Detention and Deportation Await Those Seeking Asylum in America
Hussein Mohamed took a hard road to America. Born into a minority clan in a nation rife with ethnic conflict, the boyish 24-year-old with gangly limbs and intense brown eyes describes fleeing his village in Somalia in 2012 after gunmen threatened to kill him. Mohamed says he was forced to quit his jobs as an English teacher and taxi driver and escape to neighboring Kenya. After making his way to South Africa, he forked over his life savings to human smugglers, who shipped him across the Atlantic to Brazil and guided him north through the jungles of South and Central America into Mexico.
When he finally arrived at a border crossing in Brownsville, Texas, last summer, Mohamed thought he'd safely reached the end of a harrowing 10-month journey. He had no inkling of the ordeal awaiting him on the other side of the Rio Grande.
Mohamed approached a U.S. Border Patrol agent and recounted his story. He explained that he wanted to seek asylum, a classification of refugee status granted to people who arrive in the United States having fled persecution in their homeland. He immediately was handcuffed and placed in immigration detention: a cold, cramped cell at a privately owned and operated prison facility. Soon after, along with hundreds of other detainees, he was herded onto a cargo plane and transferred without explanation to a jail in Newark, New Jersey.
Eight months later, Mohamed is seated in the jail's makeshift visitor center, a stuffy gymnasium with rows of plastic chairs and tables arranged on the basketball court. It has been more than a year since he spoke with his family in Somalia, and he fears the worst. He knows exactly one person in America, a fellow Somali immigrant who lives somewhere in California. He dreams of moving there, finding work, maybe starting a family.
Instead, he likely will be deported, shipped back to the war-torn country on the Horn of Africa he worked so hard to escape. Mohamed's request for asylum was denied because he lacks a passport or other documents to confirm his identity. He has filed an appeal, and his detention ticks on indefinitely.
There are no statutory limits to the amount of time a non-citizen like Mohamed may be held in immigration detention. When the process goes smoothly, asylum seekers tend to be released in a matter of weeks. Many end up imprisoned for much longer. About 6,000 survivors of torture — exiles from Iran, Myanmar, Syria, and other brutal regimes — were detained in immigration jails while seeking asylum during the past three years, according to a 2013 report by the Center for Victims of Torture.
"It's really tragic," says Amelia Wilson, staff attorney for the American Friends Service Committee, a faith-based organization that aids asylum seekers. "They're fleeing persecution, and many of them have just fled institutions of incarceration in their home country. Through guile or luck or the right contacts, they manage to get out of their country. They come here and they're promptly detained. They're shocked. They're not criminals. In fact, they're following the legal procedure the government has put in place for them to get protection."
Over the past five months, Voice Media Group visited detainees at two immigration detention centers and conducted extensive interviews with outreach workers, attorneys, academics, and other experts on the asylum process. The investigation revealed how a process created to save innocent lives has come to embody some of the worst aspects of American immigration policy: The nation's system of mass deportations and incarceration has devastating consequences for vulnerable individuals who seek nothing more than safety and a new beginning.
The immigration overhaul the Senate passed in June 2013 addresses several issues with asylum, but the legislation remains stalled in the House of Representatives. Raising concerns about fraudulent claims, some Republican leaders now are pushing draconian measures that would put even more asylum seekers behind bars. House Judiciary Committee chairman Bob Goodlatte, a Republican from Virginia, has said the asylum system is "exploited by illegal immigrants in order to enter and remain in the United States."
"The tone of immigration politics, even when it comes to asylum seekers, has gotten really vicious." Staunchly on the other side of this argument is Alina Das, co-director of the Immigrant Rights Clinic at the New York University School of Law: "People generally have forgotten what it means to be seeking asylum in our country. It's really disturbing, and I think it's a sad commentary on how easily a minority of elected officials can hijack an issue that should really speak to core American values."
