niya statement re: "asylum fraud: abusing america's compassion?"
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Re: Statement for the Record: “Asylum Fraud: Abusing America’s Compassion?” in the House
Judiciary Subcommittee on Immigration and Border Security
From: National Immigrant Youth Alliance
To: House Judiciary Subcommittee on Immigration and Border Security
Date: February 10, 2014
The National Immigrant Youth Alliance (NIYA) has worked with undocumented immigrant youth since
2010. For the past two years, our work has expanded to include advocacy with and for recent
immigrants, included asylum seekers and refugees. We work with individuals from across the world that
come to the United States seeking not only a better life, but simply to survive. They are fleeing violence
and persecution and see the United States as a safe haven. We have a process in which these vulnerable
individuals are supposed to have their basic rights respected and their cases reviewed. However, what
we see all too often is abuses in this process and by those who are supposed to ensure safety and due
process for asylum seekers who present themselves at our borders and ask for refuge.
We do believe the system is in need of reforms and immediate attention. No human being should ever
be treated the way we have seen asylum seekers treated at our ports of entry. So we are glad to have
this opportunity to speak about asylum abuses, and work together to create a stronger process that
provides better protections for those seeking a safe home.
Findings Worthy of Investigation
“Mexicans Can’t Get Asylum”
Any immigrant subject to expedited removal proceedings who expresses an intention to apply to
asylum, a fear of persecution or torture, or a fear of returning to his or her home country must be given
a credible fear of persecution or torture interview by an Asylum Officer before being removed.
However, immigrants who present themselves at US Ports of Entry and are subject to expedited
removal, and thereafter express a fear of returning to their home countries are being wrong denied
credible fear interviews.
In the summer of 2009, Martin Reyes-Valles (A#089-540-000) approached the El Paso Port of Entry.
Months before, Martin had witnessed an execution at the hands of organized crime in his home town of
Juarez. Members of the cartel began to threaten Martin, saying they would kill him and his family. Soon
thereafter, in the middle of the night, the family’s home was burned to the ground. Martin approached
the Port of Entry seeking refuge, only to be turned away by an agent; he was told “there is no asylum for
Mexicans.” After this incident, Martin had no choice but to attempt to illegally enter the United States;
he was caught, and only then given a credible fear interview. Martin received a positive interview,
however is now detained at the El Paso Detention Center.
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On April 13, 2012, Rosa Hilda Carrera-Moreno, (A#205-483-791) left the United States, where she had
lived for over 20 years, for Chihuahua City, Mexico. Rosa’s two sons, both Dreamers, had just been
murdered; "I found blood and pieces of my son's skull at the crime scene." Once back in Mexico, Rosa
attempted to investigate the murder of her kids. That’s when the threats against her life began. Rosa
fled Mexico out of fear and turned herself in at the U.S. Port of Entry seeking refuge. However, she was
told “Mexicans can’t get asylum.”
Hearing this, and knowing she would be killed in Mexico, she had no choice but to enter illegally. Rosa
was caught by U.S. Border Patrol, prosecuted by the Department of Justice for illegal entry, and spent
several months in Federal Prison. After her prison sentence, Rosa was transferred to the El Paso
Detention Center, where she finally received a fear interview. She passed her interview, but, because of
her felony illegal entry conviction, she was denied parole from detention. Rosa has two U.S. citizen
children, ages 8 and 16, awaiting her return. As a result of the asylum abuse carried out by Port of
Entry agents, Rosa’s long term detention has resulted in nearly $100,000 in wasted tax payer money.
Prolonged Detention of Asylum Seekers:
Asylum seekers are detained in direct violation of Directive No.: 11002.1 by John Morton, the former
director of Immigration and Customs Enforcement (ICE). This directive went into effect January 4, 2010,
however many agents refuse to follow it and asylum seekers remain in prolonged detention. It reads in
part:
“…[W]hen an arriving alien found to have credible fear establishes to the satisfaction of
DRO his or her identity and that he or she presents neither a flight risk nor danger to the
community, DRO should, absent additional factors, parole the alien on the basis that his
or her continued detention is not in the public interest.”
During a four-month internal investigation of the El Paso Detention Center —September of 2013
through January of 2014— our organizers uncovered over 100 instances of individuals being denied
parole. All of these immigrants are seeking
asylum, and have passed either their credible
or reasonable fear interviews. In addition, all
of the over 100 immigrants had also provided
DRO and ICE officials with sponsorship
documents. To this day many of the
immigrants we first interviewed months ago,
remain detained.
