U.S. Committee for Refugees World Refugee Survey 2003 - United States

At the end of fiscal year 2002, the United States hosted an estimated 638,000 refugees and asylum seekers in need of protection. This figure includes about 407,000 persons with pending asylum cases with the Immigration and Naturalization Service (INS), about 120,000 persons with asylum cases pending before immigration judges (IJs), about 37,400 persons granted asylum during the year both by IJs and by the INS, some 27,100 resettled refugees, and 21,300 persons granted Temporary Protected Status (excluding cases related to natural disasters). In addition, an estimated 150,000 Colombians were living in refugee-like circumstances in the United States.

During FY 2002, the INS received some 64,700 asylum cases; roughly the same as the previous year. Since an applicant may include his or her spouse and children, U.S. Committee for Refugees (USCR) multiplies the number of cases by 1.34 to estimate the number of persons included therein. The United States has a two-tiered system of affirmative and defensive asylum application (see below).

INS asylum officers approved about 19,200 cases and denied or referred about 20,000 cases, for a 49 percent approval rate, down from 57 percent in 2001. The largest number of new asylum claims in the year came from Chinese with 22,700. The next largest groups were Mexicans (20,000, but see below), Colombians (17,400), Haitians (8,400), Guatemalans (4,000), and Indians (3,800). The nationalities with the highest asylum approval rates by INS asylum officers were Ethiopians (75 percent), Afghans and Iraqis (72 percent), Cubans (69 percent), and Iranians (67 percent).

(Mexican nationals filed more than 7,500 asylum applications after the one-year filing deadline rendering them ineligible and resulting in INS placing them in removal proceedings in 2002. There they were able to seek other forms of relief, unrelated to asylum, that were otherwise unavailable.)

The INS continued to reduce the backlog of asylum cases. By year's end, about 304,000 cases were pending with the INS. According to the INS, however, most of the applicants in those cases are Salvadorans, Guatemalans, and Haitians, who may be eligible for permanent residence under provisions of the Nicaraguan Adjustment and Central American Relief Act of 1997 (NACARA) or the Haitian Refugee Immigration Fairness Act of 1998 (HRIFA).

The backlog of cases pending before IJs housed in the Executive Office for Immigration Review (EOIR) increased in 2002. At the end of FY 2002, some 89,300 cases were pending, up from 71,400 in 2001. IJs approved about 8,600 asylum cases and denied about 18,300, an approval rate of 32 percent. Nationals of Burma (76 percent), Bosnia (70 percent), Iraq (68 percent), Egypt (63 percent), and Russia (61 percent) had notably high acceptance rates before the EOIR.

Refugee Resettlement

The United States resettled approximately 27,100 refugees in FY 2002, the lowest number since the program began in 1980, despite authorized admissions of 70,000. Enhanced background checks, verification of claimed relationships, FBI review of selected applications, and fingerprinting of all refugees arriving at U.S. ports of entry all caused delays contributing to the lower numbers.

The largest number of resettled refugees was from the former Soviet Union (9,800), followed by Bosnia (4,900), Vietnam (2,900), Cuba (1,900), and Afghanistan (1,600). In FY 2002, six countries were eligible for family-based priorities in refugee processing: Angola, Burundi, Congo-Brazzaville, Congo-Kinshasa, Sierra Leone, and Sudan.

President Bush again authorized 70,000 refugee admissions for FY 2003, but 20,000 of those slots were designated in an unallocated and unfunded reserve which refugee advocates fear will go unfilled.

Asylum Procedure

When an applicant not already in immigration proceedings comes forward to seek asylum (known as an "affirmative application"), an INS asylum officer will either grant asylum based on a non-adversarial interview or refer the applicant, if removable, to an immigration judge (IJ). The application is now "defensive" in relation to a charge of removability. The IJ hears the application in an adversarial proceeding with INS supplying opposing counsel. Asylum seekers are entitled to representation by counsel, but not at the government's expense. Approximately 90 percent of detained asylum seekers do not have legal representation during their proceedings. Applicants are not eligible for work authorization unless the application is pending for 180 days or more, which is rare.

Asylum cases are subject to administrative review by the Board of Immigration Appeals (BIA) within the Department of Justice (DOJ), and to judicial review in the Federal Courts. In September, regulations were passed to reduce the BIA to 11 members from 23. In most cases, one board member instead of three will conduct the review, and shorter deadlines were imposed for the submissions of briefs. The discretion of board members to review facts before them was also limited and an option for members to summarily affirm the decisions of IJs was added. BIA will also be required to eliminate the backlog of 55,000 cases within 180 days. Advocates estimate that this would allow a board member 15 minutes to consider each case.

