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TESTIMONY OF ELEANOR ACER

SENIOR COORDINATOR, ASYLUM PROGRAM
LAWYERS COMMITTEE FOR HUMAN RIGHTS

HEARING ON
ASYLUM POLICY

BEFORE THE
U.S. SENATE
COMMITTEE ON THE JUDICIARY
IMMIGRATION SUBCOMMITTEE

May 3, 2001
Executive Summary

Since the refugee Pilgrims first landed almost 400 years ago, the United States has served as a refuge for those fleeing persecution and oppression. After World War II, when America and so many other nations failed to protect many refugees from Nazi persecution, the United States led the effort to establish universally recognized human rights, including “the right to seek and enjoy in other countries asylum from persecution.”

Several provisions of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 have severely undermined the ability of genuine refugees to seek asylum here and have unduly restricted their access to protection. These provisions include expedited removal and the one-year filing deadline on asylum claims. The mandatory detention provision that accompanies expedited removal has reinforced the practice of detaining asylum seekers, resulting in the jailing of thousands of genuine asylum seekers and survivors of torture.

Under the 1996 law’s “expedited removal” system, a uniformed enforcement officer of the Immigration and Naturalization Service (INS)—as opposed to a specially trained immigration judge—can turn a refugee back at the airport or border crossing without due process and without meaningful review. The proceedings are conducted so swiftly that mistakes are inevitable, and those who are removed are barred from re-entering the United States for five years. Furthermore, secondary inspection—the stage of the process during which erroneous decisions are most likely to be made—is conducted behind closed doors, with virtually no meaningful scrutiny by independent observers.

While the INS has taken some steps to attempt to reduce the possibility that genuine asylum seekers will not be deported under expedited removal, those efforts have not succeeded in preventing the mistaken deportations and other abuses that have been documented by academics, the press and non-governmental organizations.

Expedited removal is a system that is, by its very design, destined to fail. It lacks the very procedural safeguards that are necessary to ensure that legitimate asylum seekers are not mistakenly returned to face persecution. We respectfully urge that steps be taken to ensure that the decision to deport an asylum seeker or other individual who arrives without proper documents will be made only by a trained immigration judge in a fair proceeding that affords the person fundamental due process protections: prior notice of the consequences of the proceedings; when the person is not fluent in English, a qualified translator who is fluent in the person’s language of fluency and is bound to maintain confidentiality; the right to be represented by legal counsel; and the opportunity to have decisions reviewed on appeal.

The use of expedited removal should be restricted to extraordinary migration situations. Additional safeguards should be included in those situations where expedited removal is authorized. These safeguards, which should include immigration judge review of all removal orders, will reduce the risk of mistaken deportations.

We also urge that decisions to detain asylum seekers should no longer be entrusted to the discretion of local INS officials. Initial detention and parole decision should be made pursuant to legally binding regulations, and should be automatically and promptly referred for review to a judicial or other competent and independent authority. In those cases in which some form of detention or supervision is deemed necessary, and where there is no risk to the community, the use of alternatives to detention should be maximized, including for instance supervised release programs or release to community, religious or non-governmental organizations trained in refugee resettlement.

Congress should eliminate the one-year filing deadline. At the very least the filing deadline should be eliminated in affirmative asylum applications, and the fact that an application has been filed over one year after arrival should be considered a negative discretionary factor, subject to a good-cause exception, for asylum applications filed defensively before immigration judges. To the extent any filing deadline is retained, federal court review of filing deadline denials should be restored. If the deadline is eliminated or limited, those whose cases have been rejected based on the prior filing deadline provision should be allowed to reopen their cases.

Finally, the cap on asylee adjustments should be lifted. Those who are granted asylum are entitled, under our law, to apply for permanent residency one year after their grant of asylum. These are deserving individuals, many of whom have suffered unspeakable harms. Their welcome into our society should not be delayed for years by the limit on the number on asylees that can become legal permanent residents.

Introduction

Chairman Brownback, Senator Leahy, and members of the Subcommittee, it is an honor to be here today to offer our views about U.S. asylum policy. You and other distinguished members of this Subcommittee have shown tremendous leadership in protecting the rights of asylum seekers. We appreciate your focusing attention today on these important issues.

