IS THIS AMERICA?

The Denial of Due Process to Asylum Seekers
in the United States

OCTOBER 2000

Not like the brazen giant of Greek fame
With conquering limbs astride from land to land;
Here at our sea-washed, sunset gates shall stand
A mighty woman with a torch, whose flame
Is the imprisoned lightning, and her name
Mother of Exiles.  From her beacon-hand
Glows world-wide welcome; her mild eyes command
The air-bridge harbor that twin cities frame.
“Keep ancient lands, your storied pomp!” cries she
With silent lips.  “Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tost to me,
I lift my lamp beside the golden door!”

—Emma Lazarus

Executive Summary and Recommendations

Since the refugee Pilgrims first landed almost 400 years ago, the United States has served as a refuge for those fleeing persecution and oppression. After World War II, when America and so many other nations failed to protect many refugees from Nazi persecution, the United States led the effort to establish universally recognized human rights, including "the right to seek and enjoy in other countries asylum from persecution." Although these international principles did not require countries to grant asylum, countries were absolutely prohibited from returning refugees to places where they would face persecution.

Changes to American immigration law passed by Congress in 1996 have severely undermined the ability of genuine refugees to seek asylum here and have led to the mistaken return of refugees facing persecution in their home countries. Before these changes, American law largely honored its obligation to give refugees a fair opportunity to present an asylum claim and its obligation not to return legitimate refugees back to their persecutors.  But under the new system of "expedited removal," a uniformed enforcement officer of the Immigration and Naturalization Service (INS)-as opposed to a specially trained immigration judge-can turn a refugee back at the airport or border crossing without due process and without meaningful review.  The proceedings are conducted so swiftly that mistakes are inevitable, and those who are removed are barred from re-entering the United States for five years.  Furthermore, secondary inspection-the stage of the process during which erroneous decisions are most likely to be made-is conducted behind closed doors, with virtually no meaningful scrutiny by independent observers.

The impact of expedited removal has been enormous.  In fiscal year 1997 through fiscal year 1999, 99% of all persons subjected to expedited removal were turned away from the United States on the spot at secondary inspection, without any further review to determine whether they had a credible fear of persecution and might be entitled to asylum or had a claim of lawful immigration status. ^[1] As the cases cited in this report clearly show, the abuses associated with the process are serious and recurring. Persons fleeing ethnic violence, religious persecution, rape, torture, gender-based harm, and political oppression-as well as tourists, business travelers and even U.S. citizens-are being wrongly turned away.

• Arumugam Thevakumar, an ethnic Tamil, fled Sri Lanka after being severely beaten by the army because of his ethnicity.  He arrived at John F. Kennedy International Airport on January 16, 1999.  At the airport, he explained that he was a refugee and wanted asylum. The interpreter the INS provided laughed at him and told him that he did not know how to translate that into English.  Although an attorney retained by his family contacted the INS to explain that he should not be deported, Mr. Thevakumar was deported to Turkey, where his flight to JFK had originated.  In Istanbul he was jailed and beaten by Turkish police before being left to make his way through the bitter cold to the UN refugee office in Ankara, halfway across the country.  From there he sent a statement describing his experiences to his family in the United States.  We have no further information about his fate.
  
  
• An ethnic Albanian student from Kosovo, who had been beaten and imprisoned by Serbian police because of his ethnicity, arrived at a California airport on January 20, 1999.  Although he spoke only Albanian, INS inspectors at the airport provided him with a Serbian interpreter, with whom he could not communicate.  Despite his attempts to explain his ethnic origin in broken English, the INS inspectors ordered him deported and put him on a plane back to Mexico City, where his flight had originated.  The young man's story is known only because he succeeded in a second attempt to enter the United States. A Tibetan nun, twice jailed by Chinese authorities for advocating Tibetan independence and religious freedom, arrived in the United States to seek asylum on October 28, 1998.  She was turned back from JFK International Airport by INS inspectors who told her that her travel documents were no good.  She was sent back to India, where her flight had originated.  A close friend and fellow nun who reported this incident to Human Rights First has not heard from her since.
  