Though the political climate looks bleak for advocates of asylum reform, an ongoing pilot project offers a glimmer of hope. The project allows Immigration and Customs Enforcement officials at facilities in New York City, Newark, San Antonio, Chicago, and Minneapolis-St. Paul to release select detainees seeking asylum into a program coordinated by the Lutheran Immigration and Refugee Service. As of March 31, the program has helped secure temporary housing and social services for 32 people, including survivors of torture, victims of domestic abuse, and lesbian, gay, bisexual, and transgender individuals, all of whom would otherwise have remained jailed indefinitely.
"There's growing recognition from ICE that maybe detention is not appropriate for all of these folks," says Megan Bremer, a staff attorney at LIRS. Early successes aside, Bremer cautions that the arrangement is only temporary and currently receives zero government funding. "A lot of programs locally are running on a deficit. If it wasn't for all the volunteers providing time and services, the program would not be in existence."
Beyond the humanitarian concerns, the cost of detaining asylum seekers and other nonviolent immigrants creates an enormous burden for American taxpayers. The Department of Homeland Security budget for "custody operations" in the 2014 fiscal year is $1.84 billion. According to DHS' own estimates, if the agency used electronic ankle monitoring and other less-expensive alternatives instead of detention, the government could save more than $1.44 billion annually: a 78 percent reduction in costs.
Yet every day at airports and border crossings around the country, immigrants like Mohamed — who committed no crime beyond seeking a new lease on his life — are locked up for weeks, months, and even years. And if they are sent home, deportation can be tantamount to a death sentence.
The two most famous asylum seekers in recent history are Edward Snowden and Julian Assange, but those cases are hardly typical. The ex-National Security Agency contractor fled first to Hong Kong and then to Moscow after supplying journalists with a trove of information about controversial U.S. spy tactics; the WikiLeaks co-founder sought refuge in an Ecuadorian embassy in London amid fears he'd be extradited to Sweden to face sexual-assault charges. Perhaps the only thing these men have in common with the average asylum seeker in the United States is that they are stuck in legal limbo waiting to resolve their claims.
Unlike Snowden and Assange, the vast majority of asylum seekers are anonymous. In 2012, according to the United Nations, 45 million people worldwide forcibly were displaced owing to persecution and conflict. Though the majority became refugees, roughly 1 million sought political asylum. (The only difference between an asylum seeker and a refugee is location: Refugees typically remain near their homeland when they initiate the process, while asylum seekers arrive at their desired destination without prior authorization.)
Several ancient societies, including the Greeks, Hebrews, and Egyptians, respected the right of asylum, but the framework that exists today was established in 1951 to deal with millions of displaced people in the aftermath of World War II. As a party to the U.N. Convention Against Torture, the U.S. agreed to "not return refugees to countries where their life or freedom would be threatened and where they are more likely than not to be tortured." In the old days, asylum seekers rarely were detained.
With the 1993 bombing of the World Trade Center, everything changed. Later that year, 60 Minutes broadcast a report emphasizing that Sheik Omar Abdel Rahman, the suspected mastermind behind the attack, had applied for asylum. The sound bite that stuck was provided by a representative from the Federation for American Immigration Reform, an anti-immigrant group: "Every single person on the planet Earth, if he gets into this country, can stay indefinitely by saying two magic words: 'political asylum.'"
In truth, Abdel Rahman had entered the United States on a tourist visa and received a green card despite his status on a terrorist watch list. He didn't apply for asylum until years later, and his claim ultimately was rejected. But the damage was done. According to a 1998 report on asylum by the Cato Institute, a libertarian think tank in Washington, the 60 Minutes segment "created the impression that few, if any, claims of asylum in the United States are legitimate." In the aftermath, federal agencies adopted more stringent standards for identification of asylum seekers (typically requiring a passport, birth certificate, or other form of ID) and imposed a minimum 180-day waiting period before issuing a work permit.
