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I.            Introduction

Good afternoon.  My name is Wendy Young.  I am the Director of Government Relations and U.S. Programs for the Women’s Commission for Refugee Women and Children, a nonprofit organization which seeks to improve the lives of refugee women and children around the world by acting as an expert resource and engaging in a vigorous program of public education and advocacy.  On behalf of the Women’s Commission, I would like to thank you, Mr. Chairman and members of the Subcommittee, for the opportunity to testify regarding the detention practices of the Immigration and Naturalization Service (INS) and their impact on women and children seeking asylum.

In 1996, the Women’s Commission launched an assessment of detention conditions in the United States that has included visits to approximately 35 detention centers around the country and interviews with dozens of detained asylum seekers, the organizations providing them with legal and social services, and the INS and local government officials charged with their care.  We have issued seven reports documenting widespread problems in the detention system that jeopardize the United States’ legal and moral obligation to offer refugee protection. 

In general, we have found that asylum seekers often endure arbitrary and prolonged detention in conditions that fail to meet international standards of refugee protection and basic standards of decency and compassion.  Some asylum seekers are women who have fled gender-related persecution, including rape, female genital mutilation, sexual slavery, honor killings, forced abortions, and forced marriages.  Some are children who have fled recruitment as child soldiers, child marriages, forced prostitution, and child slavery.  Some are survivors of torture.  Some are victims of religious, ethnic, or political persecution.  Virtually all have come to the United States expecting refuge and freedom from persecution.  Virtually none expected imprisonment by the world’s leading democracy and defender of human rights.

II.                Background

Immigration detention has become the fastest growing prison program in the United States today.  On any given day, the INS has approximately 20,000 individuals in detention, for an annual total of over 200,000.  The agency estimates that approximately five percent of detainees are asylum seekers.  Women constitute seven percent of the overall detained population and children three percent.

The INS has reported that the average length of detention for aliens in removal proceedings was 29 days in Fiscal Year 1999.  However, asylum seekers are often held for much longer.  The Hastings College of Law reported that the average length of stay in the INS New York District, where large numbers of asylum seekers are detained, was 109 days.  The Dallas Morning News recently reported that of the 851 indefinitely detained individuals in INS custody, defined as those in detention for more than three years, 361 are asylum seekers.[1]  The Women’s Commission has interviewed many asylum seekers who have endured detention for years; in one case, a Chinese woman had been held in various facilities for almost five years before she was finally granted asylum and released.

Statistics related to detention, however, are very difficult to pin down due to poor data collection.  The INS, in fact, has failed to comply with a statutory provision enacted as part of the Fiscal Year 1999 Omnibus Appropriations Act (P.L. 105-277) which requires annual reports to the Judiciary Committees in the House and Senate data pertaining to detained asylum seekers.  This data is required to address the number of asylum seekers in detention; countries of origin; gender; ages; location of detention by detention facility; whether criminals are detained in the same facility, and if so, whether they are commingled with the INS detainees; the number and frequency of transfers; the rate of release from detention for each INS district; and a description of the disposition of detainees’ asylum cases.  The first report under this provision was to be submitted on October 1, 1999, but it is our understanding that the INS has yet to release even this initial report.

The cost that detention represents to U.S. taxpayers is extremely high.  In interviews with facility administrators, the Women’s Commission found that the INS is paying anywhere from $41 to $156 per day per detainee.  In the case of local and county prisons, the INS typically pays the facility twice the rate it is paid for the incarceration of criminal inmates, even though such facilities rarely provide services to INS detainees beyond those provided to the criminal inmates.

III.             Conditions of Detention

The Women’s Commission has evaluated the following conditions in facilities which it investigated:  the physical settings used to detain asylum seekers; the treatment that women receive from INS officers, prison staff and criminal inmates; the availability of translation services; health care; recreation and access to the outdoors; the availability of spiritual support and religious services; and the availability of legal services.

In recent years, the INS has developed approximately 35 standards that address conditions of detention ranging from attorney access to grievance procedures.  These standards represent a critical acknowledgement by the agency that detention facilities should be consistent in their practices and held accountable to certain minimal standards.  However, the standards are fundamentally flawed in several key areas.  First, they are non-binding and serve only as guidelines.  Second, the INS itself is charged with monitoring their implementation.  Third, the INS has only recently begun the process of applying the standards to the county and local prisons with which it contracts, meaning that the majority of INS detainees continue to be held in facilities that fall outside the scope of the standards.  And finally, the standards are based in large part on the standards used by the American Correctional Association, standards which were developed with a criminal population in mind, and not asylum seekers.

Types of Facilities Used to Detain Asylum Seekers

All of the facilities that the INS uses for detention are prisons or the equivalent.  Locked doors, cells or institutional dormitories, hi-tech security systems, and concertina wire fences define the detainees’ living space.  On many levels, the term “detention” itself is misleading; “incarceration” and “imprisonment” better reflect the experience of asylum seekers held in the custody of the INS.

The INS uses four types of facilities to detain asylum seekers.  The agency operates nine of its own detention centers, known as “Service Processing Centers.”  Second, the INS contracts with for-profit correctional companies that have benefited from the national trend to privatize prisons and have also found it lucrative to manage facilities that house only immigration detainees.  Such facilities are known as “contract facilities.”  Third, the INS jointly manages two facilities with the Bureau of Prisons (BOP) and accesses other federal prisons as needed.  Finally, the majority of INS detention (approximately sixty percent) is provided by county and local prisons from which the INS rents bed space for detainees as needed.

The prisons and jails with which the INS contracts, of which there are hundreds, present special problems.  Such facilities are fundamentally designed to punish criminal offenders and protect the surrounding communities, neither goal of which is compatible with meeting the critical legal and social service needs of asylum seekers.

