U.S. Committee for Refugees World Refugee Survey 1998 - United States

  During 1997, the United States hosted about 491,000 refugees and asylum seekers in need of protection, including nearly 398,600 pending asylum applicants, about 22,300 persons granted asylum during the year, and more than 70,000 newly resettled refugees. During 1997, 84,776 asylum seekers filed applications with the Immigration and Naturalization Service (INS), the first time since 1991 that fewer than 100,000 persons applied for asylum in the United States (U.S. statistics are based on an October-through-September fiscal year). Asylum applications in 1997 represented a 45 percent decrease from the 154,464 applications filed as recently as 1995. In reality, though, the number of new arrivals in 1997 registering asylum claims was much lower than that. Only 50,004 persons filed new asylum applications. The remainder had been previously filed, but administratively closed, and were reopened during the year. INS asylum officers granted 9,933 applications (representing 15,594 individuals) and denied or referred 43,090, for an 18.7 percent approval rate. The largest number of asylum seekers came from Mexico (18,684). Mexican applicants, however, had among the lowest approval rate (0.3 percent) of any nationality. The next largest nationality group applying for asylum was Guatemalans, with 9,886 applicants and an approval rate of 6.9 percent. Salvadorans represented the third largest group, with 7,894 applying during the year, and an approval rate of 3.3 percent. The next largest groups were Chinese (5,771; approval rate of 5.5 percent), Haitians (5,230; approval rate of 15 percent), and Indians (4,926; approval rate of 26 percent). Among the nationalities with the highest asylum approval rates with INS asylum officers were Iraqis (94.7 percent), Afghans (72.8 percent), and Burmese (61.2 percent). Fewer asylum applicants during 1997 meant that the INS could begin to reduce the backlog of cases that had climbed to 464,000 in 1995. For the first time in three years, the asylum backlog fell below 400,000 in 1997. By year's end, 398,598 asylum applications were pending with the INS. Not surprisingly, as the INS reduced its backlog, the caseload grew for immigration judges, housed in the Executive Office for Immigration Review (EOIR). Asylum cases received by immigration judges more than tripled in 1996 from the number received in 1995. At the end of 1994, EOIR's pending caseload was about 15,000. By the end of 1997, EOIR had 62,700 cases pending. Immigration judges granted 5,332 asylum cases in 1997 (representing 6,753 individuals) and denied 19,290, an approval rate of 21.7 percent. The largest volume of immigration court cases decided, by nationality, were of Salvadorans, Guatemalans, and Chinese, with asylum approval rates of 3.8, 7.8, and 26.4 percent, respectively. Nationalities with the most cases pending at year's end were Mexicans (11,111), Chinese (8,690), and Guatemalans (5,701). Refugee Resettlement The United States resettled 70,085 refugees in fiscal year 1997, a 7.4 percent decrease from 1996, and a 47 percent decrease from the 131,291 refugees resettled in 1992. As in every year since 1992, the largest number of refugees (27,072) were resettled from the former Soviet Union. Even so, the number of former Soviet admissions has also declined every year since 1992. Former Yugoslavs were the second largest group to be resettled (21,357). Although Vietnamese resettlement, like former Soviet resettlement, has steadily declined since 1992, Vietnamese represented the third largest refugee group resettled in the United States in 1997. The 7,469 Vietnamese resettled in 1997 represented a 56 percent decrease from 1996, and an 83 percent decrease since 1992. In addition to former Yugoslavs, other notable nationality groups resettled in larger numbers in 1997 than in 1996 included Burmese, Iranians, Iraqis, Liberians, Sierra Leoneans, and Togolese. On the other hand, along with former Soviets and Vietnamese, other nationalities with notable declines in resettlement included Laotians (both highlanders and lowlanders), Somalis, and Sudanese. Temporary Protected Status On November 4, the attorney general designated Burundians, Sierra Leoneans, and Sudanese present in the United States, as of that date, as eligible for temporary protected status (TPS). At year's end, TPS was also in effect for certain nationals of Bosnia, Liberia, Montserrat, and Somalia. Prior to the November 4 designations, USCR had called upon the attorney general to provide TPS to those three nationalities. In March, when civil strife in Albania reached its peak, USCR also called for TPS on behalf of Albanians. On December 6, TPS expired for Rwandans. On January 1, 1997, deferred enforced departure (DED), a form of temporary protection that makes no explicit reference to conditions in the home country, expired for about 2,000 Persian Gulf evacuees, mostly Palestinians. On December 23, the Clinton Administration announced that it would grant DED to certain Haitians. Streamlining the Asylum Procedure One reason for the INS's backlog reduction was a more streamlined asylum procedure instituted by the U.S. Department of Justice in 1995. Under this system, INS asylum officers stopped issuing "denials" to deportable aliens whose asylum cases were not granted. Instead, they began referring those cases directly to immigration judges, who would consider the asylum claims in the context of removal proceedings. This was intended to allow INS asylum officers to grant clearly meritorious cases quickly, and to refer more difficult and time-consuming cases to immigration judges. The streamlined process set a 180-day schedule for completing new applications (including action by both the INS asylum officer and the immigration judge). The INS