improvements and treatments that I just mentioned would be rendered virtually meaningless. As the world’s leader in democracy, United States will ultimately in part be measured against its defense of asylum and human rights. It must embrace its best aspirations and avoid the degradation of refugee rates. Thank you.

Eleanor Acer:
Our panelists here today have identified some significant problems in the U.S. asylum system. These problems include flaws in the Department of Justices, adjudication system for asylum seekers, problems in assisting and detaining asylum seekers in which they’re held in inappropriate jail like facilities sometimes for extended periods of time without access to fair procedures to secure release. And flaws in which the Department of Homeland Security is structured and able to deal with and coordinate its asylum policy, issues too between the Department of Justice and the Department of Homeland Security. Some of these problems have existed for years; others have been exacerbated by changes made in the wake of September 11. Some have been justified on the grounds of national security. You’ve also heard from the panel today some very constructive and critical recommendations for changes including the recommendations made last year by the U.S. Commission on International Religious Freedom and some very constructive recommendations for improvement in the way in which the immigration court system is conducted. The big question though is, can the Department of Justice and the Department of Homeland Security actually make these changes? Are they capable of doing so and will they have the actual will to do so? Until some real leadership is exercised on asylum issues in this country refugees will remain in grave risk of being returned back into the hands of those who persecuted them. I want to open up the floor now to any questions for our very learned panel.

Question and Answer Portion

Eleanor Acer:
Bo, could you tell us what changes you think could the Department of Justice and the Department of Homeland Security should make to enable them to more effectively to deal with asylum and refugee issues?”

Bo Cooper:
One of the things I think is important is, I try to suggest that it’s a lapse, that there is not a consensus between those two agencies about who’s got the primary expertise for asylum issues. The whole structure for judicial evaluation and executive decision making depends so much on this notion of expertise and having a place within the executive branch where people are charged with primarily knowing that issue and deferring to that agency’s decision making. Right now if you asked a Department of Justice litigator what is the source of expertise in a case they’re deferring too who’s their client, I think they’d be just as likely to say the Board of Immigration Appeals or the Executive Office for Immigration Review as they would the Department of Homeland Security in particular, Susan Shipman, immigration services, which has the principle responsibility within Homeland Security for deciding asylum cases that are presented affirmatively. Now if that’s the case there’s no consensus about where the decision making authority primarily rest and the decisions would come out very differently depending on which of those two places it was getting made in then something is awry. I think it seems very dry to talk about these sort of structural issues and relationships among agencies and bureaucracies within them. I just think some basic consensus basically who’s got the best vote in these issues. Nothing in the executive branch gets decided just by one agency and it shouldn’t be but there ought to be a recognition of where the primary authority lies and I think that would be a very important first step.

Question :
Good morning, my name is Father Christopher Lockhart with the Jesuit Refugee Service, USA and I’d like to address my question to Mark Hetfield. Mr. Hetfield, I was wondering if you have seen any change in the detention policies and the government within the past year, particularly the Jesuit Refugee Service offers religious services for all faiths in eight detention facilities in the U.S. but we’re expecting that that system is going to change. That a lot of the detainees are going to be farmed out to private jails and we’re very concerned about the ability to have access to provide religious services, to allow for visits by family members, and just to have access at all to the detainees. Thank you.

Mark Hetfield :
Thanks, unfortunately the Commission stopped monitoring this and lost its access to the facilities when the study was released in February of last year. So I can’t speak to that issue as to whether or not policies have changed since then. All I do know is that the expansion of expedited removal along the entire southern border has significantly increased demands for bed space and detention in that area and we found in our study of course that in Texas in particular, the release rate of asylum seekers had been very high before because they lacked bed space to detain them. I don’t know how they’re going to cope with this but certainly there have been enough changes to say that yes, detention has to change significantly but I can’t really speak to how it has in the last twelve months.

Question:
Wendy, can you tell us has the High Commissioner spoke out at all? Has your office spoke at all on some of the issues raised today by the U.S. Commission on International and Religious Freedom and some of the other panelists?

Wendy Young:
UNHCR has issued a series of guidelines addressing many of the issues that were raised during the panel today including guidelines on detention, guidelines on the consideration of asylum claims based on membership in a particular social group which falls under the category of claims which on the basis of sexual orientation, gender based persecution, age related persecution are most typically raised so the office has spoken out repeatedly. We’ve also very much recognized this growing tension in western asylum countries about who is entering their country and have tried to lead the international community in this discussion on how to preserve refugee protection in the context of mixed migration flow, because refugees may be mixed with other migrants who of course all enjoy human rights, but refugees have a particular form of protection under the 1951 Refugee Convention. Our new High Commission who joined the agency about six months ago has been very eloquent and very consistent in speaking out about his concerns that the West must preserve the right to asylum and this includes access to procedures, policies such as interdiction, detention, streamlining very much erode that protection and he has used his office and his voice to encourage countries to reverse this trend.