Unsatisfied with these reforms and reacting to a broader influx of undocumented immigrants, Congress passed a sweeping overhaul of the nation's immigration laws in 1996. The legislation set a one-year deadline for immigrants to apply for asylum and created an "expedited removal" process to swiftly deport anybody who arrives at a port of entry without proper documentation. For the first time in history, arriving asylum seekers were subject to mandatory detention.
"That became somewhat of a game-changer," says Annie Sovcik, director of the Washington office of the Center for Victims of Torture. "From there, you started to see an overall growth in the detention system itself, both in the number of people detained on a daily and annual basis, as well as in the different categories of people held."
The immigration detention boom had begun, and it would only get bigger. The number of beds in immigration jails has more than quintupled since 1996, rising from 6,280 to 34,000 in 250 facilities across the nation in 2014. Since 2006, Congress has required ICE to keep all 34,000 of those beds perpetually filled, a provision known as the bed mandate. Critics of this no-vacancy policy argue that civil immigration offenders with no criminal history have no business behind bars.
Partnering with the Torture Abolition and Survivors Support Coalition, Sovcik coauthored a report in 2013 about detention's psychological toll on asylum seekers. Drawing on testimony from dozens of former detainees, the report details the appalling conditions found in some detention facilities along the southern border. The findings echoed another report from 2013 by Americans for Immigrant Justice.
"The temperature in the cells is so cold that [Customs and Border Patrol] officers themselves refer to them as 'hieleras,' or iceboxes, in Spanish. Detainees' fingers and toes turn blue and their lips chap and split due to the cold. Blankets are not provided. These crowded hieleras have no mattresses, beds or chairs," the Americans for Immigrant Justice report states.
"They've signed up for a certain degree of hardship during these journeys," Sovcik says of asylum seekers in general. "But at that moment when they believe they've reached a place they can ask for help, they're handcuffed and taken into cold rooms. They have no idea what's going on. There's a certain degree of shock in that experience that adds to the intensity of their trauma."
Research has shown that the longer asylum seekers are incarcerated, the more emotionally fragile they become. A team led by Dr. Allen Keller, an associate professor at New York University School of Medicine and director of the Bellevue/NYU Program for Survivors of Torture, interviewed 70 asylum seekers detained in New York, New Jersey, and Pennsylvania for a study published in The Lancet in 2003.
"What we found were very alarmingly high levels of psychological distress among asylum seekers in detention," Keller says. "There was a clear correlation between the length of time in detention and the severity of these symptoms, including depression, sadness, and hopelessness, as well as profound symptoms of anxiety and post-traumatic stress."
In 2009, ICE issued new parole standards: If arriving asylum seekers pass a "credible fear" interview, they can be eligible for release. Nevertheless, the U.S. Commission on International Religious Freedom issued a report in April 2013 concluding that ICE "continues to detain asylum seekers under inappropriate conditions in jails and jail-like facilities."
A spokesman for ICE did not respond to repeated requests for comment for this story.
Megan Bremer, who helped organize the LIRS' pilot program, says her organization received approval from ICE before agreeing to discuss the project.
"Until there's some movement from Congress on the bed mandate, ICE really feels its hands are tied," Bremer says. "Unfortunately, there's a lot of divisive rhetoric right now and fear-mongering about who is coming into this country."
In New York and New Jersey, two women have been instrumental in securing the release of asylum seekers. The first is Sally Pillay, program director at First Friends, a nonprofit group that provides the simple but vital service of visiting immigrants who might otherwise remain isolated behind bars. Ebullient and loquacious, the 36-year-old Pillay may well have spent more time inside the detention centers than anyone except the guards and staff.
When Pillay joined First Friends in 2008, while she was earning her master's degree in social work, there was one immigration jail for the entire New York City area, housing 320 detainees. Today, five facilities hold more than 1,500 immigrants and asylum seekers on any given day.
Beyond providing moral support, Pillay helps detainees keep in touch with their families, refers them to pro bono legal services, and sometimes serves as a 24-hour on-call cab service when people are paroled.