My name is Eleanor Acer, and I direct the Asylum Program at the Lawyers Committee for Human Rights. The Lawyers Committee is a non-profit, non-governmental organization that has worked since 1978 to protect and promote fundamental human rights and to ensure protection of the rights of refugees. We ground our refugee protection work in the international standards of the 1951 Convention relating to the Status of Refugees, the 1967 Protocol relating to the Status of Refugees and other international human rights instruments, and advocate adherence to these standards in U.S. law and policy.

The Lawyers Committee vigorously opposed certain provisions of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 – among them the expedited removal provisions and the asylum filing deadline – because we believed those provisions would severely impede the right of refugees to seek and enjoy asylum and would result in the denial of protection to victims of torture and persecution. We have documented the impact of expedited removal on asylum seekers in two reports – Slamming The Golden Door: A Year of Expedited Removal, issued in March 1998 and Is This America? The Denial of Due Process to Asylum Seekers in the United States, issued in October 2000.

The Lawyers Committee has also long-advocated for the rights of detained asylum seekers. We have urged effective and consistent implementation of parole guidelines for asylum seekers. We have issued several reports addressing the implementation by the INS of its parole guidelines for asylum seekers, including our 1999 report, Refugees Behind Bars; The Imprisonment of Asylum Seekers in the Wake of the 1996 Immigration Act, and have formally petitioned the INS to codify those guidelines in regulations. We have also advocated for alternatives to detention and the imposition of a check on the INS’s authority to detain asylum seekers.

In addition to our work on asylum policy, the Lawyers Committee operates one of the largest and most successful pro bono asylum representation programs in the country. With the assistance of volunteer attorneys, the Lawyers Committee provides legal representation, without charge, to hundreds of indigent refugees each year. Our program’s clients include numerous asylum seekers who have been subject to the expedited removal procedures, who have been detained at various detention facilities and county jails, and who have been affected by the asylum filing deadline. Some of those clients are here today and will be testifying or submitting testimony to you.

I. U.S. Leadership in Protecting Refugees and International Standards.

From the earliest days of the Republic, the United States has provided safe haven for people fleeing persecution. The principle of asylum is a deeply rooted American value, powerfully expressed since the founding of the Republic. In fact, it was President George Washington who set the precedent that the United States would not return people to persecution. This nation has long recognized its special responsibility to the persecuted. And the immortal words of Emma Lazarus, enshrined beneath the Statue of Liberty, reaffirm this nation’s commitment to welcome those who flee to our shores “yearning to breathe free.”

The U.S. commitment to the protection of refugees was reinforced by the lessons of World War II. Modern refugee protection principles were incorporated into international treaties following the Nazi persecution of Jews and other groups during World War II. The U.S. led the effort to establish the United Nations and to articulate universally recognized human rights. In 1948 the United Nations General Assembly adopted the Universal Declaration of Human Rights, which affirmed that “[e]veryone has the right to seek and enjoy in other countries asylum from persecution.”

Current U.S. asylum law derives from two treaties, the 1951 United Nations Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees. The non-refoulement provision of the Convention -- binding on the U.S. as a result of its 1968 ratification of the 1967 Protocol -- prohibits a signatory state from returning a refugee to any country in which the refugee’s “life or freedom would be threatened on account of his race, religion, nationality, membership in a particular social group or political opinion.” Article 34 of the Convention requires that signatory states “shall as far as possible facilitate the assimilation and naturalization of refugees.” The asylum and non-refoulement obligations were made U.S. law by the Refugee Act of 1980. The international community and the United States have promised that never again will those who face persecution be denied refuge.

Expedited Removal

The expedited removal provisions of the 1996 law empower INS inspectors—whose primary responsibility and training is in border enforcement rather than adjudication—to order the summary deportation of individuals arriving from abroad without valid documents. Although individuals who fear return to their home countries are not supposed to deported, mistakes have been made. Indeed, mistakes are inevitable given the summary nature of the procedures.

