CIAO DATE: 12/01

Refugees Behind Bars: The Imprisonment of Asylum Seekers in the Wake of the 1996 Immigration Act

Lawyers Committee for Human Rights
August 1999

Executive Summary and Recommendations

The United States has long viewed itself as the land of the free and the protector of the persecuted, in the words of Emma Lazarus, the "Mother of Exiles." In fact, U.S. concern for the plight of refugees during the Second World War was instrumental in the development of the modern international refugee protection system. Sadly however, "world-wide welcome" no longer glows from the Statue of Liberty’s torch upon the exiles who flee to our shores "yearning to breathe free." Instead, handcuffs, shackles, and imprisonment too often await those who arrive seeking protection from persecution. The imprisonment of arriving asylum seekers, a practice that expanded dramatically in the 1980s, was reinforced by the restrictive provisions of the 1996 immigration law. The "expedited removal" provisions of that law, which went into effect in April 1997, have resulted in lengthy detentions of asylum seekers who flee to the U.S. without valid travel documents.

As a result, those who arrive in this country seeking freedom and protection are routinely imprisoned for months, and sometimes for years, while their asylum cases are pending. Even when the Immigration and Naturalization Service’s own guidelines call for an asylum seeker to be released, local officials often refuse, detaining them at substantial expense to U.S. taxpayers rather than releasing them to the care of legal U.S. family members or friends who are willing to bear the burden of housing and supporting them.

In this report, we document these failures of U.S. law, policy, and practice. We also profile the stories of some individual asylum seekers. These asylum seekers are rape survivors, torture survivors, pro-democracy activists, and victims of religious or ethnically based persecution. They are refugees who fled to our shores "yearning to breathe free" and are entitled to protection under U.S. and international law. They have been jailed in the United States for months or longer, despite the fact that their U.S. citizen or legal resident family members or friends were willing to house and support them.

The current system of detaining asylum seekers, a system which provides no meaningful access to parole for so many, flies in the face of U.S. obligations under international refugee protection treaties, obligations that stem from the lessons of World War II. The system is inconsistent with American traditions of justice and is inhumane. The impact on individual refugees, including those whose stories are profiled in this report, cannot be underestimated. It should come as no surprise that desperate asylum seekers launched hunger-strikes at the Queens, NY and Elizabeth, NJ detention facilities last fall and again in Queens last month, protesting, among other concerns, the length of detention and the lack of meaningful parole practices. The financial cost of detaining asylum seekers and other immigration detainees is substantial—by the year 2001, it will exceed $550 million annually. There is no excuse then for the needless detention of asylum seekers with credible claims who pose no risk of harm to the community. The system is deeply flawed and must be fixed.

Recommendations:

• Congress should clarify that the policy of the United States generally is not to detain asylum seekers who pose no risk to the community, and in particular not to detain asylum seekers who have met the "credible fear" standard by establishing a significant possibility of winning asylum. Any exceptions to this general rule should be narrowly tailored. These changes would ensure that U.S. law is consistent with American tradition and international standards.
• Congress should direct the Immigration and Naturalization Service to issue regulations providing for the release of asylum seekers who meet the "credible fear" standard and pose no danger to the community. The INS should not be permitted to issue only guidelines—rather than regulations—on parole of asylum seekers, as this practice has repeatedly proven insufficient to ensure accountability and compliance by local INS districts.
• Individual detention and parole decisions should no longer be made by local INS district detention and deportation officials. Initial INS detention and parole decisions for asylum seekers should be made by officers who are specially trained in asylum, country condition, and parole issues, such as asylum officers. These decisions should be made pursuant to legally binding regulations, rather than at the discretion of local officials.
• Decisions to detain asylum seekers must be automatically and promptly referred for review to a judicial or other competent and independent authority. A meaningful, independent, and timely appeal process must be established to review parole denials. Decisions to detain should be reviewed periodically by this independent authority.
• In those limited cases in which some form of detention is deemed necessary and where there is no risk of harm to the community, the INS should make maximum use of alternatives to detention. Such alternatives might include use of refugee accommodation centers, group homes, supervised release programs, release to a guarantor, or release on bond. The INS should continue to explore the use of programs such as the Vera Institute of Justice Appearance Assistance Program.
• Asylum seekers should not be held in local or state jails or prisons and should not be held with criminal populations.
• Congress and the INS Commissioner should ensure that any INS restructuring makes provision for the unique situation of detained asylum seekers. In particular, if the functions of the INS are divided into separate "service" and "enforcement" divisions or bureaus, determinations regarding the care and release of detained asylum seekers should not be entrusted to the enforcement division. Adequate resources must be allocated to the parole determination process.
• In developing release procedures and programs, the INS should work cooperatively with non-profit organizations that have years of experience in assisting asylum seekers with their legal, religious, social, and resettlement needs.
• The INS must be required to maintain and publicly release accurate and current statistics regarding the number of asylum seekers in detention, the length of detention of asylum seekers, and the release and/or parole of asylum seekers.

I. The Impact Of U.S. Detention And Parole Practices On Asylum Seekers

As detailed more fully below, asylum seekers who arrive in this country without proper documents are subject to the 1996 immigration law’s expedited removal procedures. Many asylum seekers—from the Jews who were forced to flee Nazi Germany using false travel documents to ethnic Albanians from Kosovo who have been stripped of their identity papers by their persecutors—may have no choice but to flee to safety without valid travel documents. ₂ Under the expedited removal procedures, those asylum seekers who are not summarily turned away at the airport or entry-point are subject to "mandatory detention." They are held in detention facilities and jails. They are not eligible for release or permitted to apply for asylum until they are determined by an INS asylum officer or an immigration judge to have a "credible fear of persecution," which is defined as "a significant possibility, taking into account the credibility of the statements made by the alien…, that the alien could establish eligibility for asylum…." ₃ Those who meet the "credible fear" standard are eligible for parole under U.S. law and the INS’s own parole guidelines for asylum seekers, which provide for the parole of asylum seekers who meet certain criteria and have family, friends, or other community ties in the U.S. ₄ Yet, as described in this report, the majority of these asylum seekers remain detained, often for months or longer, in U.S. prisons, jails, and detention facilities.

A. Individual Case Profiles: INS Failure to Parole Asylum Seekers

Profiled below are the stories of individual asylum seekers who were detained for months or longer in U.S. detention facilities and prisons, despite the fact that they had genuine asylum claims and family or friends willing to house and support them. These asylum seekers were sent to detention facilities or prisons upon their arrival without proper travel documents after they indicated that they were afraid to return home. They were fingerprinted, handcuffed or shackled in most cases, and transported to a facility or prison. Their clothes and belongings were taken from them and they were given a facility uniform to wear. They were interviewed by the INS, under the 1996 immigration law’s expedited removal procedures, and were determined to meet the "credible fear" standard by establishing a significant possibility of winning asylum. As a result, they were eligible to be assessed for parole under the law and the INS’s own guidelines regarding the parole of asylum seekers. However, they were denied parole, despite the fact that they had U.S. citizen or other legal family members who were willing to house and support them. Instead, they were held for months in prison-like conditions while their asylum claims were pending. One Somali asylum-seeker, who arrived prior to the new law, was detained for nearly four years.

Unfortunately, as discussed later in this report ₅ , these stories are not unique. Sadly, many asylum seekers spend long periods of time in detention as they pursue their appeals. In the last year, for instance, following successful appeals, an Algerian client of the Lawyers Committee was granted asylum and released from prison after three and one-half years in detention and another Algerian client was granted asylum and released after one year and four months in detention. A Sri Lankan teacher, Sittampalam Sundralingham, spent three and one-half years in six different detention centers and jails, until the federal Court of Appeals for the Third Circuit finally granted his asylum claim last year. ₆ The stories profiled below are simply illustrative examples of cases handled by Lawyers Committee volunteers and other attorneys. As the Lawyers Committee operates its pro bono representation program in New York and New Jersey—the sites of two of the primary detention centers for arriving asylum seekers—many of the profiled cases are from these areas. While the release policies in these areas are particularly restrictive, as discussed below, the failure to release parole-eligible asylum seekers is a national problem. The injustice and utter waste inherent in the current system is underscored by the fact that each of the profiled asylum seekers was ultimately granted asylum.