"The facility where most asylum seekers are, it's horrible. If you go outside, you're surrounded by toxic fumes and the smell is unbearable," Pillay says. "When somebody is released, they have no transportation. [ICE] calls us and says, 'Hey, can you take this person to the train station?' It can be 10 or 11 at night."
To qualify for parole, asylum seekers are required to confirm their identities and show proof of "community ties," which, practically speaking, entails proving they have a friend or family member with a spare bedroom. It's harder than it sounds: Documents may have been lost, stolen, or confiscated, and asylum seekers seldom have local contact to rely on.
Since June, Pillay has participated in the LIRS pilot program, coordinating with community members (mostly churchgoers) willing to host an immigrant. In seven months, she has found shelter for seven asylum seekers. "We rely on the kindness of strangers," she says. "You're asking somebody not to charge any money or anything. It can be a burden sometimes. We have to rely on the generosity of host families."
Pillay's counterpart in New York is Jamila Hammami, director of the Brooklyn Community Pride Center's Queer Detainee Empowerment Project. Hammami says detention for LGBT asylum seekers can be especially nightmarish. LGBT detainees are 15 times more likely to be sexually assaulted than their heterosexual counterparts while incarcerated, according to a 2013 report from the Center for American Progress. They're also more likely to end up in solitary confinement, a tactic that keeps them separated from other inmates.
"They're victims of torture and persecution, but when you're put in a detention center, you're not safe there, either," Hammami says. "It's like being in a microcosm of the community that you're trying to flee. The psychological damage is huge."
Clement Lee, a staff attorney at Immigration Equality, a nonprofit group that advocates for LGBT asylum seekers, describes situations in which detainees live in perpetual fear of having their sexuality revealed, knowing it will lead to physical and verbal abuse by guards and other inmates.
"When I talk to clients by phone, they're looking over their shoulder left and right to make sure nobody is listening," Lee says. "I have to encourage clients to use code words when talking to me about being gay or transgender. This is a country that offers humanitarian protection, but they don't feel safe even when they're applying — there's something a little disjointed about that."
Finding housing for parolees is half the battle. Asylum seekers aren't allowed to seek employment until 180 days after they've filed their application, and bureaucracy and backlogs can delay work authorization for months. Legally barred from finding a job, they are forced to subsist on handouts.
"I had no idea how vast or complex the asylum-seeker process really was," Hammami says. "I thought it was like, they come here and we help them with housing and they can work. I completely found out that's not the case at all. It's horrible. Horrible, and so incredibly complex."
One of Hammami's clients in Brooklyn is a soft-spoken 29-year-old Nigerian woman who asked that her name not be published because she fears people from her homeland may still be trying to track her down. Born into a devoutly Muslim family, she entered an arranged marriage at age 19. When her husband died five years later, the families ordered the young widow to remarry her brother-in-law. Tamara says her stepmother was abusive and threatened to harm her if she did not obey.
"[My husband's family] gave her land and properties and money," the asylum seeker says. "She knew if I'd leave, they'd want to get all that back from her."
With the help of a sympathetic family friend, she hatched a plan to escape. She booked a flight to New York and arrived at JFK Airport in June 2012, afraid, confused, and alone. She wound up in detention for four months. After she was released, Hammami's organization provided a small stipend, but, despite having earned her GED and completed a variety of certification courses, she hasn't been able to achieve her goal of becoming a nurse, owing to a misspelling of her name on her immigration paperwork. Because of the typo, she has been unable to obtain a state ID, and without that, she can't enroll in nursing school.
Hammami recently helped this woman find work as a server at a restaurant in Brooklyn, and she hopes to enroll in nursing school in the coming year. Though still bitter about her months in detention, She says the tribulations were worth it in the end:
"The good thing is, I'm free from everything now. The good thing is the freedom. I'm finally able to think straight. The people here, they're accommodating. People don't even know you, but they just want to help you."