  
• Sharon McKnight, a U.S. citizen, was deported to Jamaica on June 11, 2000, after INS inspectors at the airport wrongly questioned the authenticity of her U.S. passport and dismissed as fake the birth certificate presented by her waiting relatives as proof of her birth on Long Island.  Ms. McKnight, who is 35 years old but has the mental capacity of a young child, was held overnight, in shackles and handcuffs, at JFK International Airport, before being sent back to Kingston, Jamaica, where there was no one to meet her.  During her time at the airport Ms. McKnight was given nothing to eat and was not allowed to use the restroom, forcing her to soil herself.  A week later, she was allowed to return to the United States after the INS acknowledged its mistake, but she continues to have nightmares and has now filed suit against INS officials because of the mistreatment she suffered.
  
  
• An Albanian woman fled to the United States in May 1997 after being gang-raped by masked, armed men who were hunting for her husband for political reasons.  She was placed into expedited removal, and interviewed by an INS asylum officer and immigration judge at the detention facility in Elizabeth, New Jersey.  Too traumatized and ashamed to talk about her rape through a male Albanian interpreter, the woman was deported under expedited removal and sent back to Albania, where she went into hiding.  After the incident was reported in the press, the INS allowed her to return to the United States and subsequently granted her request for asylum.
  

In a number of other cases, asylum seekers have only narrowly avoided summary deportation under the expedited procedures. In some cases, the deportations were avoided only because of the desperate asylum seekers' tearful protests against deportation or the intervention of pro bono attorneys.  

• In January 2000, a political activist from Guinea flew to the United States to seek asylum. He had been imprisoned and tortured by the ruling regime because of his support for democratic change. INS inspectors at JFK International Airport did not provide him with an interpreter in his native language, and they failed to explain the process to him.  Understanding only that he would be sent back to Guinea because his travel documents were invalid, the man was afraid to convey his fears.  After being shackled to a bench overnight, he was put on a plane to return him. Even when he began crying and told INS officers at the door that he would be killed if sent back to Guinea, the INS continued its attempts to deport him.  He escaped this fate only after sustaining injuries when INS officers dropped him several times while carrying him back toward the plane.
  
  
• Rita Joy Martins-Beckley, a Christian woman who had fled religious persecution in Sudan, was ordered deported at the U.S.-Mexican border in Brownsville, Texas, on August 17, 1997. INS inspectors at the border ordered Ms. Martins-Beckley deported under expedited removal even though she told the inspectors that she was afraid to return to Sudan. Her deportation was only averted by the intervention of her husband's pro bono lawyers.
  
  
• A Coptic Christian fleeing Egypt because he had been repeatedly threatened and beaten by Islamic extremists there was nearly deported under expedited removal after arriving at JFK International Airport on September 15, 1999. When the young man began to explain to the INS inspector questioning him that he feared persecution in Egypt by Muslim extremists, the inspector responded: "I'm Muslim. What's your problem with Muslims?" When the asylum seeker expressed anxiety about the confidentiality of his statements to the INS, the inspector replied: "We will contact your government." Terrified and intimidated by this treatment, the young man withdrew his request for asylum and was in solitary confinement while he waited for a flight back to Egypt. From there he wrote a desperate note to an INS asylum officer, which finally prevented his deportation. He has since been granted asylum.
  
  
• A woman fleeing from repeated rapes and domestic violence in the Dominican Republic was ordered deported under expedited removal on August 14, 2000, even though the INS found her claims credible. The decision was apparently based on the fact that the INS officers who interviewed her at the Wackenhut detention center in Queens, New York, believed that she would not be able to articulate a claim for asylum based on gender-related persecution owing to a highly controversial administrative decision that seeks to restrict gender-based asylum claims. The result was particularly surprising as the U.S. attorney general has been petitioned by women's rights organizations and refugee rights advocates to take steps to correct that decision. The rape survivor's deportation was averted after Human Rights First and several U.S. representatives and senators complained to the INS about its decision to deport her under the expedited procedures.
  
  
• A Congolese man who fled to the United States to seek asylum was nearly returned from Boston's Logan International Airport on September 21, 1998.  The man, who had been repeatedly detained, interrogated and beaten by the military in the Democratic Republic of Congo, arrived at the airport afraid and exhausted and was never told by INS officers that he could ask for protection. His deportation was averted after he broke down in tears when he realized that he was about to be put on a plane. After being detained for four months, he was granted asylum.
  
  
• Patrick Mkhizi escaped torture and imprisonment in the Democratic Republic of Congo to seek asylum in the United States, arriving in Philadelphia in May 1997.  He was nearly deported under expedited removal after an INS asylum officer concluded-in an interview conducted without a translator-that because Mr. Mkhizi did not speak French, he was not from Congo. Mr. Mkhizi was denied the right to apply for asylum and taken to the airport in shackles for deportation. He escaped deportation because the pilot of the airplane on which he was placed refused to take off when Mr. Mkhizi protested in tears.
  

