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XI. LEGAL STANDARDSIntroductionThe treatment of asylum seekers documented in this report violates guidingprinciples of international law covering the right to asylum and thedetention of asylum seekers. Furthermore, the treatment documented inthis report also violates international agreements and standards governingthe conditions for detained asylum seekers and more broadly the conditionsof prisoners, detainees and others in confinement.This section highlights key components of two aspects of the law pertinentto this study: 1) international and US law governing the authority todetain asylum seekers and 2) international and US standards governing theconditions of such detention. Both of these fields are complex and subjectto debate. However, there are some clear overarching laws and standardsrecognized by the US, and US policies violate some of these. The purpose ofthis discussion is to provide sufficient background on these principles inorder to place the findings of this study in a meaningful legal context.In general, the findings in this report demonstrate that the discrepancybetween US law and standards and those established under internationallaw has produced, and will continue to produce, substantial harm to thehealth of those seeking safe haven in the United States from torture andother forms of persecution.Grounds for Detaining Asylum SeekersInternational human rights law and US policy covering the authority todetain refugees and asylum seekers have taken separate and often divergentpaths over the past fifty years. By the turn of the millennium, the twobodies of law had arrived at antithetical conclusions for asylum seekerswho arrive without proper documentation. Under international standards,detention of asylum seekers is “inherently undesirable,” even for thosearriving at a nation’s borders without “satisfactory” documentation, andshould be imposed only in narrow circumstances of “necessity.” 185 In con-185United Nations High Commissioner for Refugees’ Guidelines on applicable Criteria andStandards relating to the Detention of Asylum Seekers, 1999, Introduction, Secs. 1, 2[UNHCR Guidelines] (citing The Geneva Convention of 28 July 1951 Relating to the Statusof Refugees and UNHCR Executive Committee Conclusion, No. 44 (on Detention ofRefugees and Asylum Seekers) 1986 [UNHCR ExComm 44].LEGAL STANDARDS 155
trast, under US law, detention of so-called “undocumented” asylum seekersis mandatory and routine. 186International Law on Detention of Asylum SeekersThe United States is bound by international standards that articulate boththe fundamental nature of a person’s right to asylum and the general prohibitionagainst routine detention of asylum seekers.The Universal Declaration of Human Rights (Universal Declaration)provides that “everyone has the right to seek and to enjoy in other countriesasylum from persecution,” 187 and that “no one shall be subjected toarbitrary . . . detention.” 188 Building on these principles, the ConventionRelating to the Status of Refugees and its 1967 UN Protocol (RefugeeConvention), 189 establish special protected status for “refugees.” The USratification in 1968 of the UN Protocol legally binds it to the aforementionedstandards of the Convention and Protocol.A “refugee” is defined as a person with a “well-founded fear of beingpersecuted for reasons of race, religion, nationality, membership of a particularsocial group or political opinion [known as the five grounds], isoutside the country of his nationality and is unable, or owing to such fear,is unwilling to avail himself of the protection of that country.” 190 TheConvention forbids the expulsion of a refugee to a territory where his orher life or freedom is at risk due to the five grounds, listed above. 191 Inaddition, nations that are parties to the convention should accord refugees186The Immigration and Nationality Act (INA) sec. 235(b)(1)(B)(iii and iv)187Universal Declaration of Human Rights, Article 14. Adopted by the UN General Assembly,10 December 1948. GA Res. 217A, UN GAOR, 3 rd Sess., Pt. I, Resolutions, at 71, UNDoc. A/810 (1948) [UDHR].188UDHR, Art. 9.189United Nation Convention Relating to the Status of Refugees, 28 July 1951, 189 UNT.S150 (entered into force 22 April 1954) [Refugee Convention]; United Nation’s ProtocolRelating to the Status of Refugees, 31 January 1967, 60 UNT.S. 267 (1968) (entered intoforce 4 Oct. 1967) [Refugee Protocol].190Refugee Convention, Art. 1, Sec. 2 as amended by the Refugee Protocol, art. I.191Refugee Convention, Art. 33, Art 1, sec. B, C. The Convention provides that ContractingStates may not expel or return a refugee to a territory where his/her life or freedom is at riskon account of his/her race, religion, nationality, membership of a particular social group, orpolitical opinion. Exceptions are made for those seeking refugee status who were war criminals,committed serious non-political crimes prior to entering the country of refuge, or whoare guilty of acts contrary to the purposes of the United Nations.192Those seeking asylum in the US are reviewed under the criteria for establishing refugeestatus; see, 8 U.S.C. 1158. Those granted asylum, “asylees” are a subset of refugees. In theUS, refugees are those people who have fled persecution and are determined by the US orother competent authority to be refugees, while still overseas. Asylum seekers are those arrivingat the US border who say they have fled persecution, but who who have not yet receivedofficial recognition of refugee status [Asylees are Refugees; 8 U.S.C. 1158].156 FROM PERSECUTION TO PRISON
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From Persecution to Prison:The Heal
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CONTENTSAcknowledgements . . . . .
