May 24, 2011 STATEMENT — LIRS Statement for Hearing: “H.R. 1932, the Keep Our Communities Safe Act of 2011”

Press Contact: Fabio Lomelino, Assistant Director for Media Relations
410-230-2721, lirspress@lirs.org

BALTIMORE, May 24, 2011—Lutheran Immigration and Refugee Service (LIRS), the national organization established by Lutheran churches in the United States to serve uprooted people, is deeply concerned about the lack of judicial review and the arbitrary and often prolonged or indefinite detention of migrants who most need our welcome and protection, such as survivors of torture, refugees, asylum-seekers, and other individuals who fear persecution and torture if removed from the United States.

“LIRS’s broad network of social ministry organizations, including partners that offer legal services and spiritual comfort to people held in immigration detention, is committed to promoting justice for all migrants,” said Linda Hartke, LIRS President and CEO. “As a faith-based organization, we are gravely concerned about the impact of mandatory detention on all migrants, particularly the most vulnerable. We urge Congress and the Administration to address the complexities of our broken immigration system in a way that reflects our American values and strengthens our moral integrity.”

Federal mandatory detention laws, without review of an individual’s circumstances, are responsible for the detention of thousands of migrants, including asylum-seekers, refugees who have adjusted to lawful permanent residency, and undocumented migrants seeking asylum. These laws have expanded a system of arbitrary detention that contradicts international law and stands in contrast to other systems of justice in the United States. While recent parole policy changes have created a narrow exception for arriving asylum-seekers, they limit government discretion to release asylum-seekers, even when detention is deemed unnecessary.

While the U.S. government deports many migrants in a timely fashion, some cannot be removed because removal is dependent on a third country accepting the deportee. These problems impact stateless individuals, people from countries that do not have repatriation agreements with the United States, and people from countries that lack travel documents for their safe return.

Impact of Prolonged or Indefinite Detention on Vulnerable Migrants

Every year mandatory detention policies impact thousands of migrants, many of whom are pursuing meritorious applications to remain in the United States to be protected from persecution or torture or to stay with their family. Detention without judicial review is inappropriate for vulnerable populations and creates significant humanitarian costs. Many of these migrants have suffered past persecution or torture. Detention is a re-traumatizing event and causes psychological harm, especially to individuals seeking protection from persecution and torture who remain detained for months or years.[1] Research also shows that detention is particularly harmful to survivors of torture and other victims who have suffered abuse from totalitarian governments and government officials in their countries of origin.[2]

LIRS witnesses the impact of prolonged and indefinite detention through the work of local partners in our Detained Torture Survivors’ Legal Support Network.

Jonathan,[3] a survivor of torture from Sudan, had been detained in York, Pennsylvania for ten months while awaiting the resolution of his legal case. While he was still pursuing legal protection from removal based on his fear that he would be tortured again in Sudan, Jonathan abandoned his application. “Over time I became insensitive and lost hope,” he said. “My belief in God is diminishing.” Because he was born in Southern Sudan, the autonomous region of Sudan that recently declared its independence, it is unclear whether he will be removed from the United States and to which country. Moreover, he could be in detention for several more months before having the opportunity for a judge to review whether his detention is even necessary.

Isaac[4] fled Jamaica after escaping threats to his life by an armed wing of a political group. After arriving in the United States, he presented a false passport to immigration officials. Not understanding U.S. asylum laws, he did not express his fear of being deported. He was removed and lost his chance to seek asylum. To escape another attempt on his life, he returned to the United States a few months later. Immigration officials placed him into detention though this time he protested his removal. He waited for months behind bars until an asylum officer found that his fear was reasonable and referred him to an immigration judge for a final decision. While waiting for his legal case to be resolved, he had flashbacks to his suffering back in Jamaica – to the beatings he faced, to the feeling of being shot, and to the fear of running to save his life. He had strong family ties in the United States and posed no threat to the community, yet he was detained for nearly three years until he was finally granted legal protection in the United States. “My faith is the only thing that keeps me going,” said Isaac. “I read the Bible every day to maintain my hope and to stop the nightmares.”