Question:
My name is Russ Spykoff, I’m a local attorney. I have an asylum case CAIR Coalition. My question concerns the opportunity to make some reforms for the early stages in the process at both the detention stage and the immigration courts. Why does the discretion in the detention removal officers at ICE seem to be so unfettered so that the people who come here and are detained at the airport and making an asylum claim disappear into what has been described as asylum hell, the 9 th circle of Dante’s asylum inferno? It’s a real battle to get somebody out. It’s a real battle and if they don’t have a lawyer, I don’t see how they could ever get out. If not they’re released and it takes weeks even if you try to fight to get them out, and all you have to do is show that they’re not a threat, they are who they say they are and they’re not going to flee. You also need to find a supporter. How does an asylum seeker who knows nobody in the U.S. going to find that? So that’s the first question. Second question, is if you’re not released and you stay in detention, even if you have a lawyer the immigration judges aren’t going to let you appear at your asylum hearing. You’re going to be on a camera, on a video screen. I would not, in good conscious, take a case where my client isn’t going to be in court in front of a judge, I wouldn’t do that. So the results going to be, the client’s going to be on a video screen, the judge is going to watch the person testify, the person is going to see a little bit of the courtroom, maybe the judge. I’m a trial attorney; it’s not a very effective way to present a case. You’re going to lose and the statistics that Mark mentioned and some of the other mentioned that bear this out. Finally, question is how do you require the courts then to bring these detainees who are six hours away in some god forsaken rural jail up to Arlington to attend their own hearing and how do I get a change of judge if I get assigned a judge who is a two percenter and I want an 80 percenter.

Eleanor Acer:
I think that last question we can wait until after the panel discussion but Bo and Mark, I think you both may want to comment on some of that and I’d just add that if you happen to represent asylum seekers in New Jersey, where we run a pro-bono representation program, it doesn’t matter how many relatives you have here in this country that can swear who you are, you still won’t get released from detention.

Bo Cooper:
I’ll start by addressing the detention policy issue. Why is there so much discretion and why is there such an extreme detention policy. I think a couple of reasons. One is that the government has still not settled upon a strategy short of full out detention for enforcing compliance with the process at the end if the person is ordered removed and so it resorts to detention in probably an inordinate number of situations. Now, I think the fact that the government hasn’t settled upon a strategy short of full out detention for accomplishing that is a lapse in its own right. Even more broadly than with just the respect for the asylum system, but I think its that lapse that has contributed to the detention policies that we have in a lot of ways. Why is there so much flexibilities that we have this sort of variations that Mark was describing from place to place? A couple of reasons, one that is there is a long standing ethic certainly within the immigration authority that predates the Department of Homeland Security to permit as much decision making authority at the local level as possible. In many ways, I think that makes a lot of sense because you’re going to have different patterns, different groups of people that you see more frequently in one place than another, they’re going to face different sorts of issues. It is not possible to have a one size fits all policy and many of these decisions are so fact intensive that I think it does make sense in principle to leave a lot of decision making flexibility to the local level. Another thing I think the agencies never successfully grappled with is how do you balance that with the need to have a lot more clear policy guidance that does emanate from central decision making and that you can enforce as a local matter. Certainly the INS was never particularly effective especially with respect to detention, especially with respect to detention asylum seekers to say look it, ‘here’s the policy we want you to follow as you make these individual judgments at the local level.’ It was just never really good at that and I’m not sure that’s really ever improved a great deal under the Department of Homeland Security, so I think you identified an important issue in lapse and those are some of the reasons I think are behind it. The solution, I don’t know when that’s going to come around.

Mark Hetfield:
I have to say at the local level, local adjudicators of the U.S. government know virtually nothing about conditions overseas in general and you know even less about the individual facts about the person’s case.

Bo Cooper:
I think that’s a fair observation, one that I would agree with more in the context of detention decision making than with respect to the asylum decision making itself. I think there are a lot of asylum officers who do have access to a fair amount of information and a fair level of sophistication in these kinds of situations and are trying to do well. The system isn’t without widespread problems but I agree with you probably with more respect to detention decisions.