Persons who do not file asylum applications within one year of entry into the United States are generally precluded from applying for asylum unless they can show changed circumstances in their home country within the past year that materially affect their eligibility.

Persons granted asylum are eligible for cash and medical assistance for eight months from the date they are granted asylum.

Gender-Based Persecution

In January 2001, then-Attorney General Janet Reno vacated the BIA's decision in Matter of R-A, in which BIA had declined to grant asylum to a Guatemalan victim of spousal abuse on the grounds that it had "not ... been shown that the government of Guatemala encourages its male citizens to abuse its female citizens." Attorney General Reno remanded the case for reconsideration after the INS promulgated a rule that gender can constitute a particular social group and that domestic violence may constitute persecution. The INS, however, had not finalized the rule by year's end.

Temporary Protected Status

The attorney general is authorized to designate Temporary Protected Status (TPS) for non-residents who would be endangered if returned home. TPS is based on any of three circumstances: ongoing armed conflict, environmental disaster, or "extraordinary and temporary conditions" that prevent safe return. Unlike asylum that requires an individualized adjudication, TPS is given to all eligible persons from the designated country who register and who were present in the United States as of a specified date. USCR includes persons granted TPS for reasons related to persecution (i.e., excluding natural disasters) as persons in need of international protection along with refugees and asylum. At the end of FY 2002, such forms of TPS were in effect, having been redesignated from prior years, for 21,300 nationals of Angola, Burundi, Liberia, Sierra Leone, Somalia, and Sudan.

T-Visas

On March 4, 2002 regulations implemented the Trafficking Victims Protection Act. This act established a "T-visa" (with a cap of 5,000 per year) for victims of "severe trafficking" who cooperate with law enforcement efforts to prosecute traffickers. The visa includes many of the benefits of refugee status and enables holders to apply to adjust to permanent resident status after three years. To obtain the visa, victims must demonstrate that they would suffer extreme hardship if removed from the United States.

Cuban Adjustment Act

Cubans who are paroled into the country, typically after arriving by boat or at the Mexican border, can apply for permanent residence after one year under the Cuban Adjustment Act of 1966. Often called balseros for the makeshift rafts some still come on, many beneficiaries of this blanket form of relief have well-founded fears of persecution and would likely be asylum applicants were the Cuban Adjustment Act not available. (Of the Cuban asylum cases INS heard on their merits, it granted over 69 percent in FY 2002.) USCR includes them, just as beneficiaries of certain forms of TPS (above), along with refugees and asylum seekers as persons in need of international protection, but only in their first year of arrival. There were 25,300 such Cuban parolees in 2002, a 24 percent increase over the year before. (See Cuba.)

Adjustment of Status

At the end of the year, the INS published a regulation that that allowed nationals from Vietnam, Cambodia, or Laos who were paroled into the United States prior to October 1, 1997 and who entered the United States from one of three programs, the right to apply for adjustment of status to permanent residence.

Children

Roughly 8,500 children seek asylum in the United States annually; almost three-quarters of them are unaccompanied by adults. The INS detains approximately 5,000 during their proceedings, sometimes in local jails with juvenile offenders. Critics charged that this arrangement, besides being inhumane, creates a conflict of interest as the INS is both responsible for children in their care and is seeking to deport them.

No attorneys or legal guardians are appointed to represent children in immigration proceedings, and children with asylum claims often bear the burden of proving their claims in court without assistance.

However, under new legislation, the Office of Refugee Resettlement (ORR) in the Department of Health and Human Services will be responsible for the custody of unaccompanied minors in asylum proceedings. The new law makes no provision, however, for legal representation or guardians for unaccompanied children.

Reorganization

New legislation was passed in 2002 to create the Department of Homeland Security (DHS), which will take over the functions of the INS. These functions will be split between three entities within the DHS:

1. The Bureau of Citizenship and Immigration Services (BCIS), responsible for the adjudication of immigrant visa petitions, naturalization petitions, affirmative asylum and refugee applications, and other benefits.

