Too little, too late – the Department of Homeland Security’s Response to the U.S. Commission on International Religious Freedom’s Report on Jailing Asylum Seekers

In a January 8, 2009 letter to DHS Assistant Secretary for Policy Stewart Baker, the Chair of the bi-partisan U.S. Commission on International Religious Freedom, Felice Gaer, told DHS that the actions DHS has taken, in response to the Commission’s report on the treatment of asylum seekers, do not “accurately follow the [Commission’s] recommendations or adequately address the problems identified ….” The Commission’s January 2009 letter was written in response to DHS’s (long overdue) November 28, 2008 response to the Commission’s February 2005 report relating to asylum seekers in the expedited removal and immigration detention systems.

The Commission told DHS, in its January 2009 letter, that “many of the same problems exist in the expedited removal and detention systems today as existed in 2005 when USCIRF issued its report.”

USCIRF flagged several areas for concern – urging DHS to provide greater authority to a Special Advisor on Refugee and Asylum affairs, to stop housing asylum seekers in jail-like facilities, to issue new parole policies to ensure that asylum seekers who pose no risk are not subject to unnecessary detention, and to provide greater oversight in the expedited deportation process.

The new leadership of DHS will inherit these problems but will also assume the authority to help remedy them. Both Congress and DHS will need to ensure that critical reforms are made so that the United States no longer inappropriately jails or improperly deports the victims of persecution who seek refuge and protection from this country. Day in and day out, Human Rights First works with victims of political, religious and other forms of persecution who are shocked to find themselves brought to jails after requesting asylum.

As a Burmese democracy activist who spent more than two years in detention told us: “We reached the American border…and my understanding was that you would be very safe there. Why was I still being treated in a criminal way?”

To read the Commission’s January 2009 letter, click here.

To read DHS’s November 28, 2008 response to the Commission’s March 2005 report, click here.

To read the chart created by Human Rights First analyzing the recommendations made by the Commission in comparison to the steps DHS has taken in an effort to implement those recommendations, click here.

To read the original USCIRF report, click here, and USCIRF’s February 2007 report card, click here.

To read Human Rights First’s blueprint outlining steps for the next administration, click here.

In retrospect, the Department of Homeland Security’s belated “response” to the Commission’s comprehensive 2005 report is most interesting for what it does not say:

-- The response does not acknowledge that instead of adopting, or even taking steps towards adopting, the Commission’s recommendation that it stop jailing asylum seekers in prison-like facilities, DHS has actually increased its use of these types of facilities over the last few years. (The response inaccurately tries to portray ICE’s new “performance based standards” – which like the previous standards continue to be based upon standards for correctional facilities – as some kind of effort to respond to the Commission’s finding that asylum seekers are inappropriately jailed in prison-like facilities.)

-- The response claims credit for creating a Special Advisor for Refugee and Asylum Affairs position, but does not acknowledge that DHS leadership soon gave the person who held that position responsibility for broader immigration policy matters – ensuring that the majority of this person’s time would be devoted to other pressing issues.

-- The response does not reveal that the most significant changes made by DHS to its policies and practices in the wake of the Commission’s report were actually changes that made procedures more restrictive for asylum seekers – such as the new parole policy (that creates additional hurdles for release) and the change in credible fear review procedures by headquarters (which has likely contributed to the dramatic decline in the credible fear pass rate – meaning a much higher percentage of asylum seekers are now being barred from even applying for asylum in this country).

-- The response does not acknowledge that DHS’s nearly four-year delay in issuing its response is actually more evidence of the lack of leadership and coordination within DHS on, and its failure to adequately prioritize, issues relating to the protection of asylum seekers who are subject to detention and deportation – failings that the Commission flagged in its report in 2005 and that unfortunately continue at DHS today.

Human Rights First looks forward to the 111th Congress, the Obama administration, and the new leadership of DHS correcting the flawed DHS policies that have jailed asylum seekers in prison-like facilities, deprived them of a fair process for assessing the potential for release from detention, and put them at risk of deportation back to persecution. Given how harmful these policies continue to be, we hope that under the leadership of DHS Secretary-designate, Janet Napolitano, the Department and Congress will finally prioritize adding long overdue safeguards to the flawed system of detaining asylum seekers.

-Eleanor Acer, Jessica Chicco and Annie Sovcik