barred work authorization for the first 180 days (or until a grant of asylum). Work authorization was automatic for cases on the docket longer than 180 days (if the applicant did not cause the delay). The backlog also decreased because the INS opted more often to close cases administratively. This often occurred when applicants had moved and left no forwarding addresses. The INS sent 90,000 notices to asylum applicants to ascertain how many wanted to pursue their claims. As a result, the number of cases administratively closed jumped from 3,610 in May to 9,963 in June. By year's end, 62,869 cases had been administratively closed. As noted above, however, 41 percent of the "new" asylum cases filed during the year were, in fact, reopened cases. Expedited Removal These regulatory changes streamlined the process for asylum applicants making "affirmative claims"‹that is, those who voluntarily come forward to present their claims. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) both codified many of these regulatory changes in the affirmative process and fundamentally altered the procedures for persons making "defensive claims," that is, improperly documented asylum seekers apprehended at ports of entry. Upon an alien's arrival, IIRIRA authorized immigration officers 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." The law allows the attorney general to apply this expedited removal procedure to improperly documented and undocumented aliens in the interior as well, but the INS, during 1997 at least, had declined to do so. IIRIRA changed key concepts in U.S. immigration law, such as entry, exclusion, and deportation. Until IIRIRA, 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, 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 U.S. or international waters. In effect, IIRIRA removed the distinction between deportation and exclusion proceedings, creating a single "removal" proceeding to determine admissibility. IIRIRA replaced the word "excludable" with "inadmissible." If the alien who entered without inspection or with false documents makes an asylum claim, IIRIRA 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 had no authority to deport aliens. They issued an "order to show cause" for aliens not granted asylum and who appeared to be deportable. This referral system placed the alien in deportation proceedings before an immigration judge, before whom the alien could make an asylum claim. IIRIRA permits an immigration judge to review the asylum officer's negative decision only if the alien requests it. It says that such review "shall be conducted 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 created a new legal standard for screening asylum seekers: a credible fear of persecution. This 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. During the time when the determination of credible fear of persecution is pending, IIRIRA 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." The law insulates expedited removal and 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. It also 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. On average, immigration inspectors at ports of entry identified about 1,200 persons per week as candidates for expedited removal. About one-third of them opted for voluntary departure, thus avoiding IIRIRA's five-year ban on re-entry for persons removed from the United States. Immigration inspectors referred to asylum officers about 5 percent of the persons identified for expedited removal, believing that they had expressed some fear of return. Asylum officers recognized a credible fear in about 80 percent of the cases, referring them to immigration judges for asylum hearings in the course of removal proceedings. Other Statutory Changes IIRIRA's restrictive measures on asylum are not limited to situations giving rise to summary removal. For the first time in its history, the United States established in law a time limit on applying for asylum. The law requires that asylum seekers file applications within one year of arriving in the United States. The law makes an exception if the applicant can demonstrate changed country conditions or extraordinary conditions causing a delay in filing. Implementation of this provision was delayed until April 1998. IIRIRA put into statute part of the 1995 regulatory change, saying that asylum applicants cannot receive employment authorization for the first 180 days after they apply, unless their application is granted during that period. It also permanently bars from receiving any immigration benefits aliens who knowingly make frivolous asylum applications. IIRIRA 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, for a variety reasons, including fundamental changes in the country of origin and the possibility of removing the alien to a safe third country. IIRIRA established in U.S. law the "safe third country" concept both as a ground for terminating asylum and as an exception to granting asylum. IIRIRA 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 cannot be implemented in the absence of a bilateral or multilateral agreement, none of which existed in 1997. In June, the U.S. Commission on Immigration Reform called for "immediate corrections of certain provisions [of IIRIRA] that can harm bona fide asylum seekers and undermine the efficiency of the asylum system." USCR praised the commission for its recommendation, saying, "Bona fide refugees often cannot obtain proper travel documents from the very governments seeking to persecute them, and, due to the trauma of their experiences, may not be able to convince an immigration officer at the moment of arrival of the credibility of their claim." USCR also praised the commission for criticizing the new law's inflexible bars to asylum for persons with criminal convictions. USCR highlighted the commission's