House Judiciary Committee, Subcommittee on Immigration and Border Security
February 11, 2014
Lutheran Immigration and Refugee Service (LIRS), the national organization founded by Lutheran Christians to serve uprooted people, is committed to helping asylum seekers and torture survivors access the protections to which they are legally entitled. Following God’s call in the Judeo-Christian Scriptures to uphold justice for the sojourner, LIRS advocates to ensure newcomers in the United States are treated fairly and humanely. With 75 years of experience in service and advocacy, LIRS is a leading voice on protecting vulnerable migrants and refugees, including asylum seekers.
LIRS urges the United States government to maintain robust protections for asylum seekers and others fleeing persecution and to avoid using immigration detention unless it is determined to be necessary based on the use of prosecutorial discretion in individualized assessments. We further support increasing the use of community-based alternatives to detention for migrants that do not unnecessarily deprive individuals of their liberty, while still meeting the government’s need to ensure compliance. This will ensure that we live up to our legal and moral obligation as a country that takes pride in offering refuge to people fleeing persecution.
“Our asylum laws act as a critical lifeline for vulnerable migrants who seek safety and a new life here in the United States,” said LIRS President and CEO Linda Hartke. “Restricting our asylum system would not only fail to honor the courage of asylum seekers, but also would betray our strong history as a nation of welcome.”
Obligations to Protect Individuals Fleeing Persecution
The United States Government is urged to uphold its obligation to provide protection to individuals fleeing persecution in their homelands. This obligation is found in international treaties the United States has ratified, such as the United Nations Refugee Convention and the Convention against Torture, as well as in domestic immigration law. Beyond these legal obligations, our nation has a long and proud history of living out the moral imperative to protect the most vulnerable newcomers and grant the freedoms we hold as inalienable rights. LIRS considers it a privilege to be a part of this process with the people we serve.
There are numerous safeguards and procedures that strengthen the nobility of the domestic asylum system and ensure its integrity. These safeguards include mandatory biographic and biometric checks of applicants against various federal databases and dedicated, well-trained, full-time fraud detection officers. Additionally, current laws prohibit the granting of asylum to any person who has engaged in terrorist activity or otherwise poses a threat to the security of the United States.
Erecting new barriers to protection within the asylum system is unnecessary and may dangerously impede our obligations to protect bona fide asylum seekers.
Detention of Asylum Seekers
The United States detains asylum seekers, refugees, torture survivors and survivors of gender or sexual-based violence every day in jails or jail-like settings. These vulnerable men and women are among thousands of migrants apprehended by the Department of Homeland Security (DHS) each year and sent to immigration detention until they win their cases or are deported to their countries of origin. Each day, the United States government detains approximately 34,000 individuals for immigration purposes.
Under current immigration law, arriving asylum seekers are subject to immigration detention pending a determination by an Asylum Officer regarding whether they have a “credible fear” of persecution as a result of their race, religion, ethnicity, political opinion or membership in a particular social group.
Contrary to popular opinion, individuals found to have a “credible fear” of persecution are still subject to mandatory detention for further consideration of their asylum claim by an immigration judge; those determined to lack credible fear of persecution are subject to removal without further hearing review. If an asylum seeker is found to have credible fear, Immigration and Customs Enforcement (ICE) may exercise its prosecutorial discretion to release the asylum seeker on parole pending immigration proceedings. The standards for parole are high, and asylum seekers may only be paroled on a case-by-case basis for “urgent humanitarian reasons” or “significant public benefits,” and must be determined to present no security or flight risks.
Harmful Impact of Current Laws, Policy and Practice
Immigration detention negatively impacts asylum seekers in multiple ways. The psychological harm of detention on a survivor of persecution or torture has been well-documented. In some situations, the hardship of detention may lead a bona fide asylum seeker to return to a country where he or she fears persecution or torture. And, detention impedes full, fair adjudication of valid claims by creating obstacles to obtaining legal counsel, hindering the ability to gather evidence in support of one’s claim, and often forcing participation in court proceedings over a tele-video connection rather than in person.
The shortcomings and overly harsh response of the current system are illustrated by the following story of an Afghan asylum seeker who fled persecution by the Taliban on account of his assistance to the U.S. Army.
As an asylum seeker who had established a credible fear of persecution, he was eligible for parole, but ICE determined he was a flight risk because he lacked community ties. Ahmad remained in detention for more than a year before he was granted asylum and released from detention.
