I. Introduction
Good afternoon. My name is Wendy Young. I am the Director of Government Relations and U.S. Programs for the Women’s Commission for Refugee Women and Children, a nonprofit organization which seeks to improve the lives of refugee women and children around the world by acting as an expert resource and engaging in a vigorous program of public education and advocacy. On behalf of the Women’s Commission, I would like to thank you, Mr. Chairman and members of the Subcommittee, for the opportunity to testify regarding the detention practices of the Immigration and Naturalization Service (INS) and their impact on women and children seeking asylum.
In
1996, the Women’s Commission launched an assessment of detention conditions in
the United States that has included visits to approximately 35 detention
centers around the country and interviews with dozens of detained asylum
seekers, the organizations providing them with legal and social services, and
the INS and local government officials charged with their care. We have issued seven reports documenting
widespread problems in the detention system that jeopardize the United States’
legal and moral obligation to offer refugee protection.
In
general, we have found that asylum seekers often endure arbitrary and prolonged
detention in conditions that fail to meet international standards of refugee
protection and basic standards of decency and compassion. Some asylum seekers are women who have fled
gender-related persecution, including rape, female genital mutilation, sexual
slavery, honor killings, forced abortions, and forced marriages. Some are children who have fled recruitment
as child soldiers, child marriages, forced prostitution, and child slavery. Some are survivors of torture. Some are victims of religious, ethnic, or
political persecution. Virtually all
have come to the United States expecting refuge and freedom from
persecution. Virtually none expected
imprisonment by the world’s leading democracy and defender of human rights.
Immigration
detention has become the fastest growing prison program in the United States
today. On any given day, the INS has
approximately 20,000 individuals in detention, for an annual total of over
200,000. The agency estimates that
approximately five percent of detainees are asylum seekers. Women constitute seven percent of the
overall detained population and children three percent.
The
INS has reported that the average length of detention for aliens in removal
proceedings was 29 days in Fiscal Year 1999.
However, asylum seekers are often held for much longer. The Hastings College of Law reported that
the average length of stay in the INS New York District, where large numbers of
asylum seekers are detained, was 109 days.
The Dallas Morning News
recently reported that of the 851 indefinitely detained individuals in INS
custody, defined as those in detention for more than three years, 361 are
asylum seekers.[1] The Women’s Commission has interviewed many
asylum seekers who have endured detention for years; in one case, a Chinese
woman had been held in various facilities for almost five years before she was
finally granted asylum and released.
Statistics
related to detention, however, are very difficult to pin down due to poor data
collection. The INS, in fact, has
failed to comply with a statutory provision enacted as part of the Fiscal Year
1999 Omnibus Appropriations Act (P.L. 105-277) which requires annual reports to
the Judiciary Committees in the House and Senate data pertaining to detained asylum
seekers. This data is required to
address the number of asylum seekers in detention; countries of origin; gender;
ages; location of detention by detention facility; whether criminals are
detained in the same facility, and if so, whether they are commingled with the
INS detainees; the number and frequency of transfers; the rate of release from
detention for each INS district; and a description of the disposition of
detainees’ asylum cases. The first
report under this provision was to be submitted on October 1, 1999, but it is
our understanding that the INS has yet to release even this initial report.
The
cost that detention represents to U.S. taxpayers is extremely high. In interviews with facility administrators,
the Women’s Commission found that the INS is paying anywhere from $41 to $156
per day per detainee. In the case of
local and county prisons, the INS typically pays the facility twice the rate it
is paid for the incarceration of criminal inmates, even though such facilities
rarely provide services to INS detainees beyond those provided to the criminal
inmates.
The
Women’s Commission has evaluated the following conditions in facilities which
it investigated: the physical settings
used to detain asylum seekers; the treatment that women receive from INS
officers, prison staff and criminal inmates; the availability of translation
services; health care; recreation and access to the outdoors; the availability
of spiritual support and religious services; and the availability of legal
services.
In
recent years, the INS has developed approximately 35 standards that address
conditions of detention ranging from attorney access to grievance
procedures. These standards represent a
critical acknowledgement by the agency that detention facilities should be
consistent in their practices and held accountable to certain minimal
standards. However, the standards are
fundamentally flawed in several key areas.
First, they are non-binding and serve only as guidelines. Second, the INS itself is charged with
monitoring their implementation. Third,
the INS has only recently begun the process of applying the standards to the
county and local prisons with which it contracts, meaning that the majority of
INS detainees continue to be held in facilities that fall outside the scope of
the standards. And finally, the
standards are based in large part on the standards used by the American
Correctional Association, standards which were developed with a criminal
population in mind, and not asylum seekers.
All
of the facilities that the INS uses for detention are prisons or the
equivalent. Locked doors, cells or
institutional dormitories, hi-tech security systems, and concertina wire fences
define the detainees’ living space. On
many levels, the term “detention” itself is misleading; “incarceration” and
“imprisonment” better reflect the experience of asylum seekers held in the
custody of the INS.
The
INS uses four types of facilities to detain asylum seekers. The agency operates nine of its own
detention centers, known as “Service Processing Centers.” Second, the INS contracts with for-profit
correctional companies that have benefited from the national trend to privatize
prisons and have also found it lucrative to manage facilities that house only
immigration detainees. Such facilities
are known as “contract facilities.”
Third, the INS jointly manages two facilities with the Bureau of Prisons
(BOP) and accesses other federal prisons as needed. Finally, the majority of INS detention (approximately sixty
percent) is provided by county and local prisons from which the INS rents bed
space for detainees as needed.
The
prisons and jails with which the INS contracts, of which there are hundreds,
present special problems. Such
facilities are fundamentally designed to punish criminal offenders and protect
the surrounding communities, neither goal of which is compatible with meeting
the critical legal and social service needs of asylum seekers.
Staff
in such facilities is typically not aware of nor trained in the special needs
of asylum seekers. Many local officials
interviewed by the Women’s Commission expressed surprise upon learning that
individuals in their care were seeking refugee protection and had not been
convicted of any crimes. This can
result in serious misunderstandings.
