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Obama authorizes refugee re-settlement, but in reality ICE is detaining the “unadjusted”

Picture 1On September 30th 2009, President Obama signed a Presidential Determination authorizing the admission of 80,000 refugees into the U.S. in the year 2010. This commitment to ensuring the protection and re-settlement of refugees has been an integral part of U.S. policy since the Refugee Act of 1980 that sought to:

Provide a permanent and systematic procedure for the admission of refugees of special humanitarian concern to the United States and to provide comprehensive and uniform provisions for the effective resettlement and absorption of those refugees who are admitted.

The Act defines a refugee as someone who is:

Outside his country of nationality (or in the case of a person having no nationality, is outside any country in which he last habitually resided), and who is unable or unwilling to return to such country because of persecution or a well-founded fear of persecution based on race, religion, nationality, political opinion, or membership in a particular social group.

The White House release said that while the economic recession had presented new challenges to maintaining this and other humanitarian programs, the administration had “undertaken an in-depth review of the program with the goal of strengthening support to both the refugees and the communities in which they are being resettled.” In light of this declaration of strengthening support to refugees, it is shocking that the Department of Homeland Security has taken to detaining refugees who have not adjusted to Lawful Permanent Resident (LPR) status after having been in the country for one year (also known as “unadjusted refugees”). While some of these refugees are apprehended by ICE after encounters with local law enforcement for minor offenses, some are taken in without any criminal charges at all. These refugees are then held in detention facilities for the entire duration of time that it takes for the application to be received and processed by the U.S. Citizenship and Immigration Services (USCIS).

As per section 209 (a) of the Immigration and Nationality Act (INA), those refugees who have not acquired Permanent Residency within one year of residing in the U.S., “…shall, at the end of such year period, return or be returned to the custody of the Department of Homeland Security for inspection and examination for admission…” According to an article by Emily Creighton on Immigration Impact, ICE is misinterpreting “return to custody” too literally to allow for those refugees to be detained while USCIS processes their application.

This interpretation is particularly unfair since the law prohibits refugees from applying for permanent residence until one year after they have been admitted to the U.S. as refugees. In essence, ICE detains refugees for not doing what the law bars them from doing…DHS’ policy of detaining unadjusted refugees is extremely problematic—it is not required by the language of the statute and is unsupported by the policies that drove lawmakers to pass laws protecting refugees. The word “custody” in the statute does not require ICE to take physical custody of unadjusted refugees, something ICE’s predecessor organization recognized. The former Immigration and Nationality Service reasoned that “custody” in INA 209(a) could be satisfied by simply requiring refugees to apply for adjustment of status and compelling them to appear at the agency.

Not only do some of these application review processes take up to a year, but pursuing this application while in ICE custody can lead to further legal complications for the refugees. A number of human rights, refugee assistance and other advocacy groups have been urging DHS to change this policy of detention and have written numerous letters over the years to ensure that DHS and ICE adopt a more humane policy towards refugees that respects the long-standing national policy of protecting and rehabilitating refugees rather than further incarcerating them.

While the ISAP II program which is designed to allow individuals who present a low flight risk to avoid incarceration by agreeing to regular monitoring offers an alternative, the Assistant High Commissioner for Protection, Erika Feller, believes that it’s still too early to know whether or not this offers the best alternative for asylum seekers; “the objectives of many alternatives to detention systems are enforcement objectives. UNHRC believes that humanitarian considerations should take on a higher profile.”

Still many asylum-seekers in the United States are held in detention centers, alongside those facing immigration and criminal charges, while their cases are being processed.  The most recent figures from DHS indicate that approximately 10,000 of the more than 300,000 individuals detained were asylum seekers. According to a 2003 report published by the Physicians For Human Rights and entitled ‘From Persecution to Prison: The Health Consequences of Detention for Asylum Seekers‘, being detained further can be severely traumatic and detrimental for people who are fleeing persecution, threat and torture in their own countries.

Detention can induce fear, isolation and hopelessness, and exacerbate the severe psychological distress frequently exhibited by asylum seekers who are already traumatized…Physicians, experienced in evaluating and caring for asylum seekers, found extremely high symptom levels of anxiety, depression and post-traumatic stress disorder (PTSD) among the detained.

In our video, Restore Fairness, Jean-Pierre Kamwa, an asylum seeker from Cameroon, provides a powerful testimony on the psychological ramifications of seeking protection only to be incarcerated when he landed in JFK airport.

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