Many asylum seekers have reported other kinds of abusive or improper treatment by INS officials, ranging from insults, cursing, shackling, strip-searching and kicking to failure to provide adequate interpretation.  To list only a few examples:

• Liu Nianchun, a prominent Chinese democracy and labor rights activist who had been repeatedly tortured and arrested in China over a period of 17 years, was detained by the INS as he was returning from addressing a meeting of the UN Human Rights Commission in April 1999.  He was held at JFK International Airport for 18 hours, shackled to a bench and kicked by an INS officer when he fell asleep.
  

• A young Algerian man fled his country after being detained and tortured by the Algerian government and threatened by an antigovernment terrorist group.  When he arrived at San Francisco International Airport, on January 30, 2000, INS inspectors shackled him hand and foot and repeatedly and angrily threatened him with deportation. Upset and crying, the young man told the INS inspectors that he would be killed if he was returned to Algeria. One of the INS officers told him that he did not care.  In despair, the young man grabbed a coffee cup, smashed it, and stabbed himself in the stomach with the shards.  His wounds required 10 to 15 stitches. He was granted asylum in August 2000, having spent over five months in detention at a local county jail.
  

• A young woman who fled Haiti after being raped by armed men in a politically motivated attack arrived at JFK International Airport in June 1999. As she tried, in a crowded room, to describe to male INS inspectors what had happened to her, the INS officer who was acting as interpreter told his colleagues that the woman was lying and that "everything is fine in Haiti." After this interview the young woman was shackled overnight to a bench at the airport.  She was also strip-searched, compounding her humiliation.
  

• A Sri Lankan woman arrived at a California airport in April 1997 with her three young children. She left her country after her husband had been disappeared and after she had been twice raped by government soldiers. An INS inspector there interrogated her without giving her any information about the asylum process. The woman was so intimidated and fearful that she was unable to explain her fear of persecution and fainted as her crying children looked on.  She was hospitalized, then sent to a local jail. She was refused permission to speak to her children, who, thinking that their mother might have died, had been sent to a different detention facility where no one spoke their language.
  

• Alli Zalli, a physics teacher from Kosovo, fled to the United States to escape persecution by Serbian authorities for his political and educational advocacy of the rights of ethnic Albanians. When he arrived at JFK International Airport, on February 15, 1999, the INS questioned him through a Serbian interpreter who told Mr. Zalli that he should not come to the United States and mentioned to him the names of individuals in Kosovo whom Mr. Zalli also knew. This frightened Mr. Zalli, whose wife was still in Kosovo together with two of their children.
  

In addition to these incidents, the broad summary removal power given to INS inspectors has resulted in the unfair treatment of business persons,  tourists and others legitimately attempting to enter the United States.  The wrongful deportation of the U.S. citizen in June 2000, mentioned above, is  but one example of the mistreatment by INS inspectors of legitimate travelers, both under the terms of the expedited removal process and otherwise.

• In August 2000, INS inspectors at Oregon's Portland International Airport strip-searched and jailed a Chinese businesswoman, Guo Liming, because they wrongly suspected that her passport had been altered. INS officials later explained that Ms. Guo "fit the profile" of an illegal immigrant because she was from China and was traveling with another person-her fiancé and business partner.  She was not subjected to expedited removal, but she was nevertheless treated abusively by INS inspections.  INS officers handcuffed Ms. Guo for the two-hour drive to a local jail and refused to tell her fiancé where she was taken, why she was being detained or how long she would be held.  He had to hire a lawyer in order to find out where she had been taken.  Ms. Guo spent two nights in jail before forensics experts determined that her passport was indeed valid.  In a letter to INS Commissioner Doris Meissner following this incident, Oregon's two Senators wrote: "The city of Portland's international reputation and any remaining trust in the Portland INS authority have both been severely damaged."
  
