From Persecution to Prison - Bellevue/NYU Program for Survivors of ...

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US Law on Asylum and the Detention of Asylum SeekersDespite its accession to the 1967 Protocol and Refugee Convention, 230 theUS only officially adopted the internationally recognized definition ofrefugee (or asylee) when Congress enacted the Refugee Act of 1980. 231This legislation adopted the international definition of any person with awell-founded fear of future persecution and expanded it to include anyperson who had suffered persecution in the past. 232US authorities have recognized the significance of the internationalstandards for US law. One tool outlining these standards is the UNHCR’sHandbook on Procedures and Criteria for Determining Refugee Status(Geneva, 1992), which the UNHCR designed to be a practitioner’s guideto the Refugee Convention, the 1967 Protocol and UNHCR ExecutiveCommittee documents and decisions. The US Supreme Court has stated,“the UNHCR Handbook provides significant guidance in construing theProtocol, to which Congress sought to conform.” 233 The INS cited theHandbook as an important reference. 234Key Provisions of Current US LawUnder US law, asylum may be granted to individuals who demonstratethat they have suffered past persecution or have a well-founded fear offuture persecution because of one or more of the five grounds used todetermine refugee and asylum status. 235 Asylum seekers may pursue asylumin the United States in one of two ways. Those who have entered theUS, even those who have entered illegally (but have not been apprehendedby the federal government) may apply for asylum affirmatively. 236 Affirmativeapplicants present their claims to an “asylum officer,” a Departmentof Homeland Security (DHS, formerly INS) official with the230Some treaties are non-self executing, that is, “they do not have the force of domestic lawuntil separate implementing legislation is passed,” i.e., a treaty is not part of the law unlessand until it has been incorporated into the law by legislation. Congress informally adopted apolicy “of either not ratifying human rights treaties or attaching reservations, understandings,and declarations to them” which made them non-self executing. Bejarru v. Reno, 183 F.Supp. 2d 584, 593-594 (E.D.N.Y. 2002).231Eleanor Acer, Living up to America’s Values, Refuge, Vol. 20 No. 3, 44, 45 (2002)[Acer,America’s Values].232INA, 8 U.S.C. 1157.233INS v, Cardoza-Fonseca, 107 S.Ct. 1207, 1217, n. 22 (1987).234INS, Asylum Officer History.235See previous note: Asylees are Refugees; 8 U.S.C. 1158.236See INA § 208(d)(5)(ii)(1997), 8 U.S.C. § 1158 (1998). See also, Michele R. Pistone, JusticeDelayed is Justice Denied: A proposal for Ending the Unnecessary Detention of AsylumSeekers, 12 Harv. Hum. Rts. J. 197, Spring, 1999, [Pistone, Justice Denied]. Affirmativeapplications must be filed within one year of the applicant’s latest arrival in the Unites States.Immigration and Nationality Act § 208(a)(1997), 8 U.S.C. § 1158(2)(b) (1998).LEGAL STANDARDS 161
authority to grant asylum and with some training in the circumstances andcountry conditions generally surrounding asylum applications. Interviewswith asylum officers are non-adversarial in nature. If an affirmative applicationis granted, the “asylee” receives work authorization and after oneyear, may apply for permanent residency and eventually for citizenship. Ifasylum is not granted, the case is referred to the immigration court for furtherreview of the asylum claim and for the initiation of removal (deportation)proceedings.Asylum seekers who arrive at the US border without proper documentationare subject to an entirely different regimen. Under the Illegal ImmigrationReform and Immigrant Responsibility Act (IIRIRA), 237 passed in1996 “in a wave of anti-immigrant sentiment,” 238 any person who arrivesat an airport or border checkpoint without travel documents — or withdocuments that immigration officers merely suspect to be false or fraudulent— may be deported immediately by those immigration officers withoutany opportunity for a hearing or judicial review, known as expeditedremoval. 239 In the same year, Congress passed The Antiterrorism andEffective Death Penalty Act of 1996 (AEDPA). It creates a process bywhich the US government can designate organizations as “foreign terroristorganizations.” 240 Individuals involved in these organizations are notentitled to asylum.Asylum seekers arriving without proper documents may avoid immediatedeportation under this expedited removal process of the IIRIRA only ifan immigration officer recognizes that they fear being returned to theircountry of origin or want to seek asylum. 241 During the initial encounterat the airport or port of entry, INS procedures required that immigrantssubject to expedited removal be informed, in a language they understand,of the opportunity to explain such fears or intentions. 242 This encounterincludes the initial screening by an immigration officer familiar to mostany international traveler and a “secondary inspection” that follows afterthe officer finds problems with travel documents, and the individual indicatesthat s/he fears return. 243237IIRIRA, 18 U.S.C. 611.238Human Rights Watch, Locked Away: Immigration Detainees in Jails in the United States,September, Vol.10, No. 1(G), Sept. 1998, p.7[HRW, Locked Away].239See INA § 212 (a) (6) (C) (1997), 8 U.S.C. § 1182 (1998); 8 C.F.R.§235.3(b)(4); LawyersCommittee for Human Rights, Is This America? The Denial of Due Process to Asylum Seekersin the United States, Oct. 2000, p. 19 [LCHR, Is This America]240INS, Asylum Officer History.241INS, Asylum Officer History.242See 8 C.F.R. §235.3(b)(2)(I); INS Form I-867A & B; INS Inspections Field Manual, chapt.17, sec. 17.15.2438 C.F.R. 235.3(b)(4).162 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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Detention Facilities in this StudyS
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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 145 and 146: 136 FROM PERSECUTION TO PRISON
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 and 164: y study participants. In evaluating
Page 165 and 166: trast, under US law, detention of s
Page 167 and 168: nation for an asylum determination
Page 169: very negative effects of detention
Page 173 and 174: absconding.” 250 Since the passag
Page 175 and 176: said “[F]reedom from imprisonment
Page 177 and 178: Standards relevant to this study ar
Page 179 and 180: “detained person” generally as
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
Page 215 and 216: 9. Being close to death.10. Forced
Page 217 and 218: Complete for each health problem:5.
Page 219 and 220: 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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