2. The Bureau of Immigration and Customs Enforcement (BICE), responsible for enforcement of customs and immigration laws, including detention, removal, intelligence, and investigations; and

3. The Bureau of Customs and Border Protection (BCBP), responsible for inspections and border enforcement.

The director of the BCIS will report to the deputy secretary of the DHS. The BICE and BCBP will be under an Office of Transportation and Border Security within the DHS. The BCIS will have an ombudsman to identify and report on problems and propose changes. The office of the ombudsman will also assist in resolving immigration problems encountered by individuals and employers.

The new legislation, however, does not eliminate the role of the Attorney General. The Executive Office of Immigration Review (EOIR), which conducts administrative proceedings to enforce immigration laws, will remain in the Department of Justice.

Expedited Removal

An immigration inspector may order an individual removed from the United States without further hearing or review, if the inspector determines that the individual arrived without proper documents. If the person seeks asylum or indicates fear of return, however, the inspector must refer him or her to an asylum officer. If the person does not, the officer may order him or her removed without further hearing or review. Inspectors are not authorized or trained to adjudicate asylum claims. A study by the General Accounting Office, however, showed that they often dismissed claims, and failed to refer them to asylum officers where fear of return was expressed, based on their own evaluations of their merits.

When the inspector refers an applicant to an asylum officer, the asylum officer will hold an interview to determine whether he or she has a "credible fear" of persecution. If so, the person may apply for asylum before an IJ. The credible fear standard requires showing a "significant possibility ... that the alien could establish eligibility for asylum." Asylum officers must take into account the credibility of the asylum seeker and other facts known to the officer in making the credible fear determination. An IJ may review a negative credible fear assessment within seven days, if requested by the asylum seeker.

The INS is required to detain all asylum seekers in expedited removal proceedings while the determination of credible fear is pending. If the officer makes a finding of credible fear, the INS district directors have discretion to continue to detain the individual while the asylum application is considered or to grant parole.

No judicial review of expedited removal orders is permitted, except for persons who claim under oath that they have already been lawfully admitted for permanent residence, admitted as a refugee, or granted asylum.

In November of 2002, the INS announced that it would expand expedited removal to include the detention of migrants who arrived by sea as many as two years ago. Observers noted that this policy shift appeared to be prompted by arrivals of Haitians. Cubans are exempted.

Anti-terrorism Measures

The USA PATRIOT Act of 2001 broadened the definitions of "terrorism," "terrorist activity," and "terrorist organization" for purposes of deportability and inadmissibility; created additional mechanisms for the attorney general to detain and deport non-citizens as terrorists; and established new grounds of inadmissibility for spouses and children of those inadmissible on terrorist grounds.

The USA PATRIOT Act also mandated the detention of any non-citizen the attorney general certifies as a terrorist suspect, even if he or she is eligible for relief from removal, including asylum. The attorney general has seven days to charge a detained terrorist suspect with a deportable offense, but it need not be terrorism-related. Detainees whose removal "is unlikely in the reasonably foreseeable future" may be detained indefinitely if their release is deemed to threaten national security or the safety of the community or any person. The DOJ may also monitor communications between lawyers and clients in federal custody, including those held as witnesses, detainees, or otherwise by INS agents.

Detention and Removal

The INS is required to detain almost all non-citizens with criminal records in removal proceedings and all non-citizens who appear inadmissible.

In 2000, the INS issued uniform standards for conditions of immigration detention. The guidelines – which are not legally enforceable – include access to telephones, legal counsel, legal orientation, legal materials and copiers, medical treatment, recreation, and religious observance for detainees. The INS indicated that it would have all facilities holding immigration detainees – including all state and local jails – in compliance with the standards by the end of 2002. Reports from non-governmental organizations investigating the detention of Haitian asylum seekers, as well as reports about non-immigrants detained under the special registration program in 2002, indicated that many facilities did not meet the standards.

The INS continued to detain persons with final removal orders in 2002 because the detainees' countries refused to accept them or because they were stateless. Many of these "indefinite" or "post-order" detainees initially entered the United States as refugees. In 2001 the Supreme Court ruled that the government could not detain immigrants and refugees who committed crimes in the United States indefinitely merely because there was no place to send them. The Court ruled that the INS may reasonably take six months to effect removal, but did not necessarily prohibit detention for longer than that in all cases. The attorney general directed the INS to detain immigrants affected by the ruling unless they could show "no significant likelihood that they will be removed."