• "Mr. A." ₇ Mr. A, an asylum seeker from Somalia, was detained for nearly four years, and was finally released when the Board of Immigration Appeals granted his asylum claim in December 1998. Mr. A’s father, mother, brothers, and one sister were killed in Somalia when the militia of a rival clan attacked the family’s home. During the attack, militia members beat Mr. A and raped his sister. Mr. A fled from Somalia and made his way to the United States, arriving at JFK Airport in December 1994 without valid travel documents. He was detained in six different detention facilities and prisons in New York, New Jersey, and Pennsylvania, including the former Wackenhut facility in Queens, the former Esmor detention facility in Elizabeth, New Jersey, Sneider County Prison, Lehigh County Prison, Berks County Prison, and Carbon County Medium Security Prison. Shortly after his arrival, Mr. A requested release pursuant to the INS’s own parole guidelines for asylum seekers. Mr. A had U.S. citizen relatives living in the Washington, DC area who were willing to house and support him. His parole request was denied. Subsequent parole requests were denied or ignored. Mr. A was finally released from prison in December 1998 after the Board of Immigration Appeals granted his asylum case. Mr. A was imprisoned in this country for nearly four years—at unimaginable expense to U.S. taxpayers—when he could have, and should have, been released to the care of his U.S. citizen family members.
• "Mina." ₈ Mina was a medical student in Afghanistan before she was forced to leave school because of Taliban government decrees that barred women from such schools. In 1998, she was targeted by the Taliban regime because her sisters are Christians and because she opened a school to teach young girls—a violation of Taliban prohibitions against the education of women. Last year, the Taliban raided the girls school and ordered it closed, beating Mina and threatening her with death. They also said that they knew she was Christian and threatened to punish her as a lesson to others. Mina fled Afghanistan without her identity documents, knowing that they would place her life in greater danger should she be stopped by the Taliban. She arrived at JFK airport in October 1998. There, the INS shackled Mina to a bench; she soon fainted and was taken to the hospital. She was later taken to the INS detention facility in Queens, NY, which is operated by the Wackenhut Corrections Corporation. An INS asylum officer determined that Mina had a significant possibility of winning asylum. Mina’s pro bono attorneys asked that she be paroled to the care of her sister, who is a U.S. citizen and her brother-in-law, who is also a U.S. citizen and an employee of the U.S. government. The INS refused to parole her. An INS officer told Mina’s pro bono lawyers that the New York INS is not obligated to follow the parole guidelines for asylum seekers that had been issued by INS headquarters. As a result, Mina was detained for more than three months in prison-like conditions at the expense of U.S. taxpayers, instead of being released to the care of her U.S. citizen sister and brother-in-law. The Lawyers Committee, in a letter to INS Commissioner Doris Meissner, cited this parole denial as yet another example of the INS’s failure to properly administer parole for asylum seekers. Mina was subsequently released, but only two weeks before her asylum hearing. At the hearing, she was granted asylum by the immigration judge.
• Adebayo Ladipo. ₉ Mr. Ladipo is a pro-democracy activist from Nigeria. He was repeatedly arrested and severely beaten by Nigeria’s military government because of his pro-democracy activities, including his organization of and participation in rallies protesting abuses such as the execution of Ken Saro-Wiwa, the assassination of the wife of Chief Moshood K.O. Abiola, and the death while in prison of Chief Abiola. After the military government detained Mr. Ladipo again and killed his brother, Mr. Ladipo escaped and fled from Nigeria. Unable to obtain travel documents from the government that was persecuting him, Mr. Ladipo fled to the U.S. without proper documents. Upon his arrival at Newark International Airport in July 1998, he requested asylum. He was brought in handcuffs to the INS detention facility in Elizabeth, NJ, which is operated by Correction Corporation of America (CCA). An INS asylum officer determined that Mr. Ladipo had a significant possibility of winning asylum. Mr. Ladipo’s pro bono attorneys requested that Mr. Ladipo be paroled to the care of his family and friends. Mr. Ladipo has six cousins in the U.S.—one was a U.S. citizen and the others were legal residents. His parole request was supported by a U.S. citizen family member who lives in New York City and a U.S. citizen family friend who is an engineer working for the City of New York. The INS refused to parole Mr. Ladipo. Mr. Ladipo was granted asylum by an immigration judge, and was released after spending more than three months in detention.
• Karantha S. and her children. ₁₀ Karantha and her family feared persecution in Sri Lanka from both the Sri Lankan government and the Tamil guerillas. Her fourteen-year-old daughter was kidnapped by the Tamil guerillas, and Karantha herself was later abducted and forced to serve the Tamil guerillas by caring for their wounded. Karantha and her daughter were both able to escape but the family feared further persecution by the guerillas as well as persecution from the government, which mistakenly suspected them of supporting the guerilla group. Karantha’s daughter fled to Canada. Karantha herself fled next, taking with her two of her other children, one who was nine years old and another who was sixteen years old. They planned to flee to Canada where they had family, and seek asylum there. The family arrived in the United States at the Minneapolis/St. Paul International Airport in May 1998, on their way to Canada. The INS detained the family because they did not have valid travel documents. Karantha was subsequently interviewed by an INS asylum officer who determined that she had a significant possibility of winning asylum. Minnesota Advocates for Human Rights, which represented Karantha and her children pro bono, requested that they be paroled. The INS refused. Instead Karantha was separated from her children and detained by the INS in a jail in Rice County, Minnesota. Her children were detained in a juvenile detention facility in Chicago, Illinois. Karantha suffered extreme emotional distress from being separated from her children. She lost weight and couldn’t sleep. The children also suffered; they were very frightened and cried continuously for their mother. The family spent approximately three months in this deplorable situation. They were not released until they were granted asylum in August 1998.
• Alex Ilunga Mulamba. ₁₁ Mr. Mulamba is a pro-democracy activist from the Democratic Republic of Congo (the former Zaire). He was arrested, beaten, and detained by both the Mobutu and Kabila regimes because of his peaceful pro-democracy political activities. In a 1998 crackdown on opposition political activists, soldiers raided Mr. Mulamba’s house. Not finding him, they abducted his wife. With the assistance of a Catholic priest, Mr. Mulamba fled from the Democratic Republic of Congo to the United States. He was detained upon his arrival in May 1998 and taken in handcuffs and leg shackles to the Wackenhut detention facility in Queens, New York. An INS asylum officer determined that Mr. Mulamba had a significant possibility of winning asylum. Mr. Mulamba’s pro bono attorneys applied for parole. The application was supported by the affidavit of Mr. Mulamba’s aunt, who had previously won asylum here. New York INS, which acknowledged receiving the parole request, never even responded to it, even though the attorneys made nearly a dozen phone calls to INS officers requesting a response. Mr. Mulamba was detained for three and one-half months, and was only released after he was granted asylum by an immigration judge.
• "Fatima Kwakuud." ₁₂ Fatima, a mother of seven children, fled Somalia for fear of being further persecuted because she is a member of a minority clan. Many of her family members had been raped or killed. She herself had been brutally raped in the presence of her young children. Fatima fled to the United States to seek asylum, and like many refugees, she had no choice but to travel using false travel documents. ₁₃ Fatima was brought to the Wackenhut detention facility in Queens, New York after her arrival. An INS asylum officer determined that she had a significant possibility of winning asylum. Fatima had family members who are legal U.S. residents and who were willing to house and support her—one of whom was employed by the United States government. Her pro bono attorneys applied for parole, requesting that she be released to the care of her family. The INS denied her parole request. An INS officer told her attorneys that the only individuals who would be released from Wackenhut were those who were "near death" or government witnesses. After several long and unnecessary months in detention, Fatima was granted asylum by an immigration judge.
• "Dr. Z." ₁₄ Dr. Z ran a clinic in Afghanistan. The ruling Taliban imprisoned and tortured him after he assisted a pregnant woman in the delivery of her child—a violation of the Taliban’s codes that prohibit male doctors from touching women. After his escape, Dr. Z fled to the U.S. and, as he would not have been able to secure a passport from the very regime that had persecuted him, he arrived without valid travel documents. He arrived at JFK airport in November 1997 and was taken in handcuffs to the Wackenhut detention facility in Queens, New York. An INS asylum officer determined that Dr. Z had a significant possibility of winning asylum. Dr. Z’s cousin, a U.S. citizen, was willing to house and support him. His parole application was also supported by an affidavit from the Associate Medical Director of the NYU/Bellevue Program for Survivors of Torture and a letter from the President of Physicians for Human Rights. However, the New York INS denied Dr. Z’s parole request, explaining the decision as based on "congressional intent" which the local INS said calls for parole to be "narrowly exercised." After repeated inquiries by the Lawyers Committee and by Congressional staff, the INS reversed its decision, releasing Dr. Z after two and one-half months in detention. An immigration judge later granted his asylum request.
• "Kassim." ₁₅ Kassim fled from Somalia after being persecuted because of his clan affiliation. Kassim was detained and tortured in Somalia, and his wife was brutally attacked and raped. In the spring of 1998, Kassim arrived at the airport in Detroit, Michigan without proper travel documents and requested asylum. Kassim’s mother and his brothers and sisters lived legally in the United States, having been brought to this country through U.S. refugee resettlement programs. Kassim was brought to a Detroit-area jail, and later transported to the INS detention facility in Elizabeth, New Jersey. An INS asylum officer determined that Kassim had a significant possibility of winning asylum. Kassim applied for parole. His parole application emphasized the fact that he had a U.S. citizen brother who was willing to support him and 12 immediate family members who had been granted refugee or asylum status by the United States—a strong indication that Kassim too would be granted asylum by the United States. The INS refused to parole Kassim. In the end, Kassim was needlessly detained for about four months, and not surprisingly, the immigration judge granted his asylum request.
• "Mr. N." ₁₆ Mr. N is a student from a prominent Sudanese pro-democracy family. Members of Mr. N’s family are active pro-democracy and human rights advocates who have been repeatedly and brutally persecuted by the Islamist government that rules Sudan. Several family members live in exile and have been granted asylum in Europe. Mr. N was taken into custody in Sudan last year after he distributed leaflets expressing opposition to the policies of the Sudanese government. Fearing further persecution, he subsequently fled to the United States on a visa that was found to be no longer valid. Upon arriving in the United States in April 1998, he requested asylum and was taken to the Wackenhut detention facility in Queens, New York. Family friends contacted the Lawyers Committee, which recruited pro bono attorneys to represent him. An INS asylum officer determined that Mr. N had a significant possibility of winning asylum. Mr. N’s lawyers applied for parole. Family friends, including a former U.S. government official who knew Mr. N’s family, supported his parole application. But the INS denied his parole request. Mr. N was detained for four months, and was only released after he was granted asylum by an immigration judge.

In addition, the INS has also refused to release individuals who have been granted "withholding of removal" by U.S. immigration judges, even though these individuals have been determined to meet the definition of a "refugee" under U.S. law and have actually had to meet a higher standard than the asylum standard. Withholding of removal corresponds to the United States’ obligation of non-refoulement under the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol. ₁₇ Two examples are profiled below.

• Dominic Nunu. ₁₈ Mr. Nunu initially fled from Liberia after forces under the command of Charles Taylor killed his parents and sisters because of the family’s ethnic background and because Mr. Nunu’s father was a prominent member of the former government. A Catholic Church in Cote d’Ivoire assisted Mr. Nunu and other Liberian refugees for several years until the Church ran out of funding. When Mr. Nunu returned to Liberia in 1997, he learned his home country was still very dangerous for him. He was beaten unconscious by a military officer working for Charles Taylor, Liberia’s new ruler. Mr. Nunu fled Liberia and after stowing away on a ship, he arrived in the United States in September 1997 seeking asylum. He was brought to the Wackenhut detention facility in Queens, New York. An INS officer determined that Mr. Nunu had a significant possibility of winning asylum. Mr. Nunu was not released from detention. At his subsequent asylum hearing, the immigration judge determined that Mr. Nunu was precluded from receiving asylum because he had spent several years in Cote D’Ivoire. However, the judge found Mr. Nunu to be credible and to meet the higher standard for "withholding of removal." Mr. Nunu’s lawyers filed a parole request on Mr. Nunu’s behalf. The Redeemer Presbyterian Church in New York City supported his parole request and agreed to provide housing and financial support to Mr. Nunu. The INS refused to parole Mr. Nunu even though he had been granted withholding of removal. They then continued to detain him, despite a redesignation of "temporary protected status" for Liberian nationals ₁₉ and Mr. Nunu’s diagnosis with myasthenia gravis, a serious neuromuscular disease. In December 1998, a neurologist who treated Mr. Nunu when he was brought to the hospital recommended that Mr. Nunu be released from detention immediately so that he could seek medical treatment. But the INS still rejected Mr. Nunu’s request for medical parole. After inquiries from Senator Daniel Patrick Moynihan’s office, Congressman Jerrold Nadler’s office, a reporter and John Cardinal O’Connor, the Archbishop of the Roman Catholic Archdiocese of New York, Mr. Nunu was finally released in May 1999. He had been detained for one year and eight months.
• Mr. Osadeba Omo Eboigbe. ₂₀ Mr. Eboigbe fled from Nigeria last year after he was savagely beaten and shot at by Nigerian soldiers. His younger brother was killed before his eyes. Nigeria’s military government targeted him because he had organized a youth group to express opposition to the government’s policy of confiscating private land for oil companies. Mr. Eboigbe arrived at JFK International Airport in September 1998. He was detained and brought to the Wackenhut detention facility in Queens, New York. An INS asylum officer determined that Mr. Eboigbe had a significant possibility of winning asylum. His pro bono attorneys filed a request for parole; but the INS did not respond for more than two months. At the asylum hearing, the immigration judge found that Mr. Eboigbe met the definition of "refugee" and the high standard for withholding of removal; but the judge declined, without providing an explanation, to exercise his discretion by granting asylum. The decision was appealed. In the meantime however, the INS refused to release Mr. Eboigbe despite the fact that he was eligible for release. In refusing to parole Mr. Eboigbe, the New York INS, as in other parole denials, implied that Congressional intent somehow weighed against release stating that "[i]t is Service policy that [parole] authority is carefully and narrowly exercised to be in conformity with statutory purpose and legislative intent." In responding to Mr. Eboigbe’s request that he be released in the interests of justice, the INS called the Wackenhut detention facility "a safe haven" for asylum seekers. Mr. Eboigbe was finally released after about nine months in detention when the Board of Immigration Appeals granted him asylum in June 1999.