At the first stage of the expedited procedure, called “secondary inspection,” an individual can be ordered deported by an immigration inspector, without any review by a judge or independent authority. Although anyone who expresses a fear of persecution, or an intention to apply for asylum, should, under law, be referred to an asylum officer for a “credible fear” interview, no outside authority reviews these decisions. Immigration inspectors are, in effect, given the power to act as judges.

Expedited removal is a system that is, by its very design, destined to fail because it lacks essential safeguards: there is no notice prior to secondary inspection of the consequences of the process (i.e., immediate deportation); there is no guarantee of a qualified interpreter to explain the process to an alien who is not fluent in English; there is no right to be represented by legal counsel; decisions are made not by independent adjudicators but by border enforcement personnel; and there is no right to have these decisions reviewed on appeal. Compounding these deficiencies is the speed of the process; expedited removal moves so quickly that mistakes are inevitable.

A process that lacks crucial safeguards will not be able to avoid mistakes. For instance, Rita Joy Martins-Beckely, a Sudanese Christian woman who fled from religious and political persecution in Sudan was ordered deported under expedited removal by officers at the Texas border even though she told the officers that she was afraid to return to Sudan. A Kosovar student was turned away from a California airport in January 1999, and another Kosovar was deported from Newark Airport in 1998 even though he indicated that he was worried about being returned to his home country.

Even U.S. citizens are not protected from these summary procedures. Just last year, Sharon McKnight, a disabled woman from Long Island, was detained at JFK airport, handcuffed and shackled overnight, and then deported to Jamaica under expedited removal -- even though her mother gave immigration officials proof of Sharon’s birth in the U.S.

The danger of mistaken determinations, inherent in any system without checks, is compounded by the lack of due process and improprieties that plague the secondary inspection stage of expedited removal. The notorious practices of the INS at the Portland, Oregon airport, including the strip-searching and jailing of a Chinese businesswoman, earned the city the nickname of “Deportland.”

Given the dire consequences of a mistaken decision to send someone back to a place where they would face persecution, and the fact that many genuine refugees do not speak English, one would think that the procedures would require the use of qualified interpreters who are fluent in an individual’s language of fluency and who are obligated to maintain confidentiality. Instead, refugees have reported that their requests for translators have been denied and that they did not understand that nature of the process they were subject to. For instance:

Mekabou Fofana, a Liberian refugee who is here with us today, arrived at JFK airport on July 11, 1999, nine days before his 16th birthday. He could not understand what the officers were saying to him, and although he said “speak Mandingo,” they did not provide him with a Mandingo interpreter. When the officers directed him to sign the papers they put before him, he refused because he did not know what the papers said. The officers twisted his arm and attempted to forcibly fingerprint him. Mekabou fell to the floor, hit his head, and bled so profusely that he was taken to the hospital for stitches. After a year and a half in detention, Mekabou was granted asylum and is now attending high school in New York City.

Nusret Curumi, who is here with us today, fled from Albania after he was arrested and detained for making statements critical of his government. He arrived at O’Hare International Airport in Chicago in August 2000. After he told an INS officer that the passport he was traveling on was not his, he was dragged by his clothing to another room where he was searched and questioned. He was not provided with an Albanian interpreter, and was directed to sign documents even though he could not understand what they said. He was not told about his right to have a credible fear interview.

Given the fact that many asylum seekers have fled from unspeakable torture and persecution, one would think that they would be treated with courtesy and professionalism. While we understand that the pressures on immigration inspectors are substantial, and that the time pressures they are under may affect their ability to treat people as hospitably as we might ideally wish, there is no justification for the abusive treatment many asylum seekers encounter when they arrive here. Asylum seekers at airports across the country are often handcuffed and shackled like criminals. We have spoken to asylum seekers who have been screamed at, sworn at, laughed at by INS officers charged to ensure their protection. Some have been intimidated, kicked and pushed.

