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Letters to the 107th Congress

May 4, 2001

The Honorable Sam Brownback
Chairman, Subcommittee on Immigration
United States Senate
Washington DC 20510

Dear Senator Brownback:

I am writing to thank you for holding this hearing on asylum, expedited removal and unaccompanied immigrant children and to share the ABA's views.

Backlogged asylum and immigration court systems in the 1990's led to the enactment of legislation and streamlining policies that lack important procedural safeguards and endanger refugees seeking asylum. Instead of safety, shelter and fair process, many asylum seekers who reach our shores today, including unaccompanied immigration children, find themselves deprived of liberty with inadequate access to legal asssistance, and they are summarily deported and barred from appealing to the courts. These reforms have turned our ports of entry into paragons of efficiency, but parodies of justice.

Expedited Removal

Since April 1, 1997, INS inspectors at U.S. land borders, international airports and sea ports have possessed extraordinary power to make and execute on-the-spot deportation decisions. Asylum seekers who arrive in the U.S. after stressful and fatiguing journeys must prove a "credible fear of persecution" in order to avoid immediate expulsion and to be allowed to apply for asylum. There is no right to have a lawyer present or a qualified interpreter to assist in the screening process and no involvement of a judicial or quasi-judicial officer.

After an initial inspection at the border today, a person who arrives with no documents, false documents, documents belonging to another individual or valid documents believed to have been obtained through misrepresentation is referred to an INS officer for secondary inspection. The secondary interviews are conducted in secured areas of the ports of entry where nongovernmental observers are denied access and where representation by counsel is not a recognized right. The secondary inspection officer can either issue a removal order or, at the officer's option, give the individual a chance to withdraw his or her request for admission. A removal order bars the individual from returning to the United States for five years unless he or she receives a waiver from the Attorney General. Withdrawing, when permitted, allows the individual to choose his or her destination and imposes no penalty to returning lawfully at any time in the future. Deportation orders previously had been made only by immigration judges after a formal hearing at which the alien could be represented by counsel.

An inadmissible person who expresses a fear of returning to his or her home country must be given a brief explanation of U.S. asylum law and asked three specific questions to determine why the individual left his or her home country and whether he or she has fears or concerns about returning there. If the person appears to be seeking asylum,the officer will have the person detained for a "credible fear" for an interview by an INS asylum officer, and provide a list of assistance programs that he or she may wish to consult. If the asylum officer subsequently finds credible fear of persecution, the individual will be allowed to apply for asylum. If the officer does not find a credible fear of persecution, the individual may ask for de novo review by an immigration judge. Although the right to counsel has been recognized in all other proceedings conducted by immigration judges, the Department of Justice has not recognized a right to counsel in these matters.

This expedited removal authority is exercised by about 4,900 INS officers, at nearly 300 ports of entry. More than 83,000 removal orders were issued in FY 2000. During that same time frame about 3,000 people who expressed fears of returning to their home countries were referred to the asylum corps for credible fear interviews - less than 10 individuals per day. This is about half of the number who had sought asylum at the nation's borders before the law went into effect and may suggest that bona fide asylum seekers are being turned away.

The ABA, along with human rights organizations and refugee service agencies, has concerns about whether this expedited removal authority is being exercised properly. We have received reports that admissible individuals are being denied entry to the United States and that refugees fleeing persecution are not making it through the inspections process to a credible fear interview.

One reason for concern was raised by findings in a 1998 GAO report. See Illegal Aliens: Changes in the Process of Denying Aliens Entry to the United States (GAO, March 1998). Although the INS inspectors generally followed the prescribed procedures, reviews at all five locations visited by the GAO "indicated inconsistent compliance with the procedures." In four locations, INS inspectors did not document asking at least one of the three questions required for determining if a credible fear interview is necessary up to 18 percent of the time. In a subsequent study, INS inspectors did not document asking at least one of the required questions up to 16 percent of the time. Illegal Aliens: Opportunities Exist to Improve the Expedited Removal Process (GAO, September 2000). The GAO also was not able to determine whether or not the INS inspectors are correctly or incorrectly making exclusion decisions in the first place and did not investigate reports of abuses during the inspections processes, including denial of food, phone and bathroom privileges, and verbal abuse.

