U.S. Committee for Refugees World Refugee Survey 1999 - United States

During 1998, the United States hosted an estimated 651,000 refugees and asylum seekers in need of protection, including about 554,000 pending asylum applicants, about 20,500 persons granted asylum during the year, and about 76,500 newly resettled refugees.

During 1998, 54,952 asylum applications were filed with the Immigration and Naturalization Service (INS), the lowest number of applicants in ten years. Although the INS does not provide the number of individuals these cases represent, it does indicate that the number of cases granted, 9,939, represented 12,942 individuals. Based on this 1.29 individuals per case, USCR estimates that about 70,900 persons applied for asylum with the INS during the fiscal year (October-through September). Asylum applications in 1998 represented a 35 percent decrease from the 84,839 applications filed in 1997, and a 57 percent decrease from the 128,190 applications filed in 1996. In reality, the number of new arrivals in 1998 registering asylum claims was much lower. Only about 35,200 of the nearly 55,000 applications filed in 1998 were new applications. The remainder had been previously filed, but administratively closed, and were reopened during the year.

INS asylum officers granted 9,939 applications and denied or referred 32,924, for a 23 percent approval rate. The largest number of asylum seekers in 1998 came from Mexico (6,677), yet Mexicans had among the lowest approval rates (0.6 percent) of any nationality. The next largest nationality groups applying for asylum included: Salvadorans, with 5,918 applications and an approval rate of 6.7 percent; Guatemalans, with 5,821 applications and an approval rate of 8.7 percent; and Chinese, with 5,795 applicants and an approval rate of 13.2 percent. The next largest groups were Haitians (3,375; approval rate of 12.6 percent), Indians (2,664; approval rate of 14.5 percent), and Somalis (2,324; approval rate of 67.5 percent). Only Afghans with a 73 percent approval rate had a higher approval rate than Somalis, among groups with a statistically significant number of applicants.

Fewer asylum applicants during 1998 meant that the INS could continue to reduce the backlog of cases that had climbed to 464,000 in 1995. By year's end, this number had been reduced to 360,633, although USCR calculated that this represented about 465,200 persons. This included 181,090 Salvadoran cases (about 233,600 persons) and 105,660 Guatemalan cases (about 136,300 persons).

Not surprisingly, as the INS reduced its backlog, the caseload grew for immigration judges in the Executive Office for Immigration Review (EOIR). In 1996, the first year after the internal reform of the asylum procedure by which INS asylum officers began referring cases to EOIR that were not granted directly, the number of asylum cases received by immigration judges more than tripled. By the end of 1998, EOIR had 68,542 cases pending (an estimated 88,400 persons), a 9 percent increase from 1997 and a 357 percent increase from 1994 before asylum reform came into effect.

Immigration judges granted 6,030 asylum cases in 1997 (representing 7,587 individuals) and denied 17,611, an approval rate of 25.5 percent. The largest volume of immigration court cases decided, by nationality, were of Chinese (3,632), Salvadorans (2,490), Guatemalans (2,343), and Mexicans (2,342), with asylum approval rates of 39.3, 3.7, 6.9, and 1 percent, respectively. Nationalities with the most cases pending with immigration judges at year's end were Mexicans (13,420), Chinese (7,760), and Guatemalans (7,010).

Combining resettled refugees, persons granted asylum by either asylum officers or immigration judges, and pending cases with the INS and EOIR, the 651,000 total for 1998 was dominated by two long-term nationality groups, 242,500 Salvadorans and 145,000 Guatemalans, most of whom arrived in the 1980s and whose asylum claims in most cases remained on hold pending the outcome of other avenues of relief from deportation.

Refugee Resettlement

The United States resettled 76,554 refugees in fiscal year 1998, a 9 percent increase from 1997, but a 42 percent decrease from the 131,291 refugees resettled in 1992. For the first year since 1992, however, refugees from the former Soviet Union were no longer the largest group resettled in the United States; former Soviets, 23,349 of whom were admitted as refugees in 1998, were surpassed by Bosnian refugee admissions, numbering 30,906. The number of former Soviet admissions has declined each year since 1992 while the number of Bosnian admissions has increased in each of those years. Vietnamese, numbering 10,661, were the third largest group to be admitted.