Not every asylum seeker is as fortunate. Of the roughly 68,000 people who applied for asylum in 2012, only 29,000 had their requests approved. Reasons for rejection can run the gamut from security concerns to fraudulent claims, but in many cases the decision whether to approve an application appears to be cruelly arbitrary.
A series of reports by the Transactional Records Access Clearinghouse at Syracuse University "found extensive disparities in how the nation's immigration judges decide the thousands of individual requests for asylum that they process each year." In New York, where judges decide one out of every four asylum cases in the United States, the disparity has improved in recent years but still remains an area of concern. One judge approved just 5 percent of asylum cases in a single year. Another judge in the same building approved 67 percent of such cases.
The inherent randomness is commonly known as "refugee roulette," a phrase coined in a 2008 Stanford Law Review report. Analyzing more than 270,000 decisions by immigration judges and asylum officials over a 4 1/2-year period, the authors concluded that "in many cases, the most important moment in an asylum case is the instant in which a clerk randomly assigns an application to a particular asylum officer or immigration judge."
Jaya Ramji-Nogales, a professor at the Beasley School of Law at Temple University and a coauthor of the refugee roulette study, says the problem boils down to a matter of time and resources. Immigration judges typically lack both. Facing a backlog of more than 354,000 cases — an 85 percent increase from five years ago — judges are forced to make snap decisions about complex legal issues that can have life-or-death consequences. A recent Washington Post story quotes one immigration judge describing the current system as "like doing death-penalty cases in a traffic-court setting."
Rami-Nogales says, "In comprehensive reform, we see money for night-vision goggles at the border, everything the border patrol could possibly want. But we don't see the same funds directed to immigration courts. That's huge. Who wants to be the person in this political climate that says, 'Let's pour money into immigration court'?"
Every asylum seeker has a heartbreaking story. Unfortunately, the tales aren't always true. In 2012, federal prosecutors in Manhattan filed an array of charges against 30 attorneys, paralegals, interpreters, and others accused of helping dozens of Chinese immigrants file fraudulent asylum claims. One lawyer was caught on tape telling his client to "just make it up" if immigration officials probed for details of the forced-abortion narrative he'd scripted for her.
The high-profile Chinatown case — it was the subject of a front-page story in the New York Times, headlined "An Industry of Lies" — has contributed to backlash against asylum seekers that advocates fear could have tragic consequences for those with legitimate claims.
The elected official leading the campaign against asylum seekers is Bob Goodlatte, the Republican chairman of the House Judiciary Committee. On February 11, Goodlatte presided over a hearing for the Judiciary Subcommittee on Immigration and Border Security ominously titled, "Asylum Fraud: Abusing America's Compassion?"
Goodlatte began, "Our nation's record of generosity and compassion to people in need of protection from war, anarchy, natural disaster, and persecution is exemplary and easily the best in the world. We grant asylum to tens of thousands of asylum seekers each year. We expect to continue this track record in protecting those who arrive here to escape persecution. Unfortunately, however, because of our well-justified reputation for compassion, many people are tempted to file fraudulent claims just so they can get a free pass into the United States."
Goodlatte claimed that 70 percent of asylum applications are fraudulent and stated that "the rule of law is being ignored, and there is an endemic problem within the system that the [Obama] administration is ignoring."
The 70 percent statistic comes from a 2006 report from the Government Accountability Office on benefit fraud. The authors analyzed 239 asylum cases and concluded that 29 of them — or 12 percent — were fraudulent. To reach the alarming 70 percent figure, Goodlatte included an additional 138 cases from the report that exhibited "possible indicators of fraud."
He also cited "a separate DHS report [that] shows that the Obama administration is abusing current law by not detaining certain individuals seeking asylum."
Upon request, Goodlatte's office provided for this article a draft copy of a 2012 DHS report to Congress titled "Detained Asylum Seekers." According to the report, 68,795 people applied for asylum in 2012. Of those, 24,505 (roughly 36 percent) were detained, including 796 in New Jersey and 302 in New York. The average stay was about 79 days, but nearly 25 percent were held for 90 days or longer.