Mark Hetfield:
Since you mentioned the CAIR Coalition, I actually wanted to give a plug for them. We mentioned the CAIR Coalition in our report and in fact it is a model program, one in which matched you up with that case and we asked that the asylum office do what the Arlington office has done and emulate that program throughout the country. It’s the only program in the country where the Arlington asylum office works together with a local coalition to make sure that every single asylum seeker and expedited removal has representation or at least has an attorney to sit at his or her side during the credible fear interview which then often leads to representation at the asylum stage. It doesn’t cost the government anything and it’s been a very effective program in this area. We have asked it to be expanded nationwide. Again we have not gotten a response on that recommendation. In terms of the parole issue you mentioned, as I’ve said we found that not only are there wide rates, but we found that while ICE has a very specific criteria outlined which alien should be released and which alien should be detained and that was outlined in a December 30, 1997 INS memorandum, we found that there’s nothing in ICE files to indicate that that criteria is being applied, we found that there is no review of files to see if whether or not local district offices are applying that criteria and as a result, every district seems to make its decision based on bed space. There was a movement to make sure there was institutions such as the CCA facility in Elizabeth, New Jersey and the Wackenhut facility in New York which has recently closed that were dedicated to just detaining non criminal asylum, non criminal aliens. To make sure there were no criminals intermingled with them, which of course, is an approach we would endorse. The problem with that was the districts felt an obligation to keep every bed in those places filled so they would not release asylum seekers if they had a bed. It was only if they had a shortage of bed space that they would start releasing people and since the priority has always been to detain criminal aliens the asylum seekers in expedited removal would just languish in these facilities until there was a demand on bed space. So again, it is something not driven by criteria even though there is criteria. These are decisions driven by bed space. Thirdly, we did look anecdotally at the issue of the TV court proceedings that you discussed. The one reason why those are necessary, unfortunately, is because of ICE’s decision to detain asylum seekers in 185 facilities around the country. It’s just impossible to bring them to central locations. Physically it’s much easier to do it by television. We recommended that asylum seekers be detained in metropolitan areas in a more limited number of appropriate facilities but given that this is the current situation it may be helpful to the asylum seeker in Piedmont, Virginia, which is five hours from here to get an attorney to represent them. At least the attorney can sit in Arlington while the poor asylum seeker is stuck in trailer in Piedmont, Virginia, but that’s an unacceptable situation. Asylum seekers should not be detained in Piedmont; they should be detained where they can get representation.

Question:
It occurs to me that with far more people seeking asylum in the United States and the United States can easily accommodate and without a consensus or any kind of priority structure for who should get priority in asylum, whether fleeing from religious or political or persecution based on sexual orientation, there may be a tendency on the part of many judges to just reject cases out of hand. So I was wondering if any of the panelists here today would favor some kind of legislation or some kind of consensus that would organize who should receive priority based on what they’re fleeing from.

Eleanor Acer:
I’ve got some statistics here and I can provide you with them afterwards. Actually, and I think as Wendy mentioned, there’s actually been a significant drop in the number of people applying for asylum in the United States. It’s a dramatic drop, from about 147,000 in 1995 down to 32,000 in 2004 and roughly around that too for 2005, so in fact there’s been a significant decrease in the number of people applying for asylum and I think in the last year there may have been about 10,000 granted asylum by the asylum office and maybe another 10 by the immigrant courts so I just want to give the statistical information that I think would be helpful and if any of our panelist would like to comment or reflect on the question just made.

Stephen Yale-Loher:
Yeah, I don’t think we should have any legislation that says one type of persecution is more important than another type. You can see from the numbers. The numbers of people actually applying for asylum in the United States are not that great, and I think that we have five reasons set forth from immigration law and the UN Convention as to what qualifies as persecution and I think those may not even be sufficient right now but nevertheless, we should not prioritize among them. I don’t think that’s the reason why so many cases are being denied. I think we have many other reasons and we should not focus on the legal aspects here.

Mark Hetfield:
I would just add that the refugee program oversees already does operate that way although the priorities set by legislation, the State Department decides what groups, what nationalities get access to the U.S. Refugee Program because obviously dealing with an overseas program if open up to the whole world, you will have a issue. The asylum program, however, is really self regulating because in order to apply you have to find a way to get here. There was discussion during the advent of expedited removal that perhaps certain nationalities should be on a list and automatically be found under credible fear and be referred to an asylum officer but I believed that it was decided that that would not necessarily be advantageous because it would disadvantage applicants who were not on the list even though they may have good asylum claims because some immigration inspectors may assume no matter how much you emphasize to the contrary that if you’re not on that list then you don’t have a legitimate asylum claim and therefore should be returned.