In addition to Bosnians and Vietnamese, other nationality groups resettled in significantly larger numbers in 1998 than in 1997 included Afghans, Iranians, Liberians, and Sudanese. On the other hand, along with former Soviets, other nationalities with notable declines in resettlement included Laotians (both highlanders and lowlanders), Iraqis, Burundians, Chadians, Ethiopians, Sierra Leoneans, Somalis, Cubans, and Haitians. Groups that held steady included Burmese, Congolese, and Rwandans.

No refugees from Central America were admitted during the year.

On July 6, an interim regulation went into effect that, for the first time, directs the INS to consider changed country conditions before allowing resettled refugees to adjust to permanent resident status. USCR wrote to the INS pointing out that the statute requires that persons granted asylum in the United States continue to meet the refugee definition in order to adjust to permanent resident status, but that the same statute includes no such requirement for persons admitted to the United States as refugees.

USCR said, "Refugee resettlement is universally regarded as a 'durable solution' for refugees – that is, as a permanent solution that relieves the pressure on first asylum countries that are often incapable of offering refugees more than temporary protection. If the United States were to begin rejecting and returning resettled refugees after one year, the system of international burden sharing that lies at the heart of the international refugee protection regime would collapse with dire consequences for refugees seeking asylum from persecution."

Temporary Protected Status

The attorney general is authorized to designate temporary protected status (TPS) for foreigners who would be endangered if returned home. Unlike asylum, which requires an individualized adjudication and meeting the persecution standard of the refugee definition, TPS is based on any of three circumstances: ongoing armed conflict; environmental disaster; or "extraordinary and temporary conditions" that prevent safe return. The attorney general specifies a set time period for the TPS designation, from six to eighteen months, which can be renewed upon its scheduled expiration.

To be eligible for TPS, persons from designated countries or other geographic entities must be present in the United States as of the date of the TPS designation. If TPS is renewed, beneficiaries must have been continuously present in the United States for the duration of the TPS designation. During that time, registered TPS beneficiaries are authorized to work and protected from deportation. A TPS designation does not preclude or adversely affect an application for asylum or any other immigration benefit.

As widespread violence broke out in Kosovo in the spring of 1998, USCR wrote to U.S. officials in March, calling on the attorney general to designate persons currently in the United States originating in Kosovo as being eligible for temporary protected status (TPS). USCR said that "the TPS statute specifically states that the attorney general may designate 'any part of [a] foreign state' for TPS." USCR said, "This is an instance where a clearly delineated part of a foreign state, Kosovo, would meet the TPS criteria."

On June 9, the U.S. attorney general designated habitual residents of Kosovo as being eligible for temporary protected status, the first time part of a country had ever been so designated. Kosovo joined a list that included Bosnia, Burundi, Liberia, Montserrat, Sierra Leone, Somalia, and Sudan (TPS for Rwanda expired December 6, 1997).

Responding to USCR's letter, the Justice Department said that the Kosovo designation was not exclusively for ethnic Albanians, but for any habitual residents of Kosovo, noting that "eligibility for such status is based on residence in a designated state or geographic entity, rather than membership in an ethnic group per se."

The attorney general estimated that about 5,000 residents of Kosovo in the United States were in nonimmigrant or unlawful status at the time of the designation, and eligible for TPS.

Although the attorney general announced in March her intention to terminate TPS for Liberians effective September 28, the deterioration of security conditions in Liberia during that time led her to reconsider that decision. On September 29, she redesignated Liberia for TPS.

On December 30, the attorney general announced that TPS had been extended to nationals and habitual residents of Nicaragua and Honduras currently living in the United States because of the "environmental disaster and substantial disruption of living conditions caused by Hurricane Mitch." (USCR does not consider "environmental refugees" as refugees, and does not include nationals of Nicaragua, Honduras, and Montserrat who have been granted TPS on this basis in the World Refugee Survey's tally of the world's refugees.)

In April, USCR wrote to U.S. officials calling for a reassessment of the government's interdepartmental decision-making process for designating and redesignating countries (or parts of countries) for TPS. USCR charged that "the interagency consultation process is unnecessarily and harmfully slow and bureaucratic" and pointed out that "when a TPS decision finally does come down the true crisis period has already passed." USCR suggested alternative procedures for making TPS designations.

