December 16, 2009 — This afternoon the Associated Press is reporting that Immigration and Customs Enforcement (ICE) will release asylum seekers who enter the US once they establish that they have a credible fear of returning to their home countries (here reported by the Las Vegas Sun — I bet you Las Vegans didn’t think I read the Sun, did you). If this is as likely as it looks, it means that years of the rather inhumane practice of locking up people who have already been persecuted while they wait for their immigration hearing is about to end. This practice included putting a many potential asylees quite literally in jail –many areas of the country are without nearby detention facilities and use local jails — for moths and even years at a time. Those not in jails went to immigration detention centers. Problems with immigration detention facilities abound, including inadequate space, housing criminal and non-criminal immigrants together, and in several centers, substantial abuse by staff members. For more on asylee detention conditions, see prison condition expert Craig Haney’s summary in the US Commission on International Religious Freedom’s report on Expedited Removal, the Clinton-era policy that started it all. (Full disclosure: I wrote part of another section of the report, so maybe I’m biased; also, I think Craig Haney’s a pretty good guy, so I am biased. As an aside, Craig Haney’s dissertation was the Stanford Prison Experiments.)
So, what does it mean to say that potential asylum seekers won’t be detained any longer? Well, it doesn’t mean that they won’t be detained. In other words, it doesn’t meant that they will say “I want asylum,” be given an appointment slip for a hearing, and then simply be let go from the airport. We used to do that, prior to 1996. Not surprisingly, not many people showed up for their hearings (for those of you who think this was not a problem, keep in mind that Ramzi Yusef, the guy who bombed the World Trade Center the first time around – 1993 – was one of those folks who never showed up). What this does mean, if I read the reports correctly, is that potential asylees who claim asylum at an airport will be detained for as long as it takes for them to have a Credible Fear Interview.
What is a Credible Fear Interview, and perhaps more importantly, when does it happen? A Credible Fear Interview is an interview in which an official who is more specialized in asylum law and knows more about dangerous countries than the Customs and Border Patrol officers talks to potential asylees and figures out whether or not they have a legitimate fear of returning to their country (i.e., would they be harmed by authorities). Credible Fear Interviews are supposed to happen within a week or so — but really happen within a few weeks. So asylum seekers will remain detained for some period of time.
If Credible Fear is established, what happens then? I presume that potential asylees will be released and told to see an Asylum Officer a few weeks later who will judge the merits of their asylum claim (different from a Credible Fear Interview in that the bar is set higher). If Credible Fear is not established, the no-longer-potential asylee will get sent home on the next plane back (at their airline’s expense, in case you were wondering).
All this is not to say that the change announced today is not huge. Since 1996, potential asylees would be detained weeks following the Credible Fear Interview until their Asylum Interview, and then, when that was not resolved (Asylum Interviews more often than not end in a referral to Immigration Court), months or years until their Immigration Court hearing was resolved. This caused those who fled from persecution substantial suffering. Today’s change will save future asylees months, if not years, of what is essentially jail time for crimes they not only did not commit, but indeed, have had inflicted upon them.