Detention of Asylum Seekers in
the United States
Workshop on the Israeli Asylum System
Academic Center of Law and Business
November 12-13, 2012
Prof. Stacy Caplow
Brooklyn 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-ICE
Arrest in
the Interior
Defensive
Application in
Immigration
Court
Mandatory or
Discretionary
Detention
Administrative
& Judicial
Appeal
Voluntary
PostAdmission
Affirmative
Application to
Asylum Office
Grant, Deny,
Refer to
Immigration
Court
Detention
Rare
Asylum
Determination
by IJ
Administrative
& Judicial
Appeal
Administrative
& Judicial
Appeal
U.S. Executive Branch Agencies
President
Secretary of
DHS
Ombudsman
Director,
USCIS
Under
Secretary,
BTS
Secretary of
Labor
AG
Field
Offices
ICE
CBP
Field
Offices
Ports of
Entry
Asylum
Offices
BALCA
AAO
Special
Counsel
RSC
Int’l Affirs, incl. visa policy
ETA
WHD
PHS
Chief IJ
Immigration Judges
Border Patrol
Sectors
* Bureau of Education and Consular Affairs (reorganized USIA)
Secretary of
State
ORR
Consular
Affairs
EOIR
BIA
Secretary of
HHS
PRM
ECA*
OCAHO
ALJs
Consular officers
(posted worldwide)
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
•Thank you very much.
•Questions?
• stacy.caplow@brooklaw.edu
Bibliography
• Alice Edwards, Back to Basics: The Right to Liberty and Security
of Person and ‘Alternatives to Detention’ of Refugees, AsylumSeekers, 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)