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Detention of Asylum Seekers in the United States
Workshop on the Israeli Asylum SystemAcademic Center of Law and Business
November 12-13, 2012
Prof. Stacy CaplowBrooklyn Law School
Detention: Definitions
• UNHCR 1999: • Confinement within a narrowly bounded or restricted
location where freedom of movement is substantially curtailed and where only option to leave confined area is to leave the territory
• UNHCR 2012: • Deprivation of liberty or confinement in a closed place
which an asylum-seeker is not permitted to leave at will.• US Dep’t of Homeland Security:• The seizure and incarceration of an alien in order to hold
him/her while awaiting judicial or legal proceedings or return transportation to his/her country of citizenship.
Pathways to Asylum in U.S.
Arrest at the Border
Expedited removal
Credible Fear Interview by
AO with Review by IJ
Detention-ICEAsylum
Determination by IJ
Administrative & Judicial
Appeal
Arrest in the Interior
Defensive Application in Immigration
Court
Mandatory or Discretionary
Detention
Administrative & Judicial
Appeal
Voluntary Post-
Admission
Affirmative Application to Asylum Office
Grant, Deny, Refer to
Immigration Court
Detention RareAdministrative
& Judicial Appeal
President
AG
Special Counsel
Secretary ofLabor
Secretary ofDHS
Secretary ofHHS
U.S. Executive Branch Agencies
Secretary ofState
EOIR
BIA
ALJsImmigration Judges
Chief IJ OCAHO
BALCA ETA WHDORRPHS
ECA*
Consular officers (posted worldwide)
PRMConsular Affairs
Ombudsman
UnderSecretary,
BTS
Director,USCIS AAO
FieldOffices
AsylumOffices RSC
ICE CBP Int’l Affirs, incl. visa policy
FieldOffices
Ports ofEntry
Border Patrol Sectors
* Bureau of Education and Consular Affairs (reorganized USIA)
U.S. Refugee Statistics-2011*
• 24,988 individuals were granted asylum in the U.S.• 13,484 granted asylum affirmatively by the Department of
Homeland Security at Asylum Office interview • 11,504 who were granted asylum defensively by the Department of
Justice in Immigration Court
• 9,550 individuals were approved for derivative asylum status while located abroad (spouse and unmarried children under 21)• 56,384 individuals were admitted to the United
States as refugees* USCIS Statistical Report-2011 (FY 2010)
U.S. Detention Statistics: 2011• In 2010, ICE detained 363,064 foreign nationals.• ICE detains more than 30,000 individuals per day.• The average length of stay in detention is 31 days.• Since 2005, the number of detention beds increased by 60%. =>34,000 in
2013• Since 2005, the number of detainees increased by 52.3%.• The current cost of detention to taxpayers $122 per person per
day=>approximately $2 billion per year.• Detention of asylum seekers:• Approximately 48,000 between 2003-2009• Vast majority are defensive applicants• Less than 2% are affirmative applicants
• The most recent figures from the Department of Homeland Security indicate that in fiscal year 2007 approximately 10,000 of the more than 300,000 individuals detained were asylum-seekers.
US Immigration Detention Centres
U.S. Detention Centers
Statutory Framework: The Immigration & Nationality Act
Mandatory Detention• No individualized release
determination• All “arriving aliens” who are not
admissible• Individuals awaiting expedited
removal or whose prior removal is reinstated
• Individuals who have established credible fear and await hearing
• Returning residents who are removable based on criminal convictions
• “Criminal aliens” following conviction for a deportable offense
Discretionary Detention• Individualized release
determination• Parole• Bond (minimum $1500)
• Individuals in interior removal proceedings facing deportation (other than serious crimes)
• Initial decision by ICE• Redetermination by IJ• Appealable
• Grounds• Likelihood of flight• Dangerousness
Regulatory Framework for Detention of Asylum Seekers• Affirmative applicants for asylum previously admitted are rarely detained
unless other grounds arise• Arriving aliens seeking asylum• Arriving aliens have few, if any, rights• Not entitled by statute or regulation to individualized release decision• Can be detained throughout administrative proceedings including appeals
• ICE Agency advisory directive (does not carry the force of law) in 2009 requires case-by-case custody determination • ICE claims: more than 75% of individuals who pass credible fear interview are
released• Difficulties: no means of identification, no ties to the community although return rate
for those released fairly high (70% approximately)• May not be released immediately• ICE must provide reasons for denying parole• No independent mechanism for challenging decision about necessity of detention• No procedure for periodic review although detainee may request it
• Defensive asylum applicants often in detention for other reasons
Issues• Affects of Detention on Asylum Seekers• Mental and physical health• Ability to obtain counsel• Ability to prepare for the hearing• Likelihood of success decreases dramatically
• Conditions of Detention• The Asylum-Seeking Population• Privatization• Transfers
• Length of Detention• Zadvydas v. Davis (2001)• Clark v. Martinez (2005)• Demore v. Kim (2003)
Responses• NGO and professional calls for reform• Inter-American Commission on Human Rights• American Bar Association• Amnesty International• Human Rights First• Human Rights Watch• Detention Watch Network• American Civil Liberties Union
• News articles expose conditions• Some Congressional hearings
• Department of Homeland Security• 2010 Immigration Detention Overview and Recommendations• 2008, 2011 Performance-Based National Detention Standards• Prosecutorial Discretion• Development of Alternatives to Detention
Karnes, Texas Civil Detention Facility
Bibliography• Alice Edwards, Back to Basics: The Right to Liberty and Security
of Person and ‘Alternatives to Detention’ of Refugees, Asylum-Seekers, Stateless Persons and Other Migrants, UNHCR LEGAL AND PROTECTION POLICY RESEARCH SERIES (2011)
• Eleanor Acer & Jake Goodman, Reaffirming Rights: Human Rights Protections of Migrants, Asylum Seekers, and Refugees in Immigration Detention, 24 GEORGETOWN IMMIGRATION LAW JOURNAL 507 (2009-2010)
• Human Rights First, U.S. Detention of Asylum Seekers: Seeking Protection, Finding Prison (2009)