We have found that this abuse of asylum seekers is not limited to the El Paso facility, we have received
reports from immigrants around the nation, from San Francisco to Louisiana, citing concerns over long-
term detention of parole eligible immigrants.
The New York Times recently reported on a group of five men who fled Sri Lanka after civil war
devastated their homes and made their lives there very dangerous. These men, despite passing credible
fear interviews and cooperating with FBI interviews regarding human smuggling, have been detained
since late 2010, over 3 years. Research and news reports show that if they are deported they are likely
to be tortured and killed. However, the Judge who hears asylum cases where they are detained in South
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Florida, Judge Rex Ford, denies 93.4% of asylum claims, including the cases of these men. Disparate
statistics in the asylum grant rates of Immigration Judges mean that if these men had had their cases
heard by another judge they likely would have been granted asylum 3 years ago. However, a lack of
oversight and accountability has left them imprisoned and likely to be deported.
http://www.nytimes.com/2014/02/03/us/tamils-smuggling-journey-to-us-leads-to-longer-ordeal-3-
years-of-detention.html?_r=2
Inconsistency of Fear Interviews:
Rosy Griselda Rojas-Gallego (A#205-930-278) presented herself at the Nogales, Arizona U.S. Port of
Entry on September 22nd, 2013. On September 30th, 2013, along with 30 other immigrants, Rosy’s
cousin, Ana Maria Dominguez-Rojas (A#206-167-328) did the same at the Laredo, Texas U.S. Port of
Entry. Both cousins, having lived together in Mexico, were seeking refuge here in the U.S. Ana received a
positive credible fear interview in October and was released in early November of 2013. However, Rosy
remains detained at the Eloy Detention Center in Arizona. Both cousins lived together in Mexico and
they both fled for the same reasons. They are indigenous and have faced persecution and violence at
school and at home for being indigenous. Yet, they have been given drastically different treatment
under the asylum process of this country.
Leobardo Medrano (A#206-202-014) fled Mexico and came to the United
States in November 2013 with his friend Jonathan. A car they were driving
was shot at by cartel members after another friend was murdered by the
cartel and they were warned not to be seen in the neighborhood again.
Despite the fact that Leobardo and Jonathan came to the United States
together fleeing the same violence, Jonathan was denied credible fear and
deported while Leobardo passed the interview and remained detained for
months. In December, the New York Times reported on this as a widespread problem. Entire families
present themselves together at the Port of Entry and explain their fears to Asylum Officers. However,
some are allowed to remain temporarily to pursue asylum claims while other family members are
immediately deported.
http://mobile.nytimes.com/2013/12/29/world/americas/path-to-asylum-for-mexicans-bearing-
letter.html?from=homepage
Extreme Delay in Asylum Seekers Receiving Interviews:
Citing the extreme bias in the granting of Mexican asylum cases, on July 22nd, 2013 nine immigrants
publically presented themselves at the Nogales, Arizona U.S. Port of Entry. The immigrants, all citing
fears of living in Mexico, requested asylum in the U.S. The nine were transferred to the Eloy Detention
Center and were told that their initial credible fear hearing would not take place until 7-months later, in
February of 2014. While the nine were detained, it came to our attention that numerous other
immigrants at the same facility have been waiting for extended periods of time (6 to 10 months) for
their initial fear interviews.
This too is not unique to this facility, Werner Arreaga (A# 079-793-292) was transferred to a Louisiana
detention center in February of 2013 and he did not receive his reasonable fear interview until 4-months
later, on June 28th, 2013. The nine immigrants who presented themselves on July 22nd were released
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from detention upon receiving a positive fear interview. Werner however, despite receiving a positive
(reasonable) fear interview, was not released until August, after his attorney submitted an addition U
Visa petition, on his behalf. This process coerces asylum seekers into giving up their asylum claims and
agreeing to their own deportations.
Extreme Bias Towards Asylum Claims from
Mexico, Latin American and Central
America:
In the first nine months of 2013, over
23,000 asylum applications were filed on
behalf of Mexican nationals. Of these
claims, very few ever see their day in court
and those that do are unlikely to be granted
asylum. According to DHS statistics, in 2012
there were 17,506 affirmative asylum applications granted, but only 337 were for Mexican nationals and
340 for Colombian nationals, which is 1.9% of applicants from those countries.
