By Willam Fisher
Human rights groups say time is running out for the federal government to make good on a pledge to shift the country's immigration detention system to one that emphasises a civil rather than criminal approach.
One such group, Human Rights First (HRF), is taking aim at a particularly sensitive aspect of the detention debacle: the plight of refugees seeking asylum.
Annie Sovcik, advocacy counsel for HRF's Refugee Protection Programme, told IPS, "Of the approximately 400,000 immigrants held in U.S. immigration detention annually, a few thousand are refugees -- individuals who have fled persecution for political, religious and other reasons and are seeking protection in the United States."
"Upon arrival, these refugees are shackled and transported to immigration detention centres where they are held in jail-like conditions and where they may remain isolated for months without adequate due process safeguards as their claims for asylum protection are adjudicated," she charged.
Sovcik says this practice "undermines commitments the United States has made to protect refugees, violates obligations the United States has assumed under international law, and creates a barrier for refugees to access a fair asylum adjudication process."
The Department of Homeland Security has pledged to reform the immigration detention system and move away from a jail- like system to one that is more civil in nature. HRF and other organisations welcomed this announcement in 2009 and also encouraged DHS to commit to reform its practices related to how decisions of who to detain or release are made.
But, Sovcik asserts, "Since the August 2009 announcement, while DHS has slowly worked on fulfilling its promise, 33,400 immigrants are held every day in facilities that officials at the highest levels recognise is chronically flawed but have remained essentially unchanged."
Sovcik called on Immigration and Customs Enforcement (ICE) to implement changes at existing facilities by the end of this year.
The U.S. immigration detention system holds up to 33,400 detainees -- including asylum seekers -- every day. These detainees are currently held in a sprawling network of approximately 250 facilities -- down from 341 a year ago -- across the country.
Some of these facilities are operated by ICE, the enforcement arm of DHS, while others are run by private corrections companies or county jail systems.
Last year, DHS acknowledged that its detention beds were located in facilities "largely designed for penal, not civil, detention." Key among its 2009 reform plans was a commitment to shift to a non-penal, or "civil", model of immigration detention.
DHS's announcement in 2009 came on the heels of two government reports that had concluded that the U.S. immigration system was inappropriately modeled on correctional systems.
One was from Dr. Dora Schriro, former director of the Arizona and Missouri state corrections systems and currently commissioner of correction for New York City, and the other from the bipartisan U.S. Commission on International Religious Freedom.
HRF's recommendations for new civil standards and changes to existing facilities include allowing asylum seekers and other immigrant detainees to wear civilian clothing rather than prison jumpsuits; to have contact visits with family and friends in all facilities, true outdoor recreation space, and expanded access throughout the day; and to enjoy increased freedom of movement within secure facilities.
More broadly, the group urges the government to stop detaining asylum seekers and other immigrants in penal facilities, and create nationwide alternatives to detention.
DHS should work with the Justice Department to provide all detained asylum seekers with access to custody hearings so that the need for their continued detention can be assessed by an immigration court, HRF says.
Another serious glitch in the asylum-seeking process is the application deadline imposed by Congress. A new study has revealed that one in five refugees seeking protection in the United States is denied asylum because they do not apply within one year of their arrival and thus miss the 12-month deadline imposed by Congress, according to a study of the Board of Immigration Appeals' (BIA) asylum decisions.
"The one-year deadline results in the denial of asylum, a basic human rights protection, because of a technicality," said Mary Meg McCarthy, executive director of the Heartland Alliance's National Immigrant Justice Centre.
"The BIA is making a bad law worse by arbitrarily denying exceptions to the deadline and putting the lives of men, women, and children at risk," she added.
The study's conclusions are detailed in a new report, "The One-Year Asylum Deadline and the BIA: No Protection, No Process", prepared by the Heartland Alliance, HRF and others. It is the first to examine how the asylum deadline is handled by the BIA, the highest level of administrative appeal available to asylum seekers.
In addition to the 20 percent of asylum cases denied because of filing after the deadline, in 46 percent of the 662 filing deadline denials, the BIA did not provide any reason for the denial of the asylum application other than that it was submitted after the filing deadline.
And of the 662 filing deadline denials, the BIA did not recognise any exceptions to the filing deadline. When an immigration judge granted an exception to the one-year deadline, the BIA affirmed that decision 75 percent of the time.
By contrast, when an immigration judge denied asylum based on the one-year deadline, the BIA affirmed the decision 96 percent of the time.
William Fisher has managed economic development programs in the Middle East, Africa, Latin America and Asia for the U.S. State Department and the U.S. Agency for International Development.