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

Advocates have charged that this procedure for identifying asylumseekers as they arrive at the airport or other port of entry is woefully inadequate,lacking basic provisions for fairness and accuracy. They charge itrisks the summary exclusion of many genuine asylum seekers and fails tomeet US obligations of under international law. 244 Some reports haveshown that mistakes have been made with legitimate asylum seekersdeported or pressured. 245Under IIRIRA, detention is mandatory for anyone who expresses a fearof persecution or a desire for asylum. The individual is referred for aninterview with a specially trained INS asylum officer to determine whetherthis fear is “credible.” 246 Credible fear is established when “there is a significantpossibility... that the alien could establish eligibility for asylum.”247 If the asylum officer does not find that this standard is met, theimmigrant is again subject to immediate deportation under the expeditedremoval process.Even if an asylum seeker is successful in convincing the asylum officerthat s/he has a “credible fear of persecution” and thus passes out of theexpedited removal process, asylum seekers regularly remain in detentionand are not released. The IIRIRA called for continued detention while italso gave the federal government discretion to offer parole. This oftenmeans detention for months and even for years. 248IIRIRA granted the federal government the discretion to paroledetained non-citizens, such as asylum seekers, “on a case-by-case basis forurgent humanitarian reasons or significant public benefit.” 249 Parole maybe granted when, among other reasons, an asylum seeker’s “continueddetention is not in the public interest as determined by the district director”and the detainee presents “neither a security risk nor a risk of244Human Rights Watch, Detained and Deprived of Rights; Children in the Custody of theUS Immigration and Naturalization Service, Vol. 10, No. 4 (1998).245Karen Musalo et al, The Expedited Removal Study: Report on the First Three Years ofImplementation of Expedited Removal, 15 ND J. L. Ethics & Pub Pol’y 1, (2001) [3 Years -Expedited Removal Study]; Eric Schmitt, When Asylum Requests are Overlooked, NYTimes, 15 Aug. 01.246INA § 235(b)(1)(B)(iii)(IV) (1997).247INA § 235(b)(1)(B)(v) (1997) (“taking into account the credibility of the statements madeby an alien in support of the alien’s claim and such other facts as are known to the officer”)(emphasisadded).248INA § 235(b)(1)(B)(ii) (1997) provides that after an asylum officer’s determination “thatan alien has a credible fear of persecution . . .the alien shall be detained for further considerationof the application for asylum.” (emphasis added). INA § 235(b)(2)(A) states that anapplicant, which can be an asylum seeker, or any alien seeking admission, who “is not clearlyand beyond a doubt entitled to be admitted shall be detained” for removal proceedings. INA§212(d)(5) (1997) provides for parole.249INA § 212(d)(5) (1997).LEGAL STANDARDS 163