Blog
Published on April 5, 2016
by Eleanor Acer
In an op-ed published in Sunday’s New York Times, Elizabeth Rubin describes the long and harsh ordeal Samey Honaryar, a man from Afghanistan, suffered while seeking asylum in the United States. He fled his country after the Taliban threatened him because he worked as an interpreter for the U.S. military.
Samey made it to the U.S. border and requested asylum. U.S. immigration authorities sent him to prison-like immigration detention facilities in Texas and Alabama, where he’s been held for nearly a year. Unrepresented by legal counsel in his immigration court proceedings, the judge denied his asylum request. The decision, as Rubin describes, was based on “rank speculation” and faulty factual and legal analysis about the actual situation on the ground in Afghanistan.
Such decisions can have life or death consequences for asylum seekers like Samey, who would face extreme danger at home if deported. He told Rubin on the phone, “I cannot take it anymore… I served this country. I risked my life for this country, and this is how I’m repaid.” Human Rights First and other attorneys are helping to find pro bono counsel to take on the case, but the fight is far from over.
Sadly many asylum seekers face similar ordeals after requesting protection from the United States. Asylum proceedings have grown increasingly complicated over the years, as round after round of legislation have imposed additional hurdles, making it ever more difficult for asylum seekers to navigate the complex process without a highly trained legal representative. Yet 84 percent of asylum seekers and immigrants held in detention do not have legal counsel.
In addition to supporting increased staffing for the immigration courts, Congress should do more to address this gap in legal access for indigent asylum seekers and immigrants. Non-profit legal providers are woefully understaffed and the government does not fund legal representation for immigration detainees, even though detention impedes their ability to find and secure legal counsel.
At an average cost of $161 per person per day, Samey’s 11 months of immigration detention have likely cost U.S. taxpayers about $54,000. This is particularly egregious considering Samey’s aunt is a U.S. citizen and the retired lieutenant colonel he worked with in Afghanistan was willing to vouch for him. These factors would typically strongly weigh in favor of Samey’s release under the relevant U.S. standards. But we regularly see ICE detaining asylum seekers for months on end, even though they are eligible for release under U.S. standards as well as international law.
Given its commitments under the Refugee Convention, its Protocol and the International Covenant on Civil and Political Rights, the United States generally should not hold asylum seekers in detention. It should only use detention when other measures—such as reporting requirements or reasonable bond—won’t achieve the government’s objective of assuring security or appearance for immigration appointments. All deprivations of liberty should be subject to prompt review by a court.
The Obama Administration committed to reforming the immigration detention system back in 2009. While that effort stalled, it’s not too late for this administration to implement some long overdue reforms. An upcoming Human Rights First report will detail the deficiencies in the U.S. detention policies relating to asylum seekers and provide recommendations.
As the bipartisan Commission on International Religious Freedom has repeatedly recommended, the Department of Homeland Security should put the 2009 parole guidance for asylum seekers into regulations so that ICE consistently follows them across the country. ICE officers should carefully review the use of detention in each individual case. Officers and immigration judges should not block release from detention by demanding that indigent asylum seekers and immigrants pay bonds that are too high for them to afford. ICE should not detain asylum seekers in prison-like conditions. Furthermore, the administration should revise regulatory language to extend immigration court custody hearings to “arriving” asylum seekers shortly after their detention, promptly after passing the credible fear screening process at the latest.
The administration should use alternative measures—such as community based support programs or reporting requirements—rather than detention in cases where additional supervision of release is needed. Intrusive ankle bracelets should only be used where determined necessary based on an individualized assessment that more humane measures will not suffice.
These are only a few of the steps desperately needed to limit the unnecessary detention of asylum seekers, but they would be a start. Samey’s life—and the lives of many other asylum seekers—could depend on it.
