Asylum Interrupted

The United States has never opened its arms to immigrants seeking asylum. Before September 11, aliens would arrive only to be shackled and handcuffed to an airport bench, suffer through multiple interviews, wind up in a county jail or private correctional facility, and finally file their cases before an immigration judge. Sometimes an asylum seeker would get released on parole, but just as often, the Immigration and Naturalization Service (INS) would keep him in jail for the length of his case. And if he won, he'd be among the lucky third of those who win freedom.

But things have gotten even worse since 9-11. Now the INS is able to detain aliens more often and for longer. It's also harder for the undocumented to get a fair hearing if they appeal their cases. These changes have not only hit asylum seekers hard, they've also set troubling precedents for civil liberties. For a nation that's supposed to be a beacon of freedom, these new hurdles are nothing less than cruelly ironic.

The post-9-11 changes began in December 2001. After the INS intercepted a boatload of about 170 Haitian asylum seekers off the coast of Florida, it immediately placed them in detention without parole. The INS claimed that if it didn't treat the Haitians harshly, other would-be immigrants would follow their example. At first the INS said that deterring the so-called "mass migration" was in the Haitians' interest. After all, crossing the seas was a dangerous route to freedom.

But the INS' response to another group of Haitians suggested that it was really motivated by what it saw as national-security concerns. This second encounter occurred last October, when about 200 Haitians swam ashore near Key Biscayne, Fla. The INS responded by declaring that all future asylum seekers arriving by boat would undergo mandatory detention and likely face quick deportation. The INS also invoked a post-9-11 authority allowing it to keep the Haitians in detention even when a judge ruled that they could be released on bond. This "bond stay" authority differs from pre-9-11 rules, which stated that the INS could only keep asylum seekers in jail if it could show that they constituted a security risk. Now the INS doesn't even have to show any evidence. Attorney General John Ashcroft has effectively allowed the INS to overrule immigration judges and detain aliens indefinitely -- on no more than a hunch. "[Bond stay] was clearly aimed at removing any check on INS detention authority," says Eleanor Acer, director of the Lawyers Committee for Human Rights' Asylum Program.

Under pressure from immigration advocates to explain its actions, the INS eventually admitted that it was worried that dealing with asylum seekers was taking away resources from the war on terrorism. Specifically, it said, asylum seekers were distracting the U.S. Coast Guard and the INS from patrolling for terrorists. "We can't divert resources from protecting our borders and ensuring the safety of the American people to stopping mass migrations," says Jorge Martinez, a Department of Justice spokesman. "That is the primary goal of [these regulations]." But the occasional boatload of 200 people is hardly a mass migration, and Haitians pushed out by political unrest aren't going to be deterred by the possibility of detention. Acer notes that applying the post-9-11 regulations to the Haitian situation sets a worrisome standard for the exercise of executive power, stretching the definition of a security threat to include enforcement issues such as asylum. Powers once restricted for exceptional circumstances can now be used for more routine law-and-order objectives.

Of course, the increased detention rates since September 11 are also partly due to a lack of coordination. In places such as New Jersey and New York, INS district directors have used their discretion to detain asylum seekers even when the aliens posed no known risk and central guidelines recommended that they be released. "The problem was so severe at one point that the INS issued a regulation just to make clear that INS officials had the authority to release someone on parole," Acer says. And even when the INS has been ready to release detainees, massive delays in getting new security clearances have meant weeks of additional jail time. These delays aren't just a problem for asylum seekers; they're a hindrance for all foreign visitors, especially because the security checks were set up without adequate money, staff and training. Just as disturbing, various experts say nobody outside the government knows who is responsible for the delays. That's made it hard for foreigners to claim what few rights they have, especially while in jail. The solution, says Acer, is to prioritize asylum seekers "so the checks can be done on a timely basis." But, so far, Bush hasn't done anything about it.

The administration has said that the new moves are necessary precautions. But it's not as if asylum seekers just strolled into the United States before 9-11 -- they were already one of the most extensively screened groups entering the country. Two 1996 laws -- the Antiterrorism and Effective Death Penalty Act and the Illegal Immigration Reform and Immigrant Responsibility Act -- had already made the asylum system arduous and punitive. Among other things, these laws expanded the government's removal-and-detention powers and limited appeals. That's turned the immigration detention system, which includes asylum detention, into the fastest-growing prison system in the United States today. Initial admissions to detentions for all immigrants have grown 136 percent since 1994, and the INS removal-and-detention budget has ballooned from $239 million in 1994 to $1.1 billion in 2002. Just how many people seek asylum is hard to say, given that the government keeps poor statistics. But most estimates place new cases between 45,000 to 70,000 people annually. Only about a third of them are granted asylum.

But the problems for asylum seekers don't stop at detention. Ashcroft has also undermined their ability to get a fair appeals hearing. If an immigration judge denies an asylum case, the individual can appeal to the Board of Immigration Appeals (BIA). The problem is, the BIA is understaffed and has been swamped with tens of thousands of backlogged cases. (About 40 percent of all BIA cases are asylum cases.) In August of last year, Ashcroft decided to get rid of the backlog by fiat, mandating that the BIA sort through all old cases by March 25. According to the Los Angeles Times, denial rates for appeals skyrocketed from 59 percent in October 2001 to 86 percent a year later. Few immigration-law experts think aliens are being allowed true due process. "People are under pressure, and it's much easier ... to deny than it is to grant," says Laurie Rosenberg, a seven-year member of the BIA who left this year. "You have to jump through a lot of hoops to reverse a decision, and cases are gone through very quickly." Ashcroft has made it even harder by more than halving the number of BIA judges from 23 to 11. That leads Rosenberg to think that the backlogs will reappear and that cases will languish. And, once again, Ashcroft's decisions erode a check on the executive branch.

Many of the government's post-9-11 activities have focused on populations -- asylum seekers, illegal aliens, foreign Muslims and Arabs -- that enjoy few legal defenses. They usually come to the United States without money to afford legal representation and the state isn't required to provide them with counsel. Moved from one detention facility to another, even detainees who can afford lawyers have a hard time maintaining contact with them. This vulnerability gives the administration a chance to interpret statutes in broader terms than would be possible against U.S. citizens. Already Ashcroft has set legal precedents on the use of secret evidence and the suspension of habeas corpus in cases involving other foreigners in immigration courts. That makes the outcomes of many asylum cases not only a humanitarian question but also a general issue of security versus liberty. And it makes sense to ask now, not later, whether the extra security is really worth the reduced liberty.

Even the one post-9-11 change that could help asylum seekers may turn out to be cold comfort. On March 1, the INS was folded into the newly created Department of Homeland Security -- taking it out of Ashcroft's hands. It's too early to tell what the consequences will be. But a department with the name "security" in its title is still likely to treat asylum seekers as potential terrorists first and foreigners seeking freedom second. And there's no reason to think the tenor of the administration's policies will change. Only George W. Bush has the power to make liberty and refuge higher priorities in his administration. Don't hold your breath.