Another reason for concern stems from an in-depth study by Janet Gilboy, a researcher at the American Bar Foundation, who examined the work of immigration inspectors at ports of entry prior to expedited removal. In her study, "Deciding Who Gets In: Decisionmaking by Immigration Inspectors," 25 Law & Society Review 571, 587 (1991), Gilboy reported that immigration inspectors at ports of entry often make judgments based on a traveler's nationality:

Little or no individualized inspection occurs; presentation of the country passport suffices to judge what type of individual is requesting admission. This handling implicitly reflects inspectors' notions about the individual's limited credibility, that is, lack of trustworthiness of statements or documents.

Because the INS has consistently rebuffed efforts by independent researchers to study the expedited removal process, academics and nongovernmental organizations are trying to monitor the process through other means. The most extensive study is being conducted by The Expedited Removal Study (ERS) based at the University of California, Hastings College of the Law. See Karen Musalo, The Expedited Removal Study: Report on the First Three Years of Implementation of Expedited Removal, Center for Human Rights and International Justice,

University of California, Hastings College of Law (May 2000). ERS' preliminary analysis suggest that women and non-English speakers may have greater difficulty navigating through the expedited processes than better-educated men.

 

In addition, the Lawyers Committee for Human Rights has documented numerous cases of people fleeing religious persecution, ethnic violence, political repression, and human rights abuse being wrongly turned away from the United States. They also have documented incidents involving asylum seekers who narrowly avoided summary removal or who were mistreated by the INS. Is this America: The Denial of Due Process to Asylum Seekers in the United States (October 2000). The ABA has received reports about asylum seekers who were returned to dangerous countries before anyone even knew they had reached the United States. The ABA also has received information about asylum seekers whose deportations were intercepted before they suffered a similar fate.

These reports combined with the secrecy that surrounds the expedited removal process, the absence of independent observers, anecdotal evidence regarding mistreatment by INS inspectors and the decline in asylum applications by arriving aliens, fuel concerns that these expedited processes frustrate claims by genuine refugees.

For these reasons, the ABA strongly supports changing the current process to provide procedures that give individuals a fair chance to consult with counsel and present their cases, as proposed in the Refugee Protection Act introduced by you and Sen. Patrick Leahy last year. We also support the elimination of the one-year asylum deadline which impedes claims by bona fide asylum applicants who are fearful or ignorant of the opportunity to apply for asylum, or who lack the resources to do so.

The ABA also makes the following recommendations pertaining to the exclusion process:

  1. Removal decisions should be made by immigration judges, not law enforcement officers.
  2. Facilitating the entry and exit of people and goods at the U.S. ports of entry is one of the most important functions of the INS. According to the INS, there are more than 500 million legal admissions annually - more than 1 million per day. Less than 1 percent of individuals seeking admission are denied entry. Given the greater than 99% admission rate, many immigration advocacy organizations and border communities view inspections predominantly as a "service" activity which should be performed by adjudications personnel, not law enforcement officers. Exclusion orders, moreover, should be entered only by impartial adjudicators, preferably immigration judges, following a formal hearing which conforms to accepted norms of due process. The INS reorganization process may provide an opportunity to re-examine the use of expedited removal and to reestablish these principles.

  3. The expedited removal program should not be expanded.
  4. The current law permits the Attorney General to use expedited removal for anyone "who has not affirmatively shown, to the satisfaction of an immigration officer, that the alien has been physically present in the United States continuously for the 2-year period immediately prior to the date of the determination of inadmissibility." INA section 235(b)(1)(A)(iii)(II). Although Attorney General Janet Reno declined to implement that provision, the statute remains on the books and the implementation decision has been delegated to the sole discretion of the INS Commissioner. 8 CFR 235.3(b)(ii). A designation by the Commissioner is effective upon publication in the Federal Register and is not subject to judicial review. We have many reservations about the current program and even more about the inherent dangers in giving similar powers to the Border Patrol or expanding expedited removal to the interior of the country

  5. Asylum seekers who have passed the "credible fear" screening process should be released from detention.
  6. Today there is no guarantee that asylum seekers who have passed credible-fear screening will be released from detention. The statute mandates that a person who is inadmissible be taken into custody and held pending a final determination of credible fear. Similar provisions in the law before 1996 were construed as permitting the Attorney General to "parole" [i.e. release] the applicant pending a final decision in his or her case. While the INS does not dispute that arriving asylum seekers can still be paroled once credible fear has been established, such decisions have been delegated to the INS district directors, who may be reluctant to do so. It is not uncommon for a district director to deny release of a person who has passed the credible fear test, or even been granted asylum by an immigration judge, with the explanation that there is "no compelling humanitarian reason" to release the individual.

