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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
absconding.” 250 Since the passage of IIRIRA, the INS repeatedly issuedmemoranda with parole guidelines, specifically declaring, “it is INS policyto favor release of aliens found to have credible fear of persecution providedthat they do not pose a risk of flight or danger to the community.” 251But despite this authority, INS parole guidelines were neither consistentlyor effectively administered. 252 The district directors’ aversion toparole and the ineffectiveness of headquarters’ parole policies wasexposed when headquarters needed to issue a regulation clarifying thatheadquarters officials, not just the relatively autonomous district directors,had the authority to grant parole. 253 In general there was limited useof parole, variation in parole practices from region to region and nearlycategorical refusal to use parole in some districts. 254 (See Backgroundchapter for more detail on New York area districts)Asylum seekers have no recourse to a court or other independentauthority regarding the necessity of their detention. 255 Even immigrationjudges are precluded from reviewing the detention of arriving foreigners,which includes asylum seekers, although they have the power to reviewother immigration custody decisions. 256 Despite international law protectionspermitting detention of asylum seekers only when “necessary” afteran individualized determination, the federal government resorts to detentionas a matter of course without an individualized determination ofappropriate factors such as necessity or security threat and detained asylumseekers have no recourse to appeal.In November 2002, the INS issued a notice in the Federal Registerexpanding detention and the expedited removal process by applying theexpedited removal process to those who arrive by sea, including Haitians,and by maintaining detention for the duration of immigration proceedings.257 The notice exempted Cubans. 258 UNHCR and Lawyers Committee2508 C.F.R. § 212.5(a) (1999).251Memorandum from INS Executive Associate Commissioner for Field Operations, DetentionGuidelines Effective October 9, 1998; 75 Interpreter Releases 1523 2 Nov. 1998 [INSDetention Guidelines]; Acer, America’s Values, p. 46.252Amnesty International, United States of America: Lost in the Labyrinth: Detention ofAsylum-Seekers, AMR51/51/99, Sept. 1999, chapt.3, p.17 [Amnesty, Lost in the Labyrinth].25365 Fed. Reg. 82254-82256, “Clarification of Parole Authority,” INS No. 2004-9965 (28Dec. 2000).254Lawyers Committee for Human Rights, Refugees Behind Bars: The Imprisonment of AsylumSeekers in the Wake of the 1996 Immigration Act, August 1999 [LCHR, RefugeesBehind Bars].255Acer, America’s Values, p.46.2568 C.F.R. sec. 3.19 (h)(2)(i)(B); Acer, America’s Values, p.46.257Notice Designating Aliens Subject to Expedited Removal Under Section 235(b)(1)(A)(iii)of the Immigration and Nationality Act, 67 Fed. Reg. 68924-26 (Nov. 13, 2002), INS No.2243-02 [Regulation expanding Expedited Removal to sea arrivals].164 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
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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 and 170: very negative effects of detention
Page 171: authority to grant asylum and with
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
Page 221 and 222: 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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