Staff in such facilities is typically not aware of nor trained in the special needs of asylum seekers.  Many local officials interviewed by the Women’s Commission expressed surprise upon learning that individuals in their care were seeking refugee protection and had not been convicted of any crimes.  This can result in serious misunderstandings.  For example, an asylum seeker may exhibit symptoms of Post Traumatic Stress Disorder that the prison staff perceive as behavioral problems meriting discipline rather than psychological support.

Even after learning that asylum seekers lack criminal records, prison officials often are reluctant to differentiate among populations in the facility.  The warden of the Turner Guilford Knight Correctional Center in Miami-Dade County recently stated, “I can’t treat the INS people differently.  I’ll have problems, and remember, I have 1,200 inmates in here.”  The York County prison warden observed, “The worst thing that you can do in a prison is separate a group out for special care.”  

Moreover, delegating the daily care of asylum seekers to local facilities creates a new level of bureaucracy.  This often results in difficulties in addressing complaints about abuses and other problems, as the INS will place responsibility on local officials and vice versa.  INS officials at all levels frequently refer to themselves as “guests” of the prisons and declare themselves unable to influence prison policies, completely disregarding the fact that the INS retains custody of the individual, that the prison is under contract with the INS and therefore should be held accountable for meeting certain standards, and that the INS is paying local governments significant amounts of money to detain individuals.

Detainees are frequently commingled with criminal inmates, despite the fact that they have not committed a crime themselves.  Women are more likely than men to be commingled with the general prison population.  Because they are fewer in number, the INS often cannot afford to rent a separate cell pod for the female detainees.  The women report being terrified of the criminal inmates, who often harass the INS detainees.

Many detention centers are overcrowded.  In the York County Prison, INS-detained women frequently sleep in the gymnasium, due to a lack of bed space.  Overcrowding at the Krome Service Processing Center is a chronic problem which forces detainees to sleep on temporary cots squeezed in between the permanent beds.  Attorneys reported that when the facility is overcrowded, systems fail to keep pace, resulting in attorneys waiting hours to see their clients.

Treatment of Detainees by INS Officials and Prison Staff

While many INS and prison officers treat detainees in their care with respect, professionalism, and compassion, there are also frequent reports of abuses and harassment.  Detainees whom the Women’s Commission have interviewed have reported verbal, physical, and sexual abuses; frequent pat, strip, and cavity searches; handcuffing and shackling; and excessive use of solitary confinement for minor infractions of facility rules. 

The treatment that women detainees have received in the Miami INS District is perhaps unrivaled in the seriousness of the abuses reported.  For years the Krome Service Processing Center in Miami has been plagued with chronic problems and been the target of multiple federal investigations.  In May 1999, controversy surrounding the facility again erupted when 20 separate allegations of sexual abuse by at least 15 Krome officers surfaced. 

Reported sexual abuses ranged from rape to sexual molestation and harassment.  Women who cooperated in sexual activities were made false promises of release from detention.  Threats of deportation, transfer to county jails, or even death were leveled at women who dared to resist or complain of abuses.  While not all of these activities involved women asylum seekers, it is disturbing to note that such abuses had been reported as far back as 1990, and no follow up action was taken.  Furthermore, physical and emotional abuses against women have also been reported, including officers demanding that Muslim women asylum seekers remove their veils before eating and denying the women meals when they refused to unveil.

The Department of Justice has launched an investigation into Krome.  One officer has been indicted for rape.  It is critical, however, that the investigation not be allowed to drag out or fail to result in either criminal prosecution or disciplinary action against those officers shown to be involved.  Unfortunately, that was the result of past investigations; some of the very same officers accused of sexual misconduct in 1990 were allegedly involved in the most recent abuses.

Of grave concern in the meantime is the actions that have been taken by the INS to address the Krome problem.  The Women’s Commission, the Florida Immigrant Advocacy Center, and other advocates urged the INS to remove women from Krome and to develop an appropriate alternative to detention, such as shelter care in the community.  While the INS did remove the women from Krome, it chose to transfer them to the Turner Guilford Knight Correctional Center, a nearby county prison.  Conditions in the prison have failed to meet the most basic needs of women asylum seekers.

Male detainees have also been the targets of abuse in some facilities.  After a riot broke out in the Esmor Detention Center in Elizabeth, New Jersey due to poor living conditions,[2] male detainees were transferred to the Union County Jail, also in Elizabeth.  Officers there then tortured the detainees by forcing them to put their heads in the toilet, pulling their genitals with pliers, and ordering them to engage in sexual acts.  Four of the guards were convicted and six others pled guilty to criminal charges of abusing the detainees.[3]  In the Jackson County Jail, the Florida Immigrant Advocacy Center reported that male detainees were shocked with stun guns, beaten, cursed, targeted with racial slurs, and placed in solitary confinement for requesting medical care or food.

Women interviewed by the Women’s Commission frequently reported callous behavior by prison guards and INS officers.  In the Elizabeth Detention Center, a woman asylum seeker from the Democratic Republic of Congo described being dragged across the floor by INS officers when she resisted being taken to the airport for deportation.  She told the Women’s Commission that the officers laughed at her when her pants began to fall off due to the rough handling.  Haitian asylum seekers detained at the Turner Guilford Knight prison began to cry as they described the humiliation of being transported in handcuffs and shackles, and stripped and cavity searched upon their arrival at the prison. 

Translation Services

The lack of readily available translation services is a pervasive problem in detention centers.  Generally, the INS only provides interpretation during emergencies or medical examinations, and that is typically by telephone.  Otherwise, it relies heavily on detainees to translate for each other.

The inability to communicate compounds many of the problems faced by detainees, particularly those individuals who speak uncommon languages.  For example, it exacerbates their fears about detention and the status of their asylum cases.  It also results in an inability to request medical assistance or to report other problems.  It leads to unnecessary disciplinary actions due to detainees’ confusion about the facility regulations.  Finally, it interferes with detainee’s access to the few services available to them, because detainees remain unaware of the existence of such services or are unsure about how to request them.