In December, a U.S. district judge granted a nationwide temporary restraining order barring the INS from deporting Somalis to Somalia. The lawsuit alleged that the deportations were illegal because the INS had no consent from the government, since Somalia does not have a recognized government. The INS argued that since Somalia does not require an entry document, formal acceptance is not required, which the judge deemed an "incredible interpretation." The judge also released three Somali men from INS detention. The case was later certified as a class action suit in early 2003 and this suspended the removal of Somalis for the time being.

Overall, the INS removed some 146,000 persons in FY 2002; about 69,600 on criminal grounds and 76,400 others. Non-expedited removals constituted 77 percent of all removals, up from 60 percent in 2001.

Interdictions and Apprehensions

In FY 2002, the Coast Guard interdicted 4,100 migrants and asylum seekers with Ecuadorians (1,600) representing the largest nationality. Others included Haitians (1,500), Cubans (670), Dominicans (180), and Chinese (80).

Interdicted migrants were not entitled to asylum screening, whether they were interdicted in international or U.S. territorial waters. The INS does, however, provide a minimal level of asylum screening to interdicted persons on an ad hoc basis, particularly to Chinese and Cubans, but not to Haitians or others. Cubans who are found to merit asylum are brought to the United States or resettled in other countries; all others are returned to Cuba. With the exception of Cubans (see "Cuban Adjustment Act" above), those who make landfall are detained.

In FY 2002, the U.S. border patrol made 930,000 apprehensions along the southwestern border, a 25 percent decrease from 2001. Most of those apprehended were Mexicans, and 21,800 were Central Americans from Hondurans, El Salvador, Guatemala, and Nicaragua.

Haitians The United States detained Haitians indefinitely in 2002, often in harsh conditions without adequate opportunity to present their requests for asylum. Even Haitians ordered released on bond by IJs remained in detention as INS attorneys appealed those determinations. In at least two cases, the INS took the unusual step of appealing grants of asylum.

Lawyers filed a suit alleging discrimination against the Haitians, as members of other nationalities were routinely released after credible fear determinations. The INS admitted that the detention policy against the Haitians was designed as a deterrent. UNHCR issued a letter indicating that deterring asylum seekers was not among the appropriate rationales for detention. At year's end, many Haitians were still in detention, including some of the 228 Haitians who arrived by boat in October. Detention policies hindered their access to counsel. Family members were often separated denied visitors. In some cases, Haitian's asylum hearings lasted only 30 minutes, including translation.

In November, the president issued an executive order authorizing the detention of any undocumented person interdicted or intercepted in the Caribbean region at the U.S. naval base at Guantánamo Bay, Cuba. The order gave the attorney general discretion to conduct any screening he deemed appropriate (or none at all) to determine whether to return the individuals to their countries or origin or transit. The order explicitly does not "require any procedure to determine whether a person is a refugee or otherwise in need of protection." This order will primarily affect Haitians who continue to be interdicted at sea.

Colombians

Some 17,400 Colombians applied for asylum in the United States in 2002, whether affirmatively before the INS or as a defense in removal proceedings before the EOIR. The INS granted around 45 percent of those cases it heard, down from 63 percent in 2001. The EOIR, granted only 37 percent, roughly the same as in 2001.

Since the late 1990s, many Colombians left their country to escape generalized political violence, entering the United States on tourist visas and remaining they expire. Most do not apply for asylum, fearing they will not prevail, as their claims may not meet the individualized standard of persecution for asylum.

USCR argued that the U.S. government should grant Temporary Protected Status (TPS, see above) to these Colombians. In October, UNHCR indicated that many Colombians were in need of international protection and urged governments to extend such protection through whatever mechanisms available. Nevertheless, the United States has yet to designate Colombians for TPS.

USCR considers these Colombians to be in a "refugee-like situation" in the United States. There are no precise statistics available, but USCR estimates their number to be no less than 150,000.

Safe Third Country Agreement

The United States signed a safe third country agreement with Canada on December 5, 2002. Although yet to be implemented, the agreement would deny persons who pass through the United States and arrive at a Canadian port of entry the right to claim asylum in Canada. The United States would also have the right to refuse asylum seekers who arrive at their ports of entry from Canada, although their numbers are significantly less: approximately 200 persons a year, as opposed to roughly 15,000 heading to Canada. Prior U.S. case law held that mere physical presence in another country did not preclude the right to seek asylum in the United States and the Immigration and Naturalization Act states that only persons "firmly resettled in another country prior to arriving in the United States" should be denied the opportunity. Implementation of the Safe Third Country Agreement could change that.