Immigrant Responsibility Act (IIRIRA). You have no right to free legal representation. Even if you can afford a lawyer, it’s hard to find one when you’re in detention. Many detention facilities actively try to block effective legal representation.52
If your credible fear claim is rejected, you can ask that an immigration judge review the decision. But if the reviewing judge rejects your claim, you’ll be summarily returned to your country of origin.53
If you pass the “credible fear” test you might be paroled or bonded out of detention to await an immigration court hearing on your asylum case. But it’s up to the discretion of the immigration agent in charge of your case, and if you don’t have a lawyer to help you win parole, or you can’t afford to pay a bond, you will likely remain locked up.54 If you’ve suffered torture or abuse, you may be re-traumatized by the conditions you experience in detention, where you will generally be treated as a criminal, whether or not you have violated any laws.55
Asylum seekers and migrants detained at the border are routinely subjected to extremely cold temperatures in the short-term holding cells of U.S. Customs and Border Protection (CBP). Border agents refer to the cells as “hieleras,” Spanish for iceboxes or coolers. Exposing people to cold temperatures appears to be part of a strategy to deter them from pursuing options to stay in the United States. Some detainees remain in the hieleras for more than a week.56 Ironically, U.S. federal courts have recognized forced exposure to extreme cold as a form of torture that can serve as a basis for granting asylum.57
If you pass your credible fear interview but are denied asylum, you can appeal the decision. The appeals process may take years; in the meantime, even if you are able to avoid detention, you may have trouble supporting yourself. Asylum seekers have to wait at least six months before they qualify for permission to work. Immigration judges and asylum officers have discretion to extend the waiting period, and it often stretches out for additional months or years. (This policy is another legacy of the 1996 IIRIRA.) Asylum seekers are also barred from receiving any government benefits. While many countries pose restrictions on asylum seekers, the United States is alone among the wealthier nations in denying them both work authorization and government benefits.58
Is the U.S. asylum system fair?
The asylum process may look impartial on paper, but studies suggest that in practice it is plagued with disparities. For example, the criteria for granting asylum aren’t supposed to be applied differently to people who enter the United States with a valid visa, compared to people who cross the border “without inspection,” enter with false documents, or request asylum on arrival. Yet researchers from the Georgetown University and Temple University law schools found that applicants who entered with a visa were 45 percent more likely to be granted asylum by the Department of Homeland Security (DHS) than those who did not. Applicants from Latin America, the Caribbean, and China were more than twice as likely to be granted asylum if they entered with a visa. “This factor probably favored wealthier and more educated applicants, as they were more likely to have been granted tourist, business, student, or other visas by U.S. consular officers and had no need to evade border inspection,” the researchers concluded.
Legal representation also generally improved the chances of winning asylum—especially for applicants who entered without inspection, for those without dependent children in the United States, and for single men, who make up “the least sympathetic category” of asylum applicants, according to an unnamed senior asylum official interviewed by researchers.59 In 2010, immigration courts granted asylum to 11 percent of unrepresented applicants, compared to 54 percent of those who were represented, according to Transactional Records Access Clearinghouse (TRAC), a nonpartisan research organization associated with Syracuse University.60 A 2009 report from the U.S. Commission on International and Religious Freedom found that among asylum seekers detained in the “credible fear” process, those with legal representation were granted asylum at a rate twelve times greater than those who were unrepresented.61
Asylum grant rates for applicants of the same nationality were dramatically different between the eight regional DHS offices. Within each office, grant rates also varied depending on the characteristics of the asylum officers who handled them: whether they had law degrees; whether they were married, single or divorced; how much experience they had on the job; and where they were born.62
Similar disparities emerge among immigration judges, who review the cases that DHS asylum officers reject. Immigration judges also decide “defensive” asylum cases, removal proceedings, and other kinds of immigration cases. At thirteen of the nineteen busiest immigration courts, with all other factors being equal, if you were assigned the judge who granted asylum most often, your chances of winning asylum were at least four times greater than if your case was heard by the judge in the same court who rejected the most cases.63
The imposition as part of the 1996 IIRIRA of a one-year filing deadline for asylum claims has deprived a number of genuine refugees of a fair hearing on their asylum cases, and has delayed thousands of cases by shifting them into the backlogged immigration court system. An independent academic analysis found that between 1998 and 2009, more than 21,000 refugees would likely have won asylum through an administrative process, without the need for further litigation in the immigration courts, if not for the filing deadline.64
A September 2008 review by the United States Government Accountability Office (GAO) cited nine factors affecting the asylum decisions of immigration judges, including nationality of the applicants, whether the applicants were represented or detained, whether they applied within the one-year time limit, and whether they applied affirmatively or defensively. Other factors included the length of time the asylum decision took, and the gender and length of experience of the immigration judge. After statistically controlling for these factors, the GAO found major disparities among different immigration courts: affirmative applicants in San Francisco were twelve times more likely to be granted asylum than those in Atlanta.65 These findings confirmed what TRAC had reported in 2007. “The unusual persistence of these disparities—no matter how the asylum cases are examined—indicates that the identity of the judge who handles a particular matter often is more important than the underlying facts,” noted TRAC.66
In a separate study, researchers concluded that strong diaspora communities and the presence of refugee support organizations in a particular area increased the local asylum grant rate. Local economic and employment factors also had an impact; for the average immigration judge, high unemployment in the surrounding community decreased the likelihood of granting asylum.67
Since there is no systematic follow-up with asylum seekers who lose their cases and are deported from the United States, there is no way to determine how many legitimate refugees may be rejected. The consequences can be dire. Researchers who have tracked asylum seekers returned by the United Kingdom, Australia, and other nations have exposed cases of imprisonment, torture, murder, and forced disappearance. Returnees may be persecuted for the same reasons they sought refuge. They may face persecution as deportees, or because they are seen as influenced by foreign cultures or governments. They may be subjected to harsh treatment based on their connections to politically active exile groups, or simply because they brought unwanted attention to their country’s human rights record by seeking asylum.68
HAITIANS FACE “FLOATING BERLIN WALL”
The nonprofit Human Rights Watch estimates that some 20,000 to 30,000 civilians were murdered by Haitian authorities during one of the most brutal regimes in the history of the hemisphere: the twenty-nine-year dictatorship of Haitian “presidents for life” François Duvalier (“Papa Doc,” 1957–1971) and his son Jean-Claude Duvalier (“Baby Doc,” 1971–1986).69
Thousands of Haitians