A Burmese woman asylum seeker in the Turner Guilford Knight Correctional Center was unable to communicate with INS officers and prison guards.  The prison guard in charge of her cell pod persistently called her Chinese, unaware even of the woman’s nationality.  The woman had been there for several weeks with no information about her case.  She struggled to communicate with the little Chinese and English that she was able to speak.

The lack of translation services can also interfere with detainees’ legal representation.  The Elizabeth Detention Center, for example, recently informed attorneys that they could no longer meet with two detainees simultaneously, which in the past had facilitated detainees’ ability to translate for each other during interviews or intakes.  Furthermore, with the exception of “know-your-rights” presentations and initial screening interviews when portable telephones are made available, no telephones are regularly available in the attorney–client rooms.  This makes it impossible at other times for attorneys to obtain telephonic translation, for example during intakes or interviews.  The Catholic Legal Immigration Network, Inc. (CLINIC) reported that during a recent intake, it was only able to communicate with three asylum seekers out of the nine interviewed.  It was unable, for example, to communicate with nationals from Iraq and Algeria due to language barriers.

Furthermore, there are no translation services available in Elizabeth to assist non-English speaking or illiterate asylum seekers in completing their I-589s, the form required to raise an asylum claim.  CLINIC reported that immigration judges posted to the facility have told such detainees that they must either return with a completed form or they will be ordered removed from the United States at their next hearing.

Similar issues were recently raised by an immigration judge posted to the York County Prison in Pennsylvania.  Immigration Judge Walt Durling indicated his intent to order the INS to provide an interpreter to assist unrepresented aliens in completing their immigration forms.[4]  The INS General Counsel responded by noting, “It is the position of the Service that provision of interpreter services to unrepresented aliens is a conflict of interest for the Service.  Furthermore, there is no legal authority for the Government to provide such services.  Just as the alien has the right to representation in immigration hearings, but the Government is without authority to provide this representation, so too may the alien obtain interpreter services at his or her own expense.”[5]

INS and prison officers alike are often dismissive of the need for translation services.  In the Wicomico County Jail in Salisbury, Maryland, an INS officer observed that he believed that sign language was adequate to communicate with INS detainees.  The prison warden in the same facility said, “The language barrier isn’t a big problem.  The detainees know what’s happening.”

Health Care

The inability to communicate, combined with the slow or inappropriate response of some facilities to medical complaints, has led to disturbing instances of serious medical problems being ignored or mismanaged by both INS and prison authorities.  In other cases, the stress and trauma of prolonged detention have caused individuals to develop physical and mental health problems.

The Public Health Service (PHS) provides medical services in INS Service Processing Centers and contract facilities.  In most of the prisons with which it contracts, the INS utilizes the health services provided to the criminal inmates.  Often, these services are provided by outside medical contractors.  These services typically do not include medical staff trained to care for patients from different cultures.  Moreover, there is frequently a lack of female medical staff.  This can undermine the treatment of women detainees, many of whom come from cultures in which it is considered inappropriate to reveal sensitive medical information to male strangers.

A Colombian woman asylum seeker detained in the Krome Service Processing Center was diagnosed with a stomach tumor.  Despite the severity of her illness, the INS handcuffed and shackled her on the way to the hospital.  She was then chained to the hospital bed.  When the woman asked the INS officers to remove the chains, she reported that they responded with abusive language.  She also reported that when her family tried to visit her at the hospital, the INS denied that she was there.  The woman later told a fellow detainee that she would rather die than return to the hospital.

Women at the Turner Guilford Knight Correctional Center complained that after their transfer, the prison medical staff greatly reduced the dosage of psychotropic drugs that had been prescribed to them while they were at Krome.  The sudden change in medication led to drastic mood changes and the detainees’ hospitalization.  Other women reported that their drugs were administered erratically and several hours behind schedule.

Many women whom the Women’s Commission interviewed complained that they were experiencing physical ailments because of their prolonged detention.  This included chronic stomach problems, such as nausea, heartburn, and diarrhea; dizziness; high blood pressure; irregular menstrual cycles; and significant weight changes.  In some cases, women had been prescribed drugs to address their conditions but were ignorant of the nature and properties of the drugs.

Asylum seekers who have fled violence and persecution in their homelands frequently are in poor health when they arrive in the United States.  In addition, they may be suffering from Post Traumatic Stress Disorder or other mental health problems.  It is critical that they be provided prompt, adequate, and culturally appropriate medical care.

Recreation and Access to the Outdoors

Detainees universally report boredom and listlessness as a result of the lack of recreational activities and outdoor access in detention centers.  They frequently spend their days lying in bed or watching English-language television.  Reading materials are also usually only in English.

Access to the outdoors is severely limited in most detention centers, as minimal as one hour per week.  Many facilities offer only rooftop exercise areas or walled areas covered by mesh fencing, through which little natural light filters.  Many facilities also lack or have a minimal number of windows, adding to detainees’ physical malaise and disorientation. 

Some detainees have also reported that they do not avail themselves of outdoor exercise even when available.  Sometimes this is because they are confused about the rules.  Sometimes they fear intermingling with the criminal inmates.  In other cases, they are subject to strip or pat searches upon re-entering and prefer not to endure that humiliation.

Experience has shown that activities and outdoor access can make detention more tolerable.  Several women, for example, expressed their appreciation at being detained in the minimum security portion of the York County Prison, where a large grassy outdoor area is available to the women throughout the day.  They compared it favorably to being housed in the maximum security portion of the prison, where outdoor access is more limited, and to both the Elizabeth and Wackenhut Detention Centers (from which many women are transferred back and forth from York), where the outdoor areas are walled and fenced.

Availability of Spiritual Support and Religious Services

Religious services in the prisons with which the INS contracts are generally made available through a facility’s existing chaplain’s office.  Services for certain denominations are therefore readily available, while services for religious sects that are less common in the United States are unavailable or have to be arranged.  Of particular concern is the fact that INS Service Processing Centers and contract facilities as yet fail to provide chaplains, although the INS has expressed interest in developing such programs. 

