U.S. Committee for Refugees World Refugee Survey 1997 - United States

Much of the year's developments relating to refugees and asylum seekers occurred in the halls of the U.S. Congress in the context of comprehensive legislation dealing more generally with overhauling the immigration and the welfare systems. Under congressional pressure, both the Department of State, which is responsible for overseas refugee admissions and assistance, and the Department of Justice, which houses the Immigration and Naturalization Service (INS), took measures that limited the number of persons admitted as refugees or applying for asylum in the United States. Not satisfied with administrative efforts to tighten control over refugee admissions and access to asylum, the leadership of the immigration subcommittees in both the U.S. Senate and House of Representatives introduced legislation to reduce the number of refugees admitted and to set a statutory limit on annual refugee admissions, as well as to establish a system for expedited removal for aliens arriving with improper or insufficient travel documents, such that asylum seekers among them would have to pass additional hurdles before having their asylum claims considered under the normal procedures. The effort to set a cap on refugee admissions failed; the creation of an expedited removal procedure succeeded. During the year (statistics for the United States are kept on an October 1-September 30 fiscal year), 75,682 refugees were admitted through the overseas admissions program, 14,318 fewer than the ceiling of 90,000 established for the year. The total included 29,536 from the former Soviet Union, 17,021 Vietnamese, 12,030 from Bosnia, 6,436 Somalis, 3,498 Cubans, and the remaining 7,161 from about 25 other countries. Most of the former Soviets, Vietnamese, and Cubans were admitted directly from their home countries. Although the $671 million budgeted for overseas refugee assistance and refugee admissions was unchanged from the previous year, monies were shifted, resulting in $44 million less being spent on refugee admissions. On September 30, President Bill Clinton signed a Presidential Determination for FY 97 refugee admissions, indicating plans to admit up to 78,000 refugees in FY 97, a 13 percent decrease from the FY 96 ceiling of 90,000. On the asylum side, 129,579 persons filed applications with INS asylum officers during the year. The INS granted 13,368 cases and denied or referred to immigration judges 48,558, for a first-instance approval rate of 21.6 percent, about the same as the approval rate the previous year. In general, countries with fewer applicants had higher approval rates; countries with larger numbers of applicants had lower approval rates. Among the highest approval rates (all more than 60 percent) were nationals of Sudan, Bosnia, Cuba, Yugoslavia, Somalia, and Syria (of whom only Somalis filed more than 1,000 cases during the year); among the lowest approval rates were nationals of Bangladesh, China, El Salvador, Honduras, Mexico, and the Philippines (all of whom filed more than 1,000 cases and had approval rates of less than 10 percent). Not fitting the general pattern were nationals of India and Haiti, who filed in relatively large numbers (each more than 4,000), yet had relatively high approval rates of 40 and 30 percent, respectively. Many of the Salvadorans and Guatemalans who filed claims during the year had been in the United States since the 1980s and filed claims pursuant to the settlement of a major class action lawsuit, American Baptist Churches (ABC) v. Thornburgh. Recognizing a pattern of bias against Salvadoran and Guatemalan asylum seekers during the 1980s, the ABC settlement allowed class members to have new asylum interviews, and many long-time, undocumented Salvadorans and Guatemalans came forward. The two nationalities combined accounted for 81,876 of the cases filed during the year, 63 percent of the total. The INS was beginning to make a dent in the asylum backlog, which stood at 455,725 at the end of 1996, a relatively small decrease from the 464,121 cases pending at the end of 1995. In general, the INS appeared to be keeping current with incoming applications. By far, the largest number of pending asylum applications came from two groups, Salvadorans, with 190,128 pending cases, and Guatemalans, with 119,161, both part of the ABC settlement. Asylum claims were also adjudicated by immigration judges in the context of deportation or exclusion proceedings. Immigration judges received 69,828 asylum claims in 1996, granting 4,001 cases and denying 22,466 for an overall approval rate of 15.1 percent. Among the nationalities with the largest number of cases decided, 4.3 percent of Guatemalan cases were granted; 7.7 percent of Chinese; 3.6 percent of Salvadorans; 10.6 percent of Haitians; and 2 percent of Mexicans. Among the highest approval rates for asylum claimants before immigration judges were Somalis (78.8 percent approval), Bosnians (73.9 percent), and Sudanese (71.4 percent). At year's end, 46,447 cases were pending before the immigration courts. This represented a 39 percent increase in the backlog of the Executive Office of Immigration Review (EOIR) over the previous year. The nationalities with the largest number of pending immigration court cases (1,000 or more) were Guatemalans, Chinese, Salvadorans, Haitians, and Mexicans. Temporary