observation that many of the crimes that preclude consideration of an asylum claim are minor offenses such as "participation in a minor brawl, shoplifting, or writing a bad check," and that "the severity of the persecution feared should be balanced against the nature of the particular crime committed and the danger the individual may pose to the community." Cancellation of Removal Finally, IIRIRA greatly restricted 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. IIRIRA replaced "suspension of deportation" with "cancellation of removal," and limited it 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. The law's drafters rejected extreme hardship to the alien himself or herself as a factor immigration judges should consider when deciding whether to grant this humanitarian relief from deportation. USCR often criticized the harsh effects of IIRIRA during the year. In a statement released in June, USCR said that Congress had virtually eliminated the possibility of suspension for hundreds of thousands of Central Americans who had fled war and persecution in their region during the 1980s. "This is a matter of redressing an historical wrong," said USCR, "and of acknowledging the real humanitarian concerns of hundreds of thousands of people." USCR argued that if the United States had had an asylum system that worked fairly and efficiently during the 1980s, many of the Central Americans might well have been granted asylum, and by 1997 would be permanent residents. USCR urged Congress to restore the pre-IIRIRA grounds for suspension for Central Americans, saying, "When political violence remains protracted and refugees cannot go home, we need to seriously consider allowing them to remain permanently. After seven years, or under the new law, ten, this should be almost automatic. But it isn't." Congress did reconsider suspension. On November 19, President Clinton signed into law the Nicaraguan Adjustment and Central American Relief Act. This measure allowed certain Nicaraguan and Cuban nationals who arrived before December 1, 1995 to adjust to permanent resident status. It provided that Salvadorans and Guatemalans (as well as certain Eastern Europeans and former Soviets) who arrived before 1990 could apply for suspension of deportation under the more lenient rules that existed prior to IIRIRA. In December, the Clinton Administration announced that it would grant DED for certain Haitians in order to give Congress a year to assess whether Haitians, too, ought to benefit from more lenient rules for suspension of deportation. Other than these amendments to its provisions on suspension for certain nationality groups, the new law remained intact. Restrictive Measures Under pressure from Congress and the strict new law, the INS increased deportations from 69,040 in 1996 to 111,794 in 1997, a 62 percent increase. The Border Patrol expanded by 84 percent from 1993; in 1997 alone, 985 new Border Patrol officers were added, bringing the total to 6,863. In February, the Clinton Administration ordered the release of the 53 remaining Chinese asylum seekers who had been aboard the Golden Venture, which ran aground with 286 passengers in New York in 1993. Since the time of their highly publicized arrival, these had been among the best-known groups of asylum seekers in INS detention. Another prominent group of detainees were 26 Iraqis who had been part of the contingent of 6,573 Iraqis evacuated by the U.S. government from northern Iraq in 1996 and who were brought to the United States after their asylum claims were examined in Guam. Although the wives and children of the detainees were granted asylum‹in some cases, based on the political activities of the detained men‹the men were placed in exclusion proceedings (one woman was also placed in exclusion proceedings, but she was released from detention). The White House said that the detainees were separated, detained, and placed in exclusion proceedings on suspicion of being a security risk to the United States. As the cases proceeded, the detainees' lawyers said that the government was denying them access to the evidence against their clients because much of it was classified. The detainees, held in the Kern County jail in Bakersfield, California and in another detention facility in Lancaster, California, near Los Angeles, complained of conditions of detention, citing confiscation of prayer rugs and Korans. Although migration from Haiti and Cuba decreased considerably in 1997, the United States maintained its interdiction and return policy. In 1997, the U.S. Coast Guard interdicted 2,194 migrants, a 76 percent decrease from the 9,080 interdicted in 1996. This was the lowest number of persons interdicted by the Coast Guard since 1984. Most were Dominicans (1,200), followed by Cubans (421), Haitians (288), and Chinese (240). Haitian interdictions in 1997 were the lowest on record. In February, when a Cuban court sentenced six Cubans to long prison terms after they were returned to Cuba by the U.S. Coast Guard, USCR wrote to the INS commissioner. USCR asked, "Will the INS revise its operating instructions to INS officers involved in shipboard screening, which currently say, 'In evaluating the objective basis for a person's fear...you should consider the formal assurances by the Cuban government to the U.S. government that no Cuban migrant will suffer adverse consequences or reprisals of any sort for irregular departure,' now that Cubans have suffered adverse consequences for irregular departure?" USCR recommended that the INS operate according to an IIRIRA provision enabling the INS to bring interdicted persons to the United States to undergo the expedited removal procedure. "As unhappy as we are with expedited removal," said USCR, "it would be an improvement over the current practice with respect to persons interdicted at sea."