Let me tell you the story of one refugee woman who fled to the U.S. from the Democratic Republic of Congo (the former Zaire) and arrived at JFK airport in November. When she arrived, she had not eaten in days and was suffering from a severe tooth infection. Despite her need for an interpreter, the INS officers did not provide an interpreter that she could understand. When she started to cry, several officers accused her of lying. When she became dizzy and collapsed on to the floor, an INS officer kicked her, ordering her to get up. Later, another officer kicked her and accused her of being a liar, while other officers laughed at her. Finally, another INS officer interceded – realizing that she was ill, he called an ambulance for her. After six months in detention, she was finally granted asylum.

Mr. Curumi was forcefully dragged through O’Hare airport in Chicago. An Algerian refugee who arrived at San Francisco international airport last year was shackled and told he was being deported; when he told an INS officer that he would be killed if returned to Algeria, the officer said he did not care. “Mina Burhani” will tell us later how she was strip-searched, shackled to a bench, and then transported in handcuffs and shackles.

Amin Al-Torfi, a torture survivor from Iraq who is here with us today, fled to this country after he and his family were persecuted by Saddam Hussein’s regime because of their political opinions and religious beliefs. When he requested an Arabic interpreter upon his arrival at JFK airport last year, he was told that an Arabic interpreter was not available and that he would have to wait three days at the airport to get one. He was shackled by the leg to a bench for eight hours, strip-searched, and led like a criminal, handcuffed to another asylum seeker, through the airport in front of other passengers. After 5 months in detention, he was granted asylum.

A refugee from Afghanistan was pushed by an INS officer who grabbed his pants to search for documents. He was shackled to a bench over night, and all day the next day. After 5 months in detention, he was granted asylum.

One refugee who is here with us today was so intimidated by his treatment at the airport that he initially did not request asylum and was scheduled to be returned to his country of persecution. “Micheal Antoun,” is a Coptic Christian who fled Egypt because he had been repeatedly threatened and beaten by Islamic extremists. (As he fears retaliation against family members at home, his real name will be supplied to the Subcommittee confidentially.) Mr. Antoun, while being held in solitary confinement at a detention facility awaiting deportation back to Egypt, spoke by phone to his sister who begged him not to return to Egypt because of the danger he would face. Luckily, he was able to contact someone who averted his deportation. After 5 months in detention, he was granted asylum.

Even the next stage of the expedited removal process – the so-called “credible fear” process – which offers some additional protections, lacks essential procedural safeguards. The only oversight of these determinations is a highly expedited “review” by an immigration judge, which must take place within seven days, leaving no time for a refugee to find a lawyer or gather additional evidence, and no other avenue of appeal. With us today is Patrick Mkhizi who will testify later about the INS’s attempt to deport him after a mistaken determination that he did not meet the credible fear standard. Also here with us today is a woman who we will call “Aracelis Gonzalez” in order to protect her identity. She fled here after suffering brutal abuse and domestic violence in the Dominican Republic. But she was ordered deported under expedited removal last summer apparently because the INS officers who interviewed her, and the Immigration Judge who conducted the expedited review, believed that she would not be able to make a case for asylum based on gender-related persecution. She was spared from deportation following the extraordinary efforts of Senator Leahy and several Congress Members who wrote to the INS Commissioner expressing deep concern about the INS’s decision to deport her under expedited removal.

Although we should all be deeply disturbed by the manner in which asylum seekers are being treated under these provisions of the law, we should not be surprised. Expedited removal is a system designed to fail those we most want to protect. In 1996, when it considered whether to adopt this system, the Senate rejected it as unfair, unnecessary, and a betrayal of American values. We agree.

So do others. Among the many voices calling for repeal of expedited removal are two major bodies established by Congress and by the president: the bipartisan Commission on Immigration Reform and the Advisory Committee on Religious Freedom Abroad to the Secretary of State and to the President of the United States.1 The Commission on Immigration Reform, referring to expedited removal, urged “immediate correction of certain provisions [in the 1996 law] that can harm bona fide asylum seekers and undermine the efficiency of the asylum system.”2 The Advisory Committee on Religious Freedom, created after the implementation of expedited removal, called for its repeal in its final report to the secretary of state in May 1999.

