President and CEO
Hebrew Immigrant Aid Society
Also on behalf of
American Jewish Committee
Jewish Council for Public Affairs
Union of American Hebrew Congregations
United Jewish Communities
Subcommittee on Immigration,
Committee on the Judiciary,
United States Senate
May 3, 2001
Mr. Chairman and Distinguished Members of the Subcommittee:
My name is Leonard S. Glickman, President and CEO of the Hebrew Immigrant Aid Society (HIAS). Today I am also testifying on behalf of the American Jewish Committee, Anti-Defamation League, Jewish Council for Public Affairs, Union of American Hebrew Congregations and United Jewish Communities - sister agencies within the Jewish community who are deeply involved with the community’s efforts to protect refugees.
As the oldest international migration and refugee resettlement agency in the U.S., HIAS, the migration arm of the organized American Jewish community, played a major role in the rescue and relocation of Jewish survivors of the Holocaust and of Jews from Morocco, Ethiopia, Egypt and the communist countries of Eastern Europe. More recently, since the mid-70s, HIAS has helped more than 300,000 Jewish refugees from the former Soviet Union and its successor states, as well as many thousand non-Jews seeking refuge in the United States, to escape persecution and rebuild their lives in this country. This life-saving resettlement work is undertaken in partnership with local Jewish communities throughout our country. The most recent example of this effort is the Tucson Jewish Family and Children’s Services resettlement of Sudanese youth who, after years of wandering and living in terrible conditions in refugee camps are now making new lives for themselves in America.
As HIAS celebrates its 120th anniversary, I would like to thank you - Chairman Brownback - for your leadership in the area of refugee protection, for convening this vitally important hearing, and for giving us the opportunity to share a Jewish perspective on the US asylum system. We also greatly appreciate Senator Kennedy and other members of this subcommittee who have also made crucial contributions to defending refugees both at home and abroad. As this year progresses, you and your colleagues on this subcommittee will play a critical role in shaping the United States’ response to the international refugee crisis – both through refugee resettlement and assistance, and through our domestic policy towards asylum seekers.
The Jewish community is greatly concerned about the major changes that were instituted in the U.S. asylum system in 1996, changes that we believe threaten to undermine refugee protection and US global leadership in this area. This testimony presents a very brief overview of four problem areas in U.S. law, the human side of the issue based on cases represented by HIAS attorneys and other advocates, and reflections on the Jewish community’s historical experience and this history’s impact on our refugee protection concerns.
SELECTED PROBLEMS IN THE U.S. ASYLUM SYSTEM
Three crucial changes to the United States’ asylum law that were enacted in 1996, as well as the continued use of an older provision relating to the adjustment of status of asylees, stand in direct opposition to America’s historic role as a refuge for the persecuted. How these policies are addressed will have a tremendous impact not only on individuals seeking protection in this country, but also on the international refugee protection system as a whole.Expedited Removal
Under the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996, individuals fleeing persecution and oppression are no longer afforded one of the fundamentals of due process – the right to present their case before a judge. Unlike today, previous law permitted asylum seekers time to prepare their cases, find legal counsel and appropriate translators, and adjust to the difficult process of reliving and retelling past trauma and current fear.
Under the new expedited removal system, INS inspectors are placed in a position to make life or death decisions with only the most cursory review from a supervisor. Any person who arrives in the United States without valid travel documents, or even with facially valid travel documents that the inspector merely suspects are fraudulent, may be immediately removed. If the person, who may have been kept for many hours in shackles and other extremely difficult conditions, asks for asylum or expresses fear he or she is supposed to receive an interview with an asylum officer. However, if the person cannot communicate adequately in English, or fails to articulate fear, he or she could be immediately returned to a country of persecution. Thus, many refugees may not be able to make their claim because of trauma suffered in their home country, or because of cultural barriers on speaking freely with uniformed officials.