Protected Status (TPS) was in effect in 1996 for certain nationals of Bosnia, Somalia, Rwanda, and Liberia. In reality, however, few refugees were protected by TPS because each designation was limited to those members of the nationality who were present in the United States at the time the attorney general announced the designation. Therefore, TPS for Somalis and Liberians only protected persons from those countries who were already present before certain dates in 1991; Bosnians had to have been present before August 10, 1992, and Rwandans had to have arrived before June 7, 1994. On August 22, President Clinton signed into law a welfare reform bill that bars most legal immigrants, including those already in the United States, from receiving Supplemental Security Income (SSI) and food stamps until they become citizens. Refugees and asylees are exempted from these bars for their first five years in the United States. Naturalization, however, is not automatic, and elderly and disabled refugees – those most likely to need welfare support – are the least likely to become citizens. The law applies not only to newly arriving immigrants and refugees, but to those already in the United States. For example, an elderly and blind refugee without means of self-support who had been in the United States for more than five years and who had not been able to pass the citizenship tests in English and civics would lose her only source of income. She would also be likely to lose Medicaid benefits, since in many states eligibility for Medicaid is determined by eligibility for SSI, and because the new law permits states to end Medicaid coverage for legal immigrants already in the United States beginning January 1, 1997. Legal Developments On September 30, President Clinton signed into law the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA 96), a measure that fundamentally changes how the United States responds to asylum seekers and what rights they are accorded. The law covered a wide range of issues, including: border enforcement (including expanding pre-inspection at foreign airports and increasing the Border Patrol by 5,000 agents during the next five years); alien smuggling and document fraud; and employment of aliens, public benefits, and parole (which would restrict parole for use "only on a case-by-case basis for urgent humanitarian reasons or significant public benefit"). However, of most direct relevance to asylum seekers were provisions introducing a summary removal procedure and a new statutory framework governing entry and admissibility. Upon an alien's arrival, whether or not at a port of entry, IIRIRA 96 authorizes an immigration officer to "order the alien removed from the United States without further hearing or review" if the officer determines that the alien arrived without proper documents. An exception is made if "the alien indicates an intention to apply for asylum...or a fear of persecution." IIRIRA 96 changes key concepts in U.S. immigration law, such as entry, exclusion, and deportation. Until IIRIRA 96, entry, even without documents, created a presumption of presence that allowed for legal protection in deportation proceedings not available to persons who had not entered and were placed in exclusion proceedings. Under IIRIRA 96, however, an alien who is "present in the United States" is deemed to be "an applicant for admission" if he or she has not been formally admitted. This applies whether or not the person entered at a port of entry and includes persons brought to the United States after being interdicted in international or U.S. waters. In effect, IIRIRA 96 removes the distinction between deportation and exclusion proceedings, creating a single "removal" proceeding to determine admissibility. IIRIRA 96 replaces the word "excludable" with "inadmissible." The power of an immigration officer to exclude an improperly documented alien summarily without further hearing or review applies not only to persons just arriving, in the literal sense, but also includes any alien (except for Cubans arriving by air) who has not been admitted or paroled into the United States and who has been in the country continuously for less than two years. If the alien who entered without inspection or with false documents makes an asylum claim, IIRIRA 96 instructs the immigration officer to refer him or her to an asylum officer. If the asylum officer determines that the alien does not have a credible fear of persecution, the law directs the officer to order the alien removed from the United States "without further hearing or review." Under previous U.S. practice, even after a full asylum interview, INS asylum officers were not authorized to deport aliens. They issued an "order to show cause" for aliens to whom they did not grant asylum and who appeared to be deportable. This system of referral placed the alien in deportation proceedings before an immigration judge, before whom the alien would have another opportunity to make an asylum claim. IIRIRA 96 permits review by an immigration judge of the asylum officer's negative decision only if the alien requests it. It says that such review "shall be concluded as expeditiously as possible, to the maximum extent practicable within 24 hours, but in no case later than 7 days" after the asylum officer's order. IIRIRA 96 creates a new legal standard for screening asylum