Lunacy in American asylum system

The detention of U.S. asylum seekers marks a human tragedy of growing proportion.

Uttam Das

Ten years ago, the number of detained asylum seekers in the United States was 10,000. By 2009, the number had reached 400,000, according to Michele Garnett McKenzie, legal counsel for the Advocates for Human Rights. Detention occurs during the processing of American asylum applicants, a sobering failure for thousands fleeing their native land for fear of human rights violations or violence from state authorities or non-state actors. Why the number has reached such a height is difficult for experts to explain. However, they do tend to hold responsible the existing âÄúflawed U.S. policies that have led to the extended detention of asylum seekers âĦâÄù as Human Rights First reported late last year. Stranded for months, even years, in the darkness of detention cells, American asylum seekers at various detention centers experience unprecedented suffering. Those lucky enough to find assistance from pro bono legal or human rights organizations or attorneys could eventually see their applications approved, but even these fortunate few cite a cumbersome process to escape the âÄúdark life.âÄù But the supply of pro bono legal assistance is wholly insufficient, and there are few other means for legal aid. In the long run, those who fail to get free legal assistance are often deported back to the very countries they have reason to flee. Hiring a private attorney for processing an asylum application reportedly costs between $5,000 and $10,000, an unaffordable sum for most asylum seekers. According to a release by U.S. Immigration and Customs Enforcement (ICE), the âÄúU.S. immigration laws generally require aliens who arrive in the United States without valid entry documents to be removed without further hearing, however, arriving aliens can pursue protection in the United States if they are first found by a U.S. Citizenship and Immigration Services (USCIS) asylum officer or an immigration judge to have a credible fear of persecution or torture in their home country.âÄù The 1948 Universal Declaration of Human Rights proclaims that âÄúeveryone has the right to seek and to enjoy in other countries asylum from persecution.âÄù But, according to related U.S. law, asylum is the âÄúdiscretionary decisionâÄù of the authority concerned. It is the duty of the individual to prove his or her case of âÄúwell-founded fear of persecutionâÄù before the processing officer. Those already within U.S. territory must apply for asylum within one year of arrival. If the asylum seeker fails to do so, he must try to justify it. Attorney Michele Garnett McKenzie and other experts find that the timeline contradicts the principles of international legal standards. Sixteen years after its passage in the aftermath of World War II, the United States became party to the 1951 protocol of the U.N. Convention Relating to the Status of Refugees. The protocol does not prescribe any timeframe for submitting applications for asylum. As for moral standards of protection for asylum seekers and refugees, detention must be considered as a last resort. The non-possession of travel or immigration documentation should not be reason to penalize the individual aiming for asylum. Of course, this would not be applicable for those involved in serious crimes. In the case of the United States, detention becomes the first option. In January, the ICE decided that âÄúâĦ ICE will generally release from detention arriving asylum seekers who have a credible fear of persecution or torture if certain criteria are met âĦâÄù Human rights organizations have welcomed the move, but its implementation is in question. If the processing authority maintains ultimate âÄúdiscretion,âÄù no real progress will be made. The asylum application process must be guided by standards and indicators that both conform to the Constitution and international legal obligations, such as U.N. declarations. ICE claims that the detention system âÄúensures criminal and violent aliens remain in custody.âÄù It is true that the growth of global terrorism and other organized crime has put the âÄúregime of asylum and refugee protection under a challenge.âÄù Other developed nations, including the United Kingdom and Australia, have taken âÄúrestrictive measuresâÄù that have diminished the individualâÄôs right to seek international protection when fleeing from persecution. At the same time, developed countries, including the United States, have strengthened border management, which contributes to restrictions on the movement of individuals âÄî including asylum seekers âÄî out of their country of origin. That is why the number of asylum seekers (and refugees) in developed and industrialized countries has been decreasing while the number of internally displaced persons in the global south is increasing. Measures to net out terror suspects and other criminals should not be designed in such a way so that the protection mechanisms for asylum seekers and refugees are withheld. Some scholars and activists argue that the U.S. detention system is proving to be counterproductive and costly. The system has also proven to be discriminatory against Hispanics and those of African or Asian origin. Harvard professor Bruce Western, who made a presentation recently at the University of Minnesota, does not see any benefit in the longer detention system. He is in favor of reform strategies guided by social policies. Western urges reforms in the detention system, which would cost $8.5 billion. However, he argues that if the reforms are implemented, the country could gain $10 billion from reduced crime and correctional costs. Given recent considerations of U.S. immigration reform, now is the right time to reform the American asylum system as well. Uttam Das welcomes comments at [email protected]