Deferred Enforced Departure and Suspension of Removal

Another of the attorney general's discretionary mechanisms for temporarily suspending deportation is deferred enforced departure (DED), a formalized exercise of prosecutorial discretion not to remove a deportable alien and to provide work authorization for a set duration. DED, unlike TPS, has no specific statutory authority and is not based on ongoing armed conflict or other specific legally defined criteria in the country of origin. It has been used previously for Chinese students following the Tiananmen Square massacres, for evacuees from the Persian Gulf, and for Salvadorans after the expiration of TPS.

At the end of 1997, President Clinton announced a grant of DED for Haitian nationals who had applied for asylum by the end of 1995. Clinton chose DED for Haitians as a means of postponing their deportation until Congress could pass legislation enabling them to apply for suspension of deportation or cancellation of removal on grounds that had been established in November 1997 on behalf of Salvadorans, Guatemalans, and certain eastern Europeans and former Soviets. That legislation, the Nicaraguan Adjustment and Central American Relief Act (NACARA), had eased some of the strict limits on adjustment of status introduced by the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996. It allowed Nicaraguan and Cuban nationals who arrived before December 1, 1995 to adjust to permanent resident status, and also provided that Salvadorans and Guatemalans who were registered members of a class action suit (American Baptist Churches (ABC) v. Thornburgh) or who had filed asylum claims by April 1, 1990, and Eastern Europeans and former Soviets who arrived before 1991 and who applied for asylum before 1992 could apply for suspension of deportation or cancellation of removal under the more lenient rules that existed prior to IIRIRA.

Although its passage was anything but smooth, Congress did enact the Haitian Refugee Fairness Act, allowing these Haitians to adjust their status. President Clinton signed the bill into law on October 21.

On November 24, the INS set forth the proposed procedure for Salvadorans, Guatemalans, and certain groups from the former Soviet bloc to apply for cancellation of removal or suspension of deportation. The eligibility criteria included the requirement to establish that the applicant would suffer "extreme hardship" if returned. The proposed regulation said that extreme hardship should be decided on a case-by-case basis, and provided a list of 14 factors for adjudicators to consider, such as the applicant's age, state of health, length of U.S. residence, family situation, ties to the home country, and political and economic conditions in the home country.

Impact on Asylum Caseload

A large portion of the INS asylum backlog is represented by people from Central America, the Caribbean, and the former Soviet bloc who might be eligible for suspension of deportation and cancellation of removal through NACARA and the Haitian Refugee Fairness Act. The INS, therefore, temporarily suspended processing the asylum requests of certain applicants in 1998 who might be eligible for cancellation of removal or suspension of deportation. The INS said that as soon as the application process for relief from deportation or removal under these laws is completed, it would resume processing the applications of persons who had not been granted relief through this process.

Asylum Procedure

Under the normal asylum procedure, INS asylum officers either grant asylum based on a first-instance interview or refer deportable aliens whose asylum cases are not granted to immigration judges who consider their asylum claims in the context of removal proceedings. The procedure is designed to be completed within 180 days of the filing of the asylum application (including action by both the INS asylum officer and the immigration judge). The INS bars work authorization for the first 180 days after the claim is filed (or until a grant of asylum). Work authorization is automatic for cases on the docket longer than 180 days (if the applicant does not cause the delay).

Expedited Removal

The 1996 immigration law fundamentally changed the procedures for 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."

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."

This new legal standard for screening asylum seekers, a credible fear of persecution, requires them to demonstrate a "significant possibility...that [they] 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.

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 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."

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. It also includes any alien (except for Cubans arriving by air) who has not been admitted or paroled into the United States and who has not been in the country continuously for less than two years.

In its preamble to IIRIRA's implementing regulations, however, the INS said that it would not use the expedited removal procedure for undocumented persons apprehended in the country's interior. Nevertheless, in 1998, the U.S. Border Patrol reportedly apprehended undocumented foreigners in Texas some distance from the border and brought them to ports of entry, where the INS put them into the expedited removal procedure.

While the credible fear of persecution decision 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, INS district directors have varied widely in their willingness to grant parole. Immigration attorneys witnessed an odd shift in credible fear parole decisions from 1997 to 1998. In 1997, the INS districts for New Jersey and Los Angeles were among the most generous in granting parole, while Miami rarely granted it. In 1998, these offices reversed themselves; New Jersey and Los Angeles became more strict and Miami more willing to grant parole. Throughout, New York was the district most resistant toward granting parole for persons who had passed the credible fear test.