For example, an asylum seeker may exhibit symptoms of Post Traumatic
Stress Disorder that the prison staff perceive as behavioral problems meriting
discipline rather than psychological support.
Even
after learning that asylum seekers lack criminal records, prison officials
often are reluctant to differentiate among populations in the facility. The warden of the Turner Guilford Knight
Correctional Center in Miami-Dade County recently stated, “I can’t treat the
INS people differently. I’ll have
problems, and remember, I have 1,200 inmates in here.” The York County prison warden observed, “The
worst thing that you can do in a prison is separate a group out for special care.”
Moreover,
delegating the daily care of asylum seekers to local facilities creates a new
level of bureaucracy. This often
results in difficulties in addressing complaints about abuses and other
problems, as the INS will place responsibility on local officials and vice
versa. INS officials at all levels
frequently refer to themselves as “guests” of the prisons and declare
themselves unable to influence prison policies, completely disregarding the
fact that the INS retains custody of the individual, that the prison is under
contract with the INS and therefore should be held accountable for meeting
certain standards, and that the INS is paying local governments significant
amounts of money to detain individuals.
Detainees
are frequently commingled with criminal inmates, despite the fact that they
have not committed a crime themselves.
Women are more likely than men to be commingled with the general prison
population. Because they are fewer in
number, the INS often cannot afford to rent a separate cell pod for the female
detainees. The women report being
terrified of the criminal inmates, who often harass the INS detainees.
Many
detention centers are overcrowded. In
the York County Prison, INS-detained women frequently sleep in the gymnasium,
due to a lack of bed space.
Overcrowding at the Krome Service Processing Center is a chronic problem
which forces detainees to sleep on temporary cots squeezed in between the
permanent beds. Attorneys reported that
when the facility is overcrowded, systems fail to keep pace, resulting in
attorneys waiting hours to see their clients.
While
many INS and prison officers treat detainees in their care with respect,
professionalism, and compassion, there are also frequent reports of abuses and
harassment. Detainees whom the Women’s
Commission have interviewed have reported verbal, physical, and sexual abuses;
frequent pat, strip, and cavity searches; handcuffing and shackling; and
excessive use of solitary confinement for minor infractions of facility
rules.
The
treatment that women detainees have received in the Miami INS District is
perhaps unrivaled in the seriousness of the abuses reported. For years the Krome Service Processing
Center in Miami has been plagued with chronic problems and been the target of
multiple federal investigations. In May
1999, controversy surrounding the facility again erupted when 20 separate
allegations of sexual abuse by at least 15 Krome officers surfaced.
Reported
sexual abuses ranged from rape to sexual molestation and harassment. Women who cooperated in sexual activities
were made false promises of release from detention. Threats of deportation, transfer to county jails, or even death
were leveled at women who dared to resist or complain of abuses. While not all of these activities involved
women asylum seekers, it is disturbing to note that such abuses had been
reported as far back as 1990, and no follow up action was taken. Furthermore, physical and emotional abuses
against women have also been reported, including officers demanding that Muslim
women asylum seekers remove their veils before eating and denying the women
meals when they refused to unveil.
The
Department of Justice has launched an investigation into Krome. One officer has been indicted for rape. It is critical, however, that the
investigation not be allowed to drag out or fail to result in either criminal
prosecution or disciplinary action against those officers shown to be
involved. Unfortunately, that was the
result of past investigations; some of the very same officers accused of sexual
misconduct in 1990 were allegedly involved in the most recent abuses.
Of
grave concern in the meantime is the actions that have been taken by the INS to
address the Krome problem. The Women’s
Commission, the Florida Immigrant Advocacy Center, and other advocates urged
the INS to remove women from Krome and to develop an appropriate alternative to
detention, such as shelter care in the community. While the INS did remove the women from Krome, it chose to
transfer them to the Turner Guilford Knight Correctional Center, a nearby
county prison. Conditions in the prison
have failed to meet the most basic needs of women asylum seekers.
Male
detainees have also been the targets of abuse in some facilities. After a riot broke out in the Esmor
Detention Center in Elizabeth, New Jersey due to poor living conditions,[2]
male detainees were transferred to the Union County Jail, also in
Elizabeth. Officers there then tortured
the detainees by forcing them to put their heads in the toilet, pulling their
genitals with pliers, and ordering them to engage in sexual acts. Four of the guards were convicted and six
others pled guilty to criminal charges of abusing the detainees.[3] In the Jackson County Jail, the Florida
Immigrant Advocacy Center reported that male detainees were shocked with stun
guns, beaten, cursed, targeted with racial slurs, and placed in solitary
confinement for requesting medical care or food.
Women
interviewed by the Women’s Commission frequently reported callous behavior by
prison guards and INS officers. In the
Elizabeth Detention Center, a woman asylum seeker from the Democratic Republic
of Congo described being dragged across the floor by INS officers when she
resisted being taken to the airport for deportation. She told the Women’s Commission that the officers laughed at her
when her pants began to fall off due to the rough handling. Haitian asylum seekers detained at the
Turner Guilford Knight prison began to cry as they described the humiliation of
being transported in handcuffs and shackles, and stripped and cavity searched
upon their arrival at the prison.
The
lack of readily available translation services is a pervasive problem in
detention centers. Generally, the INS
only provides interpretation during emergencies or medical examinations, and
that is typically by telephone.
Otherwise, it relies heavily on detainees to translate for each other.
The
inability to communicate compounds many of the problems faced by detainees,
particularly those individuals who speak uncommon languages. For example, it exacerbates their fears
about detention and the status of their asylum cases. It also results in an inability to request medical assistance or
to report other problems. It leads to
unnecessary disciplinary actions due to detainees’ confusion about the facility
regulations. Finally, it interferes with
detainee’s access to the few services available to them, because detainees remain
unaware of the existence of such services or are unsure about how to request
them.