This is a particular problem for Mexican asylum seekers. Despite real violence and persecution, less than
2% of Mexican asylum cases are granted. Human Rights Watch has documented growing gang violence
in the country, while the Department of Justice reports continue to show that almost no Mexican
asylum cases are granted. http://www.hrw.org/news/2013/10/18/dispatches-asylum-seekers-us-face-
real-fears. Unfortunately, the United States has a long history of denying the asylum process to certain
populations. Professor Bill Hing cites the coercion of Salvadoran asylum seekers into signing voluntary
departure in the 1980s instead of being given the ability to apply for asylum as an example. In this case,
the Ninth Circuit court noted that “This pattern of misconduct flows directly from the attitudes and
misconceptions of INS officers and their superiors as to the merits of Salvadoran asylum claims and the
motives of class members who flee El Salvador and enter this country.” (letter attached) As described
above, many Mexican asylum seekers are in fact turned away at the border and denied their
opportunity to seek asylum.
We hope this committee takes a close look at this clear abuse of asylum law as it plays out with extreme
bias towards claims coming forward from nationals of certain countries. One main claim we hear from
officials, as to reasons for these denials, is that “…they should report the violence to their government.”
This claim goes without taking into account the large, cartel led, corruption within the Mexican
government, especially within local governments. This large scale corruption has been widely
documented by the U.S. government; in December of 2013, the San Antonio division of the FBI made
public an indictment against the former Governor of the State of Tamaulipas, Mexico, Tomas Yarrington
Ruvalcaba. In the indictment the FBI cites extreme corruption, and collaboration with the Gulf Cartel.
http://www.fbi.gov/sanantonio/press-releases/2013/former-governor-of-state-of-tamaulipas-mexico-
indicted-in-the-southern-district-of-texas
“According to the indictment, beginning in approximately 1998, Yarrington received
large bribes from major drug traffickers operating in the Mexican state of Tamaulipas,
including the Gulf Cartel. In return, Yarrington allegedly allowed them to operate their
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large scale, multi-ton enterprises freely, which included the smuggling of large quantities
of drugs to the United States for distribution. From 2007 to 2009, Yarrington allegedly
became involved in the smuggling of large amounts of cocaine through the Port of
Veracruz into the United States.”
Extreme Cost of Asylum Abuse:
We agree that the asylum system needs to be strengthened so that those who come the United States
seeking protection are provided with safety and due process. Just taking into account the 106 individuals
mentioned in this brief report, the U.S. Government has spent an estimated $2,103,400 for their long
term detention. This detention comes at the cost of, on average, $159, a day (DHS FY 2014 Budget
Justification, pg.1336.) All of the victims of asylum abuse mentioned in this report would have, and
should have, been eligible for immediate release on Parole, having met their credible/reasonable fear
bar. The 106 individuals mentioned in this report are just a minor reflection of the larger issue of asylum
abuse, as we see it.
We thank the committee for their review of this matter. For additional information please contact The
National Immigrant Youth Alliance via email at asylum@theniya.org
November 4, 2013
President Barack Obama
The White House
Washington, DC
Re: Dream 30 and Credible Fear
Dear President Obama:
I write to you today with grave concern for the “Dream 30”, young people who arrived at the
Laredo Port of Entry on September 30th and requested both humanitarian parole and asylum.
Twenty-six of these young people are currently detained at the El Paso Processing Center, and all
have received credible fear interviews after expressing fear of returning to Mexico (or, in one
case, Peru). However, seven have received negative determinations of credible fear and may now
be subject to removal, and I am concerned that an unreasonable standard for credible fear has
been imposed. I urge you to intervene in the credible fear screenings to ensure that the proper,
more generous credible fear standard be followed.
The immigration system allows for those who express a fear of return at our borders to receive a
credible fear interview, rather than being summarily deported. This is essential to protecting those
who may face danger abroad, but have little understanding of our legal system and few resources
with which to prove their case. And it is essential to maintaining the United States as a safe haven
for those who have been persecuted at home. The credible fear concept functions as a pre-
screening standard that is broader and less rigorous than the “well-founded fear of persecution”
standard that is required for an actual asylum application. A finding of credible fear merely gives
the prospective immigrant the opportunity to apply for asylum in removal proceedings. Without
this more generous screening standard, the nation risks returning immigrants to grave dangers,
including situations involving political violence, police corruption, gang violence, and torture.