The cruel reality of this system is that refugees fleeing persecution often rely on false papers and may well be too afraid to speak when confronted by an INS official at a port of entry. Since expedited removal nearly always occurs without any independent monitoring, we cannot say conclusively how many bona fide refugees have been removed through this process. However, cases of immigrants who were removed and later returned and were granted asylum have been identified. When dealing with the life and death issues confronting many refugees, the price of making a mistake is too high to justify an expedited process when a full and fair examination of the facts is required to guarantee protection.Detention of Asylum Seekers
Also under the 1996 IIRIRA law, asylum seekers who are subject to expedited removal face mandatory detention while waiting for a credible fear interview with an asylum adjudicator. While those who pass this interview may be paroled and allowed to join close family and friends who will assist them as they pursue a full asylum hearing, the INS often keeps asylum seekers locked up in detention despite findings that they do not pose a threat to society and are not a flight risk.
Asylum seekers who are denied parole have no avenue to appeal this decision of an INS district director to an immigration judge and are held for months or even years in a variety of prison facilities – including local jails. In these facilities, asylum seekers who have not committed crimes are often housed with criminal inmates. While in detention, asylum seekers face harsh conditions, inadequate health services, and severe restrictions on their ability to fully pursue their claims. Many, including those who have obtained legal assistance, may be moved to facilities in other states because of overcrowding at INS facilities, taking them far away from their lawyers who are thus hampered in providing representation.
INS has not pursued a broad policy of alternatives to detention. The vast majority of asylum seekers, individuals who are not criminals, would be much better and more cheaply served through a non-prison oriented sheltering system. A system that detains so many asylum seekers in prisons and prison-like environments is inappropriate for people who are seeking to avail themselves of the United States’ protection.The One-Year Asylum Filing Deadline
While not part of the expedited removal system, the one-year filing deadline for asylum applications, also enacted in 1996, is a similarly draconian rule when dealing with victims of persecution. This arbitrary deadline, with only extremely limited exceptions, threatens refugees with removal to their country of persecution for purely bureaucratic reasons despite the many legitimate reasons for missing the deadline. Already thousands of claims have been rejected based on this provision.
Among the reasons why an asylum seeker might miss this one-year deadline are, lack of familiarity with the US immigration system, including what type of applicant might qualify for political asylum, or even understand the basics of the English language itself. Additionally, arriving immigrants must find work to support themselves, and then try to find legal assistance to help them prepare their applications, a difficult undertaking due to the shortage of representation for poor applicants. Some may also miss the deadline because they hope conditions in their homelands will change, or because their families would be at risk if they made their claims public. Most importantly, many asylum applicants who suffered torture, rape or other forms of extreme persecution may need more time to prepare themselves emotionally for the trauma of reliving these horrors. Besides the humanitarian arguments for permitting victims of persecution to present their claims, the one-year deadline is a poor use of resources since it focuses on investigating the timeliness of an application rather than reviewing the persecution claim to determine if it warrants a grant of asylum.
Asylee Adjustment Cap
A fourth area of U.S. asylum law that warrants review is the use of a numerical cap on the adjustment of status to lawful permanent resident (LPR) for asylum seekers. The Immigration and Nationality Act establishes a limit of 10,000 asylees each fiscal year whose status may be adjusted to that of an LPR. This has resulted in a current backlog of over 50,000 pending asylee adjustment applications. Unlike the much more rational process that permits refugees who were adjudicated abroad to apply for LPR status with no cap after one year of residence in the United States, asylees may apply after one year but are subject to this arbitrary cap.The use of the cap has no impact on the number of applicants who are granted asylum and are offered protection in the United States - these asylees are part of our country and will ultimately become citizens. The question is whether these deserving individuals should be permitted to begin the process of integrating into American life or if they will be required to wait in limbo for years before their dreams of citizenship can even begin. Sadly, the backlog in asylee adjustment ends up being another hurdle placed in the path of asylees who have already survived persecution and the difficult process of obtaining protection in the United States.