B. The Inhumane Conditions of Detention

The inhumane conditions in which asylum seekers and other INS detainees are detained have been well documented over the years. The Minnesota Lawyers for International Human Rights and Physicians for Human Rights documented abuses at the Krome detention facility in Miami in 1991. The American Civil Liberties Union, in a 1994 report, documented extensive deficiencies in conditions at the INS-run Varick Street detention facility in New York. The Women’s Commission for Refugee Women and Children detailed harsh conditions existing in the New Orleans Parish Prison in a 1995 report. ₂₁

Conditions became so deplorable at the INS-contract detention facility in Elizabeth, New Jersey, that asylum seekers rioted in 1995 to protest abusive treatment and lengthy detention. Detainees at the facility, which was then run by Esmor Inc., reported conditions including "abusive guards, substandard food and . . . the shackling of detainees as they met their lawyers." ₂₂ A federal judge recently held that the allegations of abuse at the Esmor facility, which included unsanitary conditions, racial insults, inadequate medical care, and physical and sexual abuse, would, if proven, violate international human rights law. ₂₃ Concerns about the mistreatment of asylum seekers were further highlighted by the well-known case of Fauziya Kassindja, a nineteen-year-old Togolese refugee who fled from female genital mutilation in Togo and was detained for over a year at the Esmor facility and various prisons before she was finally granted asylum. Ms. Kassindja reported serious incidents of abuse, including repeated strip searches, inappropriate use of segregation, the use of tear gas, deficient medical care and other inhumane and improper treatment. ₂₄

The 1995 riot and the Kassindja case focused attention on the mistreatment of asylum seekers in INS custody. Unfortunately, the situation has not improved. Human rights organizations continue to document appalling treatment of detained asylum seekers. For example, in April 1997 the Women’s Commission for Refugee Women and Children issued a report, entitled Forgotten Prisoners, which highlighted concerns about the treatment of women and children in detention. ₂₅ Human Rights Watch’s September 1998 report, entitled Locked Away: Immigration Detainees in Jails in the United States, found that "INS detainees—including asylum seekers—are being held in jails entirely inappropriate to their non-criminal status where they may be mixed with accused and convicted criminal inmates, and where they are sometimes subjected to physical mistreatment and grossly inadequate conditions of confinement." ₂₆ The October 1998 Amnesty International U.S. report included a chapter entitled "Treated as Criminal: Asylum Seekers in the USA" which describes the inhumane and degrading treatment of asylum seekers who are detained in the U.S. ₂₇

In recent years, serious concerns have been raised about the treatment of immigration detainees held at the Krome Service Processing Center in Florida, including allegations of neglect, sexual misconduct, beatings and the use of stun guns. In 1995, INS officials misled a congressional delegation about conditions at the center. ₂₈ While many improvements have been made, including the appointment of a new INS officer-in-charge at the center, attorneys continue to express concern regarding the medical care received by detainees. ₂₉ Last year the Florida Immigrant Advocacy Center reported that detainees at the Jackson County Jail were shocked with stun guns, beaten, cursed at with racial epithets, and put into solitary confinement for requesting medical care or food. ₃₀

In March 1998, four Union County jail guards in Elizabeth, New Jersey were convicted and six others pled guilty to criminal charges of abusing detainees. Prosecutors reported that the guards had forced detainees to put their heads in the toilet, pulled their genitals with pliers, and ordered them to engage in sexual acts. ₃₁

Detainees in California, Louisiana, and New Hampshire have held hunger-strikes to protest alleged mistreatment. ₃₂ Two riots occurred at the INS center in El Centro, California in 1998, and a Los Angeles legal organization brought a federal class action suit against the INS for not providing adequate medical and legal services to detainees. ₃₃ Detainees in county jails in New England have complained about deficient food, lack of medical care and recreation, and about being jailed with the general criminal population. ₃₄ Chicago-area jails for holding asylum seekers and other immigration detainees have been reported to be seriously deficient and to provide inadequate medical care. ₃₅

The Lawyers Committee’s experience in assisting and representing detained asylum seekers has led us to have serious concerns about the conditions in which asylum seekers are held. Our detained clients are held primarily at the large Wackenhut detention facility in Queens, New York and the CCA detention facility in Elizabeth, New Jersey, but also at numerous county and local jails in Pennsylvania and Virginia. Asylum seekers are often brought to these facilities in handcuffs or leg restraints. ₃₆ Upon arrival, they are stripped of their possessions and dressed in prison attire. At the Elizabeth facility, they will be shackled with leg weights during INS credible fear interviews. One Lawyers Committee client was brought to his asylum hearing and forced to testify before the immigration judge in handcuffs and leg restraints.

In the large detention facilities, asylum seekers are given a bed in a large locked room (sometimes referred to as a "pod" or "dorm") where they will be held with many other detainees for at least three or four months, and perhaps for a year or more. Asylum seekers at these facilities have reported that they are sometimes hungry and that medical care is deficient. They have no meaningful access to the outdoors, as the "outdoor" recreation area is no more than a relatively small internal courtyard with a fence-like cover instead of a roof. Some asylum seekers have reported that they have been insulted or mistreated by facility officers. Some have reported that they are placed in segregation unfairly, and others have complained of the use of forced sedation and the use of excessive physical force.

The severity of these problems was further underscored by the hunger-strikes that occurred last fall at both the Elizabeth and Wackenhut detention facilities. Asylum seekers at the Elizabeth detention facility complained about a wide range of problems, including abusive behavior by officers employed by the contractor, insufficient food, excessively high telephone card rates, and delays in appeal processing. They specifically complained about lack of parole and the length of detention. ₃₇ Asylum seekers at the facility also reported instances of mistreatment, including the use of excessive force by officers employed by the contractor. In one incident, an asylum seeker reported that he was physically taken from his bed by several officers who twisted his arm forcefully and handcuffed him, using such force that his shoulder was injured and his head was slammed against the rim of the bed cutting his lip and bloodying the sheets. ₃₈

During the October hunger-strike at the Wackenhut facility in Queens, the concerns of asylum seekers focused on the length of detention and the New York INS’s restrictive parole policy. ₃₉ During the hunger-strike, frustrations escalated and several asylum seekers at the Wackenhut facility attempted to kill themselves. An Iraqi asylum seeker who had been placed in solitary confinement slashed his arm with a razor blade and tried to hang himself. An asylum seeker from Congo swallowed a mixture of painkillers and Ben Gay ointment. An Albanian asylum seeker reportedly swallowed a bottle of antibiotics. ₄₀

Earlier this year, reports of mistreatment and excessive physical force escalated at the Elizabeth facility. The INS referred allegations of excessive physical force, beatings, verbal abuse, and a possible cover-up relating to withholding of information and tampering with evidence to the FBI for investigation. Since February, the contractor’s chief of security was removed, and two supervisors and six officers were barred from interaction with detainees. In addition, one officer was fired for refusing to cooperate with an internal investigation and two officers tested positively for drug use. ₄₁ The allegations under investigation included the report of a Nigerian asylum seeker, Oluwole Aboyade, who asserted that after reporting insufficient lighting in his dorm, he was placed in a segregation cell, punched in the chest, pushed against a wall, and kicked in the leg. Mr. Aboyade told a reporter that: "This is abuse I experienced in my country…. I expected it in Nigeria, but not here." ₄₂

Most recently, concerns about the health and well-being of detained asylum seekers were raised after it was learned that a West African asylum seeker at the Wackenhut facility in Queens had active tuberculosis and 90 other detainees tested positively for exposure to tuberculosis apparently because of their exposure at the facility. ₄₃ Just this month, in the wake of another hunger-strike by Wackenhut asylum seekers protesting restrictive parole policies, the Lawyers Committee received reports that asylum seekers were deprived of newspapers, and transferred, placed in segregation or threatened with deportation or segregation for participation in the protest.

Detention is particularly traumatizing for survivors of torture who may be suffering from the physical or psychological effects of torture. ₄₄ As one expert explained: "For someone who’s been tortured and locked up in a cell as a political prisoner in their native countries … the experience of being locked up here again can trigger panic attacks, flashbacks." ₄₅ The mental health service provided to asylum seekers in detention facilities can be woefully deficient. Dr. Allen Keller, the director of the widely-respected Bellevue/New York University Program for Survivors of Torture recently commented on the inadequacy of mental health services and emphasized that "[m]any of these individuals are suffering from depression and anxiety, and it can be exacerbated by being detained." ₄₆

 

II. U.S. and International Law and Guidelines

A. The 1996 Immigration Law

In 1980, the United States reversed its nearly 30-year policy of detaining only those newcomers considered a danger to the community or flight risks. ₄₇ Instead, it began a policy of detaining those who sought to enter the U.S. without valid documents—a situation which faces many genuine refugees since they may be unable to obtain travel documents from the governments that persecute them or may, like the Kosovo refugees, be stripped of their documents by their persecutors. ₄₈

This detention regime has been codified in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA" or the "1996 immigration law"), which requires the mandatory detention of various classes of non-citizens. For asylum seekers, IIRIRA’s "expedited removal" provisions require "mandatory detention" of all asylum seekers who arrive in the United States without valid documents, until they pass out of the "expedited removal" process by establishing a "credible fear of persecution" in an interview with an INS asylum officer or a subsequent review by an immigration judge. ₄₉ The credible fear standard is met if there is a "significant possibility, taking into account the credibility of the statements made by the alien in support of the alien’s claim and such other facts as are known to the officer, that the alien could establish eligibility for asylum …." ₅₀ The Lawyers Committee, in its March 1998 report Slamming the Golden Door: A Year of Expedited Removal, documented many of the risks that face asylum seekers under the expedited removal process.

Shortly before the expedited removal provisions went into effect in April 1997, the INS increased its detention space and opened two large detention facilities to house asylum seekers subject to the expedited removal mandatory detention provisions. These two facilities, both run by private contractors, are the 200-bed facility near JFK International Airport in Queens, New York, which is run by Wackenhut Corrections Corporation, and the 300-bed facility near Newark International Airport in Elizabeth, New Jersey, which is run by Correction Corporation of America (CCA).

While the expedited removal provisions require the detention of asylum seekers during the expedited removal process, they do not prohibit parole once asylum seekers have established a credible fear of persecution and are accordingly no longer subject to expedited removal proceedings. ₅₁ Since the passage of IIRIRA, INS headquarters has repeatedly advised INS districts that these asylum seekers are eligible for parole and has issued memoranda setting forth guidelines regarding the parole of asylum seekers. For instance, INS expedited removal guidelines issued in December 1997 confirm that: "Parole is a viable option and should be considered for aliens who meet the credible fear standard, can establish identity and community ties, and are not subject to any possible bars to asylum involving violence or misconduct." ₅₂ October 1998 INS guidelines state that "[a]lthough parole is discretionary in all cases where it is available, it is INS policy to favor release of aliens found to have credible fear of persecution, provided that they do not pose a risk of flight or danger to the community." ₅₃

B. International Refugee Law and Guidelines

The roots of international refugee law developed in the aftermath of World War II. The United States, as a signatory to the 1967 Protocol Relating to the Status of Refugees, is bound by Articles 2 through 34 of the 1951 Convention Relating to the Status of Refugees. ₅₄ Article 31 of the 1951 Refugee Convention exempts refugees from being punished because of their illegal entry or presence. It also provides that states shall not restrict the movements of entering asylum seekers more than necessary.