For this very reason, the denial rate for credible fear interviews was less than 9 percent.
The negative credible fear findings thus far in the seven Dream 30 cases are worrisome. The
apparent cursory fashion in which these negative decisions were made are reminiscent of three
tragic procedural eras in the asylum history related to Central America refugees, Haitian refugees,
and Jewish refugees from Europe during World War II.
Treatment of Central American Refugees
The Ninth Circuit opinion in Orantes-Hernandez v. Smith, 919 F.2d 549 (9th Cir. 1990), reveals
that immigration officials engaged in a strategy that foreclosed the opportunity to apply for
asylum for Salvadorans during the 1980s.
Generally, after aliens were apprehended, either border patrol agents or INS officers processed
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them. INS processing of detained aliens consisted of an interrogation combined with the
completion of various forms, including form I-213, "Record of Deportable Alien," and the
presentation of form I-274 "Request for Voluntary Departure." Although the arrested Salvadorans
were eligible to apply for political asylum and to request a deportation hearing prior to their
departure from the United States, the vast majority of Salvadorans apprehended signed voluntary
departure agreements that commenced a summary removal process. Once a person signed for
voluntary departure in the course of INS processing, he or she was subject to removal from the
United States as soon as transportation could be arranged. A person given administrative
voluntary departure in this manner never had a deportation hearing, the only forum before which
the detained person could seek political asylum and mandatory withholding of deportation.
The Smith court found that the widespread acceptance of voluntary departure was due in large
part to the coercive effects of the practices and procedures employed by INS and the unfamiliarity
of most Salvadorans with their rights under United States immigration laws. INS agents directed,
intimidated, or coerced Salvadorans in custody who had no expressed desire to return to El
Salvador, to sign form I-274 for voluntary departure. INS agents used a variety of techniques to
procure voluntary departure, ranging from subtle persuasion to outright threats and
misrepresentations. Many Salvadorans were intimidated or coerced to accept voluntary departure
even when they had unequivocally expressed a fear of returning to El Salvador. Even when an
individual refused to sign form I-214, "Waiver of Rights," INS officers felt that they could
present the person with the voluntary departure form.
The court also found that INS processing officers engaged in a pattern and practice of
misrepresenting the meaning of political asylum and of giving improper and incomplete legal
advice, which denied arrested Salvadorans meaningful understanding of the options presented and
discouraged them from exercising available rights. INS officers and agents routinely advised
Salvadorans of the negative aspects of choosing a deportation hearing without informing them of
the positive options that were available. Without informing them that voluntary departure could
be requested at a deportation hearing, INS officers advised detainees that if they did not sign for
voluntary departure they could be formally deported from the United States, and that such a
deportation would preclude their legal re-entry without the pardon of the Attorney General.
INS officers and agents routinely told Salvadoran detainees that if they applied for asylum they
would remain in detention for a long time, without mentioning the possibility of release on bond.
Similarly, without advising that an immigration judge could lower the bond amount and that there
were bond agencies that could provide assistance, INS agents regularly told detainees that if they
did not sign for voluntary departure they would remain detained until bond was posted. Some
agents told individuals the monetary bond amount they could expect or the bond amount given to
other Salvadorans, without telling them that the bond amount ultimately depended upon the
circumstances of the individual.
INS officers commonly told detainees that if they applied for asylum, the application would be
denied, or that Salvadorans did not get asylum. INS officers and agents represented that
Salvadorans ultimately would be deported regardless of the asylum application. INS officers and
agents misrepresented the eligibility for asylum by saying that it was only given to guerillas or to
soldiers. INS processing agents or officers further discouraged Salvadorans from applying for
asylum by telling them that the information on the application would be sent to El Salvador, and
stating that asylum applicants would never be able to return to El Salvador. INS processing
officers also used the threat of transfer to remote locations as a means of discouraging detained
Salvadorans from exercising their rights to a hearing and to pursuing asylum claims.
Furthermore, INS agents often did not allow Salvadorans to consult with counsel prior to signing
the voluntary departure forms, although they acknowledged that aliens had this right. Even those
Salvadorans fortunate enough to secure legal representation were often unable to avoid voluntary
departure, as INS' practice was to refuse to recognize the authority of counsel until a formal
notice of representation (Form G-28) was filed. Due to the rapid processing of Salvadoran
detainees, it was often physically impossible for counsel to locate their clients and file Form G-28
before the client was removed from the country.