The Worldwide Impact of U.S. Asylum Policy
US policy on asylum is critically important in the lives of the thousands of asylum seekers who are looking for safe haven in this country. But decisions made in the United States have a global impact of a magnitude that overshadows even these grave domestic concerns.
As the United States argues that nations around the world should open their doors and create camps for thousands of new refugees, and that countries of first asylum should integrate these refugees into their societies, it will require a consistent policy of refugee protection on our part to successfully press for greater contributions from others.
Similarly, if other countries can show that the United States is retreating from maintaining the highest standards of treatment for asylum seekers, they will have an excellent excuse to ignore our criticism of their own policies in this area.
THE HUMANITARIAN IMPERATIVE FOR REFORM
HIAS’ perspective on these central issues in U.S. asylum law is based in large measure on our nearly century old experience providing representation to asylum seekers and other immigrants. Our staff of lawyers and other advocates provides assistance to applicants who are affirmatively applying for asylum before the INS, as well as in the courts when necessary. In recent years, our staff has assisted or represented hundreds of asylum seekers being held in detention under the expedited removal system.
A sampling of recent HIAS clients – some of whom are here with us today – who after suffering persecution in their homelands suffered again at the hands of the U.S. asylum system are attached to this testimony as Appendix A. These cases highlight several key injustices of the current U.S. asylum system including: use of expedited removal for individuals who enter using false documents despite this being the only way many refugees can escape persecution (Boulankine and “Mussa”); separation of families, including married couples, for extensive periods of time (Boulankine); extremely long periods of detention (Abass); detention of children (Boukrage and LK); harsh, threatening and degrading conditions while being processed under expedited removal (Mussa); hostile conditions while in detention (Boukrage); inadequate translation resources and medical care in detention (LK); transferring of asylum applicants to distant facilities thereby hampering preparation of their asylum claim (Abass); INS opposition to legitimate asylum claims based solely on failure to comply with the one year filing deadline (Smirnova); denial of parole requests of non-dangerous applicants with no opportunity to appeal to an Immigration Judge (Boulankine, Abass, Boukrage, and LK); and limbo in the asylee adjustment backlog (Boulankine and Abass).
THE JEWISH COMMUNITY, SUPPORT FOR REFUGEE PROTECTION AND THE LEGACY OF THE HOLOCAUSTAmerican Jews and Refugee Protection
HIAS and its sister Jewish community organizations approach the issues of asylum and refugee protection based on its commitment to biblical imperatives to “defend the stranger” and to “redeem the captives.” The lessons of Jewish history, rife with persecution and wanderings, impress upon us the importance of preserving an open door for individuals seeking protection and refuge. American immigration policy has at times allowed the Jewish community to find a home and the chance to live freely, to practice our faith and to build a strong community. While at other times the Jewish community has had to watch as fellow Jews have perished overseas without the hope of safe haven in this country. We cherish the opportunities we have here, and have learned the painful lessons taught by periods in our history when the doors were closed.
HIAS, and much of the American Jewish community, trace our involvement with refugee protection to efforts to help Russian Jews during the final years of Czar Alexander II’s reign (1870 to 1881). In a letter to American Jews, the Russian Jews pleaded for help, writing: “We ask you, we pray, we implore, we beseech you to come to our rescue, to take us out of our bondage, out of our misery; to give us a chance in your great and glorious land of liberty, whose broad and trackless acres offer an asylum and a place for weary hearts and courageous souls willing to toil and by the sweat of the brow earn their daily bread…”
The values these Jews expressed – a longing for liberty, safety and an opportunity to work – are at the heart of the movement of immigrants to the United States in the late 19th and early 20th centuries. This wave of immigration brought the ancestors of many in today’s Jewish community, as well as countless other Americans, to this country.
