Looking for Asylum, Suffering in Detention
By Donald Kerwin
Editor's note: This article is adapted from a longer article written by Mr. Kerwin and other CLINIC staff entitled "The Needless Detention of Immigrants in the United States," published by CLINIC. It is reprinted here with permission.
Detention is a particularly unjust and unnecessary response to thousands of noncitizens in Immigration and Naturalization Service (INS) custody. Many should not have been detained at all. For others, detention should have been a solution of last resort. Although always difficult, detention causes particular anguish for certain populations because of their gender, age, and other characteristics. For example, confinement in correctional facilities with juvenile delinquents can scar immigrant children for life. For certain asylum seekers, detention can evoke and even mirror the conditions they fled.
Detention of People Fleeing Persecution
The United States has a long and proud history of offering refuge to persons fleeing persecution in their native lands. With the world's population of refugees and asylum seekers exceeding 14 million at the end of 1999, the United States' leadership in the areas of refugee protection and international human rights has never been more crucial. Unfortunately, the United States undermines its international standing through laws and policies related to those fleeing persecution. The detention of asylum seekers, often for prolonged periods, offers an egregious example.Detention of Arriving Aliens
The 1996 Immigration Act created a new "expedited removal" process to deter the filing of frivolous asylum claims. The law targets persons who arrive at U.S. ports of entry with false travel documents or no documents and allows the INS to return them without a hearing.After arrival and initial questioning by an INS officer, persons subject to expedited removal are sent to "secondary inspection." Unless they indicate a desire to apply for asylum or express a fear of persecution in their home country, immigrants processed at secondary inspection face summary return to their last port of embarkation. If they do successfully convey their fears, they must then demonstrate that they harbor a "credible fear" of persecution. At the credible fear interview, the individual must establish that there is a significant possibility that he or she could make out a legitimate claim for asylum. The asylum seeker must be detained until the credible fear finding.
U.S. law mandates that all arriving aliens seeking asylum must initially be held in detention if they are not in possession of a visa or proper entry documents. As with other INS detainees, asylum seekers must endure prison-like conditions. In some facilities, they have been subjected to abuse. Family members who arrive together are often split apart, even young children from their parents. Although the government calls this "civil detention," from the asylum seekers' perspective it is in fact a "penalty" inflicted "on account of their illegal entry."
The detention of asylum seekers raises numerous practical difficulties. Of greatest concern, detention burdens the detainees' ability to pursue asylum claims and leads many to abandon their cases altogether. Most INS detention centers and contract facilities, particularly local jails, are located far away from family, legal, and other support systems. Even facilities located in urban areas, like the for-profit facility in Elizabeth, New Jersey, cannot easily be reached by public transportation. Typically, detainees cannot collect the kind of documentation necessary to support their claims. For example, asylum cases invariably benefit from medical affidavits setting forth a physician's opinion as to whether injuries are consistent with the asylum seeker's account. Yet, statistics gathered by Physicians for Human Rights in Boston, Massachusetts, indicate that detention significantly hinders the ability to obtain such an affidavit. Between July 1 and December 31, 1999, Physicians for Human Rights serviced 73 percent of requests for medical affidavits for asylum seekers not detained, but only 50 percent of requests by detainees.
Law libraries in prisons tend to be outdated and often do not include current materials on immigration laws and procedures. If counsel can be obtained, the detainee must overcome a range of barriers to effective representation. Proposed standards developed by the American Bar Association (ABA) attempt to address legal access problems that historically have included limited visiting hours, visiting hours that are not honored, transfers of clients away from counsel, difficulty reaching clients by telephone, collect-call-only telephone policies within facilities, inability to conduct lawyer/client interviews in private, outdated or inaccurate legal services lists, and long delays to see clients at the facilities. Although INS agreed to implement most of the ABA-proposed standards in its own detention facilities, it has thus far (1) refused to enshrine those standards in a federal regulation, (2) refused to extend the standards to local jails (which house the majority of INS detainees), and (3) failed to address severe telephone access problems in jails.
Apart from making it difficult to prepare an asylum case, detention also discourages asylum seekers from continuing to pursue their claims, especially when they must appeal negative decisions by immigration judges. The administrative appeals process usually takes between six and twelve months, sometimes longer. After months in detention, many asylum seekers opt to forgo their cases and submit to deportation and all its risks.
