Asylum Protection News 8

INS Authorizes Expedited Removal for Migrants Arriving By Sea

This Change will Increase Unfair Treatment of Haitians and Others

The Department of Justice and Immigration and Naturalization Service (INS) issued a notice in the Federal Register today (Order No. 2243-02) authorizing expedited removal for Haitian and other migrants who arrive by sea – with the exception of Cubans. Not only will future sea arrivals face an increased risk of mistaken deportation under the expedited procedures, but they will also be deprived of the chance to seek release from detention from an immigration judge.

In the Notice, the DOJ claims that “placing these individuals in expedited removal proceedings and maintaining detention for the duration of all immigration proceedings, with limited exceptions, will ensure prompt immigration determinations and ensure removal from the country of those not granted relief in those cases, while at the same time protecting the rights of the individuals affected.”

“To claim that a change that subjects people to unfair procedures and prolonged detention will somehow ensure that their rights are protected is both shocking and disingenuous,” said Eleanor Acer, Director of the Asylum Program at Human Rights First. “This change will prove a great disservice to individuals legitimately seeking asylum in the United States.”

The Notice authorizes the INS to place in expedited removal: individuals arriving in the U.S. by sea by boat or other means, who have not been admitted or paroled, and who have not been physically present in the U.S. for a continuous period of two years.

Issued one week after President Bush expressed his concern that “Haitians and everybody else ought to be treated the same way,” this change ensures unfair treatment for future Haitian asylum seekers.

Human Rights First urges the Department of Justice and the INS to immediately reverse this decision, and not subject any additional categories of individuals to expedited removal.

Expansion of Flawed Expedited Removal is Disturbing

Expedited removal is an unfair process that lacks sufficient safeguards to ensure that genuine refugees are not mistakenly returned to face persecution. Human Rights First has, in a series of reports, documented the flaws that have plagued expedited removal – a summary process that gives INS inspectors at our airports and borders the power to issue deportation orders that could previously be issued only by trained immigration judges.
Click here to read Human Rights First’s most recent report on expedited removal,
Is This America?

At the time the expedited removal provisions were initially implemented, the Department of Justice decided not to apply the flawed expedited removal process to people who were already within the U.S. and had not been formally admitted or paroled.

The INS’s decision to expand the use of expedited removal sets a very dangerous precedent. It also raises the very real concern that the INS may try to penalize other groups of asylum seekers or migrants by choosing to subject them to these unfair expedited procedures.

Depriving Asylum Seekers of the Right to Challenge Detention before a Judge

By applying expedited removal to future asylum seekers who were not previously subject to the process, the INS will also be denying them the chance to challenge their detention before an immigration judge, a right that some – like the Haitians who arrived in Florida in late October – would otherwise have because, as non-citizens who have not been admitted or paroled, they are eligible for a bond re-determination hearing before an immigration judge.

The U.S.’s detention procedures for asylum seekers who are subject to expedited removal are out of step with international standards that prohibit arbitrary detention. Asylum seekers who have been subject to expedited removal are not permitted to challenge their detention before a judge and there are no limits on the length of their detention. In fact, asylum seekers are sometimes detained for years in the U.S. as they pursue their asylum claims.

The INS has stated that this change is intended to “assist in deterring surges in illegal migration by sea”; but international standards make clear that detaining asylum seekers for reasons of deterrence is not acceptable.

Haitian Detentions Still Discriminatory

The U.S. government has failed to renounce its discriminatory detention practices directed at Haitian asylum seekers. The INS will no doubt continue to detain Haitian asylum seekers in a discriminatory manner.

While the INS may contend that all asylum seekers (other than Cubans) will be treated the same as a result of this change, it is clear that this change is aimed directly at Haitians. This change will simply give the INS even greater power to discriminatorily and arbitrarily detain future Haitian asylum seekers – in circumstances in which there will be no chance that an immigration judge might order the asylum seekers released on bond.

Take Action!

This development will only increase US unfair treatment toward Haitians. Human Rights First has urged that the INS: (1) stop discriminating against Haitian asylum seekers and treat them fairly; and (2) ensure that Haitian asylum seekers are given genuinely individualized detention determinations – instead of determinations that are simply a charade.