Closing the Gates and the Holocaust
Today, just a few weeks after Holocaust Remembrance Day, the Jewish community is very aware of the tragic consequences of the United States’ decision in the early 1920s to close the doors to large-scale immigration. When Europe’s Jews needed a place of refuge, America had shut its gates.
A few excerpts from HIAS’ annual reports from that period offer a contemporaneous chronicle of the catastrophic effects of U.S. immigration policy of that time.
“Due to an outcry against immigrants, the after-effects of the war, and the consequence of a general hysteria of fear that the country would be overrun by hordes of aliens, the immigration restrictionists succeeded in having passed by Congress, what is known as the Three Percent Immigration Law. We, who believed that no danger was threatening the United States from an avalanche of immigrants; we, who knew by the infallible test of history that immigrants benefited America, just as America has benefited them, opposed the Bill. We saw in its passage the great hardship which will be inflicted upon the immigrants, we foresaw the impossibility of setting up an administrative machinery which would function justly and righteously….” – 1922
“It is totally fallacious to contend that closing of the gates tends to solve the economic problems from which a country is suffering. Economists of the highest caliber are already sounding a note of warning of the baneful effects of the continuance of a policy of restriction….” - 1932
“Under the impact of 1938 events, European Jewry is, with small exceptions, a vale of fears and tears. The paramount hope of scores of thousands in the German and Austrian concentration camps or even of those who are, so to speak, at liberty, is linked with their chance to emigrate….Rescue through emigration is not a mere phrase which has been coined to dramatize the situation. These words spell the very last hope upon which the physical existence of hundreds of thousands of men, women and children…hinges.” – 1938
“At this time our eyes are focused on some 200,000 displaced Jews in Europe who are still languishing in camps. Wondering what the free world expects to do with them…The number of refugees fleeing persecution in Poland trebled; the long-awaited solution to the Palestine question failed to materialize; President Truman’s directive to permit the entrance of 39,000 refugees to the United States fell far short of its goal, and governments, in general, moved sluggishly and apathetically in migration matters.” – 1946
This story of closed doors and the failure to protect refugees is chillingly and succinctly depicted in a graph of the numbers of immigrants over the history of the United States. In the early 1940s - when the need was so great - the absolute level of immigrant admission was lower than at any point in U.S. history, except for the mid 1830s. Knowing how many lives were at risk during those years makes this valley on the graph even more poignant. [a copy of the graph is attached]
Lessons of the Holocaust
As President Bush recently noted at the United States Holocaust Memorial Museum: “History records many atrocities before and after the 1930s and 1940s. But it was the Holocaust that forced us to find a new term for horrors on such a scale - a crime against humanity. Human evil has never been so ambitious in scope, so systematic in execution, and so deliberate in its destruction…In places like this, the evidence has been kept. Without it, we might forget the past, and we might neglect the future…”
President Bush’s call to memory is one that the Jewish community takes as a solemn calling.
Our colleague, Abraham Foxman, a survivor of the Holocaust, National Director of Anti Defamation League and a former HIAS client, superbly expressed the connection between the lessons of the Holocaust and contemporary refugee policy in a 1999 Miami Herald Op Ed. He wrote about the plight of the more than 900 Jews on the ship the St. Louis who in 1939, while fleeing Nazi persecution, came within view of the Florida coast, but were ultimately sent back to Europe where most perished. In discussing current expedited removal, Foxman wrote:
“It was a dark moment, when fear of foreigners led us to betray one of our most cherished traditions: providing safe haven for the persecuted. In the years since the end of World War II, one principle has been at the core of America’s policy towards refugees: never another St. Louis….” Foxman later concluded, “We can’t go back and change the fact that the St. Louis was turned away. But we should learn from the sad history of America’s indifference to refugees from Nazism. We can stop its modern sequel.”
Tragically, the modern sequel to the St. Louis is continuing daily as the expedited removal system is implemented and asylum seekers are denied a fair process.
