United States: End Detention of Refugees for Failure to File Forms

US Immigration and Customs Enforcement arbitrarily detains refugees
and holds them indefinitely for failing to meet paperwork requirements,
Human Rights Watch said in a report released today. People who have
already been accepted as refugees face an often confusing requirement
to apply for a green card for legal permanent resident status, after a
year in the United States.

The 40-page report, "Jailing Refugees: Arbitrary Detention of
Refugees in the US Who Fail to Adjust to Permanent Resident Status",
examines the detention of refugees for failure to file for lawful
permanent resident status, even though US immigration officials already
put them through a thorough vetting process at the time they were
recognized as refugees. Although only a small number of refugees are
jailed for this purpose, and the number appears to have decreased under
the Obama administration, the detentions continue to be selective and
arbitrary, and therefore a violation of international human rights law.
The report recommends changing US law to close the legal loophole that
allows for detaining these refugees and to give them lawful permanent
residence when the US grants them asylum or admits them to the country
under its overseas refugee resettlement program.

"For the US government to bring persecuted refugees to this country
and then turn around a year later and jail them because they didn't
file immigration forms is ironic to the point of absurdity," said Bill
Frelick, refugee policy director at Human Rights Watch. "This
mindlessly bureaucratic policy unnecessarily traumatizes refugees and
their families, not to mention wasting the government's resources."

The report is based on interviews with 17 refugees in immigration
detention in Arizona and Pennsylvania and with legal aid providers in
Arizona, Pennsylvania, Maryland, New York, and Washington, DC, all of
whom worked with refugees detained for failure to adjust their status.
Although the Department of Homeland Security informed Human Rights
Watch that the policy is under review, it declined to comment on the
findings of the report because the issue is under active litigation.

Each year, the US government sends officials overseas to interview
thousands of people displaced by persecution and conflict, classifies a
select number as refugees in need of resettlement, and brings them to
the United States. After a year in the United States, every resettled
refugee is required to apply for lawful permanent resident (LPR)
status, more familiarly known as a "green card," in a procedure known
as "adjustment."

The government does not formally notify them of the upcoming
deadline and the refugees' limited English, ignorance about the
requirement, confusion over the legal process, and lack of resources
often keeps them from filing on time.

Sebastian Nyembo (a pseudonym) was only 8 when he was resettled from
the Democratic Republic of Congo. He did not know about the
requirement. "I was eight years old," Sebastian told Human Rights
Watch. "My father passed away. When I got older I realized I needed [to
apply for a green card], but I didn't know it was mandatory."

When Human Rights Watch visited him in August 2009 at the remote
Eloy Detention Center in the Arizona desert, he had not spoken to his
two children, ages 7 and 4, since his arrival four months earlier. His
son has sickle cell anemia, which requires expensive medical care, but
Sebastian had been unable to provide for the children since his
detention. "My wife, she been going through a lot," he said. "[The]
house went for foreclosure."

Although the law is not applied uniformly, ICE interprets section
209(a) of the Immigration and Nationality Act as mandating detention of
all refugees who have been in the US for 12 months who have not filed
to adjust their status, until they have filed for adjustment and their
applications have been adjudicated. In Arizona, where Human Rights
Watch conducted most of its interviews, refugees were sometimes
detained for several months in remote, desert locations, and in some
cases for longer than a year, without being formally charged with any
legal offense.

The majority of resettled refugees interviewed by Human Rights Watch
said that before their detention, they were unaware that they were
required to file for adjustment of status. Most believed that filing
for adjustment of status was optional, and were unaware of any
potential legal repercussions for failure to file after one year.

"These people are no danger to their communities, nor are they a
flight risk," Frelick said. "But detaining them separates them from
spouses and children, interrupts their education and costs them their
jobs - not to mention the new trauma for those with post-traumatic
stress disorder."

The US is a state party to the International Covenant on Civil and
Political Rights, which states that no one shall be subject to
arbitrary arrest or detention (Article 9). This prohibition means that
a person may be deprived of liberty, even if provided for under
domestic law, only to meet a legitimate aim, and only in cases where it
is necessary and proportionate, such as when alternatives to detention
are not possible. An arrest or detention is arbitrary if not carried
out in accordance with domestic law, or if the law is itself arbitrary
or extremely broadly worded.

Failure to adjust immigration status is not a chargeable criminal or
civil offense. So unlike sentences of a specific length imposed for
criminal convictions, the length of detention for resettled refugees is
indefinite. When people are detained for this reason, they are held
until they complete their application and the application has been
fully adjudicated. This may take 4 to 6 months, and in some cases
longer than a year.

"Jailing Refugees" urges the US Congress to change the law that
currently permits ICE to detain these refugees and calls on Congress to
grant legal permanent residence to all recognized refugees in the US,
given that their cases have already been considered in depth as part of
the asylum or refugee resettlement process. In the meantime, it also
calls on ICE to stop detaining these refugees and to permit them to
file for adjustment from their own homes and communities.

The experience of being detained often without understanding why or
how to get out of detention can cause great anxiety and depression.
Sebastian Nyembo told Human Rights Watch "I'm a good person, a good
hearted person, but I'm gonna give up. I don't have no fight in me."

Some might argue that the current law should remain unchanged
because it gives US immigration authorities an opportunity to examine
refugees after one year to see if they should be removed because of
criminal behavior. "Jailing Refugees'" central recommendation that
refugees be admitted with lawful permanent resident status would still
allow US immigration authorities to put criminals into removal
proceedings. "Under existing law, US immigration authorities have ample
grounds for initiating removal proceedings against lawful permanent
residents convicted of crimes and for detaining them during those
proceedings," said Frelick.