In fact, anyone who sets foot in this country and seeks asylum is detained, if only briefly. Those who meet the criteria to be considered an "affirmative" applicant — meaning they applied within a year of arriving, possess proper identification, and followed all regulations — rarely are detained for any length of time.
"In practice, only a very small number of affirmative asylum applicants are detained," the report reads. "On the other hand, many defensive applicants . . . are detained for at least some portion of the processing of their immigration cases."
Those "defensive applicants" — people fighting deportation because they fear returning to their homeland, including those who passed a "credible fear" interview — accounted for more than 23,000 cases of detention in 2012. Defensive applicants include people who failed to apply for asylum within a year of arriving in the U.S., and individuals like Hussein Mohamed, the young Somali detained in New Jersey. His mistake was to cross the border on foot and immediately approach a border patrol agent to make his claim. By crossing on foot and essentially turning himself in, Mohamed became a member of a subset of asylum seekers subject to "expedited removal," a type of deportation proceeding with mandatory detention.
"In the perverse way the system works right now," LIRS attorney Megan Bremer explains, "if you come to the border and ask for asylum, you're considered a defensive asylum applicant. If you actually leave the airport — I don't know where you go — but the next day, you go to the immigration office and ask for asylum, then you're affirmative. It makes no sense."
Bremer says the results of the ongoing pilot project with ICE prove that asylum seekers should not be incarcerated. "The people [who] are being referred [by ICE officials], they represent no danger to our community," he insists. "They have credible claims. They would be released except for the lack of community ties."
It costs about $160 a day to keep each asylum seeker in immigration detention. It costs nothing to release them on parole to the nonprofit groups participating in the LIRS pilot program. Bremer says the fiscal considerations are helping "put feet to the fire" to prove to Congress that the program is safe and saving taxpayers money. The federal budget for immigration detention and deportation stands at $2.8 billion a year, with less than $100 million devoted to alternatives to detention, such as electronic ankle monitoring.
Bremer says the lack of federal funding for the pilot program "really limits the ability to deepen the capacity or scale up across geographic areas. It's not going to grow to meet the need without deeper pockets."
To secure additional funding after the pilot programs in New York, New Jersey, and San Antonio end in June, Bremer and other advocates must convince politicians like Goodlatte, ICE officials, and the general public that asylum seekers deserve compassion. Misconceptions about the asylum process and suspicions of fraud make matters difficult.
The uncomfortable truth is there is no surefire way to prevent fraud. The very nature of asylum essentially requires officials to take people at their word. Documents and witness testimony are available in some instances, but short of personally traveling to conflict zones like Syria or lawless corners of Somalia and Pakistan, there often is no way for officials (or journalists, for that matter) to independently verify the facts as asylum seekers tell them.
A 31-year-old Pakistani man named Khan who's incarcerated at a New Jersey detention facility says he has spent the past seven months behind bars waiting for a decision on his claim. He says he was forced to flee his home in Pakistan's tribal region after the Taliban executed his parents and threatened to kill him, his wife, and their children.
"The Taliban, they killing all the time," Khan says. To emphasize this point, he lifts his hands and makes a tat-tat-tat noise as if hoisting a machine gun. "The Taliban doesn't know the word 'sorry.' You may be fine for one year, two year, three year, four year — then maybe 15 years they come for you."
Khan explains that a judge had asked him for police reports of the killing and death certificates for his parents, but the records either didn't exist or were impossible for his friends and family in Pakistan to obtain.
Khan tells his tale the same afternoon Mohamed speaks of his escape from Somalia. As the African describes walking through a Brazilian jungle with human smugglers and dodging bandits along the migrant trail in Central America, he is clearly aware of how implausible it sounds.
"I tell the truth," he interrupts himself to declare. "I cannot lie before God."
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