A
Burmese woman asylum seeker in the Turner Guilford Knight Correctional Center
was unable to communicate with INS officers and prison guards. The prison guard in charge of her cell pod
persistently called her Chinese, unaware even of the woman’s nationality. The woman had been there for several weeks
with no information about her case. She
struggled to communicate with the little Chinese and English that she was able
to speak.
The
lack of translation services can also interfere with detainees’ legal
representation. The Elizabeth Detention
Center, for example, recently informed attorneys that they could no longer meet
with two detainees simultaneously, which in the past had facilitated detainees’
ability to translate for each other during interviews or intakes. Furthermore, with the exception of
“know-your-rights” presentations and initial screening interviews when portable
telephones are made available, no telephones are regularly available in the
attorney–client rooms. This makes it
impossible at other times for attorneys to obtain telephonic translation, for
example during intakes or interviews.
The Catholic Legal Immigration Network, Inc. (CLINIC) reported that
during a recent intake, it was only able to communicate with three asylum
seekers out of the nine interviewed. It
was unable, for example, to communicate with nationals from Iraq and Algeria
due to language barriers.
Furthermore,
there are no translation services available in Elizabeth to assist non-English
speaking or illiterate asylum seekers in completing their I-589s, the form
required to raise an asylum claim.
CLINIC reported that immigration judges posted to the facility have told
such detainees that they must either return with a completed form or they will
be ordered removed from the United States at their next hearing.
Similar
issues were recently raised by an immigration judge posted to the York County
Prison in Pennsylvania. Immigration
Judge Walt Durling indicated his intent to order the INS to provide an
interpreter to assist unrepresented aliens in completing their immigration
forms.[4] The INS General Counsel responded by noting,
“It is the position of the Service that provision of interpreter services to
unrepresented aliens is a conflict of interest for the Service. Furthermore, there is no legal authority for
the Government to provide such services.
Just as the alien has the right to representation in immigration
hearings, but the Government is without authority to provide this
representation, so too may the alien obtain interpreter services at his or her
own expense.”[5]
INS
and prison officers alike are often dismissive of the need for translation
services. In the Wicomico County Jail
in Salisbury, Maryland, an INS officer observed that he believed that sign
language was adequate to communicate with INS detainees. The prison warden in the same facility said,
“The language barrier isn’t a big problem.
The detainees know what’s happening.”
The
inability to communicate, combined with the slow or inappropriate response of
some facilities to medical complaints, has led to disturbing instances of
serious medical problems being ignored or mismanaged by both INS and prison
authorities. In other cases, the stress
and trauma of prolonged detention have caused individuals to develop physical
and mental health problems.
The
Public Health Service (PHS) provides medical services in INS Service Processing
Centers and contract facilities. In
most of the prisons with which it contracts, the INS utilizes the health
services provided to the criminal inmates.
Often, these services are provided by outside medical contractors. These services typically do not include
medical staff trained to care for patients from different cultures. Moreover, there is frequently a lack of
female medical staff. This can
undermine the treatment of women detainees, many of whom come from cultures in
which it is considered inappropriate to reveal sensitive medical information to
male strangers.
A
Colombian woman asylum seeker detained in the Krome Service Processing Center
was diagnosed with a stomach tumor.
Despite the severity of her illness, the INS handcuffed and shackled her
on the way to the hospital. She was
then chained to the hospital bed. When
the woman asked the INS officers to remove the chains, she reported that they
responded with abusive language. She
also reported that when her family tried to visit her at the hospital, the INS
denied that she was there. The woman
later told a fellow detainee that she would rather die than return to the
hospital.
Women
at the Turner Guilford Knight Correctional Center complained that after their
transfer, the prison medical staff greatly reduced the dosage of psychotropic
drugs that had been prescribed to them while they were at Krome. The sudden change in medication led to
drastic mood changes and the detainees’ hospitalization. Other women reported that their drugs were
administered erratically and several hours behind schedule.
Many
women whom the Women’s Commission interviewed complained that they were
experiencing physical ailments because of their prolonged detention. This included chronic stomach problems, such
as nausea, heartburn, and diarrhea; dizziness; high blood pressure; irregular
menstrual cycles; and significant weight changes. In some cases, women had been prescribed drugs to address their
conditions but were ignorant of the nature and properties of the drugs.
Asylum
seekers who have fled violence and persecution in their homelands frequently
are in poor health when they arrive in the United States. In addition, they may be suffering from Post
Traumatic Stress Disorder or other mental health problems. It is critical that they be provided prompt,
adequate, and culturally appropriate medical care.
Detainees
universally report boredom and listlessness as a result of the lack of
recreational activities and outdoor access in detention centers. They frequently spend their days lying in
bed or watching English-language television.
Reading materials are also usually only in English.
Access
to the outdoors is severely limited in most detention centers, as minimal as
one hour per week. Many facilities offer
only rooftop exercise areas or walled areas covered by mesh fencing, through
which little natural light filters.
Many facilities also lack or have a minimal number of windows, adding to
detainees’ physical malaise and disorientation.
Some
detainees have also reported that they do not avail themselves of outdoor
exercise even when available. Sometimes
this is because they are confused about the rules. Sometimes they fear intermingling with the criminal inmates. In other cases, they are subject to strip or
pat searches upon re-entering and prefer not to endure that humiliation.
Experience
has shown that activities and outdoor access can make detention more
tolerable. Several women, for example,
expressed their appreciation at being detained in the minimum security portion
of the York County Prison, where a large grassy outdoor area is available to
the women throughout the day. They
compared it favorably to being housed in the maximum security portion of the
prison, where outdoor access is more limited, and to both the Elizabeth and
Wackenhut Detention Centers (from which many women are transferred back and
forth from York), where the outdoor areas are walled and fenced.
Religious
services in the prisons with which the INS contracts are generally made
available through a facility’s existing chaplain’s office. Services for certain denominations are
therefore readily available, while services for religious sects that are less
common in the United States are unavailable or have to be arranged. Of particular concern is the fact that INS
Service Processing Centers and contract facilities as yet fail to provide
chaplains, although the INS has expressed interest in developing such
programs.