Also troubling is the treatment that some religious programs have received in INS centers.  In November 1999, the INS Newark District abruptly cancelled an arrangement with Jesuit Refugee Services (JRS) under which JRS was providing religious services and English classes.  The INS’s stated rationale for the cancellation was the fact that a Bible study reading had been based on the gospel of Matthew 25, which preaches “welcoming the stranger.”  The INS believed that this discussion would provoke unrest among detainees.  It also criticized the programs for allowing detainees to speak about their concerns about detention, an obvious focus of conversation given the stress caused by detention.  Despite repeated requests by JRS to renew the programs, the INS declined to do so and instead arranged for another program to replace JRS.  The new religious service provider has signed an agreement that stipulates that it will refrain from discussing detention with detainees and that an INS officer will be present at all religious sessions.

Religious service providers who visited women asylum seekers at the Turner Guilford Knight prison told the women that they would not return after their first visit, because it was so difficult to gain access into the facility.  Among the problems they confronted was the lack of space for such services.  They were forced to use a small attorney-client visit room.  This dual usage also disrupted legal services, since it is the only such room available.

There are also disturbing instances of proselytizing in some prisons.  In the Hancock County Justice Facility in Bay St. Louis, Mississippi, three Chinese women asked the Women’s Commission delegation to let the American public know that they could be released because they now believed in Jesus Christ.  The head chaplain in the York County Prison opposed efforts of local advocates to achieve release of Chinese detainees, arguing that the detainees should first convert to Christianity, then agree to deportation in order to carry Christianity back to China. 

Other detention facilities have made a concerted effort to provide a variety of religious services and sources of spiritual support.  Detainees often find such support critical to their ability to cope while in detention.

Visitor Access

Detainees frequently report a sense of isolation, confusion, and helplessness while in detention.  They are typically cut off from relatives, friends, agencies, and individuals willing to assist them and act as a source of support.  Factors which hinder the ability of such parties to visit detainees include the remote locations of many detention centers, limitations on phone calls, frequent transfers of detainees from facility to facility, limited visitation hours, and the slowness of some facilities to locate detainees when visitors request to see them.  Other limitations include restrictions on who can visit a detainee.  The Wicomico County Jail in Salisbury, Maryland, for example, will not allow minors under age 18 to visit inmates or detainees, even if the requested visit is with a parent.

The recent experience of a Colombian woman transferred from the Turner Guilford Knight Correctional Center in Miami to the York County Prison exemplifies the isolation experienced by detainees.  The woman was separated from her husband, who was detained in the Krome Service Processing Center.  Three days after her detention began, she was transferred to the York County Prison.  INS officers refused to tell her where she was being taken. 

The woman’s husband, meanwhile, was released from Krome and traveled to Pennsylvania to visit his wife and bring her documents which the INS told her would be required for her parole.  His request to visit her was refused.  However, he was able to submit the requested documentation.  His wife was told that she would be released in two days.  Instead, however, the woman was transferred back to Miami.  Her husband was waiting to visit her, but the INS refused to allow her to speak with him to inform him of her upcoming transfer.  As she was being loaded onto a van for transport to the airport, she saw her husband in the prison parking lot and began to cry.  The driver allowed her to speak to him from the van.  The woman arrived back at the Turner Guilford Knight Correctional Center at 2:30 am.  Her husband is stranded in Pennsylvania because he did not have enough money to return to Miami.  He also missed his own court date as a result.

Different Treatment Accorded to Women

Of particular concern to the Women’s Commission is the disparity that exists in some facilities between services offered to men and women in detention.  While detention of any asylum seeker often results in barriers to services, abuses, and hardship, the Women’s Commission has documented several instances in which women were denied services offered to male detainees held by the same INS district. 

This discrimination appears to result from several factors.  First, there are far fewer women in detention than men.  This difference in numbers, for example, often means that INS-detained men are separated from criminal inmates in the prisons the INS utilizes, whereas the INS finds it hard to justify renting a separate cell pod for the handful of women held in the same facility.  This was the case in such prisons as the Virginia Beach City Jail; the Kern County Lerdo Detention Center in Bakersfield, California; the York County Prison in York, Pennsylvania; the Berks County Prison in Reading, Pennsylvania; the New Orleans Parish Prison; and the DeKalb County Jail in Atlanta, Georgia.  At the time of a Women’s Commission visit to Puerto Rico, the INS district had temporarily shut down the female wing of the Aguadilla Service Processing Center, finding it cheaper to move the women to the federal prison in San Juan. 

The INS also used the relatively few number of women detained in the Kern County Lerdo Detention Center as a justification to decline bussing the women to meet with their attorneys in San Francisco, a service it offered to male detainees in the same facility  when vans were travelling to the city for other reasons.  This failure, however, had a detrimental effect on the ability of the women to obtain adequate legal representation.  The prison is more than a five-hour drive from San Francisco, a prohibitive commute for lawyers offering pro bono services.

Women detainees also often come from cultures in which they are taught not to question authority, and thus INS and prison officers frequently describe INS-detained women as “docile.”  This characteristic, however, also means that the needs of women are easily neglected.  The male Chinese asylum seekers who arrived on the ship the Golden Venture and were detained at the York County Prison, for example, were provided arts and crafts materials.  Chinese women detained in the female wing, however, were not provided any form of recreation to occupy their time.

Moreover, women are more at risk of certain abuses, including sexual attacks.  Officers at the Krome Service Processing Center appear to have particularly targeted women detainees for rape and sexual harassment and molestation.  This abuse, furthermore, undermined the women’s access to legal representation.  While it was critical to remove the women from exposure to the exploitation they were suffering in Krome, the INS chose to transfer the women to the Turner Guilford Knight Correctional Center, which has greatly interfered with the women’s access to legal services.  Local legal service providers are now struggling to offer services in both facilities.  They have also reported that access to the prison is much more difficult than at Krome.  Moreover, the INS has discontinued transporting the women back to Krome for their credible fear interviews before asylum officers posted at Krome, instead relying on telephone interviews with the women.  Face-to-face interviews can fundamentally influence the outcome of the interview, as asylum officers are better able to assess body language and non-verbal cues.

