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B y B il l Fre l ickH E IS SU E O F D ETA IN IN G AS YLU M-S E E K E R S has recently risen on theu.s . political agenda. Terrorism-re-

lated security measures increasingly appearto infringe on the right of refugee claimantsto pursue their asylum claims.Members ofCongress have introduced legislation (1) tolimit grounds for asylum, arguing that ter-rorists use the asylum system to gain a foot-hold in the United States,and (2) to expand

detention of aliens, including asylum-seekers.In 2004, Congress passed the Intelligence Re-

form and Terrorist Prevention Act,which includedauthorization for the construction of up to 40,000additional immigration detention bed spaces overthe next fiveyears.

While the President's fiscalyear (FY)2006budgetrequest includes a 7 percent increase generally forthe Department of Homeland Security (DHS), theDetention and Removal Office (DRO) within DHS'sImmigration and Customs Enforcement (ICE) sawa 19percent increase, a boost of $176 million. ThePresident's requested budget enhancements in hisFY2006 budget include $90 million for additionaldetention bed space and related personnel costs.

Human rights advocates are particularly con-cerned about the likely expansion of detention ofasylum-seekers for two principal reasons. First, de-tention often has the effect of infringing on asylum-seekers' ability to exercise their right to seek asylum,particularly since asylum-seekers in the United Statesdo not have the right to government-funded legalrepresentation, and detention facilities are often lo-cated in remote areas where relativelyfew pro bonoattorneys are available. Second, many asylum-seek-ers are highly traumatized people who have survivedtorture and other severe abuses for whom detention,particularly prolonged detention in jails,is harmful.

ICE's primary justification for detaining asy-lum -seekers is that they may escape into the UnitedStates,joining the ranks of the undocumented. Hu-man rights advocates counter that the number ofasylum-seekers who actually do not report for theirhearings is quite low.

Immigration Law Today MARCH/APRIL 2005

H u m a n R ig h t s a n d A s y lu mAsylum is a right oflast resort for people who cannot count on their own governments to protectthem and are forced to flee their homelands andseek the protection of other governments. The righto seek and enjoy asylum from persecution is en-shrined in Article 14 of the Universal DeclarationofHuman Rights. The 1951Convention relating tothe Status of Refugees and the 1967Protocol definewho refugees are and establish their rights in theircountry of refuge.Altogether, 145countries, includ-ing the United States,have signed either one or bothof these UN instruments.

Human rights law,including Article9 of the Covenant on Civil and Political Rights, prohibits arbi-trary detention, requiring that any detention must bein accord with procedures established by law.Article31(2) of the RefugeeConvention limits "restrictions"on the movements of refugeeswho enter territoriesillegallyto "those which are necessary:'

The Executive Committee ofthe UN High Com-missioner for Refugees (UNHCR), comprised oState Parties to the Refugee Convention, issues for-mal conclusions that interpret the Convention andconfirm international consensus on state practicewith respect to refugees. ExecutiveCommittee Con-clusion 44 of 1986set forth the agreed standards fordetention of refugees and asylum-seekers:

Detention should normally be avoided. Ifnec-essary, detention may be resorted to only ongrounds prescribed bylawto verifyidentity; todetermine the elements ofwhich the claim torefugee status or asylum isbased; to dealwithcases where refugees or asylum-seekers havedestroyed their travel and/or identity docu-ments or have used fraudulent documents inorder to mislead the authorities of the Statein which they intend to claim asylum; or toprotect ;national security or public order.Inaddition to stressing that conditions of deten-

tion, when necessary, must be "humane:' Conclu-sion 44 also recommended that detention of asy-lum-seekers and refugees be subject to judicial oradministrative review. __

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u . s . Detentionof Asylum-SeekersIA Human Rights Issuetwo years, ICE officials repeatedly cited the 85 percent no-showrate when asking Congress for additional resources or when jus-tifying broader detention.

More recently,the U.S.Commission on International ReligiouFreedom (USCIRF), a federal government commission, issued areport on asylum-seekers in expedited removal that presented avery different appearance rate.

Citing data provided by the Executive Office of ImmigrationReview (EOIR), the agency that houses the immigration courts,USCIRF reported a 22 percent no-show rate before immigrationcourts for asylum-seekers who had been released after establishinga credible fear. The appearance rate was 78percent, compared tothe 15percent ICE cited.In response to the USCIRF report, ICE cited a report fromthe Department of Justice Inspector General for an appearancerate that was more in line with the rate reported by USCIRF: ano-show rate of approximately 30percent and an appearance rateof 70percent. The movement to an agreed upon appearance rateresulted from ICE distinguishing between two distinct groups odeportable aliens: absconders during proceedings and absconderswith final orders of removal.