Also
troubling is the treatment that some religious programs have received in INS
centers. In November 1999, the INS
Newark District abruptly cancelled an arrangement with Jesuit Refugee Services
(JRS) under which JRS was providing religious services and English
classes. The INS’s stated rationale for
the cancellation was the fact that a Bible study reading had been based on the
gospel of Matthew 25, which preaches “welcoming the stranger.” The INS believed that this discussion would
provoke unrest among detainees. It also
criticized the programs for allowing detainees to speak about their concerns
about detention, an obvious focus of conversation given the stress caused by
detention. Despite repeated requests by
JRS to renew the programs, the INS declined to do so and instead arranged for
another program to replace JRS. The new
religious service provider has signed an agreement that stipulates that it will
refrain from discussing detention with detainees and that an INS officer will
be present at all religious sessions.
Religious
service providers who visited women asylum seekers at the Turner Guilford
Knight prison told the women that they would not return after their first
visit, because it was so difficult to gain access into the facility. Among the problems they confronted was the
lack of space for such services. They
were forced to use a small attorney-client visit room. This dual usage also disrupted legal
services, since it is the only such room available.
There
are also disturbing instances of proselytizing in some prisons. In the Hancock County Justice Facility in
Bay St. Louis, Mississippi, three Chinese women asked the Women’s Commission
delegation to let the American public know that they could be released because
they now believed in Jesus Christ. The
head chaplain in the York County Prison opposed efforts of local advocates to
achieve release of Chinese detainees, arguing that the detainees should first
convert to Christianity, then agree to deportation in order to carry
Christianity back to China.
Other
detention facilities have made a concerted effort to provide a variety of
religious services and sources of spiritual support. Detainees often find such support critical to their ability to
cope while in detention.
Detainees
frequently report a sense of isolation, confusion, and helplessness while in
detention. They are typically cut off
from relatives, friends, agencies, and individuals willing to assist them and
act as a source of support. Factors
which hinder the ability of such parties to visit detainees include the remote
locations of many detention centers, limitations on phone calls, frequent
transfers of detainees from facility to facility, limited visitation hours, and
the slowness of some facilities to locate detainees when visitors request to
see them. Other limitations include
restrictions on who can visit a detainee.
The Wicomico County Jail in Salisbury, Maryland, for example, will not
allow minors under age 18 to visit inmates or detainees, even if the requested
visit is with a parent.
The
recent experience of a Colombian woman transferred from the Turner Guilford
Knight Correctional Center in Miami to the York County Prison exemplifies the
isolation experienced by detainees. The
woman was separated from her husband, who was detained in the Krome Service
Processing Center. Three days after her
detention began, she was transferred to the York County Prison. INS officers refused to tell her where she
was being taken.
The
woman’s husband, meanwhile, was released from Krome and traveled to
Pennsylvania to visit his wife and bring her documents which the INS told her
would be required for her parole. His
request to visit her was refused.
However, he was able to submit the requested documentation. His wife was told that she would be released
in two days. Instead, however, the
woman was transferred back to Miami.
Her husband was waiting to visit her, but the INS refused to allow her
to speak with him to inform him of her upcoming transfer. As she was being loaded onto a van for
transport to the airport, she saw her husband in the prison parking lot and
began to cry. The driver allowed her to
speak to him from the van. The woman
arrived back at the Turner Guilford Knight Correctional Center at 2:30 am. Her husband is stranded in Pennsylvania
because he did not have enough money to return to Miami. He also missed his own court date as a
result.
Of
particular concern to the Women’s Commission is the disparity that exists in
some facilities between services offered to men and women in detention. While detention of any asylum seeker often
results in barriers to services, abuses, and hardship, the Women’s Commission
has documented several instances in which women were denied services offered to
male detainees held by the same INS district.
This
discrimination appears to result from several factors. First, there are far fewer women in
detention than men. This difference in
numbers, for example, often means that INS-detained men are separated from
criminal inmates in the prisons the INS utilizes, whereas the INS finds it hard
to justify renting a separate cell pod for the handful of women held in the
same facility. This was the case in
such prisons as the Virginia Beach City Jail; the Kern County Lerdo Detention
Center in Bakersfield, California; the York County Prison in York,
Pennsylvania; the Berks County Prison in Reading, Pennsylvania; the New Orleans
Parish Prison; and the DeKalb County Jail in Atlanta, Georgia. At the time of a Women’s Commission visit to
Puerto Rico, the INS district had temporarily shut down the female wing of the
Aguadilla Service Processing Center, finding it cheaper to move the women to
the federal prison in San Juan.
The
INS also used the relatively few number of women detained in the Kern County
Lerdo Detention Center as a justification to decline bussing the women to meet
with their attorneys in San Francisco, a service it offered to male detainees
in the same facility when vans were
travelling to the city for other reasons.
This failure, however, had a detrimental effect on the ability of the
women to obtain adequate legal representation.
The prison is more than a five-hour drive from San Francisco, a
prohibitive commute for lawyers offering pro
bono services.
Women
detainees also often come from cultures in which they are taught not to
question authority, and thus INS and prison officers frequently describe
INS-detained women as “docile.” This
characteristic, however, also means that the needs of women are easily
neglected. The male Chinese asylum
seekers who arrived on the ship the
Golden Venture and were detained at the York County Prison, for example,
were provided arts and crafts materials.
Chinese women detained in the female wing, however, were not provided
any form of recreation to occupy their time.