[W]e must eliminate processes such as “expedited removal” that can make victims of those fleeing religious persecution rather than providing access to protection…Repeal of “expedited removal” should be a high priority for the Administration.

We respectfully urge that steps be taken to ensure that the decision to deport an asylum seeker or other individual who arrives without proper documents will be made only by a trained immigration judge in a fair proceeding that affords the person fundamental due process protections: prior notice of the consequences of the proceedings; when the person is not fluent in English, a qualified translator who is fluent in the person’s language of fluency and is bound to maintain confidentiality; the right to be represented by legal counsel; and the opportunity to have decisions reviewed on appeal.

Because of the demonstrated risk to refugees, expedited removal should only be used in extraordinary migration situations. Additional safeguards should be included in those situations where expedited removal is authorized. These safeguards, which should include immigration judge review of all removal orders, will reduce the risk of mistaken deportations.

Detention of Asylum Seekers

The detention of arriving asylum seekers, a practice that expanded in the 1980s, was reinforced by the restrictive provisions of the 1996 immigration law. Under expedited removal, asylum seekers are sub ject to “mandatory detention” and although they are eligible for parole once they successfully pass through the credible fear screening process, the parole decision is entrusted to the unreviewable discretion of local INS officials who administer this power in varying manners. There is no appeal of their decisions to an independent authority – not even to an immigration judge. And the INS has so far failed to issue enforceable regulations spelling out the parole criteria for asylum seekers.

As a result, those who arrive in this country seeking protection are routinely imprisoned for months, and sometimes for years while their asylum cases are pending. Deserving refugees are denied parole even when they have been deemed credible and have verifiable community ties. Some of these refugees are here with us today.

We will hear in a minute from a woman from Afghanistan who will explain how she was denied parole even though her U.S. citizen sister was willing to house and support her. Another client of the Lawyers Committee, a rape survivor who had been studying to become a nun in Congo, was denied parole even though a Catholic convent in New Jersey had agreed to house and support her. Mekabou, who stood up before us a few minutes ago, was denied parole despite his young age and even though he had a U.S. citizen uncle and other family members in this country. Patrick Mkhizi who we will hear from shortly was detained for 3 and ½ years and denied parole.

The seven month detention of Jean-Pierre Kamdem, a survivor of severe torture, who lost part of his leg as a result of his torture, underscores the cruelty of our detention system. Mr. Kamdem, who is here with us today, was a student activist in Cameroon and was arrested and repeatedly tortured in his home country, leading to the loss of part of his leg. Last year, he narrowly escaped arrest again, and fled to the U.S. He was greeted with handcuffs at the airport. When he asked if it was a crime to ask for asylum, the INS officers told him “this is the law.” He was detained at the Elizabeth, New Jersey detention facility for seven months. He was just granted asylum last week and was finally released from detention.

Our current system of detaining asylum seekers, a system which provides no meaningful access to parole for so many and no independent review of detention decisions, flies in the face of our obligations under international refugee protection treaties. Indeed, the Executive Committee of the United Nations High Commissioner for Refugees (UNHCR), of which the United States is a member, has concluded that detention of asylum seekers “should normally be avoided.” UNHCR’s 1999 detention guidelines clearly call for procedural safeguards – including automatic review of detention decisions before an independent judicial or administrative body – in those cases when asylum seekers are detained, and urge the maximum use of alternatives to detention.

Our current detention system is also inconsistent with American traditions of due process and humanity, and places an unnecessary burden on U.S. taxpayers. The devastating impact of detention on individual torture survivors and other refugees which we see first-hand in our every day work, is documented in the testimony of Dr. Allen Keller, the Director of the Bellevue/NYU Program for Survivors of Torture, which is submitted in writing to the Subcommittee today. The impact is also clear in the lives of the refugees who have come here today to give us their first-hand testimony.

We urge that decisions to detain asylum seekers should no longer be entrusted to the discretion of local INS officials. Initial detention and parole decision should be made pursuant to legally binding regulations, and should be automatically and promptly referred for review to a judicial or other competent and independent authority. In those cases in which some form of detention or supervision is deemed necessary, and where there is no risk to the community, the use of alternatives to detention should be maximized, including for instance supervised release programs or release to community, religious or non-governmental organizations trained in refugee resettlement.