seekers: a credible fear of persecution. The credible fear standard means that there is "a significant possibility...that the alien could establish eligibility for asylum" according to the well-founded fear of persecution standard used under current law for adjudicating asylum claims. The law instructs asylum officers to take into account the credibility of the alien and "other facts" known to the officer in making the credible fear determination. The final version of IIRIRA 96 rejected the more liberal interpretation of "credible fear" that had been adopted by the U.S. Senate, which had used a "manifestly unfounded" standard, the standard recommended by UNHCR for use in accelerated asylum procedures. During the time when the determination of a credible fear of persecution is pending, IIRIRA 96 states that the alien must be detained. Yet even after an asylum officer determines that an alien does have a credible fear of persecution, the law says that the alien "shall be detained for further consideration of the application for asylum." Anticipating that this and other provisions of the new law will result in vastly more INS detention, the measure also directs the attorney general and secretary of defense to establish one or more pilot programs to use closed military bases as INS detention centers. IIRIRA 96 says that aliens should be informed concerning the asylum interview and that eligible aliens "may consult with a person or persons of the alien's choosing prior to the interview." It says that such consultation shall be at no expense to the government and shall not unreasonably delay the process. The law insulates this and a number of other procedures from judicial review. It says that such removal orders are not subject to further administrative appeal except for aliens who claim under oath that they have already been lawfully admitted for permanent residence, admitted as a refugee, or granted asylum. Furthermore, it says that no court shall have jurisdiction "to hear any claim attacking the validity of an order of removal" carried out according to this procedure. IIRIRA 96's restrictive measures on asylum are not limited to situations giving rise to summary removal. For the first time in the United States, the U.S. government establishes in law a time limit on applying for asylum. The bill requires that asylum seekers file applications within one year of arriving in the United States. An exception is made if the applicant can demonstrate changed country conditions or extraordinary conditions causing delay in filing. The Senate version would have imposed the one-year filing deadline only on what are called "defensive claims," those that come after an alien has been apprehended and placed in removal proceedings. The final version applied the one-year deadline to "affirmative claims" as well, those filed by persons voluntarily. IIRIRA 96 also mandates increasing the number of asylum officers from their current number of 325 to at least 600 during FY 97, subject to Congress appropriating sufficient funding. It allows the INS to charge fees for asylum applications, an idea that refugee rights advocates had opposed, and the INS had dropped, after the INS first suggested it in 1994. On the other hand, IIRIRA 96 puts into statute a regulatory change introduced by the INS in 1995, saying that employment authorization cannot be granted to asylum applicants for the first 180 days after applying for asylum. It also requires that aliens who knowingly make frivolous applications for asylum be permanently ineligible for any immigration benefits. The law greatly restricts the grounds for suspension of deportation, an avenue of relief from deportation used on humanitarian grounds to allow persons who have lived in the United States for seven years to remain if they are of good moral character and would experience extreme hardship if returned. Suspension of deportation has been suggested as a way to resolve the cases of about 190,000 Salvadorans whose cases have been backlogged as a result of the protracted ABC class action suit. Perhaps intending to prevent that from happening, the new law replaces "suspension of deportation" with "cancellation of removal," and requires that it be limited only to persons continuously present for ten years, of good moral character, whose deportation would cause "exceptional and extremely unusual" hardship to a U.S. citizen or legal permanent resident spouse, parent, or child. Extreme hardship to the alien himself or herself is no longer a factor that can be taken into account for this discretionary form of humanitarian relief from deportation. One of the rare instances in which IIRIRA 96 takes a more expansive view of refugee protection is by defining "persecution on account of political opinion" to include persons who are persecuted for refusal to undergo forced abortion and involuntary sterilization as well as persons persecuted for resisting coercive population control programs. However, it establishes a numerical limitation of not more than 1,000 persons per year who can be granted asylum or admitted as refugees on account of this form of persecution, the first time that the United States has ever established a numerical limit on any ground for granting asylum to persons in the United States. IIRIRA 96 also specifies that a grant of asylum "does not convey a right to remain permanently in