Moreover,
women are more at risk of certain abuses, including sexual attacks. Officers at the Krome Service Processing
Center appear to have particularly targeted women detainees for rape and sexual
harassment and molestation. This abuse,
furthermore, undermined the women’s access to legal representation. While it was critical to remove the women
from exposure to the exploitation they were suffering in Krome, the INS chose
to transfer the women to the Turner Guilford Knight Correctional Center, which
has greatly interfered with the women’s access to legal services. Local legal service providers are now
struggling to offer services in both facilities. They have also reported that access to the prison is much more
difficult than at Krome. Moreover, the
INS has discontinued transporting the women back to Krome for their credible
fear interviews before asylum officers posted at Krome, instead relying on
telephone interviews with the women.
Face-to-face interviews can fundamentally influence the outcome of the
interview, as asylum officers are better able to assess body language and
non-verbal cues.
Legal
representation is critical to the ability of asylum seekers to pursue their
asylum claims. The immigration bar
typically considers asylum cases as among the most complex and time-consuming
of the various types of legal problems its members address.
Despite
the critical need for assistance, however, the Institute for the Study of
International Migration at Georgetown University has reported that more than
twice as many detained asylum seekers lack representation as compared to
non-detained asylum seekers in removal proceedings. Moreover, its analysis revealed that represented asylum seekers
are four to six times more likely to win asylum than those who are
unrepresented.[6]
Several
problems endemic to detention hamper the ability of asylum seekers to obtain
representation. First, asylum seekers
are often dependent on pro bono or
low-cost legal representation. However,
such programs are typically strapped for resources and struggling to meet the
needs of the entire detained population, which has soared dramatically in
recent years.
Moreover,
the lists of pro bono and low-cost
legal service providers that the Executive Office for Immigration Review (EOIR)
makes available to detainees are frequently inaccurate. This, combined with telephone systems that
are often inadequate and expensive, makes it difficult for asylum seekers to
contact lawyers. In many detention
centers, moreover, a legal representative cannot leave messages for his or her
clients, forcing the service provider to visit the detention center if he or
she needs to communicate with the client.
The INS has moved toward programming telephones in Service Processing
Centers and contract facilities so that detainees can make toll-free calls to
legal services programs, an important step in facilitating the ability of detainees
to obtain counsel and remain informed about their cases.
A
further barrier to legal representation is the remote location of many
detention centers, which deters attorneys from accepting detainees as
clients. Many facilities are located in
rural areas far from the legal services that are generally available in urban
centers with strong immigrant traditions.
In addition, attorneys report that they frequently have to wait hours
before being allowed to see their clients.
The combination of long commutes and time wasted waiting to speak to a
client effectively means that attorneys may have to devote an entire day to
visit one client.
Furthermore,
the INS regularly transfers detainees from detention center to detention center
for fiscal and logistical reasons.
Detainees therefore often end up in facilities hundreds of miles from
their attorneys. The INS typically does
not provide prior notification to attorneys before their clients are
moved. The Women’s Commission tracked
the case of a woman asylum seeker from Cameroon who was transferred from the
Wackenhut Detention Center in Queens, New York, where she had been detained for
several months, to the York County Prison.
Her attorney was not notified of the transfer.
Service
Processing Centers and contract facilities often lack adequate attorney-client
visitation rooms, forcing attorneys to wait or to visit with their clients in
non-contact visitation booths via telephone.
In some centers, visitation rooms are also insufficiently
sound-proofed. For example, during a
visit to the Krome Service Processing Center, a Women’s Commission delegation
stood outside the attorney-client visitation rooms. The delegation clearly overheard what should have been a confidential
conversation between an attorney and his client, who was revealing sensitive
medical information.
Finally,
prisons occasionally pose special problems for attorney access. For example, prisons have denied entrance to
immigration lawyers because they belong to state bars that do not issue bar
cards. A Women’s Commission delegate
who was a member of the New York State bar, which does not issue bar cards, was
delayed from entering the Federal Detention Center in downtown Miami for almost
two hours while she argued with prison administrators about her lack of a bar
card.
Prisons
are also often unfamiliar with the concept of non-attorneys representing
detainees, as is the case with representatives accredited by the Board of
Immigration Appeals (BIA). The Virginia
Beach prison warden told an Amnesty International delegation in which the
Women’s Commission participated that he would normally deny access to a
BIA-accredited representative, because he had never heard of such a
program. Prisons also sometimes fail to
program telephone systems to provide toll-free access to immigration pro bono programs, even when such access
is provided to criminal defense pro bono
programs.
The
Women’s Commission is also concerned about the increasing use of video
teleconferencing to conduct immigration court proceedings. Attorneys participating in such hearings
have complained about inadequate technology and the isolation of their clients,
who often remain in the detention center while the judge, interpreter, and even
the detainee’s attorney are located in a different facility miles away. Reliance on such technology may seriously
jeopardize due process, as detainees are confused and isolated throughout the
conduct of the proceedings, and cannot confer with their counsel.
We
are encouraged by the INS’s recent efforts to provide pro bono and low-cost legal service providers access to Service
Processing Centers, contract facilities, and some prisons to offer group
“know-your-rights” presentations. Such
programs have proven critical to providing detainees with accurate legal
information, to identifying those detainees who are most in need of legal
services, and in rendering the immigration proceedings more efficient by
encouraging individuals with no relief available to them to accept removal.
In
Fiscal Year 1998, EOIR funded a pilot project to test the efficacy of
“know-your-rights” presentations in three sites. In its final report on the pilot, EOIR observed, “the rights
presentation has the potential to save both time and money for the government
while also benefiting detainees. During
the pilot, cases were completed faster and detainees with potential meritorious
claims to relief were more likely to obtain representation.” It also suggested that expansion of the
project should be explored.
Legal
representation can make the difference between an asylum seeker successfully
winning her asylum claim or being returned to face further human rights abuses
in her homeland. Representation is also
perhaps the most vital link that a detainee can have to the outside world. In addition to the critical role that
attorneys play in presentation of an asylum claim, they also can act as an
intermediary between the INS and the detainee.
They also offer hope to a detainee, a not insignificant function since
many asylum seekers might otherwise abandon their claims and agree to
deportation.
