Mandatory detention of asylees is back, though no one will say it out loud.

Sunday, May 22nd, 2016
By: Jonathan MontagJ.D.

I recently read a New Yorker article  by Adam Gopnik where he started the article and ended the article quoting Alexander Pope. Good article, but why quote a guy I did not even know was Pope? My article will quote someone a little more approachable, Billy Joel. Here goes, “Honesty is such a lonely word / Everyone is so untrue.”

Who am I referring to? Our government and its treatment of Middle Eastern asylum seekers. The problem – though the government says it will release asylum seekers if they prove:

1. Who they are;
2. That they are not a danger;
3. They are not a flight risk;
4. They have a credible claim of asylum,

the reality is that it won’t.

Because it takes a long time to adjudicate an asylum claim and because of language issues and the need for the asylee to gather evidence to support his claim, it is advantageous to the asylum-seekers case to be free – free to contact relatives to send documents, free to get people who know what the person suffered from in the past to write letters, free to get a medical exam to document beatings and torture, and other evidence. Also, it gives the applicant time to work with an attorney and translator on his case in an environment conducive to reflection and communication.

When a foreigner comes to the border, he is detained. He is interviewed by Customs and Border Protection officers. If he expresses a fear of return to his country, he is held and waits for an Asylum Officer, an employee of U.S. Citizenship and Immigration Services, to interview him. If at the conclusion of the interview the officer concludes that the person has a “credible fear” of persecution – that it is credible he will be persecuted based on his race, religion, political opinion, nationality, or social group if he is returned – he is then sent to an immigration judge to file an asylum application and ask for asylum. Because of the backlogs, the final hearing can be several months in the future.

When the asylum seeker is informed that he is being sent to see an immigration judge, he is also informed that he can seek release from detention. He must prove his identity, that he is not a flight risk, and that he is not a danger. People diligently gather documentation showing who they are – birth certificates, passports, school ID’s and records, national ID cards. People disclose their criminal records – internationally shared records appear pretty good at ferreting out criminals to show they are not a danger. Their travel histories can be accessed to see if their travel seems problematic. And to give assurance of not being a flight risk, they identify family members or friends with whom they will stay and who swear to support the person and make sure they attend their hearings. These “sponsors” sign forms promising to support the person, write letters under oath that they will take care of the person and bring them to their appointments and hearings, supply tax and income records to show they have the means to support a relative, and provide proof that they live where they say they do. Relatives legally in the United States  provide copies of their own immigration and U.S. citizenship documents.  Sometimes, several relatives provide this assurance to the government.

All this documentation is submitted to Immigration and Customs Enforcement (ICE). After all this documentation is submitted, what does ICE do? ICE hands the asylum applicant a two page letter discussing reasons to deny an application to release a detainee with the box next to “Flight Risk” checked.

So after the alien is denied release, a conscientious attorney contacts ICE and says – My God. This guy has a large family that he will stay with. The family members have good incomes and own property. They are legally here. The person seeking asylum may even have a wife and children who are in the United States whom they are desirous to be with. The person has a strong asylum claim and no where to go. How can you consider the person a flight risk?

The officer responds – It is not really my decision, but you are welcome to submit a request for supervisory review. One wonders, if the officer is not the one making the decision, then what’s the point of a supervisor’s review. But, you gotta do what you gotta do, so you ask for a supervisory review. And what do you hear? Nothing. No explanation and no decision.

If you have a Syrian or Iraqi or Egyptian or Afghani or Pakistani or Bengali (OK, we’re stretching the contours of the Middle East a little), despite the promise of the possibility of release, there is no release. It costs the government a lot to hold people, so why spend the money when it is better for the asylum-seeker (many of whom, you can imagine are quite traumatized by their past persecution, their flight to freedom and the ordeal of incarceration where the asylum seeker is locked up like a criminal with horrible food, few recreational opportunities, and sub-standard health care), cheaper for the government, and results in better administration of justice because the applicant can prepare his case?  Here are some theories:

1. The officers do not want to be blamed if an asylum seeker is released and causes a problem. This is the logic that commends executing shoplifters. While nothing is 100 percent certain, is a young Coptic or Chaldean woman who speaks little or no English and has a family waiting for her outside the jail really a person with a huge likelihood of running amok? Is a Syrian Christian farmer or an Iraqi doctor really someone that needs to be detained? An immigration judge once told me in court, “I’m not going to be the immigration judge who is on the front page of the New York Times for letting a person out of custody who later committed a crime.” He wasn’t. He also will never have a chapter about him in a sequel to “Profiles in Courage.”
2. Detention is a way of discouraging future asylum seekers. If word gets out that the Americans will detain you, keep you in an ice box, feed you garbage, treat you like a criminal, provide you with inadequate medical care, and deprive you of the ability to defend yourself, you’ll send word back home not to come. But is a Syrian Christian whose home is about to be overrun by ISIS or a Sunni in Baghdad who was told to leave the country or his head will be cut off by a Shi’ite militia really going to stay home and die because of American detention policies? It is also illegal to detain a person to send a message to others.

3. The government contracted with private companies that detain aliens to keep the jails these companies built full. The United States is obliged to keep 34,000 aliens detained at any given time so private jailers will remain profitable. Not releasing these people is a way of keeping the detainee numbers up for the benefit of the custody corporations.

4. As for Christians for Iraq, it has emerged that some asylum seekers have not fled Iraq, but rather were resettled in Europe and then came here making false assertions that they came straight from Iraq and were never resettled elsewhere. ICE is collectively punishing Iraqi Christians and Middle Easterners in general for the sins of a few. This, too, is illegal.

5. Because of the current political mood of building walls, deporting all “illegals,” banning all Muslims, carpet bombing Syrian and Iraqi cities, making the desert glow, etc, not releasing fleeing refugees has no political upside and a lot of political downside.

In the Bush years, a policy was implemented to detain all asylum seekers until their cases were resolved, which I discussed here.

As horrible as it was, at least the government was honest about what it was doing. Not now. The government is saying one thing – you can apply for release – and doing something else. Not releasing anyone. “I can always find someone / To say they sympathize / If I wear my heart out on my sleeve / But I don’t want some pretty face / To tell me pretty lies / All I want is someone to believe.” Posted May 22, 2016.


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