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The Bellevue/NYU Program for Surviv
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don, Miranda Ip, and Meriam Alrashi
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Significant symptoms of depression
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Detained asylum seekers participati
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persecution, yet most emphasized ho
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In many facilities, the response to
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years in detention, she finally got
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abuse For example, while being take
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They didn’t let me use the phone
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intensely personal events they had
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Limitations of this study include t
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Non-governmental organizations serv
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22 FROM PERSECUTION TO PRISON
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the late 1990s ranging from 10 to 7
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Historical BackgroundFor most of th
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international standards with the 19
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apply for asylum make up the majori
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tion judge. 57 Yet in many parts of
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York and Newark, New Jersey has had
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trict began denying parole to them
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Correctional Facility in 2000. “[
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men of which 750 were detained on i
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from that same country from seeking
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Detention Facilities in this StudyF
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high reliability in numerous langua
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York County Prison in York Pennsylv
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TABLE 2:Demographic Characteristics
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TABLE 4:Prevalence of Pre-Migration
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on a part time basis, researchers w
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Case #1(DK): “Loneliness and Fear
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TABLE 6:Hopkins Symptom Checklist-2
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TABLE 8:Harvard Trauma Questionnair
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think such services were available.
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When I am talking to you now it is
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After being granted asylum and rele
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“Being here is like going through
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In my country even though I became
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how long they were there - six mont
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Thoughts of SuicideSeveral asylum s
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here?’ I told the doctor, they br
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Another subject reported a positive
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substantial distance from their att
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eported that her experience in dete
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e somatic manifestations of the psy
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Case #2 (JG): “Health Care in Cha
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TABLE 11:Detainee Perceptions of He
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TABLE 13:Availability and Quality o
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detainees, or because they did not
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Difficulty Obtaining Specialized Ca
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Another detained asylum seeker repo
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One detainee who speaks French and
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Page 115 and 116: Detention Facilities in this StudyS
Page 117 and 118: even though many reported having ex
Page 119 and 120: CASE #3 (HN): “SOLITARY CONFINEME
Page 121 and 122: Here, I’m scared. In [the detenti
Page 123 and 124: emote control and watch what he wan
Page 125 and 126: Whenever someone misbehaves, they t
Page 127 and 128: This subject was himself threatened
Page 129 and 130: One detainee reported several incid
Page 131 and 132: Some Process Exists to Respond to R
Page 133 and 134: There were no witnesses other than
Page 135 and 136: tion. An INS officer said they put
Page 137 and 138: There is an Anglican minister who c
Page 139 and 140: The dentists didn’t explain anyth
Page 141 and 142: tion between dental age and chronol
Page 143 and 144: Case #4 (LK): “Fifteen-Year-Old G
Page 147 and 148: TABLE 16:Treatment/Abuses Reported
Page 149 and 150: “There is no political asylum her
Page 151 and 152: I was crying. I was so afraid with
Page 153 and 154: save her life, but was not able to
Page 155 and 156: Case #5 (CR): “Begging for Mercy
Page 157 and 158: ehind and told me to sign. He physi
Page 159 and 160: days and it is now 2 years and four
Page 161 and 162: viewers asked for additional inform
Page 163: y study participants. In evaluating
Page 167 and 168: nation for an asylum determination
Page 169 and 170: very negative effects of detention
Page 171 and 172: authority to grant asylum and with
Page 173 and 174: absconding.” 250 Since the passag
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Page 177 and 178: Standards relevant to this study ar
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Page 181 and 182: which they are charged and a fair h
Page 183 and 184: esponse to substantial public press
Page 185 and 186: specified procedures, provided they
Page 187 and 188: PunishmentThe Detention Standard on
Page 189 and 190: any time the detainee complains.”
Page 193 and 194: while in detention, thus adding to
Page 195 and 196: Establish a Uniform National Parole
Page 197 and 198: that effect. These officers should
Page 199 and 200: Besides their inaccuracy, these exa
Page 201 and 202: friends so asylum seekers can maint
Page 203 and 204: appropriate staffing of such groups
Page 205 and 206: efugees and asylum seekers who win
Page 209 and 210: of thorough documentation. However,
Page 211 and 212: Human development is complex and di
Page 213 and 214: 18. Country from which fleeing pers
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9. Being close to death.10. Forced
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Complete for each health problem:5.
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Explain:(Interviewer: Write brief n
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2. Depression SymptomsA How much we
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B. You said that you have experienc
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Explain:13. How was your physical h
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Yes ...........1No............22. W
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Explain:20. At the time of your arr
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