In conclusion, the Smith court noted:
The record before this Court establishes that INS engages in a pattern and practice of
pressuring or intimidating Salvadorans who remain detained after the issuance of an OSC
to request voluntary departure or voluntary deportation to El Salvador. There is
substantial evidence of INS detention officers urging, cajoling, and using friendly
persuasion to pressure Salvadorans to recant their requests for a hearing and to return
voluntarily to El Salvador. That this conduct is officially condoned, even in the face of
complaints, demonstrates that it is a de facto policy. The existence of a policy of making
daily announcements about the availability of voluntary departure, coupled with the
acknowledgement that the policy is designed to free-up scarce detention space, supports
the conclusion that INS detention officers make a practice of pressuring detained
Salvadorans to return to El Salvador. This conduct is not the result of isolated
transgressions by a few overzealous officers, but, in fact, is a widespread and pervasive
practice akin to a policy. . . .
This pattern of misconduct flows directly from the attitudes and misconceptions of INS
officers and their superiors as to the merits of Salvadoran asylum claims and the motives
of class members who flee El Salvador and enter this country.
Thus, the court entered the following order:
1. [INS and border patrol agents] shall not employ threats, misrepresentation, subterfuge
or other forms of coercion, or in any other way attempt to persuade or dissuade class
members when informing them of the availability of voluntary departure pursuant to 8
U.S.C. § 1252(b). The prohibited acts include, but are not limited to:
(a) Misrepresenting the meaning of political asylum and giving improper and incomplete
legal advice to detained class members;
(b) Telling class members that if they apply for asylum they will remain in detention for a
long period of time, without mentioning the possibility of release on bond or indicating
that bond can be lowered by an immigration judge and that there are bond agencies which
can provide assistance;
(c) Telling Salvadoran detainees the amount of bond given to other class members,
without indicating that the bond amount ultimately depends upon the circumstances of
the individual class member;
(d) Telling class members that their asylum applications will be denied, that Salvadorans
do not get asylum, or that asylum is only available to guerillas or soldiers;
(e) Representing to class members that the information on the asylum application will be
sent to El Salvador;
(f) Representing to class members that asylum applicants will never be able to return to
El Salvador;
(g) Indicating that Salvadoran detainees will be transferred to remote locations if they do
not elect voluntary departure;
(h) Advising Salvadorans of the negative aspects of choosing a deportation hearing
without informing them of the positive options that are available;
(i) Refusing to allow class members to contact an attorney; and
(j) Making daily announcements at detention facilities of the availability of voluntary
departure.
The bias that INS officials and asylum corps officers exhibited toward both Guatemalan and
Salvadoran asylum applicants was further exposed in American Baptist Churches v. Thornburgh,
760 F.Supp. 796 (N.D. Cal. 1991). As the New York Times reported on the case:
Such applications have long presented the Government with an embarrassing choice. The
United States supports the Governments of El Salvador and Guatemala, and at the same
time it is asked by asylum applicants to find that they have a "well-founded fear of
persecution" if they are returned home. Every approval of an application for political
asylum thus amounts to an admission that the United States is aiding governments that
violate the civil rights of their own citizens.
Since 1980 the Government has denied 97 percent of applications for political asylum by
El Salvadorans and 99 percent of those by Guatemalans. During the same time,
applications for political asylum by Eastern Europeans, Nicaraguans and residents of
other countries have a high percentage of approval. For example, 76 percent of
applications by residents of the Soviet Union were approved, as were 64 percent of those
by residents of China.1
1 Katherine Bishop, U.S. Adopts New Policy for Hearings On Political Asylum for Some Aliens, N.Y.
Times, Dec. 20, 1990, at B18.
A settlement was reached requiring the INS to readjudicate the asylum claims of certain
Salvadorans and Guatemalans who were present in the United States as of 1990, and who had
sought immigration benefits. The case, known as the “ABC litigation” began in 1985 as a
nationwide class action on behalf of Salvadorans and Guatemalans. The plaintiffs alleged that the
INS and the Executive Office of Immigration Review were biased in their asylum adjudication
process for those two nationalities. Under the settlement, these Central Americans were eligible
for new asylum interviews.