ICE defined absconders with final orders of removal as "theremaining alien population that does appear for hearings, are pa-roled or released on conditions, and are ultimately denied reliefto include asylum and convention against torture, by an immigra-tion or federal court judge." For this category, ICE now uses the85percent figure it had previously used for all aliens who had notappeared for hearings.

Interestingly, the appearance rates presented by both ICEand USCIRF with respect to the absconders during proceedings(with an estimated 22or 30percent no-show rate for immigrationcourt) are not supported by EOIR asylum statistics for FY 2003and FY 2004. EOIR reports that 4,287 claims were abandonedout of 67,370 cases completed by immigration courts in FY2003a no-show rate of only 6.4 percent, and that 3,820 claims wereabandoned out of 66,501 completed cases in FY 2004, for a no-show rate of only 5.7 percent.

These statistics, however, relate only to asylum -seekers, a category that may be narrower than that captured bythe ICE statisticswhich looked at all aliens with immigration court dates. "Asylum-seekers;' as a category, may also be wider than that captured byUSCIRF, which looked only at those asylum-seekers who enteredthe asylum system through the expedited removal process andpassed credible fear screening.

In presenting the appearance rates before immigration courts,neither ICE nor USCIRF provided the actual numbers from theInspector General or EOIR, on which they based their reported22 or 30 percent no-show rates. In the interest of accurately as-

[Iln te rn atio na l s ta nd ard s a re c le ar th at d e te n tio n o f a sy lum -s ee k ersis u nd ers to od to b e th e e xc ep tio n, n ot th e ru le .

Importantly, this means that international standards-andrefugee and human rights advocates-do not insist that asylum-seekers and refugees can never be detained. On the contrary, whennecessary and on grounds prescribed by law, detention of asy-lum-seekers is permitted. However, international standards areclear that detention of asylum-seekers is understood to be theexception, not the rule.T he A sy lu m P ro ce ssIn the United States, the Refugee Act of 1980 essentially adoptedthe international definition of refugee found in the 1951Conven-tion and 1967Protocol and authorized aliens in the United States,irrespective of their legal status, to apply for asylum. The RefugeeAct also gavethe Attorney General discretion to grant asylum ac-cording to procedures that he would establish.

Following the procedures established for the granting of asylum,the adjudicator's job is one of discovery.This isa process to recog-nizewhether the claimant does, in fact,have a well-founded fear ofbeing persecuted on account of his or her race, religion, nationality,membership in a particular social group, or political opinion.

Because an asylum-seeker whose claim to refugee status isstillpending might, in fact, be a refugee, the protections afforded torefugees under the 1951 Convention and 1967 Protocol-mostnotably, not to be forcibly returned (the principle of nonrefoule-ment)-extend to the asylum-seeker aswell.

If,on the other hand, an asylum-seeker's claims and appeals arerejected, and he or she has been found not to be a refugee-and,therefore, not in need of international protection-that person'sdetention and deportation are generally regarded aslegitimate andnot objected to by international human rights and refugee rightsstandards. The major exceptions are for aliens held for prolongedperiods because their removal cannot be effectuated or for thoseheld in inhumane conditions.

Human rights principles are in no manner compromised bythe apprehension and detention of rejected asylum-seekers not inneed of international protection, or other deportable aliens whohave exhausted their legal remedies if they fleeafter receiving finalorders of removal.~ A b sc on de rs : A s ylum A p pe ar an ce R ate S ta tis tic sEstimates ofhow many refugeesand asylum-seekersare likelyto ab-scond vary widely.ICE,the division ofDHS responsible for deten-tion and deportation, has circulated the highest absconder rates.

In a 2003 report, Endgame: Office of Detention and RemovalStrategicPlan, 2003-2012, ICE stated that the appearance rate ofindividuals released from ICE custody was about 15percent andthat "the program does not have the resources to identify, locate,apprehend, and process the remaining 85 percent." For the next

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. ' -the real extent of a problem, it is vitally important thats~,~,lng, . -tll'llnumbers are presented and that the rates presented arethe,ll '-I" 'H-I), defined,

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U . S . D e t e n t i o n of A s y l u m - S e e k e r s IA H u m a n R igh ts Is s u eUNHCR Guide l ines re comm end alternativ es to d ete ntion , inc lud ing

re lease on bail, open collectiv e accommodation centers , and im posing period icre po rtin g o r re sid en cy re qu irem en ts.

a flight risk or danger to the community" was reiterated in 1998.This guidance, however, is merely advisory and has never beenissued as a regulation or law.Consequently, there arewide discrep-ancies in the exercise of this discretion and no legal mechanismfor enforcing compliance.