Inconsistent Release Practices
Although the law requires INS to detain asylum seekers who arrive at airports without proper documents, it also presumes INS will release those who have passed the credible fear screening. INS detention guidelines state that "it is INS policy to favor release" for asylum seekers who can meet these requirements. Released asylum seekers can pursue their cases while living with relatives or friends who have legal status in the country.In theory, all INS districts follow these same release standards. The statute provides for parole (release) based on urgent humanitarian reasons or significant public benefit. Yet, inconsistent release practices have plagued the expedited removal process from the outset. Significant numbers of asylum seekers have been unnecessarily detained for months and even years because certain INS districts arbitrarily refuse to release them. The INS's failure or inability to enforce uniform release policies has been abundantly documented, as have the shifting release practices of local district offices. Some districts parole very few detainees. In FY 1999, for example, only about 9 percent of asylum seekers held in the Elizabeth Detention Center in New Jersey were released from detention.
In short, custody determinations often turn on where and when the person is detained, rather than on the equities of the case. Certain INS districts regularly refuse parole to qualified applicants. Others normally release asylum seekers who meet the requirements. In recent years, the New Jersey and New York INS districts have been particularly intransigent in their refusal to release bona fide asylum seekers. As human rights agencies have documented, many of these people receive asylum after having spent months in detention at taxpayer expense. Adding insult to injury, in some cases INS does not even ultimately contest their asylum cases. In effect, these asylum seekers were detained for no reason at all.
Release determinations should not turn on the vagaries of geography or the idiosyncrasies of local INS officials. There should be a national policy mandating the release of bona fide asylum seekers except in extreme circumstances, and this policy should be uniformly applied. It is particularly cruel to detain asylum seekers who have family or friends willing to house and care for them.
Lack of Access to Legal Assistance
Most detained asylum seekers cannot obtain legal representation, although this can make all the difference in the outcome of their cases. In 1999, for example, 506 of 2,072 (almost 25 percent) represented detainees who applied were granted asylum. In contrast, only 40 of 1,172 (3.4 percent) unrepresented detainees received asylum.Immigrants in removal proceedings enjoy a statutory privilege of legal counsel, but it must be "at no expense to the government." (INA § 292, 8 U.S.C. § 1362.) Because representing detainees is time consuming and costly, private lawyers often charge more than their normal rates, and nonprofit agencies cannot accept significant numbers of these cases. As a result, large numbers of detainees go to court unrepresented.
The problem is compounded for immigrants detained in remote locations. For example, the 1,000-bed Bureau of Prisons (BOP) facility used by INS in Oakdale, Louisiana, is two and a half-hours away from the nearest major city, Baton Rouge. No free legal services are currently available to detainees at Oakdale, and only one private immigration lawyer regularly goes to the facility. Detainees in remote county jails face the same dilemma.
Some INS detainees try to represent themselves, but even if their prison happens to have an updated law library with immigration materials (and most local jails do not), few can master the complex legal procedures and standards that apply to their cases.
Detainees also face problems with new procedures for conducting removal hearings. In particular, removal hearings are increasingly held by videoconference. In these cases, the judge and the detainee observe and speak to each other through monitors in both the court and the detention center. The INS trial lawyer likewise remains in the courtroom. The detainee's counsel may appear in person or telephonically.
The INS and Executive Office for Immigration Review view videoconferencing primarily as a tool to provide removal hearings for noncitizens who are serving criminal sentences, obviating the need to transfer them to an INS detention facility. In this way, INS hopes to facilitate the deportation of detainees not eligible for relief from removal.
Video hearings put asylum seekers at a distinct disadvantage. An in-person hearing affords an asylum seeker a better opportunity to establish a human connection with the judge and to demonstrate credibility. Videoconferencing also interferes with a detainee's right to counsel, because it allows INS to keep a detainee at a distant location. If the detainee can secure counsel at all, pre-trial lawyer-client contact is limited. The ability to examine witnesses, object to questions by INS, and otherwise provide adequate representation at the hearing may also be compromised.
Inadequate Healthcare
The shoddy and occasionally life-threatening healthcare provided to immigrants has been a consistent theme in human rights reports on the INS detention system over the last decade. Recent reports indicate that, if anything, the quality of care is deteriorating.In 1998, for example, Human Rights Watch found extreme problems with the medical care provided to INS detainees in local jails, including "lack of prompt treatment, requirements that detainees pay for medical treatment, inadequate diagnosis or treatment of mental problems, inability to communicate with detainees seeking medical treatment, and a dental policy in which extraction is the sole remedy for every dental problem." The report identified poor management as the source of these problems. A recent investigation by the Department of Justice Civil Rights Division at the Jackson County Correctional Facility in Florida uncovered significant problems in "access to care; physician supervision of medical care; medication access and management; chronic illness management; emergency/urgent care; infectious disease control; mental healthcare; care and supervision of isolated or restrained inmates; and medical diets."