  
• A Swiss citizen-employed as an overseas marketing consultant to American film companies -flew to Los Angeles on January 14, 1998, for meetings to explore possible long-term film production projects. He carried a valid visitor's visa in his valid Swiss passport. When he arrived at Los Angeles International Airport, the INS inspector insisted that he must be coming to live in the United States, even though he had never been employed or earned money here and even though his assets and the large home where he lived with his mother were in Europe. "You're 35 and you reside with your mother?" the INS inspector said. "That's bullshit." The INS inspectors denied him water, food, access to the restroom and permission to make any telephone calls, until he had signed some documents. When he requested his gastritis medication, INS inspectors told him to "shut up." Finally, exhausted, dehydrated, ill, and in need of his medicine, he signed the documents INS presented to him agreeing to withdraw his application for admission to the United States.
  
  
• John Psaropoulos, a British television journalist who worked for CNN in Atlanta, was informed by INS inspectors at Atlanta International Airport in March 1997, that he was ineligible to enter the United States because the INS had not yet approved an application filed by CNN to extend his work visa. Although he was not detained at that time, when he returned for a deferred inspection on May 7, he was handcuffed, ordered deported under expedited removal, held in detention overnight and deported the next day. Meanwhile, CNN filed some additional materials, the INS approved the visa extension, and the U.S. embassy gave Mr. Psaropoulos a new visa.  But when Mr. Psaropoulos flew back to Atlanta in June, he was informed by an INS inspector that he was barred from entering the United States for five years, and was subsequently ordered to leave the United States. After the press learned of his treatment, the INS district office in Atlanta reversed itself and granted Mr. Psaropoulos permission to re-apply for admission to the United States.
  
  
• A legal permanent resident of Jamaican origin, an 18-year-old freshman at a well-known American university, was stopped by INS inspectors at JFK International Airport upon his return to the United States in January 1998 to take his final exams. He was shackled and detained overnight by INS officers who told him that the only way Jamaicans could get green cards was if they "jerked chicken well" or "mopped the floor well." Even though he had proof of his permanent resident status, the INS inspectors ignored it. "This is not America," they told him. "We're your judge and jury."

 Among the many voices calling for repeal of expedited removal are two major bodies established by Congress and by the president: the bipartisan Commission on Immigration Reform and the Advisory Committee on Religious Freedom Abroad to the Secretary of State and to the President of the United States. ^[2]   The Commission on Immigration Reform, referring to expedited removal, urged "immediate correction of certain provisions [in the 1996 law] that can harm bona fide asylum seekers and undermine the efficiency of the asylum system." ^[3]   The Advisory Committee on Religious Freedom, created after the implementation of expedited removal, called for its repeal in its final report to the secretary of state in May 1999.

 [W]e must eliminate processes such as "expedited removal" that can make victims of those fleeing religious persecution rather than providing access to protection.Repeal of "expedited removal" should be a high priority for the Administration. ^[4]

Recommendations

Human Rights First recommends the following:

• Limit Expedited Removal to Immigration Emergencies.  Congress should sharply restrict the use of expedited removal to extraordinary migration situations. It should ensure that additional safeguards are included in those situations where expedited removal is authorized. Thesesafeguards, which should include immigration judge review of all removal orders, will reduce the risk of mistaken deportations.
  
  
• Restore Procedural Safeguards. Congress should ensure that the decision to deport an asylum seeker or other individual who arrives without proper documents will be made only by a trained immigration judge in a fair proceeding that affords the person fundamental due process  protections:  prior notice of the consequences of the proceedings; when the person is not fluent in English, a qualified translator who is fluent in  the person's language of fluency and is bound to maintain confidentiality; the right to be represented by legal counsel; and the opportunity to  have decisions reviewed on appeal.
  
  
• Open Access to Secondary Inspection. The INS should allow regular monitoring of the secondary inspection procedure at airports and border crossings by outside observers, non-governmental organizations and the United Nations High Commissioner for Refugees (UNHCR).  The INS should permit arriving individuals to contact family members, friends, counsel, UNHCR or nonprofit organizations prior to the secondary inspection interview and permit them, upon request, to be represented in the interview.  The INS should maintain and publicly release data and statistics regarding expedited removal and secondary inspection.
  
  
• Improve Conduct of Secondary Inspection. The INS must drastically improve the conduct of secondary inspection.  In particular, the INS must provide qualified interpreters who are bound by obligations of confidentiality; treat arriving asylum seekers and others with courtesy and respect; conduct interviews in a private area; end the practice of shackling and handcuffing; and ensure that all INS inspectors are trained in asylum law, country conditions, cultural sensitivity and appropriate questioning techniques for asylum seekers, victims of sexual violence and survivors of torture.