Bo Cooper:
With respect to that, when I was in government at least, we’d always resisted the idea of having a group of people who were recognized specifically as passing a test or recognized specifically as not able to pass a test because of these kinds of claims are so very fact intensive. When we went to try and have policies that would try to encourage adjudicators to sit down afresh every time no matter what the kind of claim and measure it against the priorities that are set out in the refugee definition. Now the issue that you raised is a good one, about numbers. Within the government, in my experience, every time there was a new kind of claim presented and analysis about whether it was the kind of claim that could reasonably fit under the refugee definition or not. This question of floodgates always came up and in many respects it should, because you have to consider those kinds of things as maybe not a refugee definition matter but as an asylum policy matter. Here’s an example, when were talking about back in the 90, ritual mutilation was one of the big new issues that the government had to grapple with and there was evidence that up to 80 million women around the country had been subjected or faced the possibility of forced ritual genital mutilation. So people in the internal discussions would say, ‘Now hang on if we go and recognize this as a possible basis for asylum, have we just admitted 80 million people?’ This would be exponentially out of wack with how we try to regulate movement into this country for the general matter for all kinds of reasons. If a decision like that did mean all of a sudden that you were admitting 80 million people well then you have a very different question on your hands as a government. The way in which the government has traditionally tried to approach this is first, just to make a pure analysis of whether or not the kind of claim fit in what they understood to be within the boundaries of the refugee definition and let that be the real indicator unless there was evidence that you were going to be swamped in a way that you couldn’t manage. In fact, time in and time out it turns out to be case with these new kinds of claims that you recognize that you don’t get an opening of the floodgates and get swamped with a number of cases that you can’t as a country manage.

Question:
I wanted to raise the issue of material support because I think it’s a perfect illustration of how post 9/11 security concerns have severely restricted access of both refugees and asylees to protection in this country. I was wondering if any of the panelists wants to comment on how they think this issue should be addressed. If Wendy, perhaps wants to comment on how material support and the expansion of the bar to those who’ve provided material to real terrorism and the Real ID Patriot Act have impacted U.S. resettlement programs particularly in Thailand, Malaysia, and Columbia. Also to raise the fact that there is a BIA case on this issue today that the BIA has scheduled for oral argument and perhaps Bo wants to comment on what he sees, in the light of the concerns that you raised what the presidential value of such a decision would be.

Wendy Young:
The application of the material support to terrorist organizations bar to both asylum seekers and refugees seeking resettlement in the United States is an issue of priority concern for my office right now. What we’re seeing in the context of resettlement and I’ll let others speak to the asylum context, is that the lack of guidance that has been issued by the administration in terms of how the bar should be applied to refugees seeking resettlement has resulted in confusion and a suspension of certain very deserving nationalities of refugee protection in terms of their processing for resettlement. That first happened with Columbians. Ironically, it was the U.S. government that funded the UNHCR to set up a resettlement program in Ecuador for Columbians who fled the civil conflict in that country. We very quickly heard from the Department of Homeland Security that they were nervous that the Columbians would actually be subject to the material support bar and they were therefore suspending the resettlement of Columbians, and this forced us to divert numbers that would’ve normally come to the Untied States to other resettlement countries around the world. A lot of these Columbians were people were actually forced, coerced into paying war taxes to arm the guerilla group such in Columbia and ironically, it was the very basis of their claim and yet they’re being deemed as having provided support and therefore not eligible for resettlement. We’re also facing a similar situation now with Burmese refugees seeking resettlement out of Malaysia and Thailand. For the purposes of the U.S. resettlement program, this is very, very significant. The U.S. is by far the world’s largest resettlement country and the Burmese are the single largest case load identified for resettlement this year. We’re talking about a case load of about 10-15,000 people who would normally be provided safety and a chance at a new life here in the United States who are now literally in limbo waiting for some kind of resolution to this issue. All we are seeking is guidance from the government in terms of how they plan to apply material support. We recognize that it may apply to a few, but don’t hold the innocent hostage to the few.

