1. Detention of Asylum Seekers in the United States Workshop on the Israeli Asylum System Academic Center of Law and Business November 12-13, 2012 Prof. Stacy Caplow Brooklyn Law School

2. Detention: Definitions UNHCR 1999: Confinement within a narrowly bounded or restricted location where freedom of movement is substantially curtailed and where only option to leave confined area is to leave the territory UNHCR 2012: Deprivation of liberty or confinement in a closed place which an asylum-seeker is not permitted to leave at will. US Dep’t of Homeland Security: The seizure and incarceration of an alien in order to hold him/her while awaiting judicial or legal proceedings or return transportation to his/her country of citizenship.

3. Pathways to Asylum in U.S. Arrest at the Border Expedited removal Credible Fear Interview by AO with Review by IJ Detention-ICE Asylum Determination by IJ Administrative & Judicial Appeal Arrest in the Interior Defensive Application in Immigration Court Mandatory or Discretionary Detention Administrative & Judicial Appeal Voluntary Post- Admission Affirmative Application to Asylum Office Grant, Deny, Refer to Immigration Court Detention Rare Administrative & Judicial Appeal

4. President AG Special Counsel Secretary of Labor Secretary of DHS Secretary of HHS U.S. Executive Branch Agencies Secretary of State EOIR BIA ALJsImmigration Judges Chief IJOCAHO BALCAETAWHD ORRPHS ECA* Consular officers (posted worldwide) PRM Consular Affairs Ombudsman Under Secretary, BTS Director, USCIS AAO Field Offices Asylum Offices RSC ICECBPInt’l Affirs, incl. visa policy Field Offices Ports of Entry Border Patrol Sectors * Bureau of Education and Consular Affairs (reorganized USIA)

5. U.S. Refugee Statistics-2011* 24,988 individuals were granted asylum in the U.S. 13,484 granted asylum affirmatively by the Department of Homeland Security at Asylum Office interview 11,504 who were granted asylum defensively by the Department of Justice in Immigration Court 9,550 individuals were approved for derivative asylum status while located abroad (spouse and unmarried children under 21) 56,384 individuals were admitted to the United States as refugees * USCIS Statistical Report-2011 (FY 2010)

6. U.S. Detention Statistics: 2011 In 2010, ICE detained 363,064 foreign nationals. ICE detains more than 30,000 individuals per day. The average length of stay in detention is 31 days. Since 2005, the number of detention beds increased by 60%. =>34,000 in 2013 Since 2005, the number of detainees increased by 52.3%. The current cost of detention to taxpayers $122 per person per day=>approximately $2 billion per year. Detention of asylum seekers: Approximately 48,000 between 2003-2009 Vast majority are defensive applicants Less than 2% are affirmative applicants The most recent figures from the Department of Homeland Security indicate that in fiscal year 2007 approximately 10,000 of the more than 300,000 individuals detained were asylum-seekers.

7. US Immigration Detention Centres

8. U.S. Detention Centers

9. Statutory Framework: The Immigration & Nationality Act Mandatory Detention No individualized release determination All “arriving aliens” who are not admissible Individuals awaiting expedited removal or whose prior removal is reinstated Individuals who have established credible fear and await hearing Returning residents who are removable based on criminal convictions “Criminal aliens” following conviction for a deportable offense Discretionary Detention Individualized release determination Parole Bond (minimum $1500) Individuals in interior removal proceedings facing deportation (other than serious crimes) Initial decision by ICE Redetermination by IJ Appealable Grounds Likelihood of flight Dangerousness

10. Regulatory Framework for Detention of Asylum Seekers Affirmative applicants for asylum previously admitted are rarely detained unless other grounds arise Arriving aliens seeking asylum Arriving aliens have few, if any, rights Not entitled by statute or regulation to individualized release decision Can be detained throughout administrative proceedings including appeals ICE Agency advisory directive (does not carry the force of law) in 2009 requires case-by-case custody determination ICE claims: more than 75% of individuals who pass credible fear interview are released Difficulties: no means of identification, no ties to the community although return rate for those released fairly high (70% approximately) May not be released immediately ICE must provide reasons for denying parole No independent mechanism for challenging decision about necessity of detention No procedure for periodic review although detainee may request it Defensive asylum applicants often in detention for other reasons

11. Issues Affects of Detention on Asylum Seekers Mental and physical health Ability to obtain counsel Ability to prepare for the hearing Likelihood of success decreases dramatically Conditions of Detention The Asylum-Seeking Population Privatization Transfers Length of Detention Zadvydas v. Davis (2001) Clark v. Martinez (2005) Demore v. Kim (2003)

12. Responses NGO and professional calls for reform Inter-American Commission on Human Rights American Bar Association Amnesty International Human Rights First Human Rights Watch Detention Watch Network American Civil Liberties Union News articles expose conditions Some Congressional hearings Department of Homeland Security 2010 Immigration Detention Overview and Recommendations 2008, 2011 Performance-Based National Detention Standards Prosecutorial Discretion Development of Alternatives to Detention

13. Karnes, Texas Civil Detention Facility

14. Thank you very much. Questions? stacy.caplow@brooklaw.edu

15. Bibliography Alice Edwards, Back to Basics: The Right to Liberty and Security of Person and ‘Alternatives to Detention’ of Refugees, Asylum- Seekers, Stateless Persons and Other Migrants, UNHCR LEGAL AND PROTECTION POLICY RESEARCH SERIES (2011) Eleanor Acer & Jake Goodman, Reaffirming Rights: Human Rights Protections of Migrants, Asylum Seekers, and Refugees in Immigration Detention, 24 GEORGETOWN IMMIGRATION LAW JOURNAL 507 (2009-2010) Human Rights First, U.S. Detention of Asylum Seekers: Seeking Protection, Finding Prison (2009)