IV.              Legal Representation of Detained Asylum Seekers

Legal representation is critical to the ability of asylum seekers to pursue their asylum claims.  The immigration bar typically considers asylum cases as among the most complex and time-consuming of the various types of legal problems its members address.

Despite the critical need for assistance, however, the Institute for the Study of International Migration at Georgetown University has reported that more than twice as many detained asylum seekers lack representation as compared to non-detained asylum seekers in removal proceedings.  Moreover, its analysis revealed that represented asylum seekers are four to six times more likely to win asylum than those who are unrepresented.[6 

Several problems endemic to detention hamper the ability of asylum seekers to obtain representation.  First, asylum seekers are often dependent on pro bono or low-cost legal representation.  However, such programs are typically strapped for resources and struggling to meet the needs of the entire detained population, which has soared dramatically in recent years.

Moreover, the lists of pro bono and low-cost legal service providers that the Executive Office for Immigration Review (EOIR) makes available to detainees are frequently inaccurate.  This, combined with telephone systems that are often inadequate and expensive, makes it difficult for asylum seekers to contact lawyers.  In many detention centers, moreover, a legal representative cannot leave messages for his or her clients, forcing the service provider to visit the detention center if he or she needs to communicate with the client.  The INS has moved toward programming telephones in Service Processing Centers and contract facilities so that detainees can make toll-free calls to legal services programs, an important step in facilitating the ability of detainees to obtain counsel and remain informed about their cases.

A further barrier to legal representation is the remote location of many detention centers, which deters attorneys from accepting detainees as clients.  Many facilities are located in rural areas far from the legal services that are generally available in urban centers with strong immigrant traditions.  In addition, attorneys report that they frequently have to wait hours before being allowed to see their clients.  The combination of long commutes and time wasted waiting to speak to a client effectively means that attorneys may have to devote an entire day to visit one client.

Furthermore, the INS regularly transfers detainees from detention center to detention center for fiscal and logistical reasons.  Detainees therefore often end up in facilities hundreds of miles from their attorneys.  The INS typically does not provide prior notification to attorneys before their clients are moved.  The Women’s Commission tracked the case of a woman asylum seeker from Cameroon who was transferred from the Wackenhut Detention Center in Queens, New York, where she had been detained for several months, to the York County Prison.  Her attorney was not notified of the transfer.

Service Processing Centers and contract facilities often lack adequate attorney-client visitation rooms, forcing attorneys to wait or to visit with their clients in non-contact visitation booths via telephone.  In some centers, visitation rooms are also insufficiently sound-proofed.  For example, during a visit to the Krome Service Processing Center, a Women’s Commission delegation stood outside the attorney-client visitation rooms.  The delegation clearly overheard what should have been a confidential conversation between an attorney and his client, who was revealing sensitive medical information.

Finally, prisons occasionally pose special problems for attorney access.  For example, prisons have denied entrance to immigration lawyers because they belong to state bars that do not issue bar cards.  A Women’s Commission delegate who was a member of the New York State bar, which does not issue bar cards, was delayed from entering the Federal Detention Center in downtown Miami for almost two hours while she argued with prison administrators about her lack of a bar card. 

Prisons are also often unfamiliar with the concept of non-attorneys representing detainees, as is the case with representatives accredited by the Board of Immigration Appeals (BIA).  The Virginia Beach prison warden told an Amnesty International delegation in which the Women’s Commission participated that he would normally deny access to a BIA-accredited representative, because he had never heard of such a program.  Prisons also sometimes fail to program telephone systems to provide toll-free access to immigration pro bono programs, even when such access is provided to criminal defense pro bono programs.

The Women’s Commission is also concerned about the increasing use of video teleconferencing to conduct immigration court proceedings.  Attorneys participating in such hearings have complained about inadequate technology and the isolation of their clients, who often remain in the detention center while the judge, interpreter, and even the detainee’s attorney are located in a different facility miles away.  Reliance on such technology may seriously jeopardize due process, as detainees are confused and isolated throughout the conduct of the proceedings, and cannot confer with their counsel.

We are encouraged by the INS’s recent efforts to provide pro bono and low-cost legal service providers access to Service Processing Centers, contract facilities, and some prisons to offer group “know-your-rights” presentations.  Such programs have proven critical to providing detainees with accurate legal information, to identifying those detainees who are most in need of legal services, and in rendering the immigration proceedings more efficient by encouraging individuals with no relief available to them to accept removal.

In Fiscal Year 1998, EOIR funded a pilot project to test the efficacy of “know-your-rights” presentations in three sites.  In its final report on the pilot, EOIR observed, “the rights presentation has the potential to save both time and money for the government while also benefiting detainees.  During the pilot, cases were completed faster and detainees with potential meritorious claims to relief were more likely to obtain representation.”  It also suggested that expansion of the project should be explored.

Legal representation can make the difference between an asylum seeker successfully winning her asylum claim or being returned to face further human rights abuses in her homeland.  Representation is also perhaps the most vital link that a detainee can have to the outside world.  In addition to the critical role that attorneys play in presentation of an asylum claim, they also can act as an intermediary between the INS and the detainee.  They also offer hope to a detainee, a not insignificant function since many asylum seekers might otherwise abandon their claims and agree to deportation.

