Refugees
REFUGEE UPDATE
US Treatment of Refugees and Asylum-seekers Has Recently Become Much HarsherRefugees are people who have been forced to flee their home countries because of human rights abuse or fear of future abuse. The 1951 Convention Relating to the Status of Refugees defines refugees as persons who have crossed borders due to a "well-founded fear of being persecuted for reasons of race, religion, nationality, membership in a particular social group or political opinion."
There are two ways in which people can become refugees in the United States. As described in detail below, both paths have recently become much more difficult. First, they can apply from abroad to be classified by the U.S. government as refugees "of special humanitarian concern." If selected, they are brought to the United States and resettled here. The U.S. resettlement program admitted an average of 90,000 people per year for the last two decades, but since September 11, the program has been drastically cut back. About 27,000 refugees arrived last year, and only about 10,000 have been admitted in the last six months.
The second way for people to become refugees in the United States is to come here on their own and then seek asylum. Asylum seekers are people who hope to be recognized as refugees. Receiving states, including the United States, require asylum seekers to go through a judicial or administrative process in which they must argue their cases for asylum until they are either accepted, or denied and ordered deported. Amnesty International advocates for fair asylum procedures and maintains that, to the extent possible, asylum seekers should not be detained while their claims are pending.
On March 1, the Immigration and Naturalization Service (INS) was officially dissolved, and its functions were moved from the Justice Department to the new Department of Homeland Security, whose primary mission is counterterrorism. The former INS has been split into three different bureaus, separating "enforcement" functions from "service" functions, a distinction that is not always clear in the asylum context, and that may render the notoriously inefficient INS bureaucracy even worse.
The Justice Department retains control over immigration judges and over the Board of Immigration Appeals (BIA). The Attorney General has recently taken steps to streamline the Board, greatly limiting its ability to review decisions by immigration judges. The Attorney General plans to cut the number of BIA members (who function as judges) in half. He has also directed that except where an immigration judge's decision was "clearly erroneous," the BIA may not consider questions of fact (only legal issues). And in most cases, the BIA must issue "affirmances without opinion," which give no indication of their legal reasoning, making further appeals to federal courts more difficult.
Citing security concerns, the Bush Administration has imposed mandatory detention on all asylum seekers arriving by sea. This began in December 2001, as a policy directed only at Haitians. After it was criticized as discriminatory, it was expanded to cover all asylum seekers arriving by boat, except Cubans. Hundreds of Haitian boat people, including small children, have been detained for months under the blanket detention policy.
Attorney General John Ashcroft handed down a ruling, on April 17, that Haitian asylum-seekers must be kept in detention because they might threaten national security if released. This applies to all Haitians, even in cases where an immigration judge has already found that the detainee poses no danger at all, and is not a flight risk. Ashcroft made the decision in the case of David Joseph, an 18-year-old Haitian who arrived in Miami by rickety boat on October 29, 2002. Joseph has been in detention ever since. The Attorney General argued that it could threaten national security to release Joseph (although two separate immigration courts had decided in favor of releasing him) since that might encourage large numbers of Haitians to come from Haiti, which would strain the resources of the U.S. Coast Guard and Defense Department. The Attorney General apparently has no such anxiety regarding Cuban boat people, who are detained only briefly after arriving in the United States.
In December, the United States and Canada signed an agreement that, with a few exceptions, requires asylum seekers to apply for asylum in whichever country they entered first, even if they intended only to pass through that country briefly. This will force thousands of people to apply in the United States rather than continuing to Canada. (In the past, few asylum seekers crossed the other way; Canada's policies toward refugees are much more generous.) This year, hundreds of Muslims have tried to go to Canada to avoid "special registration" (required of nonimmigrants from 25 predominantly Muslim countries and North Korea) and possible deportation from the United States. Many have been turned back by Canadian authorities, and detained in the United States. Because U.S. law requires asylum seekers to file their asylum claims within one year of arrival and since many of these people have lived in the United States for years, they could now find themselves ineligible to apply for asylum in either the United States or Canada.
Attorney General John Ashcroft is planning to decide a landmark gender-related asylum case himself, and he also intends to issue new regulations that may make it more difficult for women and children to win asylum based on government-tolerated gender-related violence. The landmark case is the asylum claim of Rodi Alvarado, a Guatemalan woman who fled to the United States after her government repeatedly failed to protect her during ten years of horrific abuse by her husband. An immigration judge granted Ms. Alvarado asylum in 1996, but Attorney General Ashcroft is now re-considering the case. His decision will affect other women fleeing honor killing, sexual slavery, domestic violence, and other gender-related abuse.
For more information, please contact Susan Benesch sbenesch@aiusa.org at the AIUSA Refugee Program. (202) 544-0200