Bo Cooper:
I think one of the reasons the government has been allergic about this issue is the idea that if you recognize exceptions in material support orders, there’s going to be some very complicated factual questions it has to grapple with. I think this initiative way predates 9/11 and the government’s inability to come up with a good answer, or come up with a resolute answer certainly predates 9/11, and the government’s been solidified in its reluctance to move off of the absolute bar because of 9/11. My own view, it doesn’t make any sense to say that if a person at gun point provides a meal or a place to stay overnight to an army sergeant, that they materially supported terrorism. That doesn’t make a lick of sense to me and I don’t think the government needs to remain willing to grapple with complicated factual questions if new policies required them. That’s what I think should be the answer but whatever the board decides is clear what the effect of that is going to be, and that’s going to bind DHS trial attorneys, CIS asylum adjudicators, refugee adjudicators overseas, and it would bind immigration judges unless federal court says otherwise.

Mark Hetfield:
The commission has no position on material support so I can’t express an opinion on it, but I think we should just explain what it is because I don’t think that’s been done. Material support is provision in the Patriot Act, which requires that any alien be excluded if he or she has provided material support to a terrorist organization, and the problem is there are some parts of the government that are interpreting that to mean that any alien who provides a glass of water at gunpoint to a terrorist would be providing material support because they’re reading this as a strict liability provision with no defensive duress for anything else. The thing is, there is a waiver provision which allows the Secretary of State and the Department of Justice to waive this and Homeland Security in certain circumstances, but they can’t figure out how to do it, how to actually apply the waiver and that’s something that’s being done right now, which is holding up all these cases in Columbia, in Ecuador from Columbia as well as a number of Burmese cases in Thailand. It’s my understanding that UNHCR has notified the government that they can no longer be referring cases in some parts of the world because of this problem.

Wendy Young:
We notified the U.S. government recently that we are suspending referrals from Malaysia Burmese there and we will soon have to make the same decision with the Burmese case load in Thailand. Our understanding was that processing was targeted to begin March 1, so this is something that is coming up very, very quickly. We still have not heard from the government in terms of what criteria they may apply for application.

Stephen Yale-Loher:
Two other facts I just want to note. One is that there is about 400-500 asylum cases in the United States that are being held up pending resolution of this material court issue. So there are people who have gone to you before, affirmatively before asylum officers or immigration judges, they’ve had their hearings and yet they can’t get a decision yet until the government makes it, a policy announcement as to what material support means or are there any defenses. Second, I’ve got a law student who’s just written an excellent article about the duress exception as it applies in criminal law and how it should apply in the material support context so if any of you want that, it’ll be coming out in the Cornell Law Review shortly, but I can give you an advance copy if you want to see me after the presentation.

Question:
You’ve all mentioned some wonderful recommendations this morning that I’m sure a great majority of this audience would like to see implemented to improve on the asylum system and improve on the welcome that we give refugees in this country, but we’ve also all noted how far the country’s moving in the opposite direction and how much greater the moves are towards increase use of detention and greater burdens of proof and obstacles for asylum seekers to face. So, in light of that climate and tempering one’s wish list, what do you think are the three most feasible achievements legislatively, administratively that we can do in the coming year let’s say, that if not make forward progress, at least hold the line on at least some of these retrogressions?

Eleanor Acer:
That’s an excellent question. If any one of our panelists want to take that one on. Well I’m going to give it to a couple people to take a stab at and one question I’m going to add on to put Jonathan on the hot seat just because he doesn’t operate in Washington, instead operates more in the legal world is one thing that Jonathan mentioned in his presentation was that he and other Christian faith-based groups had filed amicus briefs in some of these cases, and I was wondering if you’re seeing increasing concern from faith-based communities about the series of changes we’ve had about the various legislative proposals and provisions like the Real ID Act so why don’t we turn it to you Jonathan to just start and that’ll give some of our other panelists a minute to figure out what they want to suggest for their top three changes.

Jonathan Nelson:
Thank you. I know that there are a number of churches that have expressed their concerns about the worsening situation for our welcome for aliens and for asylees. For example, the criminal prosecutions that are occurring in Arizona now for people who have been criminally charged for helping aliens out of the desert for medical reasons and to put these people behind bars, that’s a program that’s sponsored by some Presbyterian churches down there and supported by the Presbyterians and the people who are charged are not Presbyterians. They come from Jewish families, so there is a widespread concern among certain churches but, I think, not yet in all the churches and in groups of other religions about it. It hasn’t coalesced any kind of a great ground swell, yet as it did in the Lee case. There was a huge outpouring of support for Mr. Lee because of the really glaring mistake that Board of Immigration Appeals had made and the district had made in that case. So if more mistakes are going to be made by courts in similar cases that can be a basis for building support, widespread religious support for these kinds of questions.

