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Detention: New Obstacle for Asylum Seekers

by Carl R. Baldwin

The "expedited removal" provisions of the 1996 immigration law (INA, Section 235(b)), provide that an alien who indicates a wish to apply for asylum or expresses a fear of persecution "shall be detained pending a final determination of credible fear of persecution and, if found not to have such a fear, until removal."

In a giant step in the direction of longer-term detention for asylum seekers, the U.S. Department of Homeland Security (DHS) announced on March 18 that a new policy labeled "Operation Liberty Shield" will "increase security and readiness in the United States...(and) help deter future terrorist attacks." One of its ingredients is the detention of asylum seekers who are placed in expedited removal proceedings. But a reading of the text of Secretary Ridge's press conference does not answer the question of which countries (aside from Iraq, I guess) will be ear-marked, and for how long the detention will continue. One is left with the uneasy feeling that detention could in most cases be for the entire period of the asylum proceeding. There is one question and answer that I find especially disconcerting:

"Question: How many people do you know will be affected, and for how long? And if you could elaborate a bit more on what is the precedent for detaining people for whom we have no specific suspicion that they are terrorists, and why take that extreme act? Answer: This approach has been done in the past. Last year, I think in 2002, given the category of countries we're talking about, those where we know there are known existing terrorist organizations, al Queda and others, I think there were about 600 people that were temporarily detained, and I think 60 percent of them were Iraqis."

I guess Secretary Ridge shares the Administration's obsession with Iraq, but the last time I checked, those hundreds of overstays caught in the dragnet had nothing to do with terrorism. I find it disturbing that the Secretary uses that questionable round-up as a precedent and rationale for the detention of asylum seekers.

Alison Parker, Acting Director of Refugee Policy for Human Rights Watch, expressed that organization's opposition to "Operation Liberty Shield" in these terms: "The Bush administration has criticized the human rights records of abusive regimes, such as Iraq. Yet, under this policy, the administration will jail people simply because they have fled from those same abusive regimes."

AILA's March 27 emailed issue of "Immigration This Week" reports that Victor Cerda, BICE Chief of Staff, stated that District Directors are authorized to release asylum seekers in expedited removal proceedings based on humanitarian concerns, but only with the approval of the head of Detention & Removal at Headquarters. There seems to be a presumption that they should be detained until granted asylum or removed, and who knows how ready Headquarters will be to make an exception?

It is a rather grim prospect. If you flee from an abusive regime without proper papers, and fear persecution if returned, detention awaits you here if your country is on our list. If the list of countries (except for North Korea) is entirely Muslim, one wonders whether "Operation Liberty Shield" is not Muslim-oriented national-origin discrimination. Is this what we want America to be about?

About The Author

Carl R. Baldwin graduated from Columbia University Law School in 1980, and became a member of the New York State Bar a year later. He worked for three years with the New York City Law Department, and then entered solo practice in immigration law, which he has continued to the present. His work with clients has included asylum applications, deportation defense, visa processing, adjustment of status, and naturalization. He has also worked to implement special laws, such as the 1986 "amnesty" (The Immigration Reform and Control Act), and the 1998 Haitian reform act (The Haitian Refugee Immigration Fairness Act). Mr. Baldwin is the author of Immigration News Monthly. He can be reached by e-mail at

He has written a book on immigration law, called "Immigration Questions and Answers," Allworth Press, 2002. The book, which contains essential background information about how the immigration law works, can be ordered online from Allsworth Press at:

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.