V.        INS Parole Policy for Detained Asylum Seekers

Theoretically, parole from detention is available to asylum seekers.  Such parole is allowed under sections 235(b)(1)(B)(iii)(IV) and 212(d)(5)(A) of the Immigration and Nationality Act, which provide for parole of aliens applying for admission to the United States on a case-by-case basis for urgent humanitarian reasons or significant public benefit.  INS regulations further stipulate that certain categories of aliens are eligible for parole, including but not limited to pregnant women and juveniles.[7]  The INS itself has stated in field directives that its policy should normally be to release asylum seekers who have established a credible fear of persecution, a preliminary screening standard that asylum seekers must meet under expedited removal before they are allowed to pursue their asylum claims.[8]

However, despite such instructions from INS headquarters to its district offices, many INS districts continue to detain asylum seekers for prolonged periods, in some cases for years.  The disparity between the stated national policy and implementation at the local level is attributable to the fact that tremendous discretion to parole asylum seekers has been delegated to individual INS district directors.  Belying the soundness of these decisions is the fact that many such asylum seekers are ultimately successful in their asylum claims.  Sadly, they may have endured years of unnecessary incarceration in the meantime.

Despite repeated inquiries from advocates and others and the submission of Freedom of Information Act requests by the Lawyers Committee for Human Rights, INS headquarters has failed to provide the national parole rate.  Estimates have ranged from 10 to 40 percent.[9]  Disturbingly, the INS New York and Newark Districts, which host two of the largest detention centers, and which are dedicated almost exclusively to holding asylum seekers, are among the most restrictive in terms of their parole of asylum seekers.  The Hastings College of Law’s Expedited Removal Study found that those asylum seekers entering through Kennedy Airport in New York have the highest average length of detention in the country, at 124 days.  Those arriving in Newark are held an average of 86 days.  Of the major ports of entry surveyed, San Diego came in with the lowest average, at 11 days.[10]

The Women’s Commission’s interviews with INS officials have revealed tremendous differences in the stated rationale for decisions to detain or parole asylum seekers.  Some district officials cite identity or security concerns.  Others favor detention because they view it as a legitimate enforcement tool to deter individuals from seeking refuge in the United States.  In a recent conversation, for example, a high-level INS official in Miami told the Women’s Commission to expect parole rates in the district to drop because the district feared that high parole rates were encouraging Colombians to seek entry to the United States through the Miami International Airport rather than other international ports of entry where parole rates are less generous.  Other INS officials have cited “congressional intent” as their reason for denying release to asylum seekers.  This appears to be especially common in the INS New York District. 

In some cases, the stated rationale for release is equally without a sound basis.  In 2000, the former Krome Service Processing Center officer-in-charge admitted to the Women’s Commission that his primary reason for regularly paroling asylum seekers was the lack of detention bed space in the district.  While the limitations in space was resulting in favorable release rates, he also indicated that he probably would not maintain the existing parole policy if more bed spaces became available.

While the Women’s Commission did not focus on the merits of the asylum claims of the women whom we interviewed, it was obvious that many were strong candidates for release.  We spoke to women from many countries, the vast majority of which were experiencing armed conflict and human rights abuses.  Many women stated that they had fled torture; threats to their lives; and persecution, including various forms of gender–related persecution.  Moreover, many of the women were later granted asylum.

VI.              Alternatives to Detention

Pilot projects that have explored the use of alternatives to detention for asylum seekers underscore the irrationality of U.S. detention practices.  Such pilots have demonstrated considerable success in meeting the dual goals of ensuring that asylum seekers appear for their immigration court hearings and that they are treated humanely pending the outcome of those proceedings.  They have also proven to be much less costly than detention.

Such pilots date as far back as 1990 when INS headquarters implemented a pilot to test what became known as the Asylum Pre-Screening Officer Program (APSO).  Under APSO, asylum seekers were eligible for release if they met several criteria, including having a credible asylum claim, evidence of their identity, a place to live, a means of support, and legal representation.  After APSO proved successful in terms of both alleviating the harsh consequences of detention on asylum seekers and freeing up INS detention space, the agency attempted to implement the parole policy nationwide through non-binding guidelines.[11]  Unfortunately, some INS districts failed to implement the program adequately, and it gradually fell into disuse.

In 1997, the INS contracted with the Vera Institute of Justice to test the viability of a supervised release program for asylum seekers in the INS New York District.  This project indicated that supervised release met the INS’s goal of tracking the whereabouts of asylum seekers and ensuring their appearance at their asylum proceedings as well as the humanitarian goal of allowing asylum seekers to live as normal a life as possible while their proceedings are pending.  The findings of the Vera Institute clearly indicated that supervised release of asylum seekers is a viable option; 84 to 93 percent of the asylum seekers who participated appeared for their hearings, depending on the level of supervision provided.  In addition, the pilot found that the cost of supervision of asylum seekers is 55 percent less than detention.[12]

In 1999, the INS transferred a group of Chinese asylum seekers from Guam to a county prison in Ullin, Illinois after they had been determined to have a credible fear of persecution.  These asylum seekers had originally been apprehended on the high seas after the Coast Guard intercepted the smugglers who were attempting to bring the Chinese to U.S. territory.  After four months in jail in rural Illinois, the INS negotiated with local service providers, under the auspices of the Lutheran Immigration and Refugee Service and members of the Detention Watch Network, to release the asylum seekers to local shelters, the location of which was not revealed to protect the asylum seekers from the smugglers to whom they owed debts.  Approximately 22 Chinese were released into the care of the shelters; all but one of them remained in the program.[13]

Finally, INS districts have also tested local alternatives to detention in cooperation with charitable organizations.  In New Orleans, for example, Catholic Charities has housed more than 30 formerly detained asylum seekers in non-secure shelter facilities.  None of the asylum seekers who have participated in the program have absconded.  Moreover, housing asylum seekers in the shelter costs the INS one-sixth the daily average cost of detaining individuals in local prisons.  One INS official in New Orleans called it “a great program.”[14] 

These pilot projects clearly demonstrate that alternatives to detention are both humane and cost-effective.  They also meet the INS’s concern that asylum seekers appear for their proceedings.  Moreover, asylum seekers who are not detained are much more likely to obtain counsel, a service critical to ensuring due process in an adversarial court proceeding.