The 2005 USCIRF report shows, for example, that in Newark,only 3.8percent of the people who have passed credible fear screen-ing are released on parole; in New York,8.4percent are released. Bycontrast, release rates for the same category of asylum-seekers inHarlingen, Texas,is 97.6 percent and 94 percent in San Antonio.In te rn a tio n al S ta n da rd s a n d U .S . P r ac tic esAlthough UNHCR's G uid elin es o n A pp lic ab le C riteria a nd S ta n-da rds R ela ting to th e D etention of A sylum Seekers are not binding,they represent how UNHCR, the agency charged with supervis-ing the application of the Refugee Convention, believes asylum-seekers should be treated. They are largely derived from UNH CRExecutive Committee Conclusion 44. While the Guidel ines callthe detention of asylum-seekers "inherently undesirable:' theynevertheless contemplate circumstances in which detention ofasylum-seekers becomes necessary. These circumstances includewhen identity cannot be determined and when the applicant hascommitted fraud with the intention of misleading or refusing tocooperate with the authorities. Detention is also acceptable priorto a preliminary interview to determine the elements of the refu-gee claim and to protect national security and public order.

With respect to how asylum-seekers should be treated when it isnecessary to detain them, the Guidelines are unambiguous: "Condi-tions of detention for asylum-seekers should be humane with re-spect shown for the inherent dignity of the person:' The Guidel inesmaintain that "the permissible exceptions to the rule that detentionshould normally be avoided must be prescribed by law:'

Yet, the US. criteria for the detention and release of asylum-seekers nor the standards establishing acceptable conditions ofdetention is prescribed in law or regulations.

Furthermore, DHS detention standards are not specific to asy-lum-seekers, but rather apply to all immigrant detainees. They,therefore, do not take into account the special needs of asylum-seekers, particularly those among them who might be sufferingthe effects of torture.

US. detention practices contradict a number of the specificUNHCR guidelines. For example, the Guidel ines state, "Detentionof asylum-seekers ... as part of a policy to deter future asylum-seekers, or to dissuade those who have commenced their claimsfrom pursuing them, is contrary to the norms of refugee law:'

ICE policy, however, isto use detention asa deterrent to otherwould-be asylum-seekers. The ICE response to the USCIRF re-port states, ''Aliens who arrive by boat are subject to a nationalpolicy of continued detention post-credible fear in order to de-

28 Immigration Law Today MARCH/APRIL 2005

ter others from taking the life-threatening boat trip and ensour maritime defense assets are not diverted from their natiosecurity mission:'

In New Orleans, which has a disproportionately large numof undocumented boat arrivals subject to mandatory detentiona result of this policy, only 0.5 percent of persons who have pascredible fear screening are released on parole.

The Guidel ines call for "the use of separate detention facties to accommodate asylum-seekers:' and state flatly, "Theof prisons should be avoided:' When separate detention facilcannot be avoided, the Guidel ines say,''Asylum-seekers shouldaccommodated separately from convicted criminals or prisonon remand. There should be no co-mingling of the two group

In stark contrast to the UNHCR Guidel ines , about half of Uasylum-seekers in detention are held in county jails, where,cording to the USCIRF report, they are usually mixed in withgeneral criminal inmate population.A l te rn a ti ve s t o De te n ti onThe human rights community generally views detention asimpediment to the right to seek asylum. Many also objectjailing asylum-seekers on the simple humanitarian ground tmany asylum-seekers are survivors of torture and other traumfor whom detention-particularly in harsh correctional facildesigned for and populated by criminals-is oppressive.

UNHCR Guidelines recommend alternatives to detention,cluding release on bail, open collective accommodation centand imposing periodic reporting or residency requirements.

Anumber of pilot projects demonstrating alternatives to dettion have met with great success.Nongovernmental organizatiounder contract with U.S.immigration officials have providedpervision, and, in some cases,housing in community sheltersassistance in locating pro bono attorneys to help with their claiThese projects have shown their effectiveness in cost savingsin ensuring that asylum-seekers appear for their hearings. Assuthey suggest an approach that satisfiesboth the US. governmenlegitimate concern that asylum-seekers comply with legal requments, aswell asthe concern ofthe human rights community tasylum-seekers' right to pursue their claims for protection issubverted by intolerable and unnecessary detention.B i ll F r e li c k is D ire ctor o f A m ne sty In te rn atio na l U SA 's R efu ge eP r o g r a m .The views expressed are those of the author alone, and do not necessarily refthe views and policies of Amnesty International.This article originally appeared March 1,2005, in the Migration Policy InstituMigration Information Source at www .migrat ioninformation.orgIUSfocusldis-play i fm?ID=296.A r ti cl es i n I L T d o n o t n e ce ss a ri ly r ef le c t t h e v ie w s o f t h e A m er ic a n I m m ig ra t io n L a w ye rsAssociation.