Protecting the Persecuted is not a Card Game

Eleanor Acer

An article in today’s Wall Street Journal gives an incomplete picture of the asylum and immigration systems along the U.S. southern border and misses the mark by likening a request for asylum to “playing a card.”

Day in and day out refugees are protected from being returned to places where their lives would be in danger because of the U.S. asylum system and the credible fear process. The credible fear process is the only safeguard against immediate return to persecution when individuals request asylum at our borders or airports.

The United States has a long bipartisan history of providing asylum to those who face persecution if returned to their countries. This commitment reflects this country’s identity as a nation committed to liberty and human dignity. The United States also led efforts, in the wake of World War II, to create an international system for protecting those who flee persecution. This country’s commitment to that system – and the 1951 Refugee Convention and its Protocol – is every bit as important today as it was in the wake of World War II. The United States must have a fair and effective process for allowing individuals to apply for asylum – not only to live up to its values and its promises under conventions, but also to set an example for the many other countries around the world who are hosting large numbers of refugees and asylum seekers – such as the two million who have recently fled from Syria.

The safeguard of a credible fear interview is the only thing standing between an asylum seeker and immediate summary deportation at U.S. borders and ports of entry. Those who do not pass a credible fear interview are immediately returned. Those who do pass their screening interviews are put into immigration court removal proceedings, which only gives them the chance to apply for asylum in the course of their immigration court removal proceedings. If they are denied asylum, they will be ordered deported.

Some examples of the refugees who have been protected from immediate deportation after passing the credible fear process include:

• An Eritrean Pentecostal man who was brutally tortured and detained for three years after being accused of belonging to a political opposition group;
• A Burmese Baptist woman who feared persecution by that country’s military regime because of her protests for democracy and equal treatment of political and religious minorities;
• A Guatemalan family who were persecuted – and the oldest daughter killed – after the father joined an association that stood up to gangs with connections to the police; and
• A pro-democracy activist from Ethiopia who was detained for two years after distributing campaign materials and otherwise peacefully supporting an opposition political party.

The hurdles that asylum seekers face navigating the expedited removal process are numerous, and have been documented repeatedly – including by the bi-partisan U.S. Commission on International Religious Freedom which found that individuals expressing fear of persecution were sometimes not even referred for credible fear interviews by U.S. border officers. And over the years, some refugees who did in fact face real risks of persecution have been mistakenly found not to meet the screening standard.

The Wall Street Journal article also leaves out or confuses some relevant pieces of information – including:

• Mandatory Detention: Those who request asylum at or along the border are subject to mandatory detention when they request asylum.
• Criteria for Release: Some are indeed released weeks or months later – but only if they meet legal criteria and requirements, including that they are assessed not to be a flight risk or danger to the community.
• Increase in Violence in Central America: The piece fails to mention the sharp increases in violence in a number of Central American countries which is well-documented, and which US government officials have flagged as potentially linked  to the increase in U.S. protection requests.
• Placement into Removal Proceedings: The article states that “[m]aking a credible-fear declaration soon after crossing stops a US agent from putting an immigrant into deportation proceedings” when in fact, those who pass the credible fear screening interview are actually put into immigration court removal proceedings. Expressing a fear of return only means an individual should not be immediately summarily deported at the border and has to undergo a screening interview first.
• Need for Increased Staffing and Funding for Immigration Courts: The piece also paints asylum requests as the reason for the delays in immigration court proceedings – ignoring the extensive public information about the  backlogs in immigration courts nationally caused by the lack of increased staffing and funding for the immigration courts despite a significant increase in  immigration enforcement staffing. The American Bar Association, immigration judges, and others have repeatedly called for sufficient staffing to meet their growing caseload, an increase that the Transactional Records Clearing House has extensively documented.
• Existing Safeguards: The current system includes existing safeguards in the asylum and immigration systems to identify any fraud or abuse.

The piece also claims that the United States – a country that detained over 400,000 immigrants in fiscal year 2011 – needs more detention beds for asylum seekers (apparently relying on some comments from unnamed “immigration officials”), but fails to mention the existence of more cost-effective alternatives to detention. If an individual asylum seeker is considered to present a risk of not appearing for hearings or potential deportation, U.S. immigration officials can and should utilize alternatives to detention.

These measures – which can include case supervision, electronic monitoring, and other tools – have been demonstrated over and over again to be effective. In a March 2013 Washington Times op-ed, former general counsel to the Texas prison system Steve J. Martin and former ICE assistant secretary Julie Myers Wood emphasized the cost-effectiveness of alternatives to detention, measures often used in the criminal justice system. They also pointed out that in 2011, 96 percent of participants in a formal alternative to detention program showed up for their final hearing, and 84 percent complied with final orders. Moreover, alternatives cost taxpayers less than $9 per person per day, compared to $116 per person per day for those in detention. And yet, ICE’s budget for alternatives to detention remains a fraction of the over $2 billion spent each year on immigration detention. In other words, rather than expanding detention, Congress would do well to save taxpayer dollars, eliminate language that suggests an arbitrary minimum bed “mandate” for detention, and increase funding for alternatives.

The article claims that some “use the lengthy process to disappear into America’s underground economy.” If indeed there are “some” individuals who do “use the lengthy process to disappear” – whether that is three or 30 or more – the U.S. government has more than enough tools available to address non-appearance and improve the pace of immigration court hearings. These measures  include:

• Increase Immigration Court Staffing and Resources: Congress should increase funding and staffing for the U.S. immigration courts to remove the backlogs that are delaying immigration court removal hearings – including those that impact asylum cases. These delays undermine the ability of legitimate asylum seekers to receive protection and bring their families to safety;
• Congress should fund legal orientation presentations for all people in immigration detention so they have better information about their eligibility – and in some cases ineligibility – for asylum or other immigration status. These presentations have been found to improve the efficiency of the immigration court process;
• Use Cost-Effective Alternatives to  Detention: ICE should increase its use of cost-effective alternatives to detention that have been demonstrated to produce high appearance rates, and Congress should support flexibility in funding so that ICE can utilize these alternatives in cases where detention is not necessary to meet the government’s need for appearance;  and
• Tackle any abuse: U.S. immigration authorities can also utilize the many existing safeguards in the asylum and immigration systems to identify any fraud or abuse. U.S. authorities can also investigate and prosecute any perpetrators of fraudulent schemes. The federal government has unprecedented resources available to it to investigate and prosecute alien fraud.

Today’s piece – which uses language that characterizes asylum seekers as some kind of “flood,” “wave” or “tide” that is “swamping” immigration courts and immigration detention facilities – is out of step with American values. Consistent with those values, there are important steps that can and should be taken to make sure our asylum and immigration processes operate effectively, fairly and consistently with this country’s commitment to human rights, liberty and dignity.