Unfair Treatment of Haitian Asylum Applicants
In Haitian Refugee Center v. Smith, 676 F.2d 1023 (5th Cir. 1982), the Fifth Circuit chastised the
federal government for unfair processes that were imposed on Haitian asylum applicants. In
response to the repressive Duvalier regime that caused political and economic havoc in Haiti in
the 1970s, many Haitians fled to the United States seeking refuge. Large numbers sought asylum
once they reached the shores of Florida. A backlog developed, so INS officials implemented an
accelerated program to deal with the situation. The program of accelerated processing to which
the Haitians were subjected by the INS-termed the "Haitian Program"- embodied the
government's response to the tremendous backlog of Haitian deportation cases that had
accumulated in the INS Miami district office by the summer of 1978. By June of that year
between six and seven thousand unprocessed Haitian deportation cases were pending in the
Miami office. These staggering numbers were not the result of a massive influx of Haitians to
south Florida over a short period. Although significant numbers of Haitians had entered the
United States from Haiti and the Bahamas in the spring of 1978, the backlog was primarily
attributable to a slow trickle of Haitians over a ten-year period and to the confessed inaction of
the INS in dealing with these aliens.
Many officials provided input in the planning process of the Haitian project. Assigned by the
Deputy Commissioner of the INS with the task of assessing the Haitian situation in Miami, INS
Regional Commissioner Armand J. Salturelli submitted the recommendation, among others, that
processing could be expedited by ceasing the practice of suspending deportation hearings upon
the making of an asylum claim. Salturelli acknowledged that this would contravene internal
operations procedures, but suggested that those procedures should be cancelled or "at least be
suspended insofar as Haitians are concerned." One July 1978 report from the Intelligence
Division of INS to the Associate Director of Enforcement advised in absolute terms that the
Haitians were "economic" and not political refugees and, in belated recognition of the obvious,
warned the Enforcement Division that favorable treatment of these Haitians would encourage
further immigration. Associate Director of Enforcement, Charles Sava, later visited Miami to find
space for holding an increased number of deportation hearings and to discuss with Miami
personnel the processing of Haitians. Out of those discussions arose recommended deterrence
measures, which Sava outlined in a letter to Deputy Commissioner Noto. These included
detention of arriving Haitians likely to abscond, blanket denials of work permits for Haitians,
swift expulsion of Haitians from the United States, and enforcement actions against smugglers.
Planning of the Haitian program culminated in a memorandum sent on August 20, 1978 by
Deputy Commissioner Noto to INS Commissioner Leonel J. Castillo. The memo explained the
basic mechanics of the accelerated processing already being implemented in the Miami district
office. Among the specifics set forth were the assignment of additional immigration judges to
Miami, the instructions to immigration judges to effect a three-fold increase in productivity, and
orders for the blanket issuance of show cause orders in all pending Haitian deportation cases.
In accordance with the goal of high productivity demanded of the Miami office, Acting District
Director Gullage issued a memorandum to all personnel in the office, stating "processing of these
cases cannot be delayed in any manner or in any way. All supervisory personnel are hereby
ordered to take whatever action they deem necessary to keep these cases moving through the
system." The Haitian cases were processed at an unprecedented rate. Prior to the Haitian program
only between one and ten deportation hearings were conducted each day. During the program,
immigration judges held fifty-five hearings per day, or approximately eighteen per judge. At the
program's peak the schedule of deportation hearings increased to as many as eighty per day.
At the show cause or deportation hearing, the immigration judges refused to suspend the hearing
when an asylum claim was advanced, requiring the Haitians instead to respond to the pleadings in
the show cause order and proceed to a finding of deportability. The order entered by the judge
allowed the Haitian ten days for filing an asylum claim with the district director, then ten days to
request withholding of deportation from the immigration judge if the asylum deadline was not
met. Failure to seek withholding in a timely manner effected automatic entry of a deportation
order.
Deportation hearings were not the only matter handled during the Haitian program. Asylum
interviews also were scheduled at the rate of forty per day. Immigration officers who formerly
had worked at the airport were enlisted as hearing officers for these interviews. Prior to the
program such interviews had lasted an hour and a half; during the program the officer devoted
approximately one-half hour to each Haitian. In light of the time-consuming process of
communication through interpreters, the court concluded that only fifteen minutes of substantive
dialogue took place. Consistent with the result-oriented program designed to achieve numerical
goals in processing, the Travel Control section in the Miami office recorded the daily totals of
asylum applications processed. The tally sheet contained space only for the total number of
denials; there was no column for recording grants of asylum.