Eleanor Acer:
I’m going to start some suggestions and I think you heard some great suggestions by the panel today and some real opportunities. The U.S. Commission on International and Religious Freedom made many important recommendations on detention and on expedited removal including that asylum seekers should no longer be held in these prison-like facilities and they have to have a fair release process and the expedited process has to be improved. That is kind of like the number one easy thing the government should do. This is a bi-partisan government commission that made the recommendations. It’s just unbelievable that no changes have happened yet. Secondly, the Department of Justices investigation itself, presents a huge opportunity if it’s going to be conducted thoroughly and seriously. The problems that you’ve heard all the panelists today talk about, exist in the immigration court system, it’s existed for a while and exacerbated by the changes made by Attorney General Ashcroft in 2002. It’s a huge opportunity and I would say if they don’t make those changes, if Justice and Homeland Security don’t make those changes, then Congress is going to have to act and then there may need to be legislative solutions and implementation of these recommendations.

Cheryl Little:
Well, I thought your question was what we think is reasonably possible which was why I didn’t answer because these are very difficult times for asylum seekers. Every time I say things can’t get worse they do, and I just wanted to point out that we did make available to you some of our recommendations. We had some quotations from notable people like our president, former Attorney General John Ashcroft, Senator Arlen Specter, who grilled him about the Haitian policy I was talking about, and we have actually done a report that focuses on extent to which we believe immigrations including asylum seekers have been discriminated against since 9/11. The last point I want to make is that in South Florida, the U.S. Attorney’s office is actually criminalizing asylum seekers who arrive with false documents, and as a result, it’s much more difficult for these people to get asylum even if they do it’s more difficult for them to move on with their lives. There was a report recently that I just want to draw your attention too. It was out of Syracuse University. It said that immigration matters now represent the single largest group of all federal prosecutions. DHS is now number one. The Drug Enforcement Agency is second and the FBI is a surprising third. It said overwhelmingly, DHS is involved in the prosecution of traditional kinds of immigration cases that appear to have very little to do with intercepting bombers. In fact, only 7 out of the 37,765 prosecutions that arose out of immigration enforcement were classified as involving international terrorism during fiscal year 2004 and only one out of 27,771 prosecutions during fiscal year 2003, so unfortunately I think that our job is more difficult than ever. I want to remain hopeful and I’m very thankful that people around this table who are fighting the food fight and many of you here today who I know are doing that.

Bo Cooper:
One thing that I think should be doable that would be very easy to accomplish would be to reconstitute the Board of Immigration Appeals full strength and to change the manner in which they adjudicate their cases.

Question: I wanted to bring up the issue, we visit detention centers on a regular basis at CAIR Coalition and we’ve seen a steady rise in gang-based asylum claims, particularly from young men from Central America for fleeing forced conscriptions. They’re having to forcedly rape, murder, and torture and they come to the United States to rehabilitate, start a new life and we’re seeing a steady rise in these cases, and I didn’t know if anybody wanted to speak to inside experience to recommendations around these issues. It’s increasingly trying to be argued as membership in a social group. I don’t know if Rachel wanted to speak in experience to that or if Wendy wanted to speak to opinions that UNHCR might’ve made around these issues in the past or in the future.

Rachel B. Tiven:
There are a couple of opinions from the early 90’s late 80’s that tried to articulate the membership basis in a social group and I’m not sure if you’re familiar with them. I can only imagine the difficulties that you are facing especially if people have committed crimes of persecution when they were in their home country and are now trying to seek asylum.

Wendy Young:
What I was going to add was just to encourage you to look at the guidelines UNHCR has issued in terms of applications and membership in particular, a social group category which are available on our website at UNHCR.org. Also to note that while I discussed what we are expecting in terms of regulations coming in from the Department of Homeland Security on gender-related persecution claims, actually those regulations will address, we think social group more broadly, and I think those will provide important guidance in terms of how things like gender-based claims fit in the U.S. context. I would rank those claims roughly with sexual orientation in terms of a new and emerging issues that the system is not quite clear on as to how they’re going to deal with, but I do know it is a very, very important issue for children in particular because children from Central America are now the largest single group coming into the U.S. I think it’s about 45 percent of children are arriving from Central America.

Eleanor Acer:
Thank you all. I want to thank you all for being such a lively and thought provoking audience and the panelists for your time and thoughts today. Thank you. Thanks to the ABA as well.