December 12, 2013 STATEMENT–LIRS Statement for Hearing: “Asylum Laws and Abuse”

Press Contact: Tara Mulder, LIRS Director for Marketing and Communications
410-230-2756, tmulder@lirs.org

Lutheran Immigration and Refugee Service (LIRS), the national agency established by Lutheran churches in the United States to serve uprooted people, is committed to helping asylum seekers and torture survivors access the protections to which they are legally entitled. LIRS advocates nationally and works in networks and coalitions to ensure newcomers in the United States are treated fairly and humanely and is a leading voice on protecting vulnerable migrants and refugees, including asylum seekers.

Obligations to Protect Individuals Fleeing Persecution
The United States Government must fulfill its obligation to provide protection to individuals fleeing persecution in their homelands. This obligation is found in international treaties the United States has ratified, such as the United Nations Refugee Convention and the Convention against Torture, as well as in domestic immigration law. In addition to legal obligations, our nation has a long and proud history of protecting and welcoming victims of persecution and torture. Finally, there is a moral imperative to protect the most vulnerable newcomers who arrive on our shore seeking safety and the chance to rebuild their lives.

Our asylum system provides refuge to men, women, and children who have endured unimaginable persecution in their countries of origin on account of their race, religion, political opinion, membership in a particular social group, or nationality.

There are numerous safeguards and procedures to ensure the integrity of the domestic asylum system, including mandatory biographic and biometric checks of applicants against various federal databases and dedicated, full-time fraud detection officers. Additionally, current laws prohibit the granting of asylum to any person who has engaged in terrorist activity or otherwise poses a threat to the security of the United States. Erecting new barriers to protection within the asylum system is unnecessary and would impede our obligations to protect bona fide asylum seekers.

Detention of Asylum Seekers
The United States detains asylum seekers, refugees, and torture survivors every day in jails or jail-like settings. These vulnerable men and women are among thousands of migrants apprehended by the Department of Homeland Security (DHS) each year and sent to immigration detention until they win their cases or are deported to their countries of origin. The United States government detains approximately 34,000 individuals for immigration purposes each day.

Under current immigration law (Section 235(b) of the Immigration and Nationality Act), arriving asylum seekers are subject to immigration detention pending a determination by a DHS, United States Citizenship and Immigration Services (USCIS) Asylum Officer regarding whether they have a “credible fear” of persecution as a result of their race, religion, ethnicity, political opinion or membership in a particular social group. Contrary to popular opinion, only individuals found removable on grounds related to criminal conduct or suspected terrorist activity, and arriving asylum seekers who were not found to have a credible fear, are subject to mandatory detention. After asylum seekers are found to have credible fear, ICE may exercise its prosecutorial discretion to release the asylum seekers on bond or parole pending immigration proceedings.

In January 2010, DHS, Immigration and Customs Enforcement (ICE) implemented a new policy to parole arriving asylum seekers. The authority for parole is found in 8 CFR Sec. 212.5, which allows for arriving aliens who pose neither a flight risk nor a risk of absconding to be paroled into the United States on a case-by-case basis if there is an urgent humanitarian reason or a significant public benefit. Under this policy, asylum seekers whose fear of persecution is deemed credible by USCIS Asylum Officers are reviewed for eligibility for release from detention on parole. ICE agents are directed to parole asylum seekers with a credible fear of persecution if they can verify their identity and that they do not pose a security or flight risk. This determination is based on an individualized assessment of the circumstances of each asylum seeker’s case.

Denials of parole are not entitled to judicial review by an immigration judge or federal court. The only recourse is to seek reconsideration by ICE of the parole request. Furthermore, arriving asylum seekers who are not found to have a credible fear remain in detention until they are removed from the United States.

Harmful Impact of Current Laws, Policy and Practice
Immigration detention negatively impacts asylum seekers in multiple ways. Detention impedes full, fair adjudication of valid claims by creating obstacles to obtaining legal counsel, hindering the ability to gather evidence in support of one’s claim, and often forcing participation in court proceedings over a tele-video connection rather than in person. The psychological harm of detention on a survivor of persecution or torture has been well-documented. In some situations, the hardship of detention may lead a bona fide asylum seeker to return to a country where he or she fears persecution or torture.

The shortcomings and overly harsh response of the current system are illustrated by the following story of an afghan asylum seeker who fled persecution by the Taliban on account of his assistance to the U.S. Army.

To protect his family and save his own life, Ahmad fled his home country of Afghanistan after being targeted by the Taliban as a “U.S. loyalist” for providing translation assistance to the U.S. Army in 2002. When he came to the United States seeking protection and attempted to enter with a false passport, he was detained. He claimed asylum and was found to be eligible; he met the refugee definition, he was credible, and he established a well-founded fear of persecution if he returned to Afghanistan. Nevertheless, an immigration judge denied his initial asylum application because he did not attempt to relocate within Afghanistan before escaping to the United States. Ahmad appealed his case. Because he was considered an “arriving alien,” he was not eligible for a custody determination before a judge. As an asylum seeker who had established a credible fear of persecution, he was eligible for parole, but ICE determined he was a flight risk because he lacked community ties. Ahmad remained in detention for more than a year before he was granted asylum and released from detention. Ahmad was a perfect candidate for a community-based ATD program that could have provided him the support he needed while fighting his case without imposing severe restrictions on his liberty and wasting valuable taxpayer money.

Need for Prosecutorial Discretion
Federal immigration laws and policies should not use a blanket approach for reaching detention determinations. Such one-size-fits-all enforcement methods have led to more individuals being detained than is necessary to meet the goal of immigration detention—compliance with immigration proceedings. Immigration officials instead should utilize discretion based on individual circumstances when making detention determinations.

The use of prosecutorial discretion is a longstanding and non-controversial principle of law enforcement that allows officers and agents to prioritize their actions and expenditures and that both the Supreme Court and Congress have recognized as a legitimate exercise of executive authority. To achieve principles of good governance, the exercise of discretion must be consistently and transparently utilized. Parole for arriving asylum seekers is one policy initiative that meets these standards.

Recommendations
LIRS’s expertise, experience, and compassion from decades of serving newcomers inform our advocacy for just, humane treatment of people who seek protection in the United States and inspire our call to end the use of unnecessary detention. We support the current ICE parole policy for arriving asylum seekers for the following reasons:


  • Release of arriving asylum seekers on parole following an individualized assessment allows the government to comply with its responsibility under immigration laws, meet its humanitarian obligations, and reduce the financial burden to taxpayers.
  • Individualized assessments protect against arbitrary detention. Assuming that detention is necessary for all individuals fleeing persecution violates international laws and conventions. The ICE parole policy assesses the need for detention in each arriving asylum seeker’s case based on the unique factors facing each individual. Individual assessments protect against unjustifiable deprivations of liberty.
  • The parole policy upholds the United States’ obligations under the United Nations Refugee Convention to ensure that individuals are not detained for longer than necessary to achieve the legitimate government goal of verifying identity and mitigating flight risk or danger to the community.
  • A policy of paroling individuals found to have a credible fear of persecution reduces negative long-term consequences for mental and physical health caused by detention and improves the ability of these individuals to integrate into society upon release.

LIRS urges the United States government to maintain robust protections for asylum seekers and others fleeing persecution and to avoid immigration detention unless it is determined to be necessary based on individualized assessments of each individual. We further support increasing access to alternatives to detention for migrants and refugees that meet the government’s need with less deprivation of liberty.

For additional information, please see our fact sheet on asylum and asylum-seekers or contact Brittney Nystrom, LIRS Director for Advocacy at bnystrom@lirs.org or 202.626.7943.