Theoretically,
parole from detention is available to asylum seekers. Such parole is allowed under sections 235(b)(1)(B)(iii)(IV) and
212(d)(5)(A) of the Immigration and Nationality Act, which provide for parole
of aliens applying for admission to the United States on a case-by-case basis
for urgent humanitarian reasons or significant public benefit. INS regulations further stipulate that certain
categories of aliens are eligible for parole, including but not limited to
pregnant women and juveniles.[7] The INS itself has stated in field
directives that its policy should normally be to release asylum seekers who
have established a credible fear of persecution, a preliminary screening
standard that asylum seekers must meet under expedited removal before they are
allowed to pursue their asylum claims.[8]
However,
despite such instructions from INS headquarters to its district offices, many
INS districts continue to detain asylum seekers for prolonged periods, in some
cases for years. The disparity between
the stated national policy and implementation at the local level is
attributable to the fact that tremendous discretion to parole asylum seekers has
been delegated to individual INS district directors. Belying the soundness of these decisions is the fact that many
such asylum seekers are ultimately successful in their asylum claims. Sadly, they may have endured years of
unnecessary incarceration in the meantime.
Despite
repeated inquiries from advocates and others and the submission of Freedom of
Information Act requests by the Lawyers Committee for Human Rights, INS
headquarters has failed to provide the national parole rate. Estimates have ranged from 10 to 40 percent.[9] Disturbingly, the INS New York and Newark
Districts, which host two of the largest detention centers, and which are
dedicated almost exclusively to holding asylum seekers, are among the most
restrictive in terms of their parole of asylum seekers. The Hastings College of Law’s Expedited
Removal Study found that those asylum seekers entering through Kennedy Airport
in New York have the highest average length of detention in the country, at 124
days. Those arriving in Newark are held
an average of 86 days. Of the major
ports of entry surveyed, San Diego came in with the lowest average, at 11 days.[10]
The
Women’s Commission’s interviews with INS officials have revealed tremendous
differences in the stated rationale for decisions to detain or parole asylum
seekers. Some district officials cite
identity or security concerns. Others
favor detention because they view it as a legitimate enforcement tool to deter
individuals from seeking refuge in the United States. In a recent conversation, for example, a high-level INS official
in Miami told the Women’s Commission to expect parole rates in the district to
drop because the district feared that high parole rates were encouraging
Colombians to seek entry to the United States through the Miami International
Airport rather than other international ports of entry where parole rates are
less generous. Other INS officials have
cited “congressional intent” as their reason for denying release to asylum seekers. This appears to be especially common in the
INS New York District.
In
some cases, the stated rationale for release is equally without a sound
basis. In 2000, the former Krome
Service Processing Center officer-in-charge admitted to the Women’s Commission
that his primary reason for regularly paroling asylum seekers was the lack of
detention bed space in the district.
While the limitations in space was resulting in favorable release rates,
he also indicated that he probably would not maintain the existing parole
policy if more bed spaces became available.
While
the Women’s Commission did not focus on the merits of the asylum claims of the
women whom we interviewed, it was obvious that many were strong candidates for
release. We spoke to women from many
countries, the vast majority of which were experiencing armed conflict and
human rights abuses. Many women stated
that they had fled torture; threats to their lives; and persecution, including
various forms of gender–related persecution.
Moreover, many of the women were later granted asylum.
Such pilots date as far back as 1990 when INS headquarters implemented a pilot to test what became known as the Asylum Pre-Screening Officer Program (APSO). Under APSO, asylum seekers were eligible for release if they met several criteria, including having a credible asylum claim, evidence of their identity, a place to live, a means of support, and legal representation. After APSO proved successful in terms of both alleviating the harsh consequences of detention on asylum seekers and freeing up INS detention space, the agency attempted to implement the parole policy nationwide through non-binding guidelines.[11] Unfortunately, some INS districts failed to implement the program adequately, and it gradually fell into disuse.
In 1997, the INS contracted with the Vera Institute of Justice to test the viability of a supervised release program for asylum seekers in the INS New York District. This project indicated that supervised release met the INS’s goal of tracking the whereabouts of asylum seekers and ensuring their appearance at their asylum proceedings as well as the humanitarian goal of allowing asylum seekers to live as normal a life as possible while their proceedings are pending. The findings of the Vera Institute clearly indicated that supervised release of asylum seekers is a viable option; 84 to 93 percent of the asylum seekers who participated appeared for their hearings, depending on the level of supervision provided. In addition, the pilot found that the cost of supervision of asylum seekers is 55 percent less than detention.[12]
In 1999, the INS transferred a group of Chinese asylum seekers from Guam to a county prison in Ullin, Illinois after they had been determined to have a credible fear of persecution. These asylum seekers had originally been apprehended on the high seas after the Coast Guard intercepted the smugglers who were attempting to bring the Chinese to U.S. territory. After four months in jail in rural Illinois, the INS negotiated with local service providers, under the auspices of the Lutheran Immigration and Refugee Service and members of the Detention Watch Network, to release the asylum seekers to local shelters, the location of which was not revealed to protect the asylum seekers from the smugglers to whom they owed debts. Approximately 22 Chinese were released into the care of the shelters; all but one of them remained in the program.[13]
Finally, INS districts have also tested local alternatives to detention in cooperation with charitable organizations. In New Orleans, for example, Catholic Charities has housed more than 30 formerly detained asylum seekers in non-secure shelter facilities. None of the asylum seekers who have participated in the program have absconded. Moreover, housing asylum seekers in the shelter costs the INS one-sixth the daily average cost of detaining individuals in local prisons. One INS official in New Orleans called it “a great program.”[14]
These pilot projects clearly demonstrate that alternatives to detention are both humane and cost-effective. They also meet the INS’s concern that asylum seekers appear for their proceedings. Moreover, asylum seekers who are not detained are much more likely to obtain counsel, a service critical to ensuring due process in an adversarial court proceeding.