The Asylum Filing Deadline

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 imposed, for the first time, a one-year-from-arrival filing deadline on asylum claims filed with the U.S. government. The only exceptions to that filing deadline are for “changed circumstances” that materially affect an asylum seeker’s eligibility for asylum or “extraordinary circumstances” relating to the delay in filing the asylum application. The 1996 law also purports to preclude federal court review of determinations to bar asylum claims under the deadline.

Since the filing deadline took effect, more than 10,000 asylum seekers have had their claims rejected by the INS. In fiscal year 2000 alone, more than 6000 asylum claims were rejected based on the filing deadline.

The Lawyers Committee has learned of many bona fide asylum seekers whose claims have been rejected because of the filing deadline, including asylum seekers represented through our pro bono representation program. Even asylum seekers whose circumstances squarely fit the statutory exceptions, and the regulations detailing those exceptions, have had their asylum claims rejected. For instance, the asylum claim of a torture survivor and student activist from Burma was denied by an immigration court in California based on the asylum filing deadline, even though the judge believed he was credible and otherwise eligible. The Burmese refugee had been repeatedly arrested and tortured by the Burmese military regime because of his peaceful political activities. He did not initially apply for asylum because he hoped that the situation in Burma would improve so that he could return to his family.

Makani Jalloh, a refugee and mother from Sierra Leone, fled to the U.S. after her husband and son were killed, and she herself was brutally attacked. She arrived in the U.S. in July 1999. She did not read or write English, and had no money to support herself or to pay for a lawyer. With the help some fellow Sierra Leonians, she filed for asylum – within one year of her arrival. Makani was not able to afford to pay for a lawyer to accompany her to her asylum office interview, and the INS rejected her asylum case, claiming that she could not prove that she had been in the U.S. for less than one year. The INS placed Makani and her two children into deportation proceedings. Makani then learned about the Lawyers Committee for Human Rights, which found pro bono attorneys to take on her case. With the help of her pro bono lawyers, Makani and her children eventually won asylum before an immigration judge.

Here today is Anna Smirnova, a national of Russia. The INS is currently contesting her grant of asylum on the ground that her claim is barred by the deadline. Anna fled from Russia fearing persecution based on her mixed nationality. She is part Jewish, and also part Arab and part African-American -- her great-great grandfather was a prominent American civil rights leader. Anna arrived in the United States on April 17, 1998. She gave birth later that year, and began caring for the new infant. She missed the one-year filing deadline due to the burdens of being pregnant -- a physical condition that should certainly have satisfied one of the exceptions to the filing deadline -- and the resulting burden of caring for a new infant as a single mother. And, like many refugees, she was unaware of the deadline. However, once she became aware of the one-year requirement she immediately filed her claim, which was received by the INS on April 22, 1999. Yet despite extensive documentation of her fears of persecution and of her pregnancy, the INS rejected Anna’s asylum claim based solely on the asylum filing deadline. Although an immigration judge eventually granted her claim, the INS is still seeking to deport her based in part on her failure to file within the one-year filing deadline. While her attorneys at the Hebrew Immigrant Aid Society are opposing the appeal, the INS is still maintaining that her claim is barred by the filing deadline.

Ironically, the filing deadline has actually led to inefficiency and waste in the asylum system. Some deserving asylum claims – claims which would likely have been granted on the merits but for the asylum filing deadline – have been “rejected” procedurally by the INS based on the filing deadline. As a result, these cases have been referred to immigration court – meaning that the system must bear the additional expense of a hearing in immigration court before the asylum seeker is granted asylum. Without the filing deadline, some of these cases would have been granted asylum by the INS without the additional expense of an immigration court hearing.

It is now widely recognized within the U.S. government that the INS’s 1995 asylum regulatory changes (known as “asylum reform”) were a tremendous success: new asylum claims are now processed on a timely basis (generally within 180 days); the large backlog of asylum claims has been reduced; the number of asylum claims has declined dramatically from 123,884 in FY 1994 to 41,659 in FY 2000 (the FY 1999 numbers were even lower); and the asylum grant rate has increased, which appears to reflect that a higher percentage of meritorious asylum claims are being filed. Thus, many of the problems that led some to favor an asylum filing deadline have been remedied by the asylum reforms initiated in 1995.