The ABA has numerous concerns about the growing reliance on immigration detention because it deprives individuals of their liberty and significantly impacts on their ability to secure and maintain a working relationship with counsel. Today, there are more than 20,000 detention beds available to the INS; 55 percent are rented from state and local jails. Although the lack of access to phones, family, counsel and legal information in these places is well-documented, and there is nearly universal agreement that criminal and non-criminal detainees should not be commingled, the INS continues to rely on these criminal facilities. In lieu of exercising the parole option as a matter of public policy, the INS detains asylum seekers in whatever facilities are available, including in local jails with criminals. The INS also insists that release determinations remain in the hands of the district directors, rather than be delegated to the asylum officers who conduct the credible fear interviews. As a result, traumatized asylum seekers continue to be detained with criminals in isolated penal institutions.

We have repeatedly suggested that the INS release people who have passed the credible fear screening test and establish alternatives to detention. The objectives are achievable and would be a significant improvement over the status quo.

Unaccompanied Immigrant Children

Immigrant children who arrive in the United States unaccompanied by their parents or other legal guardians are a special concern of the ABA. Some of these children are escaping political persecution, while others often are fleeing war, famine, abusive families, or other dangerous conditions in their home countries that may give rise to asylum claims. When they arrive, these children generally have no legal status or support system and face a stressful and confusing ordeal.

Most detained children speak little or no English and are rarely aware of their rights under U.S. law. They frequently are detained in secure facilities, sometimes commingled with juvenile offenders. Although some children may have U.S. family members to whom they can be released, many will remain in INS custody while their cases proceed through the immigration court system. This practice is inconsistent with nationally recognized juvenile justice standards and with the United Nations Convention on the Rights of the Child, which prohibits the detention of children except as a measure of last resort. Over 4,600 unaccompanied children were detained in over 90 different locations last year.

Although the consequences of deportation may be quite dire, U.S. immigration laws do not allow for the appointment of counsel at the government's expense, even for these vulnerable children. Immigration court is an adversarial setting, presided over by an immigration judge and prosecuted by an experienced INS trial lawyer. These cases decide the child's future: statistics from the Department of Justice show that asylum seekers are four times more likely to be granted asylum when represented. These children, however, frequently have no choice but to represent themselves. Nervously they wait, with very little understanding of the law and legal process, for their turn to appear before an immigration judge. When these children are later deported, as many inevitably are, there is virtually no follow up to find out what happens to them.

The ABA is working with state and local bars across the country to help these children secure pro bono representation. For many years the ABA, State Bar of Texas and American Immigration Lawyers Association have co-sponsored ProBAR, a project that brings in volunteer lawyers to represent many children who are detained in a remote location in rural South Texas by the INS. Still, the numbers of unaccompanied children who are detained nationwide exceeds available volunteers.

This is an anomaly in our justice system that urgently needs legislative reform. The ABA strongly supports enactment of legislation such as S.121, introduced by Sen. Dianne Feinstein, to provide every child in this situation with a court-appointed attorney to speak for that child in court and to assist him or her in applying for relief under U.S. law. The ABA also strongly supports creating an independent office within the Department of Justice with an oversight role to ensure that children's interests are respected at all stages of immigration processes and while in immigration custody. We further recommend that incarcerated children automatically receive custody redetermination hearings before immigration judges (even if not specifically requested) and be placed in the "most family-like setting" when they cannot be released to family members or other appropriate adults.

The ABA is committed to the principle that aliens who are facing removal from the United States have a right to fundamental due process and other constitutional protections. The current expedited removal procedures do not comport with due process principles or respect the right to counsel. The ABA also believes that all children within our borders must be treated fairly by our laws and justice system, regardless of their immigration status.

We thank you for bringing these issues to the attention of the American public and look forward to assisting you as you work to enact legislative reforms this session.

Sincerely,

Robert D. Evans

cc: Members, Subcommittee on Immigration

107th Congress Letters Home

AMERICAN BAR ASSOCIATION
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