Safe Release for Migrants from Detention and Risk Assessment

To properly measure the risk factors in individual cases and to inform decisions about custody and safe release of migrants, the federal government needs a dynamic risk assessment tool. Such a tool would enable the government to identify which individuals present genuine risks of flight or threats to public safety as well as people who may be negatively impacted by detention, such as survivors of torture, domestic abuse victims, and other victims of violence. It would also inform the government about the level of risk in individual cases which would mitigate the risk in the most cost-effective and least restrictive manner, including the use of alternatives to detention. Equipped with relevant information, the government would be empowered to facilitate the safe release of vulnerable migrants who pose no risks of flight or danger, but whose applications are pending in the immigration courts or on appeal. A system of informed decision-making, a continuum of effective alternatives to detention, and a process of release that promotes safety will foster long-term security and maintain a model of efficient and just governance that is consistent with the spirit of welcome the United States is known to embody.

“The U.S. government must uphold the human rights of all migrants, including survivors of torture, refugees, and asylum seekers, by ending arbitrary detention without any assessment of risk factors demonstrating why an individual’s detention is necessary,” said Leslie E. Vélez, LIRS Director for Access to Justice. “Detention is an excessive precaution, especially for migrants who are detained for prolonged and indefinite periods of time. Indefinite detention forces people to choose between giving up their legal claim and face real threats to their safety in their home country of origin when they are deported or bear the unnecessary confinement while they continue to pursue their claim.”

LIRS Recommendations to Congress:

  • Oppose proposals to restrict the liberty of migrants based on determinations that do not evaluate individual risk factors or demonstrate the need to detain.
  • Repeal federal statutes that mandate detention without an individualized assessment of the need for detention, i.e., a real public safety threat or a demonstrated risk of flight which cannot otherwise be mitigated.
  • Ensure access to judicial review of any decision to restrict liberty, including but not limited to the use of detention.
  • Oppose proposals that curtail judicial review of restriction of individual liberty.
  • Require any restriction of liberty be the least restrictive form of custody necessary and proportionate to meet government interests.

LIRS welcomes refugees and migrants on behalf of the Evangelical Lutheran Church in America, the Lutheran Church—Missouri Synod and the Latvian Evangelical Lutheran Church in America. LIRS is nationally recognized for its leadership advocating with and on behalf of refugees, asylum seekers, unaccompanied children, immigrants in detention, families fractured by migration and other vulnerable populations, and for providing services to migrants through over 60 grassroots legal and social service partners across the United States.

If you have any questions about this statement, please feel free to contact Eric B. Sigmon, LIRS Director for Advocacy, at (202) 626-7943 or via email at esigmon@lirs.org.

To read the LIRS statement on improving efficiency and ensuring justice in the immigration court system, click here: http://bit.ly/j2s4Db.

To read the LIRS statement on concerns about state and local law enforcement participation in interpreting and enforcing federal immigration laws, click here: http://bit.ly/kjuG5e.

To read the LIRS statement on the Department of Homeland Security’s December 2009 parole policy directive for arriving asylum-seekers, click here: http://bit.ly/lkQLom.

[1] G. J. Coffey and others. ‘The meaning and mental health consequences of long-term immigration detention for

people seeking asylum’ (2010) 70(12) Soc Sci Med 2070 2070-2079; M. Ichikawa, S. Nakahara and S. Wakai.

Effect of post-migration detention on mental health among Afghan asylum seekers in Japan’ (2006) 40(4) Aust N

Z J Psychiatry 341 341-346; Z. Steel and others. ‘Impact of immigration detention and temporary protection on the

mental health of refugees’ (2006) 188(1) The British Journal of Psychiatry 58 58-64.

[2] Physicians for Human Rights, Bellevue NYU Program for Survivors of Torture. ‘From Persecution to Prison’

accessed 4/17/2011 In immigration

detention “[s]urvivors of torture often describe feelings of fear and powerlessness caused by the clanging of cell

doors, footsteps in the corridor and uniforms, which restimulate their distress.”;

A. Burnett and M. Peel. ‘Asylum seekers and refugees in Britain: The health of survivors of torture and organised violence’ (2001) 322(7286) BMJ: British Medical Journal 606

[3] Name has been changed to protect his identity.

[4] Name and country of origin have been changed to protect his identity.