The Executive Committee of the United Nations High Commissioner for Refugees (UNHCR), of which the United States is a member, has concluded that detention of asylum seekers "should normally be avoided." ₅₅ The Executive Committee has also urged that national legislation and/or administrative practice distinguish between the situation of asylum seekers and that of other aliens, and that detention measures taken with respect to asylum seekers be subject to judicial or administrative review. ₅₆

In 1998, the Executive Committee specifically addressed the use of detention with respect to asylum seekers, stating that it:

Deplores that many countries continue routinely to detain asylum seekers (including minors) on an arbitrary basis, for unduly prolonged periods, and without giving them adequate access to UNHCR and to fair procedures for timely review of their detention status; notes that such detention practices are inconsistent with established human rights standards and urges States to explore more actively all feasible alternatives to detention; ₅₇

In February 1999, the UNHCR issued revised Guidelines on the Detention of Asylum Seekers (the "UNHCR Guidelines"). The UNHCR Guidelines affirm that "[a]s a general rule, asylum seekers should not be detained," and that "the use of detention is, in many instances, contrary to the norms and principles of international law." ₅₈ Urging a "presumption against detention," the UNHCR Guidelines state that "viable alternatives to detention . . . should be applied first unless there is evidence to suggest that such an alternative would not be effective in an individual case." When a decision to detain is made, the Guidelines recommend that such a decision "only be imposed in a non discriminatory manner for a minimal period" and that procedural guarantees be provided for, including "automatic review before a judicial or administrative body independent of the detaining authorities" and subsequent "regular periodic reviews of the necessity for the continuance of detention." ₅₉

The use of detention to deter future asylum seekers from seeking protection is contrary to principles of international protection. This conclusion is confirmed by the UNHCR Guidelines, which confirm that: "Detention of asylum seekers which is applied … as part of a policy to deter future asylum seekers, or to dissuade those who have commenced their claims from pursuing them, is contrary to the norms of refugee law. It should not be used as a punitive or disciplinary measure for illegal entry or presence in the country…." ₆₀ Moreover, as one commentator has explained: "Detention for purposes of deterrence is a form of punishment, in that it deprives a person of their liberty for no other reason than their having been forced into exile. It is a practice that is legally questionable under Articles 31 and 33 of the United Nations Convention…." ₆₁

III. The INS’s Long-standing Failure to Implement Parole for Asylum Seekers

The INS has a long and well-documented history of failing to parole asylum seekers effectively and consistently. Despite its repeated issuance of guidelines on the parole of asylum seekers, INS headquarters has not taken adequate steps to ensure that INS districts comply with those guidelines. It has also failed to issue regulations to ensure that districts do comply.

A. Early Failures and INS Commitment to Reinvigorate the Asylum Parole Program

The INS formally issued guidelines for the parole of asylum seekers in April 1992 when it launched its Asylum Pre-Screening Officer (APSO) Parole Program. The guidelines were launched following the successful completion of an eighteen-month pilot parole project, which had been initiated in 1990. ₆₂ The parole criteria included determinations regarding the credibility of the individual’s asylum claim, the individual’s identity, and whether the individual had a place to live, means of support, or legal representation. Aggravated felons, security risks and other categories of persons were specifically excluded from consideration. In the April 1992 memorandum launching the parole program, the INS Commissioner explained that:

The Service has limited detention space. By adopting the Parole Project, the Service will be able to detain those persons most likely to abscond or to pose a threat to public safety rather than base the detention decision solely or primarily on the availability of detention space. ₆₃

In its monitoring of the parole program, the INS reiterated its support of the program and the goals that it was intended to achieve. For example, in a February 1994 memorandum to the Office of the INS Commissioner, the INS Acting General Counsel explained that:

[t]his program is designed both to temper the harsh consequences of the detention statute upon legitimate asylum seekers, who must often flee their countries with no travel documents or else must resort to using fraudulent documents, and to reduce overcrowding of INS detention space. ₆₄

The INS’s failure to effectively implement the APSO parole program has been documented by various organizations and the press. In an April 1993 assessment of the parole program, the Lawyers Committee reported on problems with the implementation of the program and noted cases of asylum seekers who remained in detention even though they appeared to meet the release criteria. ₆₅ In a September 1994 report, the Lawyers Committee concluded that: "Throughout the two-year history of the APSO Program there has been a serious problem of non-compliance in certain districts…. This problem stems primarily from a lack of accountability among the district directors." ₆₆ The UNHCR raised similar concerns. ₆₇

The June 1995 Esmor riot dramatically underscored the problems associated with prolonged detention and drew attention to the failure of the INS to effectively implement the asylum parole program. ₆₈ In fact, the INS’s own report on the riot revealed deficiencies in the implementation of the APSO parole program at the facility. ₆₉ The Esmor riot triggered a national examination of INS policies on detaining asylum seekers. ₇₀ Concerns regarding long term incarceration of asylum seekers were further fueled by reports about the lengthy detention of Fauziya Kassindja, who was detained for more than a year at Esmor and other facilities. ₇₁

In January 1996, the Lawyers Committee filed a Petition for Rulemaking, requesting that the INS issue regulations codifying the APSO parole program. In that Petition, the Lawyers Committee addressed in detail the deficiencies in the implementation of the APSO parole program and stressed the need for regulations to ensure that the parole program would be implemented properly and consistently. ₇₂ The INS has declined to issue regulations.

The INS did however indicate that it planned to reform the APSO parole program. In June 1996, the INS formed a working group "to expand and reinvigorate" the parole program. Later that year, the INS began taking steps to integrate the parole program into the summary exclusion/credible fear pre-screening procedures that had recently been enacted. ₇₃ When the 300-bed detention facility re-opened in Elizabeth, New Jersey, the INS announced its intent to provide for the parole of asylum seekers and minimize detention periods. ₇₄

B. Continuing Failure to Implement Asylum Parole Guidelines

Despite a professed commitment to reinvigorate parole for asylum seekers, the INS has continued to implement its own parole guidelines in an ineffective and inconsistent manner. The national parole rate itself is unclear: one report indicated that the parole rate for asylum seekers was about ten percent, a second indicated it was about twenty-seven percent and a third indicated that it was about forty percent. ₇₅ These reported parole rates are disturbingly low, particularly in light of the indications of a high immigration court appearance rate for those who are paroled from INS detention. ₇₆ However, even these rates cannot be confirmed as the INS has not provided statistical information in response to our requests. ₇₇

Meanwhile, over the last year, human rights groups, the press, practitioners, and commentators have repeatedly cited deficiencies in the administration of the asylum parole guidelines. For instance, the Lawyers Committee’s spring 1998 report on the expedited removal process, Slamming the Golden Door: A Year of Expedited Removal, ₇₈ addressed the issue of the unnecessary imprisonment of bona fide asylum seekers. Noting the INS's continuing failure to implement the parole program, the Lawyers Committee urged yet again that regulations be issued to standardize the program. The Women's Commission for Refugee Women and Children, in a July 1998 report, expressed concern about "the INS's continued and inexplicable delegation of detention authority to its district offices and local prisons, resulting in disparate detention practices across the county and causing asylum seekers further trauma and distress." ₇₉ Human Rights Watch reported that "the INS’s parole program for asylum seekers ... has suffered from insufficient funding and inconsistent application by INS district directors" and that "many detainees, including asylum seekers, are imprisoned for exceedingly long periods of time, even for as long as three or four years." ₈₀

On June 22, 1998, The New York Times reported on the inconsistency in the handling of parole decisions. The article pointed out that "important decisions—from how long it takes to review an asylum-seeker's case to whether he or she is quickly paroled or detained for months—seem to hinge more on the number of beds available at a detention center than on a cohesive national policy." A November 1998 article in The Boston Globe profiled the cases of several detained asylum seekers, noting that: "parole policies differ from INS facility to facility. Some are more lenient; others, such as Wackenhut [the Queens facility], almost never grant parole." ₈₁ Practitioners and commentators have also reported inconsistencies and changing parole policies; the president of the American Bar Association and the Association of the Bar of the City of New York have criticized the INS’s detention and parole practices. ₈₂

On May 17, 1999, the Secretary of State’s Advisory Committee on Religious Freedom submitted its final report and addressed the detention of asylum seekers and concerns regarding the variation of release policies between INS districts. The Committee on Religious Freedom concluded that: "The unnecessary detention of already traumatized victims of religious persecution, as well as other types of persecution, should be examined with the goal of providing release….. Serious concerns have been raised over the length of time these traumatized individuals are spending in detention facilities, the conditions they are being kept in, the types of detention facility that are being used and the variation in policies from district to district." ₈₃

The New York and New Jersey INS districts—which house two of the largest detention facilities for arriving asylum seekers— have widely been reported to be among the most restrictive in paroling asylum seekers. ₈₄ Last year, the Expedited Removal Study report issued by Santa Clara University indicated that, for those asylum seekers included in the study, asylum seekers in New York and New Jersey were detained for the longest periods of time: asylum seekers in New York spent an average of 92 days in detention and asylum seekers in New Jersey spent an average of 88 days in detention, whereas asylum seekers in San Francisco and Miami spent an average of 44 and 62 days respectively in detention. ₈₅ In a recent update, the Expedited Removal Study reported that, for the second year of its study, the average length of detention for asylum seekers in its database had increased in New York to 109 days and had slightly decreased in Newark to 81 days. ₈₆

In addition, the Expedited Removal Study recently concluded that, for cases in its database, "[l]ength of detention varies by country of nationality," and that "[s]everal African countries have average detention lengths well above average" in its databases. The Study could not draw definitive conclusions from its data and noted several possible explanations for the lengthy detention of Africans, including the possibility "that the parole policy was applied in a manner which disfavored African asylum seekers." ₈₇

New York

The New York INS district is among the most restrictive in the country. In fact, as noted above, the Expedited Removal Study reported that, for those asylum seekers in its database, those detained in New York were detained the longest—an average of 92 days in one year and 109 days in the second. In September 1998, the Lawyers Committee surveyed its own cases and those of other legal service organizations that participate in a collaborative detention representation project at the Wackenhut detention facility in Queens, New York. ₈₈ Of the 70 asylum cases that had been handled by this project, only one asylum seeker had been released pursuant to the asylum parole guidelines. ₈₉ And that one asylum-seeker (a doctor from Afghanistan whose case is profiled in section I of this report) was in fact initially denied parole by the New York INS district. Only after inquiries by the Lawyers Committee and a Congressional office did the INS release him. More recently, an August 1999 survey of 121 Wackenhut cases represented by the detention representation project indicates that additional Wackenhut clients have been paroled. But only 3 of those releases appear to be pre-hearing releases pursuant to the asylum parole guidelines; an additional 4 releases were in conjunction with the Vera Institute pilot project (which, as discussed below, will not be accepting new parole candidates after September), and an additional 6 releases were (i) medical parole releases, (ii) releases of Cuban nationals (Cubans arriving by air are exempt from expedited removal), or (iii) releases, after lengthy detentions, of individuals who were granted withholding of removal by an immigration judge, or in one case, won an appeal in federal court after over two years in detention. ₉₀ Of the 3 pre-hearing Wackenhut releases pursuant to the asylum parole guidelines, one was an ethnic Albanian from Kosovo who arrived during the recent Kosovo conflict, and another was released only two weeks before her hearing ("Mina," whose case is profiled in section I, was released after three months of detention following press interest and inquiries to INS headquarters). On the positive side, the New York district appears to routinely parole families who are held at airport-area hotels. ₉₁ The New York INS’s overall parole rate remains low: it has been reported to be about 21% and more recently about 27%. ₉₂ The parole rate for asylum seekers at the Wackenhut detention facility is likely lower, as the INS has declined to break down its parole figures to reflect the number of paroles from Wackenhut as opposed to the number of hotel releases. The New York INS has also declined to specify how many paroled asylum seekers were released pursuant to the asylum parole guidelines, and how many were released for medical or other reasons. The New York INS’s failure to follow the parole guidelines is reflected not only in the District’s low parole rate, but also in the statements of its officers and the language of its written parole denials. For instance, Mina’s pro bono lawyer was told by an INS officer that the New York INS was not obligated to follow the asylum parole guidelines. The pro bono lawyer for "Fatima Kwakuud," whose case is also profiled in section I of this report, was told that the only individuals who would be paroled from Wackenhut were those who were "near death" or government witnesses. In addition, parole denial letters issued by the New York INS do not assess – or even address – the eligibility for parole of asylum seekers under the asylum parole guidelines. In fact, New York parole denial letters have implied that the fact that an asylum seeker has passed the credible fear process is not even relevant to parole eligibility. Instead, these denial letters imply that granting parole requests is somehow contrary to "congressional intent." Meanwhile, it is asylum seekers, like those profiled in section I of this report, who suffer because of failures to follow the parole guidelines. Last fall, asylum seekers at the Wackenhut detention facility launched a hunger-strike protesting the length of detention and INS parole policies. Just last month at Wackenhut, another hunger-strike was launched in protest of the New York INS’s release policies and, as of mid-August, one asylum seeker from Uganda continued to refuse food. ₉₃