Hearings on requests for withholding deportation also were being conducted simultaneously with
asylum and deportation hearings, at several different locations. It was not unusual for an attorney
representing Haitians to have three hearings at the same hour in different buildings; this kind of
scheduling conflict was a daily occurrence for attorneys throughout the Haitian program. The INS
was fully aware that only approximately twelve attorneys were available to represent the
thousands of Haitians being processed, and that scheduling made it impossible for counsel to
attend the hearings. It anticipated the scheduling conflicts that in fact occurred. Nevertheless the
INS decided that resolving the conflicts was "too cumbersome for us to handle" and adopted the
attitude that everything would simply work out.
Under these circumstances, the court concluded that the INS had knowingly made it impossible
for Haitians and their attorneys to prepare and file asylum applications in a timely manner. The
court found that adequate preparation of an asylum application required between ten and forty
hours of an attorney's time. The court further estimated that if each of the attorneys available to
represent the Haitians "did nothing during a 40 hour week except prepare [asylum applications],
they would have been able to devote only about 2 hours to each client."
The results of the accelerated program adopted by INS are revealing. None of the over 4,000
Haitians processed during this program were granted asylum.
In the end, the federal court of appeals struck down the accelerated program as a violation of
procedural due process. The government was forced to submit a procedurally fair plan for the
orderly reprocessing of the asylum applications of the Haitian applicants who had not been
deported.
Turning Away Jewish Refugees During World War II
In the 1930s, for example, the United States turned away thousands of Jews fleeing Nazi
persecution (e.g., SS St. Louis), in large part because of powerful restrictionist views against
certain ethnic, religious, and racial groups. Congress and U.S. consular officers consistently
resisted Jewish efforts to emigrate and impeded any significant emergency relaxation of
limitations on quotas.
The plight of European Jews fleeing Nazi Germany aboard the ship SS St. Louis in 1939 is a
horrific example of how restrictionist views were manifested toward refugees at the time. In a
diabolical propaganda ploy in the Spring of 1939, the Nazis had allowed this ship carrying
destitute European Jewish refugees to leave Hamburg bound for Cuba, but had arranged for
corrupt Cuban officials to deny them entry even after they had been granted visas. It was the
objective of Nazi propaganda minister Joseph Goebbels to prove that no country wanted the Jews.
The St. Louis was not allowed to discharge its passengers and was ordered out of Havana harbor.
As it sailed North, it neared United States territorial waters. The U.S. Coast Guard warned it
away. President Franklin D. Roosevelt had said that the United States could not accept any more
European refugees because of immigration quotas, as untold thousands had already fled Nazi
terror in Central Europe and many had come to the depression-racked United States.
Nearly two months after leaving Hamburg, and due to the efforts of U.S. Jewish refugee
assistance groups, the ship was allowed to land in Holland. Four nations agreed to accept the
refugees—Great Britain, Holland, Belgium and France. Two months later, the Nazis invaded
Poland and the Second World War began. Over 600 of the 937 passengers on the St. Louis were
killed by the Nazis before the war was over. When the United States refused the St. Louis
permission to land, many Americans were embarrassed; when the country found out after the war
what happened to the refugees, they were ashamed.
Closing
Recognizing credible fear is not a grant of asylum. It merely recognizes that the person has shown
a significant possibility that that the applicant can meet the standard for asylum before an
immigration judge. It simply gives the person a chance for a fair hearing in an immigration court.
The standard for credible fear is not meant to be high. In a case that I litigated, NS v Cardosa-
Fonseca, 480 U.S. 421 (1987), the Supreme Court recognized that the “well-founded fear”
standard for asylum can be met even when a 10 percent chance of persecution is established. And
the credible fear standard is meant to be an even lower burden than well-founded fear.
The Dream 30 are young people that deserve fair treatment. Your administration should not be
associated with the tragic asylum eras of the past that I have outlined above. Politics should not
get in the way. I urge you to treat them fairly in their bid for refuge in this country and to give
their cases due consideration. If they have a credible fear, they should be allowed to make a case
for asylum in front of an immigration judge, rather than be subject to expedited removal. I urge
you to protect the integrity of the asylum system that has been designed to be symbol of hope and
freedom throughout the world.
Sincerely,
Bill Ong Hing
Bill Ong Hing
Professor of Law, University of San Francisco
Professor of Law Emeritus, University of California, Davis
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