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U.S. Defaults on Vow to Reform Asylum System

William Fisher

An agent from the U.S. Immigration and Customs Enforcement (ICE) stands guard in Otay Mesa, California November 3, 2010. Some immigration detention facilities are operated by ICE, the enforcement arm of DHS, while others are run by private corrections companies or county jail systems. (REUTERS/Mike Blake)

NEW YORK - One year after the U.S. Department of Homeland Security (DHS)
announced plans for a wide-reaching overhaul of the country's
long-mismanaged immigration detention system, human rights and
immigration advocacy organisations are charging that the
government has yet to make significant progress toward the
underlying goal of detention reform – a true shift from a
penal to a civil approach to immigration detention.

One such group, Human Rights First (HRF), is taking aim at a
particularly sensitive aspect of the detention debacle: the
plight of refugees seeking asylum.

Annie Sovcik, advocacy counsel for HRF's Refugee Protection
Programme, told IPS, "Of the approximately 400,000
immigrants held in U.S. immigration detention annually, a
few thousand are refugees - individuals who have fled
persecution for political, religious and other reasons and
are seeking protection in the United States."

"Upon arrival, these refugees are shackled and transported
to immigration detention centres where they are held in
jail-like conditions and where they may remain isolated for
months without adequate due process safeguards as their
claims for asylum protection are adjudicated," she charged.

Sovcik says this practice "undermines commitments the United
States has made to protect refugees, violates obligations
the United States has assumed under international law, and
creates a barrier for refugees to access a fair asylum
adjudication process."

The Department of Homeland Security has pledged to reform
the immigration detention system and move away from a jail-
like system to one that is more civil in nature. HRF and
other organisations welcomed this announcement in 2009 and
also encouraged DHS to commit to reform its practices
related to how decisions of who to detain or release are

But, Sovcik asserts, "Since the August 2009 announcement,
while DHS has slowly worked on fulfilling its promise,
33,400 immigrants are held every day in facilities that
officials at the highest levels recognise is chronically
flawed but have remained essentially unchanged."

Sovcik called on Immigration and Customs Enforcement (ICE)
to implement changes at existing facilities by the end of
this year.

The U.S. immigration detention system holds up to 33,400
detainees - including asylum seekers - every day. These
detainees are currently held in a sprawling network of
approximately 250 facilities - down from 341 a year ago -
across the country.

Some of these facilities are operated by ICE, the
enforcement arm of DHS, while others are run by private
corrections companies or county jail systems.

Last year, DHS acknowledged that its detention beds were
located in facilities "largely designed for penal, not
civil, detention." Key among its 2009 reform plans was a
commitment to shift to a non-penal, or "civil", model of
immigration detention.

DHS's announcement in 2009 came on the heels of two
government reports that had concluded that the U.S.
immigration system was inappropriately modeled on
correctional systems.


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One was from Dr. Dora Schriro, former director of the
Arizona and Missouri state corrections systems and currently
commissioner of correction for New York City, and the other
from the bipartisan U.S. Commission on International
Religious Freedom.

HRF's recommendations for new civil standards and changes to
existing facilities include allowing asylum seekers and
other immigrant detainees to wear civilian clothing rather
than prison jumpsuits; to have contact visits with family
and friends in all facilities, true outdoor recreation
space, and expanded access throughout the day; and to enjoy
increased freedom of movement within secure facilities.

More broadly, the group urges the government to stop
detaining asylum seekers and other immigrants in penal
facilities, and create nationwide alternatives to detention.

DHS should work with the Justice Department to provide all
detained asylum seekers with access to custody hearings so
that the need for their continued detention can be assessed
by an immigration court, HRF says.

Another serious glitch in the asylum-seeking process is the
application deadline imposed by Congress. A new study has
revealed that one in five refugees seeking protection in the
United States is denied asylum because they do not apply
within one year of their arrival and thus miss the 12-month
deadline imposed by Congress, according to a study of the
Board of Immigration Appeals' (BIA) asylum decisions.

"The one-year deadline results in the denial of asylum, a
basic human rights protection, because of a technicality,"
said Mary Meg McCarthy, executive director of the Heartland
Alliance's National Immigrant Justice Centre.

"The BIA is making a bad law worse by arbitrarily denying
exceptions to the deadline and putting the lives of men,
women, and children at risk," she added.

The study's conclusions are detailed in a new report, "The
One-Year Asylum Deadline and the BIA: No Protection, No
Process", prepared by the Heartland Alliance, HRF and
others. It is the first to examine how the asylum deadline
is handled by the BIA, the highest level of administrative
appeal available to asylum seekers.

In addition to the 20 percent of asylum cases denied because
of filing after the deadline, in 46 percent of the 662
filing deadline denials, the BIA did not provide any reason
for the denial of the asylum application other than that it
was submitted after the filing deadline.

And of the 662 filing deadline denials, the BIA did not
recognise any exceptions to the filing deadline. When an
immigration judge granted an exception to the one-year
deadline, the BIA affirmed that decision 75 percent of the

By contrast, when an immigration judge denied asylum based
on the one-year deadline, the BIA affirmed the decision 96
percent of the time.

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