New Jersey

The New Jersey INS district re-opened the Elizabeth detention facility in late 1997 with promises of effective parole procedures for asylum seekers, procedures that had not been effectively implemented at the time of the Esmor riot. ₉₄ As a result of the New Jersey district’s policies, some deserving asylum seekers were paroled. The benefits of release are clear. One of our clients, a torture survivor and journalist from an African country, was paroled to the care of a rabbi and his wife. Because he had been released, the client was able to receive needed care in the Bellevue/NYU Program for Survivors of Torture and was subsequently granted asylum. However, in the spring of 1998, the New Jersey INS district changed its parole practices. ₉₅ Its parole rate dropped dramatically: from a parole rate that was reportedly about eighty-nine percent to a rate of about twenty-one percent. ₉₆ An August 1999 survey of 138 cases represented by the collaborative detention representation project at the Elizabeth facility indicates that only 39 of those 138 clients (about 28%) have been paroled from Elizabeth – and only 6 of those 39 were paroled after the New Jersey INS’s change in policy. ₉₇ The New Jersey INS district director has confirmed that she sees the use of detention as a deterrent. ₉₈ As a result, asylum seekers like Adebayo Ladipo and "Kassim," who have legal family members here in the U.S., have spent months or longer in detention before they were granted asylum. ₉₉ Another case that underscores the human impact of such policies is that of Maja and Nicola Donaj, a young Albanian couple who, at the time their story was publicized, had already been detained for about 22 months at the Elizabeth facility, despite the fact that their U.S. citizen family members had repeatedly offered to sponsor them for parole. ₁₀₀ After the case was publicized, the couple was released and ultimately granted asylum. In the fall of 1998, asylum seekers at the Elizabeth facility launched a hunger-strike, protesting the New Jersey INS’s change in parole policy and other concerns. ₁₀₁ The New Jersey INS’s policies do not appear to have improved. In fact, the New Jersey INS has continued to detain a group of asylum seekers who have been held for over six months without a merits hearing while the INS and an immigration judge awaited the Board of Immigration Appeal’s resolution of their dispute over the appropriate document to be issued to initiate immigration court proceedings.

Miami

Parole policies were initially restrictive in 1997, with the district Director rarely granting parole and requiring the payment of bonds of $5000. In 1998, the Miami INS’s policies changed and since that time attorneys report that asylum seekers are regularly paroled from the Krome detention facility. As the improvement in parole policy was influenced by a lack of bed-space, the policy may change yet again. ₁₀₂

Los Angeles

The Los Angeles INS has apparently changed its parole policies several times. While it was initially rather easy to be released in 1997, by the fall of 1998, it had become very difficult. An April 1999 update from the Expedited Removal Study reflected, for those asylum seekers included in the study, an increase in average length of detention from 43 days (in the year beginning April 1, 1997) to 106 days (in the period beginning April 1, 1998). One Los Angeles attorney reported that of approximately 40 clients who were granted asylum in 1998, not one was paroled. Instead, they were detained generally for about four months. While parole policies appear to have improved somewhat, it appears that releases have only increased because of the overcrowding. _{103 1}

San Francisco

Parole practices have reportedly become more restrictive. Asylum seekers are typically being released only after they have been granted asylum, which means they are detained for several months or much longer if an appeal is necessary. ₁₀₄

Minneapolis/St. Paul

Parole practices were very restrictive in 1998. However, during 1999, apparently as a result of a lack of space to hold asylum seekers, the INS was releasing some asylum seekers who passed the credible fear process, but typically requiring bonds amounting to $7000 to $10,000. ₁₀₅

Chicago

Parole practices were reportedly very restrictive in 1998. But beginning in late 1998, Chicago INS officials became more willing to consider parole applications and in some cases have released asylum seekers to community groups. More recently, legal and human rights organizations raised concerns about the INS’s refusal to parole 88 Chinese asylum seekers who have been held in a maximum-security jail in Ullin, Illinois. INS headquarters had arranged for the asylum seekers, who had arrived in the Northern Mariana Islands, to be brought to Ullin. Because of the dearth of local immigration lawyers, INS headquarters had asked pro bono organizations from Chicago, New York and other cities to travel to Ullin to assist in preparing parole applications for the asylum seekers, only to turn around and deny the parole requests based on concerns for the asylum seekers’ safety. ₁₀₆

Vera Appearance Assistance Program

One positive development has been the initiation of a pilot supervised release project by the INS in conjunction with the Appearance Assistance Program (AAP) of the Vera Institute for Justice. Pursuant to this program, eligible asylum seekers who have passed the credible fear process may be released to family members. Their release and appearance at subsequent immigration court hearings is monitored by the AAP. However, the AAP is just a pilot project and it is scheduled to stop accepting new parole candidates in September. As it is a pilot project, only a relatively small number of asylum seekers are participating in the project, which is operating in New York. ₁₀₇ While some deserving asylum seekers have been released through the AAP, other deserving candidates have not been eligible for release through the AAP because their close family members or friends have lived in other cities. In addition ₁₀₈ , although the New York INS appears to be generally following the AAP’s recommendations, the New York INS did not permit the AAP to begin operating at the Wackenhut detention facility until September 1998.

Last year, INS headquarters announced that it was conducting a review of its asylum parole practices and was willing to share its findings with Members of Congress and non-governmental organizations. Although the INS had indicated that this review would be concluded in the fall of 1998, no such review has been completed. While INS headquarters is continuing to review the asylum parole system, it has still not issued regulations on the parole of asylum seekers and taken other decisive steps to ensure the operation of an effective and fair parole system for asylum seekers.

In the meantime, INS districts have continued to implement parole policies for asylum seekers in a restrictive, inconsistent, and constantly shifting manner. The effect of these policies on asylum seekers themselves was underscored by the frustrations demonstrated by detained asylum seekers during the hunger-strikes at the Elizabeth and Wackenhut detention facilities in October 1998. As noted above, the length of detention and the lack of parole were central concerns of the asylum seekers at both facilities. ₁₀₉ Similar concerns were voiced again in recent weeks by asylum seekers who launched a hunger-strike at the Wackenhut detention facility at the end of July. ₁₁₀

The frustration felt by individual asylum seekers is amply illustrated by the words of Adelaide Abankwah, whose asylum claim was based on fear of female genital mutilation in Ghana. Speaking to a reporter after over two years in INS detention, Ms. Abankwah said: "Please tell [the INS] that I am not a criminal. I just want to be free. . . . . I feel like I am dead here. There is no fresh air. I cannot eat. I feel that this is where I will die." ₁₁₁

 

IV. Current Detention Practices are Unduly Costly and Offend American Traditions of Justice

A. The Substantial Fiscal Cost of Detention

As a result of the changes in U.S. detention policy, the average length of INS detention increased dramatically during the 1980s and 1990s. In 1981, the average stay in an INS detention facility was fewer than four days. By 1990, it had grown to 23 days, with many individuals detained for more than a year. In 1992, it had increased again to an average stay of 54 days. In order to meet the need for additional detention space, the INS detention budget for the same period grew sharply from $15.7 million to $149 million. ₁₁₂

The passage of the 1996 law, which as noted above requires the mandatory detention of various classes of aliens, has led to a further increase in the number of individuals in INS detention. In fact, the INS nearly doubled its detention capacity in the two years since passage of IIRIRA. ₁₁₃ The cost of holding INS detainees continues to increase. For example, the INS estimated that in 1997 it paid an average of $58 per day to hold a detainee in a local jail. Thus, the cost for a six-month detention of a single detainee would be more than $10,000. ₁₁₄ It was recently reported that the cost of detaining an asylum seeker is $144.61 at the Elizabeth detention facility and $100 per day at the Wackenhut detention facility. ₁₁₅ Most disturbingly, the INS has indicated that it does not even know exactly how many asylum seekers are in detention, as it does not track this number. ₁₁₆ As of the end of February 1998, approximately 14,700 persons were in INS detention. By the year 2001, it has been estimated that approximately 24,000 persons will be detained at an annual cost of more than $500 million. ₁₁₇

B. Detaining Asylum Seekers Interferes with Access to Counsel and Undermines their Ability to Prove their Asylum Cases

The fair and efficient adjudication of the claims of asylum seekers is severely undermined by the very fact of detention and by particular detention practices. Without a doubt, it is particularly difficult for a detained asylum seeker to obtain legal counsel. Many detained asylum seekers are held at local or county jails in remote areas where it is often difficult to obtain legal counsel. For those who cannot afford to pay for counsel, the availability of free legal assistance is limited. ₁₁₈ Even at larger detention facilities, the need for free legal assistance often surpasses the availability of such assistance.

Those who are lucky enough to secure competent legal counsel will face substantial obstacles in preparing and proving their asylum cases, simply because they are detained. As the UNHCR recently pointed out: "Detention creates numerous obstacles for asylum seekers. Detained asylum seekers are often unable to secure counsel, have difficulty communicating with family members, and have limited access to legal materials and interpreters to assist in preparing their claims." ₁₁₉ In addition, the ability of the attorney and client to meet to prepare the asylum case is necessarily limited by the fact that the attorney must often travel a great distance to meet with the client. For example, a New York City pro bono attorney who needs to visit a client held at the Elizabeth or Wackenhut facilities must travel at least an hour to an hour and a half each way, using various combinations of subways, railroad, taxis or buses. When asylum seekers are held in more remote county or local jails, it can take attorneys several hours just to reach the facility. After arriving at the facility, the attorney may then wait anywhere from 10 minutes to an hour or more for the client to be brought to the visitation area.