The INS itself has expressed a commitment to continuing to test alternatives to detention.  However, given the tremendous success and consistent results already demonstrated in past pilots, the Women’s Commission believes that a national policy that embraces such alternatives should be legislatively mandated and implemented immediately.

VII.            Children in INS Custody

In each of the past three fiscal years (1998-2000), the INS has reported approximately 4,600 unaccompanied children in its custody.  Many such children are fleeing armed conflict and human rights abuses in their homelands.  Such abuses include recruitment as child soldiers, forced prostitution, forced labor, child marriages, female genital mutilation, and slavery.  Other children have been abused, abandoned, or neglected by their families, and thus may be eligible for Special Immigrant Juvenile status.  They range in age from 18-months-old to 17-years-old.  While approximately 60 percent of these unaccompanied children eventually reunite with family members, the remaining 40 percent lack relatives in the United States.

Subsequent to a class action settlement agreement known as Flores v. Reno (1997), the INS has opened nine shelters in which it houses children in its custody.  The majority of these shelters are institutional in nature and offer an environment of soft detention.  The children’s activities are closely monitored, the doors are frequently locked or alarmed, and children are not allowed off the premises of the facility unless accompanied by facility staff.  However, the children are allowed to wear street clothing, are offered educational classes, and are not locked in cells or cell pods.  Occasionally, they engage in recreational or educational trips off-site in the company of shelter staff.  The INS also has an extremely limited foster care program, generally used for young children, girls, or children with special needs.

Unfortunately, the INS shelter and foster care system, which consists of approximately 600 beds, has failed to keep pace with the number of children in INS custody at any given time.  As a result of the lack of bed space in the shelters and sometimes questionable placement decisions made by the INS, approximately one-third of children in INS custody spend time in a juvenile jail, for periods ranging from a few days to more than a year.  The majority of these children have not committed a crime of any sort.  Despite this, they are housed in highly punitive, restrictive settings; are sometimes commingled with youthful offenders; are subject to handcuffing and shackling; and are forced to wear prison uniforms.  Children and their attorneys have reported beatings and other abuses.

Staff in the juvenile jails are often ill-informed about the INS-detained children and remain unaware of their legal, cultural, and mental health needs.  Educational programs are typically conducted in English.  Due to the remote location of many of the juvenile jails and the general lack of awareness of children in INS detention, immigration attorneys who can assist the children are often unavailable, resulting in the questionable removal of children who might actually be eligible for asylum or other forms of relief.

The INS experiences an inherent conflict of interest with children in its custody.  The agency is acting as caregiver to children in its custody at the same time that it is seeking their removal from the United States.  INS immigration enforcement concerns often result in decisions, including placement decisions in the detention context, that are not in keeping with the best interests of the child.  Moreover, the INS lacks the expertise to care for children.

This conflict of interest was recently exacerbated.  In 2000, the INS consolidated its children’s programs under its Detention and Removal branch.  By doing so, it removed oversight of the children’s shelters from the Office of International Affairs, which was staffed in part by child welfare professionals.  The care of children is now lodged with a branch overwhelmingly staffed by law enforcement officials who specialize in detention and deportation and lack the expertise to identify and address children’s unique needs.

Also absent in the current system for children in INS custody are professionals who can shepherd the child through his or her immigration proceedings.  Less than half of the children in INS custody are represented by counsel.  U.S. law also fails to provide for the appointment of a guardian ad litem to unaccompanied children in immigration proceedings, a regular practice in other court proceedings affecting children.

The Women’s Commission was pleased and encouraged by the INS’s issuance of Guidelines for Children’s Asylum Claims in 1998.  However, the success of these guidelines in identifying and ensuring protection of refugee children will hinge in large part on the adequacy of the assistance they are provided to navigate U.S. asylum law.  Children must be provided the assistance of counsel to identify any relief for which they may be eligible and to advocate for such relief in immigration court.  A guardian ad litem should be a child welfare professional who can ensure that the child’s best interests are addressed by establishing trust with the child; identifying the circumstances that provoked his or her departure from the homeland; developing recommendations about the detention, custody and release of the child; ensuring that the child understands the proceedings in which he or she has been placed; and enabling the child to have his or her own voice heard in the proceedings.

The recent handling of the case of an eight-year-old Nigerian girl, who is currently detained in the Boystown shelter in Miami, Florida, exemplifies the failure of the U.S. system to adequately protect unaccompanied children in INS custody.  Despite her young age, the girl has been in detention since May 2000.  The INS refused to allow the young girl to go to juvenile court to determine if she has been abused, abandoned, or neglected and is therefore eligible for long-term foster care, a prerequisite requirement before a Special Immigrant Juvenile visa can be pursued.  In its denial, the INS claimed that the girl’s parents are attempting to commit immigration fraud, despite the fact that both parents have explicitly stated that they no longer want the child.  The girl’s attorney, therefore, has decided to file for asylum before the immigration judge. 

Despite a prior agreement to the contrary, the INS is challenging the appointment of a guardian ad litem to the child.  Furthermore, the INS trial attorney argued in immigration court that the child’s attorney has no standing to represent the child, since the INS—as the child’s custodial “guardian”—has not agreed to such representation and is the only entity with the authority to appoint counsel.  During the hearing, the district counsel actually suggested that the Krome officer-in-charge should represent the child.  The case was continued for the sixteenth time while the attorney briefs both issues.

Meanwhile, the child continues to suffer in detention, despite an expert opinion from a social worker that her development and mental well-being are deteriorating.

VIII.        Recommendations

Prolonged detention frequently erodes the physical, mental, and emotional health of asylum seekers.  It also is an unnecessary waste of taxpayer dollars and limited detention space.  Asylum seekers will remain vulnerable to arbitrary detention decisions by INS district directors unless Congress mandates a rational parole policy, alternatives to detention, and the restoration of due process.