The INS itself has expressed a commitment to continuing to test alternatives to detention. However, given the tremendous success and consistent results already demonstrated in past pilots, the Women’s Commission believes that a national policy that embraces such alternatives should be legislatively mandated and implemented immediately.
VII. Children in INS
Custody
In each of the past three fiscal years (1998-2000), the INS has reported approximately 4,600 unaccompanied children in its custody. Many such children are fleeing armed conflict and human rights abuses in their homelands. Such abuses include recruitment as child soldiers, forced prostitution, forced labor, child marriages, female genital mutilation, and slavery. Other children have been abused, abandoned, or neglected by their families, and thus may be eligible for Special Immigrant Juvenile status. They range in age from 18-months-old to 17-years-old. While approximately 60 percent of these unaccompanied children eventually reunite with family members, the remaining 40 percent lack relatives in the United States.
Subsequent
to a class action settlement agreement known as Flores v. Reno (1997), the INS has opened nine shelters in which it
houses children in its custody. The
majority of these shelters are institutional in nature and offer an environment
of soft detention. The children’s
activities are closely monitored, the doors are frequently locked or alarmed,
and children are not allowed off the premises of the facility unless
accompanied by facility staff. However,
the children are allowed to wear street clothing, are offered educational
classes, and are not locked in cells or cell pods. Occasionally, they engage in recreational or educational trips
off-site in the company of shelter staff.
The INS also has an extremely limited foster care program, generally
used for young children, girls, or children with special needs.
Unfortunately,
the INS shelter and foster care system, which consists of approximately 600
beds, has failed to keep pace with the number of children in INS custody at any
given time. As a result of the lack of
bed space in the shelters and sometimes questionable placement decisions made
by the INS, approximately one-third of children in INS custody spend time in a
juvenile jail, for periods ranging from a few days to more than a year. The majority of these children have not
committed a crime of any sort. Despite
this, they are housed in highly punitive, restrictive settings; are sometimes
commingled with youthful offenders; are subject to handcuffing and shackling;
and are forced to wear prison uniforms.
Children and their attorneys have reported beatings and other abuses.
Staff
in the juvenile jails are often ill-informed about the INS-detained children
and remain unaware of their legal, cultural, and mental health needs. Educational programs are typically conducted
in English. Due to the remote location
of many of the juvenile jails and the general lack of awareness of children in
INS detention, immigration attorneys who can assist the children are often
unavailable, resulting in the questionable removal of children who might
actually be eligible for asylum or other forms of relief.
The
INS experiences an inherent conflict of interest with children in its
custody. The agency is acting as
caregiver to children in its custody at the same time that it is seeking their
removal from the United States. INS
immigration enforcement concerns often result in decisions, including placement
decisions in the detention context, that are not in keeping with the best
interests of the child. Moreover, the
INS lacks the expertise to care for children.
This conflict of interest was recently exacerbated. In 2000, the INS consolidated its children’s programs under its Detention and Removal branch. By doing so, it removed oversight of the children’s shelters from the Office of International Affairs, which was staffed in part by child welfare professionals. The care of children is now lodged with a branch overwhelmingly staffed by law enforcement officials who specialize in detention and deportation and lack the expertise to identify and address children’s unique needs.
Also
absent in the current system for children in INS custody are professionals who
can shepherd the child through his or her immigration proceedings. Less than half of the children in INS
custody are represented by counsel.
U.S. law also fails to provide for the appointment of a guardian ad litem to unaccompanied children in
immigration proceedings, a regular practice in other court proceedings
affecting children.
The
Women’s Commission was pleased and encouraged by the INS’s issuance of
Guidelines for Children’s Asylum Claims in 1998. However, the success of these guidelines in identifying and
ensuring protection of refugee children will hinge in large part on the
adequacy of the assistance they are provided to navigate U.S. asylum law. Children must be provided the assistance of
counsel to identify any relief for which they may be eligible and to advocate
for such relief in immigration court. A
guardian ad litem should be a child
welfare professional who can ensure that the child’s best interests are
addressed by establishing trust with the child; identifying the circumstances
that provoked his or her departure from the homeland; developing
recommendations about the detention, custody and release of the child; ensuring
that the child understands the proceedings in which he or she has been placed;
and enabling the child to have his or her own voice heard in the proceedings.
The
recent handling of the case of an eight-year-old Nigerian girl, who is
currently detained in the Boystown shelter in Miami, Florida, exemplifies the
failure of the U.S. system to adequately protect unaccompanied children in INS
custody. Despite her young age, the
girl has been in detention since May 2000.
The INS refused to allow the young girl to go to juvenile court to
determine if she has been abused, abandoned, or neglected and is therefore
eligible for long-term foster care, a prerequisite requirement before a Special
Immigrant Juvenile visa can be pursued.
In its denial, the INS claimed that the girl’s parents are attempting to
commit immigration fraud, despite the fact that both parents have explicitly
stated that they no longer want the child.
The girl’s attorney, therefore, has decided to file for asylum before
the immigration judge.
Despite
a prior agreement to the contrary, the INS is challenging the appointment of a
guardian ad litem to the child. Furthermore, the INS trial attorney argued
in immigration court that the child’s attorney has no standing to represent the
child, since the INS—as the child’s custodial “guardian”—has not agreed to such
representation and is the only entity with the authority to appoint
counsel. During the hearing, the
district counsel actually suggested that the Krome officer-in-charge should
represent the child. The case was
continued for the sixteenth time while the attorney briefs both issues.
Meanwhile,
the child continues to suffer in detention, despite an expert opinion from a
social worker that her development and mental well-being are deteriorating.
Prolonged
detention frequently erodes the physical, mental, and emotional health of
asylum seekers. It also is an
unnecessary waste of taxpayer dollars and limited detention space. Asylum seekers will remain vulnerable to
arbitrary detention decisions by INS district directors unless Congress
mandates a rational parole policy, alternatives to detention, and the
restoration of due process.