The ability of the client to assist in the preparation of her case is substantially limited by the fact that she is detained. For example, her ability to gather documentation and locate and communicate with witnesses who could corroborate the facts of her claim is severely hampered. Although telephones are available, she may not be able to afford a calling card. And the telephones are routinely located in large "pod" or "dorm" areas that may hold scores of other detainees, so that no meaningful degree of privacy is available to make calls to counsel or potential witnesses. ₁₂₀ In addition, detained asylum seekers often have little or no meaningful access to legal materials or country condition reports that are essential to the preparation of their cases. ₁₂₁

Most disturbingly, some immigration judges, citing the cost to the government of detaining asylum seekers, refuse to allow attorneys adequate time to gather evidence and prepare their clients’ cases. At the Elizabeth detention facility, attorneys are sometimes given only three or four weeks between their preliminary appearance and the merits hearing date to prepare their clients’ cases. This is often insufficient time to track down facts and expert witnesses or to secure evidence from the client’s home country. In contrast, non-detained asylum seekers are routinely afforded several months or more to prepare their cases.

In the end, justice is not served by detaining asylum seekers. And since an asylum seeker who is truly afraid to return home will often appeal an adverse decision, the detention costs to U.S. taxpayers increase exponentially as the asylum seeker remains detained for an additional six months, one year, or longer while he or she pursues appeals.

 

V. Conclusion

The critical importance of paroling individuals who have fled from torture, rape, and persecution cannot be overstated. Release from detention provides obvious humanitarian advantages for asylum seekers and fiscal advantages to the United States. Current U.S. detention practices are inconsistent with international law and guidelines. They are also inconsistent with American traditions of justice and of protecting the persecuted. In the words of a woman who fled from domestic violence in Peru only to be handcuffed, shackled, strip-searched, and detained upon arrival in America, "I lie in my bed at night, and I say to myself, ‘Iuli, you’re in America.’ But then I ask myself, ‘How in God’s name can this be America?’" ₁₂₂

U.S. detention and parole practices for asylum seekers are fatally flawed. As outlined in our recommendations, Congress, the Department of Justice, and the INS must take decisive action to remedy this situation. Only then can we ensure that those who flee to our shores "yearning to breathe free" do not languish behind bars in this land of liberty.

 

Endnotes

Note 1: Letter, dated July 20, 1999, from Olufemi Abdulai, a Nigerian asylum seeker represented pro bono by an attorney at the law firm of Gibbons, Del Deo, Dolan, Griffinger & Vecchione through the Lawyers Committee’s Asylum Program. Mr. Abdulai has been held at the Elizabeth, New Jersey detention facility since March 22, 1998. Back

Note 2: See Daniel Williams, "Macedonia Slows Flow of Incoming Refugees," The Washington Post, March 31, 1999 ("Many refugees have reported that Yugoslav authorities are stripping them of their passports and other personal documents ….). Even approaching a persecuting government to request travel documents may in some cases place a refugee’s life at risk. In some countries, ravaged by civil war, there may not even be a functioning government to issue such documents. See supra note 13 regarding Somalia. Other refugees may be forced to flee without notice and without an opportunity to gather identity documents; some purposefully leave them behind knowing that if they are stopped by enemy forces, such documents could facilitate their identification and lead to certain harm. Back

Note 3: Immigration and Nationality Act [hereinafter INA] § 235 (b)(1)(B)(v). Back

Note 4: The 1996 immigration law, its expedited removal/credible fear procedures, and the INS guidelines regarding the parole of asylum seekers are discussed in more detail in sections II and III below. Back

Note 5: See section III below. Back

Note 6: Juan Forero, "They arrive in fear, languish in custody," The Newark Star-Ledger, November 22, 1998. Back

Note 7: Mr. A has asked that his name not be used. Mr. A was represented pro bono by Katherine Mulhern of Weil Gotshal & Manges LLP, through the Lawyers Committee’s Asylum Program. Mr. A’s case was mentioned in articles that appeared in The Newark Star-Ledger and The National Law Journal. See Forero, "They arrive in fear, languish in custody," supra note 6; Lisa Brennan, "Rights Committee Gets Results," The National Law Journal, January 25, 1999. Back

Note 8: Because she is fearful for the safety of relatives, Mina has asked that her real name not be used. Mina was represented pro bono by attorneys at the law firm of Debevoise & Plimpton, through the Lawyers Committee’s Asylum Program. Back

Note 9: Mr. Ladipo was represented pro bono by attorneys at the law firm of Pitney, Hardin, Kipp & Szuch through the Lawyers Committee’s Asylum Program. Back

Note 10: Because she fears for the safety of family members, Karantha S. has asked that her full name not be revealed. Back

Note 11: Mr. Mulamba was represented pro bono by attorneys at the law firm of Davis Polk & Wardwell through the Lawyers Committee’s Asylum Program. Back

Note 12: This refugee, who is a rape survivor, asked that her real name not be used. The name "Fatima Kwakuud" was used when her story was profiled in The New York Times. See Anthony Lewis, "The Road to Asylum," The New York Times, December 8, 1997, at 25. Fatima was represented pro bono by attorneys at the law firm of Skadden, Arps, Slate, Meagher & Flom LLP, through the Lawyers Committee’s Asylum Program. Back

Note 13: See supra note 2 for a discussion of the reasons why refugees are often forced to flee without travel documents. Even the U.S. State Department has recognized, repeatedly, that due to the situation in Somalia (which lacks a recognized central government), most Somalis lack international travel documents. See, e.g., U.S. State Department Country Reports on Human Rights Practices for 1998 (February 1999), for 1997 (March 1998) at 315, for 1996 (February 1997) at 252, for 1995 (April 1996) at 239. Back

Note 14: Because he fears for the safety of family members, Dr. Z has asked that his name not be used. He was represented pro bono by attorneys at the law firm of Skadden, Arps, Slate, Meagher & Flom LLP through the Lawyers Committee’s Asylum Program. Back

Note 15: Kassim has asked that his full name not be used. Kassim was represented pro bono by the Hebrew Immigrant Aid Society. Back

Note 16: Because he fears for the safety of family members, Mr. N. has asked that his name not be used. Mr. N. was represented pro bono by attorneys at the law firm of Skadden, Arps, Slate, Meagher & Flom LLP through the Lawyers Committee’s Asylum Program. Back

Note 17: See INS v. Cardoza-Fonseca, 480 U.S. 421 (1987); INS v. Stevic, 467 U.S. 407 (1984). Back

Note 18: Mr. Nunu is represented pro bono, though the Lawyers Committee’s Asylum Program, by Yale Law School’s Jerome N. Frank Legal Services Organization and the law firm of Davis Polk & Wardwell. Back

Note 19: Eligible nationals of a country designated for temporary protected status (TPS) are not subject to deportation or removal. They may live and work in the U.S. while the status continues. See INA § 244(b)(1); 63 Fed. Reg. 51958 (Sept. 29, 1998). Back

Note 20: Mr. Eboigbe is represented pro bono by the Robert B. McKay Community Outreach Law Program of The Association of the Bar of the City of New York (hereinafter Association). By letter dated April 12, 1999, the Association wrote to INS Commissioner Doris Meissner to express its concerns regarding the INS’s practices on detaining asylum seekers, including Mr. Eboigbe. Mr. Eboigbe’s story was also profiled in a March 1999 article in The Village Voice. See Alisa Solomon, "A Dream Detained," The Village Voice, March 24-30, 1999. Back

Note 21: Minnesota Lawyers for International Human Rights & Physicians for Human Rights, Hidden from View: Human Rights Conditions in the Krome Detention Center (1991); Immigrants' Rights Project, American Civil Liberties Union, Justice Detained: Conditions at the Varick Street Immigration Detention Center (1994); Women’s Commission for Refugee Women and Children, A Cry for Help: Chinese Women in INS Detention (March 1995). Back

Note 22: Ashley Dunn, "Shut the Detention Center, Local Authorities Urge," The New York Times, June 20, 1995, at B4; see also Celia W. Dugger, "In Pursuit of Freedom, Only to Find Pris22on Bars," The New York Times, July 8, 1996, at B1. Back

Note 23: Jama v. INS, 22 F. Supp.2d 353 (D.N.J. 1998). Back

Note 24: Celia W. Dugger, "U.S. Frees African Fleeing Ritual Mutilation," The New York Times, April 25, 1996 at A1; see also Testimony of Fauziya Kassindja before the Senate Subcommittee on Immigration, September 16, 1998; Fauziya Kassindja & Layli Miller Bashir, Do They Hear You When You Cry?, (Delacorte Press: 1998). Back

Note 25: Womens Commission for Refugee Women and Children, Forgotten Prisoners (April 1997); see also Gini Sikes, "Why Are Women Who Escape Genital Mutilation Being Jailed in America," Marie Claire, May 1998, at 52 (reporting on neglected needs of detained women; women have received fewer vital services than men, have been denied English classes, interpreters and adequate gynecological and other medical care). Back

Note 26: Human Rights Watch, Locked Away: Immigration Detainees in Jails in the United States (September 1998), at 4. Back

Note 27: Amnesty International, "Treated as Criminal: Asylum Seekers in the USA," Rights for All (October 1998), at 97-98. Back

Note 28: Jacob Bernstein, "Cleaning Up Krome," Miami New Times, December 24, 1998; see also Nancy San Martin, "Krome Report," Sun-Sentinel, July 18, 1996 at 3B; William Branigin, "INS Officials Allegedly Deceived Congress on Illegal Aliens," The Washington Post, June 21, 1996. Back

Note 29: Bernstein, "Cleaning up Krome," supra note 28; see also Teresa Mears, "Detainees Held by INS Say Jails are Rife with Abuse," The Boston Globe, August 2, 1998. Back

Note 30: Mears, id.; see also Andres Viglucci, "Human Rights Group Assails Jail Torture Probe," Miami Herald, June 24, 1999. Back

Note 31: Id.; see also Ronald Smothers, "3 Prison Guards Guilty of Abuse of Immigrants," The New York Times, March 7, 1998, at A1. Back

Note 32: Jim Lobe, "Rights–U.S.: Detained Immigrants Suffer in Local Jails," Inter Press Service, September 9, 1998; J.M. Hirsch, "Immigrants in N.H. Jail Protest," The Associated Press, August 17, 1999. Back

Note 33: Leslie Wirpsa, "INS Detentions: No Crime Needed," The National Catholic Reporter, Vol. 34, July 17, 1998. Back

Note 34: Mears, supra note 27. Back

Note 35: John White, "Treatment of Detainees Hit," Chicago Sun-Times, October 6, 1998. Back

Note 36: See, e.g., Mirta Ojito, "Inconsistency at INS Complicates Refugees’ Asylum Quest," The New York Times, June 22, 1998 (quoting Kivajini Kadambarathnam, from Sri Lanka, who was separated from her son at Kennedy Airport: "I cried and cried and cried, but then they put handcuffs on me and that shut me up. No one had ever done that to me before."). Back

Note 37: See Elizabeth Llorente, "Detainees at INS Center Go On Hunger-strike," The Bergen County Record, October 2, 1998, at A3; Ronald Smothers, "Asylum-Seekers Are Confined to Dormitories After Protest," The New York Times, October 1, 1998, at B6; Juan Forero, "Asylum Seekers Don’t Like Detention," The Star-Ledger, October 2, 1998. Back

Note 38: Llorente, supra note 37. Back

Note 39: Mae Cheng, "Hunger Stike Continues at INS," Newsday, October 7, 1998; Margo Adler & Daniel Zwerdling, "Immigrant Hunger-strikes," National Public Radio, October 11, 1998, transcript #98101106-216. Back

