Statement of Human Rights First
House Judiciary Subcommittee on Immigration Policy and Enforcement
Hearing on H.R.1932, the “Keep Our Communities Safe Act of 2011”
May 24, 2011
Human Rights First urges Congress to reject amendments to the Immigration and Nationality
Act (INA) that would broaden the scope of the Department of Homeland Security’s (DHS)
already vast power to detain asylum seekers and other immigrants in removal proceedings and
limit the already inadequate safeguards presently in place to protect asylum seekers and other
immigrants against arbitrary or prolonged detention. While this proposed legislation couches
itself as providing for the detention of dangerous aliens and as a measure to “keep our
communities safe,” its adverse impact would be felt by a great many persons who do not
warrant that description and whose detention is unconnected to community safety. Congress
should recognize the effect that any such amendments would have on asylum seekers and
other vulnerable immigrants.
Since 1978, Human Rights First has worked to protect and promote fundamental human rights
and to ensure protection of the rights of refugees. Human Rights First operates one of the
country’s largest pro bono asylum representation programs. Our volunteer lawyers have
helped victims of political, religious, and other persecution from over 80 countries—including
Burma, China, Colombia, Congo (DRC), Iraq, and Zimbabwe—gain protection from persecution
through asylum in this country. Because of the inadequate due process protections that
currently exist in the immigration detention system, many of these refugees have been held in
U.S. immigration detention centers for months—some for years—even after they have been
found by the government to have a credible fear of persecution and when there is no reason to
believe they pose a risk of flight or danger to others.
In April 2009, Human Rights First released a report, U.S. Detention of Asylum Seekers: Seeking
Protection, Finding Prison, in which we found that between 2003 and 2009, DHS detained over
48,000 asylum seekers in jails and jail-like facilities at an estimated cost of over $300 million.
Refugees who have been forced to languish for months or years in jails and jail-like facilities
before being granted asylum in the United States include:
• A Burmese school teacher, who supports democracy and was jailed for two years by the
Burmese military regime, fled to the United States for protection and was detained by
DHS for 7 months in a Texas immigration jail before being granted asylum;
• A Baptist Chin woman, who fled Burma for political and religious reasons, was detained
by DHS for 24 months before being granted asylum, even though she had proof of her
identity and family in the United States and the U.S. government agreed that she would
be subjected to torture if returned to Burma. Her detention cost U.S. taxpayers more
than $90,000;
• An Afghan teacher who was threatened by the Taliban, in part due to his affiliations
with U.S. armed forces, spent 20 months in detention at three county jails in Illinois and
Wisconsin, despite having letters of support from U.S. government officials who knew
him because he taught at an educational institution sponsored by U.S. and NATO forces
in Afghanistan. He was eventually released on an ankle monitor and granted asylum.
• A Tibetan man, who was tortured by Chinese authorities and detained for more than a
year after putting up pro-Tibetan independence posters, was held for 11 months at a
New Jersey facility—at a cost of over $53,000—before being granted asylum;
• An Ethiopian refugee was detained at the Pearsall Detention Center in Texas after he
crossed the Mexican border in order to seek asylum in the United States. In Ethiopia, he
had been tortured and detained after he was falsely accused of taking part in an anti-
government protest. He remained in DHS detention for over 5 months and was released
only after he was granted asylum;
• A Colombian refugee, who had been jailed, beaten, and tortured for participating in a
political demonstration in Colombia, was detained by DHS in Arizona for 14 months,
including for over 8 months after an Immigration Judge had ruled that he was eligible
for asylum; and
• A Sri Lankan fisherman, who was a victim of kidnapping by the Liberation Tigers of Tamil
Eelam (LTTE), was detained in an immigration detention facility in Elizabeth, NJ for 30
months before being released on a highly restrictive ankle bracelet. After several years,
he was eventually granted asylum.