While a one-year filing deadline may initially sound reasonable to some, a closer examination of the reality that faces many refugees when they arrive in this country makes clear that the filing deadline is indeed difficult for many deserving refugees to meet. Many genuine refugees arrive in this country unable to speak English, unfamiliar with our legal system, unable to afford food and housing, let alone legal counsel, and often suffering from the effects of the torture or persecution they have faced. Amchok Gyamtso Thubten will describe for us today the difficulties that many Tibetan refugees face in meeting the asylum filing deadline. Some who have been victims of ethnic or religious persecution, may not even realize they are eligible for what is often referred to as “political” asylum.

Prior to the enactment of the filing deadline, the Lawyers Committee conducted a study of its own pro bono cases. This study revealed that only 38% of the Lawyers Committee’s cases (cases that the Lawyers Committee had judged to be bona fide) were filed within one year of the refugees’ arrival. This is understandable. As Dr. Allen Keller, the Director of the Bellevue/NYU Program for Survivors of Torture has explained: “Generally, the most deserving asylum applicants are unable to speak about their persecution immediately after they arrive in the United States. Victims of torture, and others who suffer from Post-Traumatic Stress Disorder (PTSD), have great difficulty relating their stories both to their representatives and to U.S. authorities until they have had time to recover from their trauma.” Dr. Keller has submitted written testimony to this Subcommittee today documenting this impact.

We believe that the asylum filing deadline should be repealed. It is inefficient and is causing needless hardship to refugees who clearly deserve protection. Short of outright appeal, the filing deadline should at least be eliminated in affirmative asylum applications, and the fact that an application has been filed more than one year after arrival could be considered a negative discretionary factor, subject to a good-cause exception, in connection with asylum applications filed defensively before immigration judges. To the extent any filing deadline is retained, federal court review of filing deadline denials should be restored. If the deadline is eliminated or limited, those whose cases have been rejected based on the prior filing deadline provision should be allowed to reopen their cases.

V. The Cap on Asylee Adjustments

When refugees are granted asylum, they are entitled under our law to apply for legal permanent residence status one year after their grant of asylum. But as there is an annual cap on the number of asylees who may adjustment and a backlog of applications, refugees now have to wait several years to receive their legal permanent residence status. Amchok Gyamtso Thubten, a Tibetan refugee who will be testifying before you shortly, applied for legal permanent residence status in 1999. He has still not received his “green card.” It has been estimated that someone granted asylum today will not be able to adjust his or her status for 6 six years. The impact of this delay on refugees is significant – it undermines their ability to integrate into our society, to seek employment and advancement, to apply for citizenship, to travel to visit family securely and in some cases to be united with family members.

One client of the Lawyers Committee, a refugee from Ethiopia, married after she was granted asylum. Her husband, a long-time family friend who lived in exile in Europe, was not eligible to be brought to the U.S. as an asylee because the marriage occurred after our client was granted asylum. The delay of several years in receiving her green card needlessly delayed her ability to petition for him to come to the United States and join her. While she visits him several times a year, the couple has been separated by an ocean for their four-year marriage. Because of the marriage, the U.S. has refused to issue the husband a visa to come to visit his wife and child. Their son, now 3 years old, sees his father for brief visits once a year. They hope that after she becomes a citizen, they will finally be able to live together as a family. My client, who spent her childhood separated from her family because of the cruelty of the Menguistu regime, is patient. But no reasonable policy interest is served by this unnecessary delay.

The cap on asylee adjustments should be lifted. Those who are granted asylum are entitled, under our law, to apply for permanent residency one year after their grant of asylum. These are deserving individuals, many of whom have suffered terribly under governments who abuse the basic rights we in this country take for granted. Their welcome into our society should not be delayed for years by an arbitrary limit on the number on asylees that can become legal permanent residents.

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