Note 40: Somini Sengupta, "Limits on Parole Dash Refugees’ Hopes," The New York Times, November 2, 1998, at B3; see also Michael Huspek, "The INS’s Futile Detention Practices," San Diego Union-Tribune, October 7, 1998, at B9 (noting that suicide attempts, protests and hunger-strikes are on the rise in INS detention facilities nationwide). Back

Note 41: Elizabeth Llorente, "Asylum Seekers Live in Jail-like Conditions," The Bergen County Record, April 11, 1999; see also Monique El-Faizy and Elizabeth Llorente, "Ex-Guards Tested Positive for Drug Use," The Bergen County Record, April 19, 1999. Back

Note 42: Llorente, "Asylum Seekers Live in Jail-like Conditions," supra note 41. Back

Note 43: Susan Sachs, "90 Asylum Seekers at Center are Infected by Man with TB," The New York Times, July 31, 1999; see also Cathy Chu, "INS Detentions Protested/Pickets Angry Over Conditions," Newsday, August 2, 1999. Back

Note 44: See Michele R. Pistone, "Justice Delayed is Justice Denied: A Proposal for Ending the Unnecessary Detention of Asylum Seekers," Harvard Human Rights Journal, Vol. 12 (Spring 1999) at 207-11 (citing Allen S. Keller M.D., "Congress Should Drop Summary Exclusion from Immigration Bill," Salt Lake Tribune, June 16, 1999). Back

Note 45: Elizabeth Llorente, "Dreams Turn to Despair," The Bergen County Record, May 24, 1999 (quoting Dr. Beverly Pincus, director of Cross-Cultural Counseling Center at the International Institute of New Jersey). Back

Note 46: Juan Forero, "INS detainees, agency dispute quality of care," The Newark Star Ledger, August 22, 1999; see also Llorente, supra note 45 (quoting Dr. Hawthorne E. Smith of the Bellevue/New York University Program for Survivors of Torture; based upon his treatment of asylum seekers who had been detained in the Elizabeth detention facility, "the trauma they develop because of their detention in Elizabeth has been as pertinent as the trauma they experienced at home in their countries."). Back

Note 47: U.S. Committee for Refugees, Despite A Generous Spirit: Denying Asylum in the United States 18-22 (1986); Helsinki Watch, Detained, Denied, Deported: Asylum-seekers in the United States 45-50 (1989). Back

Note 48: See supra note 2 and accompanying text. Back

Note 49: INA § 235(b)(1)(B)(iii)(IV). See also D. Kerwin & C. Wheeler, "IIRIRA’s Detention Mandates: An Exercise in Overkill," 75 Interpreter Releases 1433, at 1439; Daniel C. Horne and L. Ari Weitzhandler, "Asylum Law After the Illegal Immigration Reform and Immigrant Responsibility Act," Immigration Briefings (April 1997).). Back

Note 50: INA § 235(b)(1)(B)(v). Back

Note 51: See INA Section 235(b)(1)(B)(iii)(IV); INA Section 212(d)(5)(A) (providing for parole "on a case-by-case basis for urgent humanitarian reasons or significant public benefit" for an alien applying for admission); 8 CFR 235.3(c); 8 CFR 212.5(a); see also Memorandum from Office of INS Deputy Commissioner, dated March 31, 1997 re: "Implementation of Expedited Removal," reprinted in 74 Interpreter Releases (April 21, 1997) ("[o]nce an alien has established a credible fear of persecution or is otherwise referred (as provided by regulation) for a full removal proceeding under section 240, release of the alien may be considered under normal parole criteria"). Back

Note 52: Memorandum from INS Executive Associate Commissioner for Field Operations, Expedited Removal: Additional Policy Guidelines, December 30, 1997. These guidelines stem from the "APSO" parole program, which is discussed in detail in section III below. Back

Note 53: Memorandum from INS Executive Associate Commissioner for Field Operations, Detention Guidelines Effective October 9, 1998, October 7, 1998 (emphasis added). Back

Note 54: United Nations Protocol Relating to the Status of Refugees, opened for signing January 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267; United Nations Convention Relating to the Status of Refugees, opened for signing July 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S. 137. Back

Note 55: United Nations High Commissioner for Refugees Executive Committee Conclusion on Detention of Refugees and Asylum Seekers, No. 44 (1986). The UNHCR is the United Nations agency charged with supervising refugee protection. The United States is a member of the UNHCR Executive Committee, which provides policy and guidance to UNHCR in the exercise of its refugee protection mandate. Back

Note 56: Id. Back

Note 57: United Nations High Commissioner for Refugees Executive Committee Conclusion on International Protection, No. 85 (1998). Back

Note 58: United Nations High Commissioner for Refugees, Guidelines on Applicable Criteria and Standards relating to the Detention of Asylum-Seekers, February 1999. The Guidelines urge that exceptions to this general rule (protection of national security and public order, verification of identity, identification of basis of claim in a preliminary interview, destruction of documents/use of fraudulent documents to mislead) be clearly prescribed by national law in conformity with principles of international law. Back

Note 59: Id. Back

Note 60: Id., at Guideline 3. See also Letter from UNHCR Regional Representative, dated September 15, 1998, to Senator Spencer Abraham, Senate Sub-Committee on Immigration in connection with INS oversight hearings on detention, at 2. Back

Note 61: Arthur Helton, Detention of Refugees and Asylum Seekers, in Loescher, Refugee Issues in International Relations (Oxford University Press, Oxford: 1989); see also Arthur C. Helton, "The Legality of Detaining Refugees in the United States," 14 N.Y.U. Rev. Law & Soc. Change 353, 373-80 (1986). It should be noted that other sources of international law and standards (such as the International Covenant on Civil and Political Rights and the Universal Declaration of Human Rights) are also highly relevant to the question of detention of asylum seekers. Back

Note 62: See Memorandum from Gene McNary, INS Commissioner, Pilot Parole Project for Aliens Seeking Asylum in Exclusion Proceedings (April 27, 1990); Lawyers Committee for Human Rights, Interim Report on the Pilot Parole Project of the Immigration and Naturalization Service (New York: 1990). The Lawyers Committee facilitated the involvement of legal groups, voluntary agencies and local community groups with the pilot project. Back

Note 63: Memorandum from Gene McNary, INS Commissioner, Parole Project for Asylum Seekers at Ports of Entry and in INS Detention (April 20, 1992). Back

Note 64: Memorandum from Paul W. Virture, Acting General Counsel, Asylum Pre-Screening: May, 1993 – December 1993 (February 10, 1994). Back

Note 65: Letter from Arthur Helton, Director, Refugee Project, Lawyers Committee for Human Rights, to Acting INS Commissioner, April 21, 1993. Back

Note 66: Lawyers Committee for Human Rights, Detention of Refugees: Problems in Implementation of the Asylum Pre-Screening Officer Program, (New York: 1994). Back

Note 67: Letter from Rene Von Rooyen, UNHCR Representative, to INS Commissioner Doris Meissner, March 4, 1993. Back

Note 68 See "The Lessons of Esmor," The New York Times, June 21, 1995, at A18; Ashley Dunn, "Jail Official Blames Revolt on Agency: Length of Stay is Cited in Immigrants Uprising," The New York Times, June 21, 1995, at B1. The Esmor riot and conditions that triggered it are referenced in section IB above. Back

Note 69: INS headquarters Detention and Deportation Division, The Elizabeth, New Jersey Contract Detention Facility Operated by ESMOR Inc.: Interim Report, at 54-55 (July 20, 1995). The report noted that a stronger APSO parole program would have served the goals of making appropriate use of detention space, while protecting the rights of credible asylum seekers. Back

Note 70: See Ronald Smothers, "Asylum Seekers Testify on Abuse of Jail Guards," The New York Times, February 6, 1998; Elizabeth Llorente, "Asylum-Seekers Live in Jail-Like Conditions," supra note 41 (Esmor "fueled a debate about the very idea of locking up asylum seekers …."). Back

Note 71: See supra note 24 and accompanying text. In September 1998, Ms. Kassindja testified at INS oversight hearings on detention before the U.S. Senate Subcommittee on Immigration. Back

Note 72: Petition to the INS, EOIR, DOJ, Seeking a Rule on Procedures for Parole of Detained Asylum Seekers, submitted by the Lawyers Committee for Human Rights, January 1996. Back

Note 73: Helton, "A Rational Release Policy for Refugees: Reinvigorating the APSO Program," 75 Interpreter Releases No. 19 (May 18, 1998), at 688; Letter from INS APSO Project Coordinator, INS Office of International Affairs, to ACLU Immigrants’ Rights Project (September 6, 1996). Back

Note 74: See Smothers, "Asylum Seekers Are Confined," The New York Times, supra note 37; Smothers, "Asylum Seekers Testify," The New York Times, supra note 70. Back

Note 75: Patrick J. McConnell, "Asylum Seekers Held Long Periods Despite Clean Records," Los Angeles Times, September 9, 1998 ("The INS only grants temporary release to about 10% of the asylum applicants, a spokesman said."); Elizabeth Llorente, "Immigration Detention: A Rapidly Growing Business," The Bergen Record, April 11, 1999 (referring to nation’s 40% parole rate). In addition, statistics received from the INS by Arthur Helton indicated that between January 1997 and January 1998, only 57 of the 215 asylum seekers who met the credible fear standard (i.e., 26.5%) were granted parole. Helton, "A Rational Release Policy," supra note 73. Back

Note 76: A report issued by the Vera Institute for Justice indicated that more than 80% of immigration detainees who participated in its Appearance Assistance Program appeared for hearings. See Vera Institute for Justice, The Appearance Assistance Program: Attaining Compliance with Immigration Laws Through Community Supervision, 1998, at 14-15. This report did not reflect appearance rates for asylum seekers only, and the appearance rates for asylum seekers may very well be even higher. For instance, a 1990 study conducted by the Lawyers Committee of the APSO pilot parole project indicated a compliance rate for scheduled appearances of 97% for asylum seekers paroled in New York through a "community process." Lawyers Committee for Human Rights, Interim Report on the Pilot Parole Project of the INS, (New York: 1990), at 21-22. Although the Lawyers Committee has requested information from the INS about appearance rates for paroled asylum seekers, this information has not yet been provided. The INS has indicated that it does not normally track this information, which requires coordination of information with the Executive Office for Immigration Review. Back

Note 77: In late 1998 and early 1999, the Lawyers Committee repeatedly requested, in letters and in liaison meetings, information regarding parole of asylum seekers. In May 1999, the Lawyers Committee, through pro bono counsel, also submitted requests for parole-related statistics pursuant to the Freedom of Information Act to the INS and the Executive Office for Immigration Review. To date, no statistical information regarding parole has been received in response to these numerous requests. Back

Note 78: Lawyers Committee for Human Rights, Slamming the Golden Door: A Year of Expedited Removal, (New York: 1998). Back

Note 79: Women's Commission for Refugee Women and Children, Forgotten Prisoners: A Follow- Up Report on Refugee Women Incarcerated in York County, Pennsylvania (July 1998), at 12. Back

Note 80: Human Rights Watch, Locked Away, supra note 26, at 6, 78. Back

Note 81: Mirta Ojito, "Inconsistency at INS," supra note 36; Toby Beach & Peter Yost, "INS Jailing Many Asylum Seekers," The Boston Globe, November 17, 1998, at A27. Back