Specifically,
the Women’s Commission for Refugee Women and Children recommends that Congress
expeditiously enact legislation that:
·
Establishes that the policy
of the United States is generally not to detain asylum seekers who have
established a credible fear of persecution, and that the parole of asylum
seekers provides a significant public benefit.
This will help ensure that parole decisions are not made arbitrarily at
the sole discretion of INS district directors.
·
Delegates the authority to
determine whether to parole asylum seekers or to place them in an appropriate
alternative to detention to asylum officers.
Such decisions should be made within one week after an asylum seeker
submits a parole request. Shifting parole authority away
from the INS district offices to asylum officers would introduce greater
objectivity into the decision-making process.
·
Permits review of a parole
denial by an immigration judge within 30 days.
If the parole denial is upheld, the immigration judge should provide the
reason for such denial in writing to the asylum seeker and his or her legal
representative. Establishing a system to
review parole denials would introduce accountability into the decision-making
process. A written decision would
assist asylum seekers and their legal representatives to prepare for renewed
parole requests with enhanced documentation and other evidence supporting
parole.
·
Allows for a renewed request
for parole if the asylum seeker has new or additional information supporting
the request. The personal circumstances of the asylum
seeker may change after parole is denied.
For example, a relative or other sponsor may come forward and offer the
asylum seeker a place to live.
·
Mandates the establishment
of alternatives to detention, that at a minimum include unsupervised release from
detention; supervised release under the auspices of private nonprofit voluntary
agencies with expertise in meeting the legal, spiritual, cultural, and
psychological needs of asylum seekers; and non-secure shelter care or group
homes also supervised by such voluntary agencies. The current detention system offers only two options: detention or release. The development of alternatives to detention
would better assist the INS in meeting the needs of asylum seekers while
ensuring their appearance at their proceedings. Alternatives to detention are cost-effective and have been proven
to work.
·
Mandates the development of
regulations to both establish standards for conditions of detention and create
adequate monitoring and oversight of their implementation. The INS has developed standards to address conditions of
detention. However, they remain
non-binding and are monitored and enforced by the INS itself.
·
Provides government funding
to facilitate “know-your-rights” presentations and legal representation to
indigent asylum seekers. Legal representation renders
the asylum system more efficient and ensures fairness in immigration
proceedings.
·
In addition, Congress should
move quickly to pass S. 121, the Unaccompanied Alien Child Protection Act. We urge the subcommittee to conduct an
oversight hearing on the bill as soon as possible. Introduced by Senator Dianne Feinstein, this critical legislation
comprehensively addresses the custody, care, and assistance needs of
unaccompanied children and closes procedural gaps in the current system that
jeopardize their protection. Among
other important steps, S. 121 addresses the current conflict of interest
experienced by the INS, which is simultaneously charged with caring for the
same children it is seeking to deport, by establishing a new Office of
Children’s Services within the Department of Justice. It also calls for the
development of adequate shelter and fostercare. Finally, it calls for the appointment of counsel and guardians ad litem to unaccompanied children to
ensure that their eligibility for relief is adequately considered.
Depriving
an individual of his or her freedom is one of the gravest actions a government
can take. The degree of neglect and
abuse that the Women’s Commission has documented in INS detention practices is
alarming. We believe that Congress must
play an active role in the design, implementation, and monitoring of U.S.
detention policy. We urge you to move
forward with legislation that restores accountability, consistency, and
compassion to detention.
Thank
you again for holding this important hearing.
The Women’s Commission stands ready to work with your offices to assist
in this process.
[1] Dan Malone, “More than 800 Detained Indefinitely by INS,” Dallas Morning News (April 1, 2001).
[2] Esmor was shut down after the riot and then later reopened under new management. It is now known as the Elizabeth Detention Center.
[3] Ronald Smothers, “3 Prison Guards Guilty of Abuse of Immigrants,” The New York Times (March 7, 1998), p. A1.
[4] Letter from the Honorable Walt Durling to INS Philadelphia District Counsel Kent Frederick (July 17, 2000)
[5] Letter from INS General Counsel Owen B. Cooper to The Honorable Walt Durling (July 25, 2000).
[6] Memo from Andrew Schoenholtz, “Asylum Representation,” Institute for the Study of International Migration, Georgetown University (September 12, 2000).
[7] 8 C.F.R. § 212.5.
[8] Memorandum from Office of INS Deputy Commissioner, “Implementation of Expedited Removal” (March 31, 1997) (stating that once an alien has established a credible fear of persecution, release may be considered under normal parole criteria); Memorandum from INS Executive Associate Commissioner for Field Operations, “Expedited Removal: Additional Policy Guidance” (December 30, 1997) (stating that parole is a viable option for aliens who have met the credible fear standard); Memorandum from INS Executive Associate Commissioner for Field Operations, “Detention Guidelines” (October 9, 1998) (stating that it is INS policy to favor release of aliens who have been found to have a credible fear of persecution).
[9] See “Refugees Behind Bars,” Lawyers Committee for Human Rights (August 1999), p. 25.
[10] Karen Musalo, Lauren Gibson, Stephen Knight, and J. Edward Taylor, “Report on the First Three Years of Implementation of Expedited Removal,” Center for Human Rights and International Justice, University of California, Hastings College of Law (May 2000), pp. 69-71.
[11] Memorandum from INS Commissioner, “Pilot Project for Aliens Seeking Asylum in Exclusion Proceedings” (April 27, 1990); Memorandum from INS Commissioner, “Parole Project for Asylum Seekers at Ports of Entry and in INS Detention” (April 20, 1992).
[12] “Testing Community Supervision for the INS: An Evaluation of the Appearance Assistance Program,” Vera Institute of Justice (June 7, 2000), pp. iii, 27.
[13] Esther Ebrahimian, “The Ullin 22: Shelters and Legal Service Providers Offer Viable Alternatives to Detention,” Detention Watch Network News, Lutheran Immigration and Refugee Service (August/September 2000).
[14] Joan Treadway, “Program Helps Immigrants Find Jobs and Shelter,” The Times-Picayune (January 22, 2001).