These asylum seekers – and thousands of others like them – were held at the American
taxpayer’s expense for months and sometimes years because the system lacks basic due
process safeguards. Under current law, refugees arriving at U.S. borders or ports of entry
seeking asylum are subject upon arrival to mandatory detention under the “expedited removal”
provisions of U.S. immigration law. The initial determination to detain an asylum seeker is not
based on an individualized assessment of factors such as whether the person poses a security
threat or a risk of flight. Rather, it is a blanket determination based on whether a person
possesses valid travel documents or expresses an intention to apply for asylum upon arrival in
the United States.
If the person is found by DHS to have a “credible fear of persecution,” DHS’s Immigration &
Customs Enforcement (ICE)—which is the detaining authority—can assess whether to release
the asylum seeker on parole. But if ICE denies release, that decision cannot be appealed, even
to an immigration judge, under Department of Justice regulations that preclude immigration
judges from reviewing the detention of “arriving aliens,” a category that includes asylum
seekers who request refugee protection at U.S. airports and borders. Reforms to ICE’s own
parole procedures that went into effect in January 2010, while a welcome improvement, did
not address the lack of prompt independent court review of ICE’s detention decisions. This lack
of review is inconsistent with the treaty obligations of the United States under the 1967 U.N.
Protocol Relating to the Status of Refugees and the International Covenant on Civil and Political
Rights (ICCPR).
DHS regulations set no limit on the length of time an asylum seeker may be detained while his
or her asylum proceedings are pending, and there are currently limited procedures in place to
review the detention of asylum seekers and other vulnerable immigrants, arriving aliens or
otherwise, who are facing a risk of prolonged detention while they wait for a final decision on
their cases. Asylum seekers who have suffered from prolonged detention during removal
proceedings have included refugees granted asylum who were detained further while DHS
appealed the decisions in their favor. Improving the immigration detention system so as to
make it both more cost-effective and more consistent with the human rights requires
strengthening the protections available under current law, not curtailing them.
Beyond the considerable fiscal cost, the unnecessary detention of asylum seekers takes a
lasting emotional toll on them and their families. It also makes it more difficult for asylum
Article 9(4) of the ICCPR provides that “[a]nyone who is deprived of his liberty by arrest or detention shall be
entitled to take proceedings before a court, in order that the court may decide without delay on the lawfulness of
his detention and order his release if the detention is not lawful.” Article 31 of the 1951 U.N. Convention Relating
to the Status of Refugees exempts refugees from being punished because of their illegal entry into or presence in
the country of refugee and also provides that states shall not restrict the movements of refugees more than is
“necessary.” By ratifying the 1967 Protocol, the United States bound itself to the substantive provisions of the
1951 Refugee Convention. The Executive Committee of the U.N. High Commissioner for Refugees (UNHCR), of
which the United States is a member, has recommended that the detention of asylum seekers “be subject to
judicial or administrative review,” and UNHCR guidelines on the detention of asylum seekers make clear that there
should be “automatic review before a judicial or administrative body independent of the detaining authorities.”
UNHCR Exec. Comm., Detention of Refugees and Asylum-Seekers, Conclusion No. 44 (XXXVII), ¶ e (Oct. 13, 1986);
UNHCR, Revised Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers,
Guideline 5(iii) (Feb. 1999).
seekers, particularly the increasing proportion now detained in remote locations, to obtain legal
help or to assemble the evidence necessary to prove their cases in immigration court.
Human Rights First cautions Congress against expanding DHS’s detention authority, limiting
access to bond hearings by immigration judges, expanding any categories of mandatory
detention, and/or limiting judicial review. As a nation committed to the rule of law, the United
States must guarantee basic due process protections designed to prevent asylum seekers and
other immigrants from being subjected to arbitrary and prolonged detention. Efforts to strip
these basic protections run contrary to the fundamental principles of liberty and freedom that
have made this country a beacon of hope for the persecuted around the world.
Santosamaru 