Specifically, the Women’s Commission for Refugee Women and Children recommends that Congress expeditiously enact legislation that:

·        Establishes that the policy of the United States is generally not to detain asylum seekers who have established a credible fear of persecution, and that the parole of asylum seekers provides a significant public benefit.  This will help ensure that parole decisions are not made arbitrarily at the sole discretion of INS district directors.

·        Delegates the authority to determine whether to parole asylum seekers or to place them in an appropriate alternative to detention to asylum officers.  Such decisions should be made within one week after an asylum seeker submits a parole request.  Shifting parole authority away from the INS district offices to asylum officers would introduce greater objectivity into the decision-making process.

·        Permits review of a parole denial by an immigration judge within 30 days.  If the parole denial is upheld, the immigration judge should provide the reason for such denial in writing to the asylum seeker and his or her legal representative.  Establishing a system to review parole denials would introduce accountability into the decision-making process.  A written decision would assist asylum seekers and their legal representatives to prepare for renewed parole requests with enhanced documentation and other evidence supporting parole.

·        Allows for a renewed request for parole if the asylum seeker has new or additional information supporting the request.  The personal circumstances of the asylum seeker may change after parole is denied.  For example, a relative or other sponsor may come forward and offer the asylum seeker a place to live.

·        Mandates the establishment of alternatives to detention, that at a minimum include unsupervised release from detention; supervised release under the auspices of private nonprofit voluntary agencies with expertise in meeting the legal, spiritual, cultural, and psychological needs of asylum seekers; and non-secure shelter care or group homes also supervised by such voluntary agencies.  The current detention system offers only two options:  detention or release.  The development of alternatives to detention would better assist the INS in meeting the needs of asylum seekers while ensuring their appearance at their proceedings.  Alternatives to detention are cost-effective and have been proven to work.

·        Mandates the development of regulations to both establish standards for conditions of detention and create adequate monitoring and oversight of their implementation.  The INS has developed standards to address conditions of detention.  However, they remain non-binding and are monitored and enforced by the INS itself.

·        Provides government funding to facilitate “know-your-rights” presentations and legal representation to indigent asylum seekers.  Legal representation renders the asylum system more efficient and ensures fairness in immigration proceedings.

·        In addition, Congress should move quickly to pass S. 121, the Unaccompanied Alien Child Protection Act.  We urge the subcommittee to conduct an oversight hearing on the bill as soon as possible.  Introduced by Senator Dianne Feinstein, this critical legislation comprehensively addresses the custody, care, and assistance needs of unaccompanied children and closes procedural gaps in the current system that jeopardize their protection.  Among other important steps, S. 121 addresses the current conflict of interest experienced by the INS, which is simultaneously charged with caring for the same children it is seeking to deport, by establishing a new Office of Children’s Services within the Department of Justice. It also calls for the development of adequate shelter and fostercare.  Finally, it calls for the appointment of counsel and guardians ad litem to unaccompanied children to ensure that their eligibility for relief is adequately considered.

IX.              Conclusion

Depriving an individual of his or her freedom is one of the gravest actions a government can take.  The degree of neglect and abuse that the Women’s Commission has documented in INS detention practices is alarming.  We believe that Congress must play an active role in the design, implementation, and monitoring of U.S. detention policy.  We urge you to move forward with legislation that restores accountability, consistency, and compassion to detention.

Thank you again for holding this important hearing.  The Women’s Commission stands ready to work with your offices to assist in this process.

[1]               Dan Malone, “More than 800 Detained Indefinitely by INS,” Dallas Morning News (April 1, 2001).

[2]               Esmor was shut down after the riot and then later reopened under new management.  It is now known as the Elizabeth Detention Center.

[3]               Ronald Smothers, “3 Prison Guards Guilty of Abuse of Immigrants,” The New York Times (March 7, 1998), p. A1.

[4]               Letter from the Honorable Walt Durling to INS Philadelphia District Counsel Kent Frederick (July 17, 2000)

[5]               Letter from INS General Counsel Owen B. Cooper to The Honorable Walt Durling (July 25, 2000).

[6]               Memo from Andrew Schoenholtz, “Asylum Representation,” Institute for the Study of International Migration, Georgetown University (September 12, 2000).

[7]               8 C.F.R. § 212.5.

[8]                 Memorandum from Office of INS Deputy Commissioner, “Implementation of Expedited Removal” (March 31, 1997) (stating that once an alien has established a credible fear of persecution, release may be considered under normal parole criteria); Memorandum from INS Executive Associate Commissioner for Field Operations, “Expedited Removal:  Additional Policy Guidance” (December 30, 1997) (stating that parole is a viable option for aliens who have met the credible fear standard); Memorandum from INS Executive Associate Commissioner for Field Operations, “Detention Guidelines” (October 9, 1998) (stating that it is INS policy to favor release of aliens who have been found to have a credible fear of persecution).

[9]               See “Refugees Behind Bars,” Lawyers Committee for Human Rights (August 1999), p. 25.

[10]             Karen Musalo, Lauren Gibson, Stephen Knight, and J. Edward Taylor, “Report on the First Three Years of Implementation of Expedited Removal,”  Center for Human Rights and International Justice, University of California, Hastings College of Law (May 2000), pp. 69-71.

[11]                 Memorandum from INS Commissioner, “Pilot Project for Aliens Seeking Asylum in Exclusion Proceedings” (April 27, 1990); Memorandum from INS Commissioner, “Parole Project for Asylum Seekers at Ports of Entry and in INS Detention” (April 20, 1992).

[12]             “Testing Community Supervision for the INS:  An Evaluation of the Appearance Assistance Program,” Vera Institute of Justice (June 7, 2000), pp. iii, 27.

[13]             Esther Ebrahimian, “The Ullin 22:  Shelters and Legal Service Providers Offer Viable Alternatives to Detention,” Detention Watch Network News, Lutheran Immigration and Refugee Service (August/September 2000).

[14]             Joan Treadway, “Program Helps Immigrants Find Jobs and Shelter,” The Times-Picayune (January 22, 2001).

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