the United States." It says that asylum may be terminated, and the asylee removed or returned, on a variety of grounds, including fundamental changes in the country of origin and the possibility of removing the asylee to a safe third country. IIRIRA 96 establishes the existence of a "safe third country" not only as a ground for terminating asylum, but also as an exception to granting asylum. IIRIRA 96 says that aliens should not be granted asylum if they can be removed to a country in which their life and freedom would not be threatened and where the alien would have access to a full and fair asylum procedure. The law does not require that the alien had traveled through such a third country before arriving in the United States. However, this provision of the law cannot be implemented in the absence of a bilateral or multilateral agreement, none of which, as yet, exists. There were also significant developments in jurisprudence during the year. In June, the U.S. Board of Immigration Appeals (BIA) set a new nationwide legal precedent binding on EOIR immigration judges and INS asylum officers by granting asylum to Fauziya Kasinga, a woman who based her refugee claim on a fear of being subjected to female genital mutilation (FGM), a common practice in her home country, Togo. In its brief before the BIA, the INS asked for a ruling that would consider FGM as a ground for asylum, but sought to narrow the ruling so that the class would "not consist of all women who come from parts of the world where FGM is practiced." The INS said that the practice of FGM is "an extreme bodily invasion" that "shocks the conscience." In order for such a bodily invasion to shock the conscience, the INS argued, it must be imposed on an unwilling individual. The INS also argued that the claimant must establish that she would be forced to undergo FGM upon return, and not merely subjected to social pressure to do so. Since social pressure was not raised as an issue in the Kasinga case (nor the issue of women who had been subjected to FGM in the past), the BIA did not address that question. The board's precedent decision said that Kasinga was a member of a particular social group comprised of young women who oppose their own tribe's traditional practice of FGM who have not yet been, and do not wish to be, subjected to FGM themselves. The BIA concluded that Kasinga was a member of that social group, that her fear of mutilation was well-founded, and that she was entitled to asylum. In an aside, the BIA opinion criticized the INS for detaining Kasinga for two years. Noting the novelty of Kasinga's claim, her young age (she was 17 when she left Togo), and her lack of any criminal record, the board suggested that the INS "might well wish to review this policy should future cases of this type arise." Cubans The last of the eligible Cuban rafters and boat people formerly detained at the U.S. naval base at Guant‡namo Bay, Cuba arrived in the United States on January 31, bringing to 30,983 the number of Cubans brought to the United States from Guant‡namo since the United States began admitting some of the Cubans from Guant‡namo in late 1994. U.S. policy on Cubans shifted dramatically in 1994, such that the U.S. government said that Cubans interdicted at sea would be taken to safe haven facilities outside the United States, and would not be admitted to the United States, with the exception of certain humanitarian cases. The government had insisted that Cubans who wanted to be admitted to the United States as refugees would have to return to Cuba if they wanted to apply for in-country refugee processing. In May 1995, that changed policy was further refined. At that time, the United States announced a one-time resolution of the situation of the Cubans who were still in Guant‡namo, allowing them to be paroled into the United States, but, at the same time, making it clear that future rafters would be returned directly to Cuba with only a shipboard screening procedure. Under the new procedure, interdicted Cubans are told, "You are being taken back to Cuba. You will not be taken to the United States." They are informed that "U.S. government officials in Havana will meet the ship and will provide information to you if you wish to apply to go to the United States through established migration programs." After the Cubans are assured that it is safe for them to go back to Cuba, they are given an opportunity to have a "meeting" with the same officer who just told them they ought to have no fear of return; in the meeting, the officer is to determine whether the asylum seeker has a credible fear of return. USCR wrote to the INS commissioner, saying: "Our principal concern is that shipboard INS officers are given two mutually exclusive roles: 1) to conduct a sales pitch on behalf of in-country refugee processing (or other in-country procedures) and 2) to determine whether a person has a credible fear of return. The sales pitch bias runs throughout the instructions, and is intended, we believe, to be obviously transparent to the Cuban interdictees, thereby forfeiting any ability on the part of the officer to conduct a neutral interview on the merits of a person's refugee claim." USCR also took issue with the "credible fear" standard to be used in shipboard processing because it requires a higher burden of proof than the UNHCR-recommended standard that gives the