“I’m a Prisoner Here”

Biden Administration Policies Lock Up Asylum Seekers

Today, the United States operates the world’s largest immigration detention system—a system the Biden administration uses to jail people seeking refugee protection. While this administration is not currently detaining families and has requested a reduction in detention funding, its policy has led the Department of Homeland Security (DHS) to target adult asylum seekers as priorities for detention. DHS has perpetuated a punitive immigration detention system—converting former family detention centers to jail adults and expanding other existing facilities. As the administration restores compliance with U.S. refugee law at the southern U.S. border and ends Trump policy that illegally prevented people from seeking asylum, it should not substitute one rights-violating policy for another. Instead, it should set an example of global leadership by ending mass detention of asylum seekers and providing a true humanitarian welcome to people seeking refugee protection at the border.

Jailing asylum seekers is inhumane, unnecessary, and wasteful. Moreover, the mass detention of asylum seekers violates U.S. legal obligations under the Refugee Convention and its Protocol. In its guidelines on the use of detention, the U.N. Refugee Agency (UNHCR) states that “asylum-seekers should not be detained” and that “the use of detention is, in many instances, contrary to the norms and principles of international law.” As a candidate, President Biden pledged to eliminate prolonged detention, end the use of for-profit immigration detention centers, and uphold the legal right to seek asylum.

Yet, to date, DHS under the Biden administration has detained tens of thousands of asylum seekers, jailing many in newly opened or expanded facilities or in remote areas where they often face insurmountable barriers to fairly presenting their asylum claims. Among those detained by Immigration and Customs Enforcement (ICE) are torture survivors, political dissidents, student organizers, human rights activists, lesbian, gay, bisexual, transgender, and queer (LGBTQ) individuals, and survivors of gender-based violence. A young Venezuelan man fleeing death threats for participating in political protests and held in terrible conditions in an ICE jail for five months when Human Rights First met him in December 2021, said: “I’m a prisoner here. I would rather die in my country than be jailed here.”

Since January 2021, the vast majority of asylum seekers jailed by the Biden administration have been people seeking refugee protection after crossing the southern U.S. border – trapped between the administration’s use of Title 42 to turn away most asylum seekers and its use of “enforcement priorities” against those who are not expelled. The administration has wielded the Title 42 policy, under the pretext of the health risk of COVID-19, to prevent people from requesting asylum at U.S. ports of entry and expel them without access to the U.S. asylum system if they cross the border. Asylum seekers not expelled under Title 42 face yet another gauntlet as DHS treats them as “enforcement priorities” under DHS-issued memoranda that provide no exception for those seeking asylum in the United States. DHS’s use of detention against asylum seekers has resulted in months-long detention of asylum seekers, separated families seeking refuge together at the border, illegally subjected children to detention in adult facilities, endangered many LGBTQ asylum seekers, and placed people with serious medical conditions at heightened risk during the ongoing COVID-19 pandemic.

Human Rights First and other non-governmental organizations have repeatedly urged the administration to abandon these inhumane “enforcement priorities” that punish people for requesting asylum. While the administration announced it will terminate the illegal Title 42 policy by May 23, 2022, DHS’s continued use of the flawed enforcement priorities to jail asylum seekers as more are finally able to access U.S. asylum processes threatens to further entrench and expand the mass detention of people seeking refugee protection.

U.S. law provides DHS legal authority to parole asylum seekers to pursue their cases in communities in the United States rather than continuing to jail them. But because Biden administration policy effectively labels asylum seekers as enforcement “priorities,” ICE has frequently denied or delayed their release. Asylum seekers from Black-majority countries have been subjected to discriminatory parole denials and treatment by ICE officers as well as disparate bond denials and astronomical bond amounts imposed by immigration court judges.

The Biden administration must alter course, stop jailing asylum seekers and treating them as enforcement “priorities,” use its legal authority to release them, and dismantle the unfixable U.S. immigration detention system that violates human rights law. In doing so, the administration should shift to proven case support programs run by community-based organizations and not to so-called “alternatives to detention” that rely on punitive and intrusive electronic surveillance or effectively place asylum seekers under house arrest. Human Rights First’s full recommendations can be found at the end of this report.

This report is based on information about 270 asylum seekers and immigrants held in detention, including direct interviews with 76, information received from dozens of attorneys and detention center visitation programs, DHS data, government records received through the Freedom of Information Act (FOIA), and visits to three ICE detention centers where researchers spoke with detained individuals and ICE officials. Requests to visit five additional facilities were denied by ICE. Human Rights First interviewed or received information from asylum seekers, attorneys, and other monitors related to asylum seekers and immigrants held at 49 facilities in Alabama, Arizona, California, Colorado, Florida, Georgia, Louisiana, Massachusetts, Minnesota, Mississippi, New Jersey, New Mexico, New York, Oklahoma, Pennsylvania, Texas, Virginia, and Washington. The report is also informed by Human Rights First’s decades of experience providing pro bono representation to asylum seekers, including those held in immigration detention, and its prior research and reporting on U.S. detention and parole of asylum seekers, including reports issued in August 2015, July 2016, February 2018, June 2018, and January 2019. A full description of Human Rights First’s research methodology is included at the end of this report.