Note 82: Helton, "A Rational Release Policy," supra note 73, at 688-90; Kerwin & Wheeler, "IIRIRA’s Detention Mandates: An Exercise in Overkill," 75 Interpreter Releases 1433 (October 19, 1998) at 1439; see also Karen Musalo, Deborah Anker and J.Edward Taylor, "The Expedited Removal Study: Report on the First Year of Implementation," 75 Interpreter Releases 973, 976-77 (July 17 1998); Philip S. Anderson, "A Twisted Sense of Asylum," The Christian Science Monitor, August 4, 1999; see supra note 29 regarding the Association of the Bar of the City of New York. Back

Note 83: Final Report of the Advisory Committee on Religious Freedom Abroad to the Secretary of State and to the President of the United States, May 17, 1999, at 48. Back

Note 84: See Ojito, "Inconsistency at INS," supra note 36; Beach & Yost, "INS Jailing Many Asylum Seekers," supra note 81; Wheeler & Kerwin, supra note 82, at 1439. Back

Note 85: Karen Musalo, Deborah Anker & J. Edward Taylor, "The Expedited Removal Study: Report on the First Year of Implementation," 75 Interpreter Releases 973, 976 (July 17, 1999); see also Karen Musalo & Deborah Anker, The Expedited Removal Study: Report on the First Year of Implementation, International Human Rights & Migration Project, Markkula Center for Applied Ethics, Santa Clara University, May 1998). Back

Note 86: Karen Musalo & J. Edward Taylor, "The Expedited Removal Study: An Update As the System Completes its Second Year," 76 Interpreter Releases No. 13, April 2, 1999, at p. 516. Back

Note 87: Karen Musalo, Center for Human Rights and International Justice, University of California, Hastings College of Law, The Expedited Removal Study: Report on the Second Year of Implementation of Expedited Removal (May 1999), at 36. Back

Note 88: The participants in this representation project, which assists indigent asylum seekers, include the Catholic Legal Immigration Network, the Hebrew Immigrant Aid Society, the New York Association of New Americans, and the Lawyers Committee for Human Rights. Back

Note 89: See Testimony of Eleanor Acer, Lawyers Committee for Human Rights, at Senate Oversight Hearings on INS Detention, September 16, 1998. Two other asylum seekers were released after becoming eligible for Temporary Protected Status. The estimated cost of detaining an asylum seeker at the Wackenhut detention facility is reportedly $100 per day. Solomon, "A Dream Detained," supra note 20. Back

Note 90: This survey, conducted in August 1999 by the Lawyers Committee, consisted of Wackenhut cases represented in asylum proceedings by the Catholic Legal Immigration Network, the Hebrew Immigrant Aid Society, the New York Association of New Americans, the Robert B. McKay Community Outreach Law Program of the Association of the Bar of the City of New York, and the Lawyers Committee for Human Rights. The project’s clients have ultimately prevailed by winning asylum or withholding of removal in better than 3 out of 4 cases. Survey conducted by Mary McClenahan, the Catholic Legal Immigration Network, July 1999 (112 out of 145 completed cases granted asylum or withholding). Back

Note 91: Although not represented through the project, project attorneys are aware of at least 18 young children and accompanying adults who have been paroled from airport-area hotels. The cost of maintaining families at the hotels appears to be a factor in these release decisions. Back

Note 92: In October 1998, Mark Thorne, an INS spokesperson, reportedly stated that 79 out of 373 asylum seekers were paroled during the last year. Mirta Ojito, "Judge Allows Detainees to Sue INS Officials," The New York Times, October 10, 1998; see also Mae Cheng, "Hunger-strike Continues," supra note 39; Sengupta, "Limits on Parole Dash Refugees’ Hopes," supra note 40. At a June 16, 1999 liaison meeting, the New York INS provided statistics to the detention representation project that indicated that, since the Queens Wackenhut facility had opened, 285 of the 1054 asylum seekers who had been determined to have a credible fear had been paroled by the New York INS. The New York INS declined, as it had repeatedly in the past, to break down the numbers to reflect the reasons for the release. As a result, it is not clear how many of these asylum seekers were actually released pursuant to the parole guidelines for asylum seekers. Back

Note 93: See supra notes 39-40 and accompanying text; see also Susan Sachs, "Men Awaiting Asylum Ruling Begin Protest Seeking Release," The New York Times, July 30, 1999; Mae Cheng, "Immigrant Advocates Cry Foul/Detainees Continue to Protest," Newsday, August 7, 1999. Back

Note 94: See supra notes 68-70, 74. Back

Note 95: See, e.g., Kerwin & Wheeler, supra note 82; Ronald Smothers, "Asylum-Seekers Are Confined to Dormitories After Protest," supra note 37. Back

Note 96: Juan Forero, "Asylum Seekers Don’t Like Detention," The Star-Ledger, October 2, 1998 (reporting 89% parole rate during fiscal year 1997); INS liaison meeting with NGOs, March 5, 1999 (during first year, 89 to 90% of those with credible fear were paroled). A lower parole rate of 67% was reported by another source. See Elizabeth Llorente, "Detainees at INS Center Go On Hunger-strike," supra note 37 ("Of 152 asylum seekers found to have ‘credible fear’ in fiscal year 1997, 67% percent received parole," said INS district director in Newark, Andrea Quarantillo."). At a March 5, 1999 INS liaison meeting with NGOs, the New Jersey district reported that its parole rate was currently 21% for fiscal year 1999 through January 1999. See also Llorente, Detainees at INS Center Go on Hunger Stike, supra note 37 (reporting in October 1998 that since March 1998 only 24% of asylum seekers had been granted parole). Back

Note 97: The survey, conducted by the Lawyers Committee in August 1999, consisted of cases represented by the detention representation project at the Elizabeth facility. That project includes the American Friends Service Committee, the Catholic Legal Immigration Network, the Hebrew Immigrant Aid Society, Lutheran Social Ministries and the Lawyers Committee for Human Rights. Back

Note 98: Elizabeth Llorente, "Dreams Turn to Despair," supra note 45 (quoting New Jersey District Director). See supra notes 60-61 and accompanying text confirming that the use of detention as deterrence is contrary to principles of international law. Back

Note 99: The cases of Mr. Ladipo and "Kassim" are reported in section I above. Back

Note 100: Beach and Yost, supra note 81. Back

Note 101: See supra notes 37, 96. Back

Note 102: Ojito, "Inconsistency at INS," supra note 81; Kerwin & Wheeler, supra note 82, at 1439; Interview with Cheryl Little, Executive Director, FIAC, March 29, 1999. Back

Note 103: Ojito, "Inconsistency at INS," supra note 81; Kerwin & Wheeler, "IIRIRA’s Detention Mandates: An Exercise in Overkill," 75 Interpreter Releases 1433 (October 19, 1998), at 1439; Patrick J. McDonnell, "Asylum Seekers Held Long Periods Despite Clean Records," supra note 75; Karen Musalo and J.Edward Taylor, "The Expedited Removal Study: An Update as the System Completes its Second Year," 76 Interpreter Releases (April 2, 1999), at 516; Interview with Vera Weiss, March 11, 1999; Interview with Alison Wanamaker, Catholic Legal Immigration Network, Inc. Back

Note 104: Interview with Estele Lopez, Lawyers Committee for Civil Rights, San Francisco, CA, January 25, August 5, 1999. Back

Note 105: Interview with Audrey Carr, Minnesota Advocates for Human Rights, March 8, 1999, August 20, 1999. Back

Note 106: Interview with Mary Meg McCarthy, Midwest Immigrant Rights Center, March 3, 1999, August 23, 1999; Frederic N. Tulsky, "88 Chinese Immigrants Trapped in U.S. Jail," The Washington Post, August 16, 1999. Back

Note 107: At a June 16, 1999 liaison meeting, the New York INS reported that 52 asylum seekers had been paroled though the Vera AAP. Back

Note 108: As of June 1999, the AAP had recommended release of approximately 58 asylum seekers, and the New York INS district reports that it has released 52 of those asylum seekers. INS liaison meeting with Detention Representation Project, June 16, 1999. Back

Note 109: See, e.g., Smothers, "Asylum-Seekers Are Confined To Dormitories After Protest," supra note 37; Llorente, "Detainees at INS Center Go on Hunger-strike," supra note 37; Cheng, "Hunger-strike Continues at INS," supra note 39. Back

Note 110: Mae M. Cheng, "Immigration Detainees Refuse to Eat," Newsday, July 28, 1999; Susan Sachs, "Men Awaiting Asylum Rulings Begin Protest Seeking Release," The New York Times, July 30, 1999; Virginia Breen, "INS Detainees Waging Hunger-strike," The Daily News, August 2, 1999. Back

Note 111: See Ginger Thompson, "No U.S. Asylum for a Woman Threatened with Genital Cutting," The New York Times, April 25, 1999. Ms. Abankwah was finally released in July 1999 after the U.S. Court of Appeals for the Second Circuit reversed the decisions of the BIA and immigration judge. See Abankwah v INS, 98 Civ. 4304 (2d Cir. July 9, 1999); Ginger Thompson, "Court Backs Asylum for Woman Who Fled From Genital Cutting," The New York Times, July 13, 1999; Amy Waldman, "Woman Fearful of Mutilation Wins Long Battle for Asylum," The New York Times, August 18, 1999. Ms. Abankwah was represented pro bono before the Second Circuit by the law firm of Orrick, Herrington & Sutcliffe LLP and before the EOIR by the Hebrew Immigrant Aid Society. Back

Note 112: The American Civil Liberties Union, Justice Detained, supra note 21. Back

Note 113: See Donald Kerwin & Charles Wheeler, "The Detention Mandates of the 1996 Immigration Act: An Exercise in Overkill," 75 Interpreter Releases 40 (October 19, 1998). Back

Note 114: Human Rights Watch, Locked Away: Immigration Detainees in Jails in the United States (September 1998), at 4. Back

Note 115: The Bergen County Record, "Elizabeth Detention Facility, Fast Facts," April 11, 1999 ($144.61 per bed per day for the first 225 beds; $20.89 for the rest of the beds); see supra note 90 regarding Wackenhut. Back

Note 116: While the INS reported last year that asylum seekers constitute five percent of the detained population, it later clarified that this number included only those who had been determined to meet the credible fear standard. Kerwin & Wheeler, "The Detention Mandates," supra note 113, at 1436 (citing October 16, 1998 letter from Kristine Marcy, INS). The real figure is believed to be significantly higher and would include asylum seekers who were first detained prior to the implementation of the credible fear process and other asylum seekers who are not subject to the process. Id. Back

Note 117: Arthur C. Helton, "A Rational Release Policy for Refugees: Reinvigorating the APSO Program," 75 Interpreter Releases No. 19 (May 18, 1998), at 685; Kerwin & Wheeler, "The Detention Mandates," supra note 113 at 1436. Back

Note 118: See, e.g., Human Rights Watch, Locked Away: Immigration Detainees in Jails in the United States, supra note 26, at 63-68. Back

Note 119: Letter from UNHCR Regional Representative, supra note 60. Back

Note 120: See Pistone, "Justice Delayed," supra note 44, at 218 ("Being in detention frustrates asylum seekers’ ability to work efficiently with their representatives. Detained asylum seekers are not able to locate witnesses, gather evidence, or otherwise assist their attorneys in case preparation.") Back

Note 121: Id., at 219-20. Back

Note 122: Llorente, "Asylum Seekers Live in Jail-Like Conditions," supra note 41.Back