As we reflect on the lessons of the Holocaust and their relevance to contemporary asylum policy, there is a cruel irony in the fact that Congress honors Holocaust hero Raoul Wallenberg with a statue in the United States Capitol building while at the same time maintaining a harsh expedited removal process at United States’ borders.
At the heart of the story of Swedish diplomat Raoul Wallenberg were his efforts to provide Swedish protective passports to Jews. These documents were essential in helping these Jews to escape from the Nazis controlled Hungary. These false papers meant the difference between life and death for thousands of Jews. Wallenberg, whose courage and cunning saved so many lives, disappeared at the end of World War II and is believed to have died in Soviet custody. In 1981 the United States conferred honorary US citizenship on Wallenberg, only the second person in history after Winston Churchill to receive this honor. Wallenberg was also honored in 1986 by the renaming of a portion of a street in Washington as “Raoul Wallenberg Place,” and in 1995 with the dedication of a Wallenberg statue in the U.S. Capitol.
The lesson of the Wallenberg story - that desperate times for refugees require desperate measures such as falsification of documents - sadly has not been learned. Expedited removal is triggered by the absence of documents or the suspicion that the documents being used are fraudulent. And yet, refugees who have opposed their government’s actions or have fled persecution and violence may not be able to obtain valid documents before they seek entrance to the United States. Thus refugees begin the process in America facing a system that utterly fails to respond to their basic need for protection.
While we are grateful to the United States Congress for marking Raoul Wallenberg’s brave contribution to Jewish, American, and world history, I believe that the highest honor we could bestow would be for our refugee and asylum policy to honor his memory by providing the greatest degree of protection to those who seek safety in our country.CONCLUSION AND RECOMMENDATIONS
Just as the Russian Jews in the 1880s called upon the American Jewish community and United States government to free them from bondage and offer them a chance for a new life, refugees continue to call out to us to provide safety and a hope for a future. Whether they are contemporary Russian Jewish refugees, Sudanese boys seeking resettlement in locations like Tucson, Colombians fleeing guerrilla and paramilitary violence, or asylum seekers appearing at our border looking for protection, the Jewish community supports efforts to place refugee protection at the core of U.S. immigration policy.
We therefore recommend the following:
1. Expedited removal should be repealed. At a minimum, the use of expedited removal procedures should be limited only to immigration emergencies as declared by the Attorney General. Even in emergency situations, expedited removal should not be used in connection with individuals fleeing from countries with poor human rights records. Non-governmental organizations and independent researchers should be afforded reasonable access to monitor and evaluate the secondary inspection process.
2. Immigration Detention should be overhauled, specifically by:
· Mandating a parole policy for asylum seekers to ensure that compassion is applied toward individuals forced to flee their homelands to escape war and human rights abuses, and bringing U.S. detention policy into compliance with international principles of refugee protection and basic notions of decency and compassion;
· Mandating the development and consistent implementation of alternatives to detention of asylum seekers, including by parole under the asylum parole criteria, supervised release, and the creation of shelters operated by appropriate non-governmental organizations;
· Providing for independent review by an immigration judge of a decision to detain;
· Encouraging the Department of Justice, after appropriate review, to issue regulations facilitating the parole of asylum seekers, specifying the criteria for their release, providing for immigration judge review, and ensuring the release of individuals granted “withholding of removal” who present no danger to the community; and
· Creating an Office of Detention Oversight within the Department of Justice to monitor detention facilities and enforce detention standards.
3. The filing deadline for asylum applications should be repealed.
4. The annual cap on the adjustment of status of asylees should be eliminated.
For future consideration, we also commend to the subcommittee’s attention the difficult circumstances that asylum seekers face while waiting for their cases to be decided, frequently struggling without work authorization for extended periods of time.
Chairman Brownback, I once again would like to express our great appreciation for your work defending refugees and asylum seekers. Your efforts with the subcommittee will go a long way in building a seamless web of protection for those fleeing persecution and violence.
Thank you again for the opportunity to testify today on this crucial issue.