applicant the benefit of the doubt, provided his or her statements are coherent, plausible, and not counter to generally known facts. USCR pointed out that circumstances causing people to flee often cannot be independently corroborated, and that circumstances of flight often create confusion on the part of the applicant; these circumstances would be all the more likely on board a ship. Finally, USCR wrote: "We can't help but wonder what the policy is for other nationalities interdicted on the high seas. Again, we would have hoped that our government had moved beyond one set of procedures fashioned for one particular nationality and not for others. However, if our information is correct, we understand that Haitians have been interdicted since the Cuban shipboard screening policy has gone into effect and that they have not been accorded the same screening according to the same standard before being returned." In July, INS Commissioner Doris Meissner responded to USCR, saying that every Cuban interdicted since the guidelines had gone into effect had requested and received a private interview. Regarding the Cuban government's pledge, responded Meissner, the U.S. government found it appropriate to consider the pledge, but INS adjudicators had been clearly instructed that the existence of in-country processing, monitoring efforts, and the Cuban pledge did not mean that no Cuban should ever receive protection under the program. She also disagreed with USCR's interpretation of the "credible fear" standard as being inconsistent with UNHCR guidelines, and said that applicants need not prove to a certainty that their accounts are credible. Meissner said that the shipboard screening program was "designed specifically for the unique circumstances of interdicted Cubans and is used only for this group." She added, however, that any person of any nationality who is interdicted on the "high seas by the United States and indicates a need for protection will have such need evaluated, consistent with international standards, by the United States Government." The new deterrence strategy resulted in a decline of Cubans interdicted at sea from 611 in 1995 to 393 in 1996. Vietnamese The Vietnamese resettlement experience appeared to move into its final phase in 1996. On March 5, the final meeting of the Comprehensive Plan of Action steering committee declared that the "only viable option" for the remaining 34,700 screened-out Vietnamese in first-asylum camps in Southeast Asia was to return to Vietnam. Members of the U.S. Congress expressed concern regarding the treatment of the last of the Vietnamese in camps in Hong Kong and elsewhere in Asia, reiterating questions about the adequacy of screening interviews and expressing reservations about involuntary returns of screened-out Vietnamese (i.e., persons determined not to have a well-founded fear of persecution). On February 29, a House/Senate conference committee approved legislation allowing the United States to continue funding repatriation and reintegration efforts for Vietnamese remaining in first-asylum camps provided that everyone in the camps who wanted a re-screening interview would be offered one, under specified criteria. The measure would allow re-screening interviews to occur either in the first-asylum countries or in Vietnam. Members of certain category groups would be eligible for resettlement based solely on membership in the category group. As the debate over forced repatriation of screened-out Vietnamese heated up in Washington, violence erupted in some of the refugee camps. On March 19, the State Department announced that it would offer U.S. resettlement interviews to Vietnamese of special interest to the United States who returned to Vietnam from first-asylum camps. Eligibility for Resettlement Opportunities for Vietnamese Returnees would be based on persons who had close association with the United States presence in Vietnam or with the former government in South Vietnam prior to 1975, to members of certain ethnic groups, and to persons involved in certain political or religious activities. Iraqis In the immediate aftermath of the collapse of the safe haven in northern Iraq in September, the United States evacuated 2,133 local Iraqis, mostly Kurds. They briefly transited Turkey en route to Guam, a U.S. territory, where they were given asylum interviews. On October 18, the United States evacuated a second group of 606 Iraqis from northern Iraq, comprised of U.S.-supported political opponents of the Baghdad regime. Throughout that time, USCR and other U.S.-based NGOs advocated on behalf of a third group of Kurds who had been employed by nongovernmental organizations providing humanitarian assistance in northern Iraq. In a New York Times op-ed piece, USCR wrote, "Most refugees, if properly assisted, should be able to stay in Turkey or Iran until the danger subsides. Others, however, will never be able to return to Iraq." USCR identified persons who worked for NGOs as being in need of resettlement, saying that a recent amnesty declared by Iraqi leader Saddam Hussein "specifically excludes those working for relief organizations, a chilling prospect indeed." Following a USCR site visit to Turkey, and continuing pressure from USCR and other groups, the U.S. government began evacuating on December 4 the 3,780 employees of private humanitarian organizations and their families.