In 1999, Amnesty International concluded that INS violated international standards for the treatment of detainees by failing to determine whether asylum seekers in its custody had been tortured and, as a consequence, failing to take appropriate steps to manage their trauma. The report found that INS victimized many asylum seekers by placing them in solitary confinement for behavior caused by past trauma.
Language difficulties often exacerbate problems in medical treatment. New arrivals often do not speak English. Although the Public Health Service, which provides medical services in many facilities, can use telephone interpreters to communicate with detainees, doctors and nurses often speak only English. The INS also continues to detain asylum seekers who should be released for medical reasons.
No Access to Pastoral Care and Social Services
Immigration detainees experience loneliness, frustration, confusion, and despair. Like prisoners serving criminal sentences, they are separated from friends and family and face the daily indignities of incarceration. They also face the additional stress of uncertainty. Unlike criminal prisoners, INS detainees cannot predict the length of their detention. Even worse, they do not know if they will ultimately be released or deported to a country where they might be persecuted. In these circumstances, the assistance of pastoral and social workers can make all the difference. Unfortunately, INS does not have a formal chaplaincy program for those in its custody; as a result, many detainees do not have access to pastoral services.Overcrowding
The physical conditions at detention facilities, including overcrowding and the resulting lack of privacy, drive many detainees to despair. At the Elizabeth Detention Center in New Jersey, which the INS considers a model facility, asylum seekers spend twenty-two hours a day in the same room. In that room, as many as forty people eat, sleep, shower, and use the bathroom. They must use the toilets and showers in plain view of other detainees and guards. They can never go outdoors, only to an indoor room with a partially open ceiling that is covered with a chain-link fence. Some men and women have been living in these conditions for more than two years.
The Krome Service Processing Center in Miami is consistently overcrowded. In recent years, the center's population has risen from 300 to 550 and at times has exceeded 600. Although many of those confined at Krome have criminal convictions, others are non-criminal asylum seekers. As a result of overcrowding, temporary cots have become a staple at Krome, and buildings that were supposed to be closed or used for other purposes are now being used to house detainees.
The overcrowding has not only made daily life more difficult for detainees but also limited lawyer access. Because of the high numbers at Krome, daily counts taken at the facility are frequently inaccurate, resulting in recounts that effectively close the facility for hours. Because detainees must remain in one location during this time, lawyers visiting their clients must either wait or return another day.Abuse by Prison Officials and Misuse of Segregation
The conditions in INS "processing centers" and contract prisons have led to hunger strikes, suicide attempts, and even riots by the detainees. Abuse by guards and other detention officials is a recurring theme in reports on the INS system. For example, ten guards at the Union County jail in New Jersey were convicted for various offenses related to assaults against INS detainees in their custody. Among other abuses, the guards beat and kicked immigrants, stuffed their heads into toilets, yanked out their pubic hair, and squeezed their tongues with pliers. In a bitter irony, the victims of these assaults had been transferred to Union County from the INS contract facility in Elizabeth, New Jersey, where, according to an INS report, they had been "subjected to harassment, verbal abuse, and other degrading actions" by guards.
At times, detention officials misuse segregation, turning it from a disciplinary tool into an instrument of cruelty. Segregation seems a particularly cruel response to persons suffering from mental or physical illness.Conclusion
A strong consensus has emerged among human rights and immigrant advocacy groups regarding the steps necessary to fix the INS detention system. INS headquarters has long been plagued by its inability to enforce its policies at the local district level, much less at its contract detention facilities, and must be centralized. Strict accountability must be established for violations of INS detention policies.Bona fide asylum seekers, particularly those who establish a "credible fear" in the expedited removal process, should not be detained. The INS should develop and implement uniform release policies for all cases. Asylum seekers should never be confined to prison.
All INS detention facilities-whether INS Service Processing Centers, federal prisons, for-profit prisons, or local jails-should be subject to the same minimum standards related to conditions of confinement. These standards should be appropriate to "civil" detainees, rather than to prisoners serving criminal sentences. The model standards developed by the ABA constitute a good starting point and should be uniformly applied. If INS contractors resist implementation of appropriate standards or rigorous oversight, their facilities should not be used.
As the population of administrative detainees continues to increase, the United States must decide whether it can afford-economically and morally-to lock up persons who readily could be reunited with families and become productive members of society. For too long, the INS detention system has dishonored our heritage as a nation of immigrants.
Donald Kerwin is the chief operating officer of Catholic Legal Immigration Network, Inc. (CLINIC), headquartered in Washington, D.C.