Individuals who receive legal assistance through non-governmental organizations or information through the Department of Justice’s Legal Orientation Program are able to overcome some of the harmful effects of detention. Migrants in detention must represent themselves in immigration court far too often- at least 80 percent of the population which includes incredibly vulnerable individuals, such as survivors of torture, elderly persons, survivors of sexual and gender-based violence, and many persons with serious mental health issues lack legal representation. Immigration detention facilities are often located in areas far from detainees’ family, attorneys, community support groups, places of worship, and other social services providers.
The Department of Justice’s Executive Office for Immigration Review currently operates the Legal Orientation Program (LOP) in partnership with the Vera Institute of Justice and non-governmental organizations to provide detained migrants at 25 of the approximate 250 detention facilities across the United States with basic legal information about the immigration system and their rights. While not a substitute for legal representation, LOP helps migrants to make informed decisions regarding their cases. LOP helps to mitigate the isolation of detention by providing detainees with basic information on forms of relief from removal, how to accelerate repatriation through the removal process, how to represent themselves without an attorney, and how to obtain legal representation. LOP programs have also been shown to reduce case processing times and costs.
The case below demonstrates the benefits of LOP programs to non-citizen detainees and to the improved efficacy of immigration courts.
Since 1991, Somalia has been enduring an ongoing civil war. In the late 1990s, Mr. Mukatr Allie, a young Somali boy, was living with his uncle because he had a medical condition that could not be addressed in his village. He returned to his village and discovered that his house had been ransacked. His father and three brothers had been killed. He didn’t know where his mother or his eight other siblings were. His uncle then abandoned him, leaving him all alone. At the encouragement of a neighbor, he escaped to Nairobi. He remained there for a few years, but faced repeated harassment by the local police.
He fled again in search of safety and protection passing through Europe, the Caribbean and South America. In April 2010, at the age of 21, he crossed the U.S.-Mexico border. Mr. Allie would later say, “I didn’t feel safe. There was no justice, a lot of corruption. My original idea wasn’t to come to the United States. I just needed to get out.” DHS officials apprehended and transferred him to the Northwest Detention Center, a privately run jail in Tacoma, Washington.
Mr. Allie was afraid to return to Somalia because he was opposed to Al Shabaab, an Islamic insurgent group that has been designated as a terrorist organization by the United States government. Al Shabaab controls central and south Somalia. Mr. Allie thought that he would be targeted if he were deported.
The Northwest Immigrant Rights Project (NWIRP), a member of LIRS’s Community Support Initiative network, met Mr. Allie while providing LOP presentations. NWIRP, the local LOP provider, recognized that he was eligible for asylum. In June 2010 Mr. Allie filled out and submitted his own asylum application and LOP connected him with pro bono legal counsel for further assistance in court proceedings. In his August 2010 asylum hearing, an immigration judge approved his asylum application. He was released from jail, nearly 5 months after arriving to the United States.
Had Mr. Allie not received basic legal information through LOP, he may not have known that he was eligible for asylum. Moreover, if he did not know about his eligibility for asylum and how to fill out the application, he likely would have asked the immigration judge for more time to determine what his legal option – wasting valuable court time and resources.
Conclusion: The Need for Prosecutorial Discretion
Federal immigration laws and policies should not use a blanket approach for reaching detention determinations. Such one-size-fits-all enforcement methods have led to more individuals being detained than is necessary to meet the ultimate goal of immigration detention—compliance with immigration proceedings. Immigration officials instead should utilize discretion based on individual circumstances when making detention determinations. Additionally, individuals should be screened for eligibility for community-based alternatives to immigration detention. By providing a system of holistic care through case management, legal assistance, housing, medical care, educational opportunities, vocational training, spiritual support, and strong community support, these alternatives to detention facilitate integration and healing from trauma, and encourage individuals to fulfill ongoing legal expectations.
The use of prosecutorial discretion is a longstanding and non-controversial principle of law enforcement that allows officers and agents to prioritize their actions and expenditures and that both the Supreme Court and Congress have recognized as a legitimate exercise of executive authority. To achieve principles of good governance, the exercise of discretion must be consistently and transparently utilized.
For additional information, please see our fact sheet on asylum and asylum-seekers or contact Nora Skelly, LIRS Assistant Director for Advocacy at nskelly@lirs.org or 202.626.7934.