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March 19, 2003

Asylum News 12

Department of Homeland Security Targets Asylum Seekers for Detention

First Major Asylum Initiative by DHS; Nationals of Iraq and Other Countries Will Likely be Detained for the Duration of Asylum Proceedings Click Here to Take Action Now Please forward this note on to your networks. Read Human Rights First Press Release on This Issue Background The Department of Homeland Security (DHS), in one of its actions as new department, has announced that as part of its new “Operation Liberty Shield,” it will detain asylum seekers from a group of nations. While the Department has not yet identified these countries, it is expected that this list will include Iraq, as well as other refugee producing countries such as Iran, Somalia and Sudan. Ironically, this plan will in result in the US targeting for detention the very people who have stood up to, and in some cases been persecuted and tortured by, the same regimes that the U.S. has singled out for condemnation. Innocent men and women will be subject to prolonged detention under this policy. The Department of Homeland Security “press kit” announces that: “Asylum applicants from nations where al-Qaeda, al-Qaeda sympathizers, and other terrorist groups are known to have operated will be detained for the duration of their processing period. This reasonable and prudent temporary action allows authorities to maintain contact with asylum seekers while we determine the validity of their claim. DHS and the Department of State will coordinate exceptions to this policy.” The “press kit” is available at http://www.dhs.gov/dhspublic/interapp/press_release/press_release_0115.xml. DHS Provides Some Additional Information about the Scope of the Policy Arriving Asylum Seekers of Targeted Nations Likely to Face Extended Detention The “Operation Liberty Shield” announcement is incredibly vague. The DHS “press kit” does not provide clear information about which asylum seekers are affected, at what stage of asylum proceedings, or which countries are targeted. As a result asylum seekers and attorneys have not been provided with adequate information that will allow them to understand who will and will not be subject to this detention policy. In response to inquiries, DHS has officially confirmed to Human Rights First that this detention policy will not be applied to “affirmative” asylum applicants (ie, individuals who apply, after entering the U.S., affirmatively by filing an asylum application with DHS). The detention policy will apply to asylum seekers from 33 countries, including Afghanistan, Algeria, Bahrain, Bangladesh, Djibouti, Egypt, Eritrea, Indonesia, Iran, Iraq, Jordan, Kazakhstan, Kuwait, Lebanon, Libya, Malaysia, Morocco, Oman, Pakistan, Philippines, Qatar, Saudi Arabia, Somalia, Sudan, Syria, Thailand, Tajikistan, Tunisia, Turkey, Turkmenistan, United Arab Emirates, Uzbekistan and Yemen as well as Gaza and the West Bank. DHS has indicated that it is preparing a fact sheet that will address the change. The policy will apply to asylum seekers of the targeted nationalities who seek asylum at U.S. airports and borders. As a result of a 1996 immigration law, asylum seekers arriving at U.S. airports and borders have been subject to a summary border procedure (called “expedited removal”) which is accompanied by “mandatory detention.” Asylum seekers have been eligible for parole after they are interviewed by DHS asylum officers and are determined to have a “credible fear of persecution.” Those that meet the parole criteria – which include a finding that their identity has been established, that they have ties to the community, and that they are not a risk to the community – should be eligible for release – though, as detailed in prior Human Rights First reports, in various parts of the country asylum seekers have been refused release even when they meet these criteria. Human Rights First reports on this issue: Find “Refugees Behind Bars” here, and “Refugee Women at Risk” here. Under “Operation Liberty Shield,” arriving asylum seekers – even those who meet the parole criteria and present no risk to the public – will be required to be detained for the duration of their asylum proceedings if they are seeking refuge from one of the targeted nations. The announcement does not state that women and children are exempt. Asylum seekers who have fled from these nations will therefore be held in U.S. jails and detention facilities for about 6 months and in some cases for years while they await the resolution of their cases. Some are survivors of torture and trauma, and detention significantly exacerbates their suffering. If you should be representing an asylum seeker who may be affected by this change, please contact Archi Pyati at [email protected]. Fairness Requires Individualized Determinations This new policy, which targets asylum seekers for detention based on their nationality, violates principles of fairness and due process that are enshrined in U.S. and international law. Article 31 of the 1951 Convention Relating to the Status of Refugees prohibits the penalization of refugees when they are forced to resort to “illegal entry” and requires that the movement of refugees be restricted only when necessary. The International Covenant on Civil and Political Rights (ICCPR) prohibits the arbitrary detention of asylum seekers, and requires that those who are detained have the right to seek release before a court.1 The policy also runs afoul of international and U.S. law and principles prohibiting discrimination based on nationality. The policy appears to deprive asylum seekers of an individualized determination of the need for their detention – and to authorize blanket detention even for asylum seekers who present no security risk and who otherwise merit parole. This policy is not only unwise, but unnecessary. Existing law provides ample authority for the Department to detain any non-citizen whom it believes may pose a security threat. The new policy will result in prolonged detention of refugees who fled torture and mistreatment in their home countries. The Department of Homeland Security has a critically important mission of protecting this country from harm. Human Rights First firmly believes that the Department can protect this country in a fair and non-discriminatory manner. A good start would be to ensure that asylum seekers have access to fair and independent procedures where the need for detention can be determined with respect to each individual asylum seeker. Portraying Refugees as Threats to Security On March 1, the functions of the INS relating to immigration – including those relating to asylum seekers and refugees – were transferred to the new Department of Homeland Security. It is certainly disappointing that the Department of Homeland Security, which has just taken on the important obligation of protecting the vulnerable individuals who seek refuge in our country, has chosen, as its first major announcement relating to asylum seekers, to take the drastic step of labeling asylum seekers as threats to security. This action does not bode well for the fate of vulnerable refugees whose safety and futures are now in the hands of this new Department. Jailing the Victims of Saddam Hussein Finally, we are deeply concerned about the message that the Department is sending both to the victims of Saddam Hussein’s persecution and to the world. By making this announcement, the Department has declared that it intends to jail for months or longer Iraqis who seek refuge in the U.S, regardless of whether they have opposed Saddam Hussein and suffered at the hands of his regime. On the eve of our war with Iraq, we also fear that this new policy may prove counter-productive to U.S. efforts to encourage other nations to extend protection to the hundreds of thousands of Iraqi civilians who are expected to seek safety from the conflict in neighboring countries and beyond. Take action and urge the Department of Homeland Security to abandon blanket detention policy and apply fair and individualized procedures. Please forward this newsletter to friends and colleagues. If you are not subscribed, and would like to continue receiving Asylum Protection News, sign up here
1The U.S. is a party to the ICCPR, and chose to bind itself to the obligations of the Convention, when it became a party to the 1967 Protocol Relating to the Status of Refugees.