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 August 20, a federal district judge dismissed three lawsuits challenging various aspects of expedited removal. On appeal, the three cases were consolidated and were still pending at year's end.

In fiscal year 1998, the INS removed 76,490 persons through the expedited removal procedure and referred 598 for credible fear interviews. By far, Mexicans (70,767) were the largest nationality removed through the expedited process. Jamaicans, with 488 expedited removals, were a distant second. The INS reported credible fear referrals by region rather than nationality. Asians were most often referred for credible fear interviews, constituting 33 percent of credible fear referrals.

A U.S. General Accounting Office (GAO) report on the first seven months of expedited removal (from April 1, 1997 through October 31, 1997) indicated that about one-third of the people identified for expedited removal 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 five percent of the persons identified for expedited removal (1,396 referred out of 29,170 placed in the expedited removal procedure), 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, according to the GAO findings.

In April 1998, a delayed IIRIRA provision came into effect requiring 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.

Restrictive Measures

Largely as a result of IIRIRA, the number of aliens in INS detention rose dramatically during the year. On October 9, mandatory detention provisions of IIRIRA went into effect, requiring the INS to detain: almost all aliens with criminal records in removal proceedings pending the outcome of those proceedings or their removal; all asylum seekers in the expedited removal process until they have established a credible fear of persecution; all arriving aliens who appear inadmissible; and all persons who have been ordered removed for at least 90 days following the order.

The INS projected that the average daily population in INS detention would rise from about 8,600 in 1996 to 24,000 in 2001. As the IIRIRA's mandatory detention provisions came into effect, it became clear that the INS lacked the capacity to detain all of the people that it was required to detain. Consequently, detainees were about evenly split between those held in facilities whose sole or main purpose is to detain people because of their immigration status and persons held in state and county jails, where detainees' access to social and legal services were quite limited.

In January 1998, the INS issued detention standards intended to set uniform requirements for detention, such as access to legal counsel and materials, and to telephones and medical treatment. The standards applied, however, only to the facilities run directly by the INS or INS contractors, not to state and county jails.

Under pressure from Congress and the strict new law, the INS increased deportations from 114,179 in 1997 to 172,312 in 1998, a 51 percent increase, and a 148 percent increase from the 69,536 deported in 1996.

Perhaps the most prominent group of INS detainees in 1998 was a group of 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 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.

By March, the group was winnowed down to six, for whom an immigration judge in California issued a deportation order. The judge barred the six from presenting their asylum claims, citing them as a danger to U.S. national security. The White House added its voice to the cases, saying that the detainees were separated, detained, and placed in exclusion proceedings on suspicion of being a security risk to the United States. The detainees' lawyers said that the government was denying them access to the evidence against their clients because much of it was classified.

In March, USCR wrote to the U.S. attorney general saying, "It appears that the due process rights of these individuals have been seriously compromised, and that insufficient regard has been taken of the danger they very likely would face if returned to Iraq." The USCR letter went on to say, "We respectfully suggest that the need for secrecy in this instance does not outweigh the right of these persons to know what they are being accused of and of their right to face their accusers and rebut the charges made against them."

The INS Commissioner responded to USCR saying, "If the INS has in its possession relevant information indicating that an individual poses a risk to national security, there is an obligation to present the information to the Executive Office for Immigration Review (EOIR), even if the information is classified. The EOIR then determines the weight which the evidence should be given."

U.S. Coast Guard high-seas migrant interdictions increased by 66 percent from 1997 to 1998. In fiscal year 1998, the Coast Guard interdicted 3,648 migrants. The number of interdicted Haitians rose dramatically from 288 in 1997 to 1,369 in 1998. In 1998, Haitians were the largest nationality group to be interdicted, but had ranked third the previous year. Dominicans were the second largest group with 1,097 interdicted during the year, slightly fewer than had been interdicted the previous year. Cuban interdictions more than doubled from 421 in 1997 to 903 in 1998. Chinese interdictions held steady from 1997 to 1998 with 212 being interdicted during the year.

USCR criticized INS operating instructions to its officers aboard Coast Guard cutters, saying that they were prejudicial. Given the inadequacy of shipboard screening interviews, USCR regards foreigners who have been returned pursuant to the interdiction program to have been denied a fair opportunity to seek asylum.