Policy to Detain Asylum-Seekers and Apprehend Iraqis Announced

IMMIGRATION LAW & POLICY

Arrest and Detention

POLICY TO DETAIN ASYLUM-SEEKERS AND APPREHEND IRAQIS ANNOUNCED
Immigrants' Rights Update, Vol. 17, No. 2, April 8, 2003

The U.S. Dept. of Homeland Security (DHS) announced on Mar. 18, 2003, that it would begin detaining asylum-seekers from 33 countries with links to the Al Qaeda network and that detained persons would remain in government custody for the duration of their asylum processing. According to the Lawyers Committee for Human Rights, the new detention policy is being implemented against all asylum-seekers who attempt to enter the United States at borders and ports of entry and is not being applied to individuals who file for asylum affirmatively. Two days after the announcement of its new asylum-seeker detention policy, the DHS also announced that teams of agents from the Bureau of Immigration and Customs Enforcement (BICE) and the Federal Bureau of Investigation (FBI) would begin seeking out and detaining Iraqi nationals who are unlawfully present in the U.S. Both policies are part of the DHS's new "Operation Liberty Shield," whose stated aim is to increase security and prevent terrorism as the U.S. prosecutes its war against Iraq.

Asylum Detention Policy. The new detention policy is an extension of expedited removal (Immigration and Nationality Act sec. 235(b)), which is enforceable against any non-U.S. citizen who attempts to enter the U.S. without the appropriate documents or by using false documents. Such individuals are summarily returned to their countries of origin unless they express a fear of being persecuted upon being returned there. Individuals who articulate such a fear are screened by asylum officers to determine whether their fear meets a standard known as the "credible fear" standard. Those who are determined to meet this standard are then eligible to apply for asylum before an immigration judge.

The expedited removal provision requires that asylum-seekers be detained until they complete the initial credible fear screening. Once screened, they may be released from custody if their identity is confirmed, if they have ties to the community, and if they pose no risk to the public. The new policy requires that all newly arriving asylum-seekers from the 33 countries on the DHS's list be detained until they complete the asylum application process, which in many cases takes years. Moreover, the new policy does not distinguish between individuals who may pose a security risk and those who do not.

According to the Lawyers' Committee for Human Rights, the DHS has confirmed that among the countries on the list of 33 are the following: Afghanistan, Algeria, Bahrain, Bangladesh, Djibouti, Egypt, Eritrea, Iran, Iraq, Kazakhstan, Kuwait, Lebanon, Libya, Malaysia, Morocco, Oman, Pakistan, Palestine (i.e., Gaza and the West Bank), Qatar, Somalia, Sudan, Syria, Thailand, Tunisia, Uzbekistan, and Yemen.

The stated rationale for the new policy is increased security. According to DHS Secretary Tom Ridge, "We just want to make sure that those who are seeking asylum, number one, are who they say they are and, two, are legitimately seeking refuge in our country because of political repression at home, not because they choose to cause us harm or bring destruction to our shores."

For anyone who might think that detaining asylum-seekers indefinitely based on their national origin is not good policy, the Lawyers Committee for Human Rights has provided a convenient way to register an objection to the policy via e-mail by going to the following URL: http://capwiz.com/lchr/issues/alert/?alertid=1710526&type=An.

Iraqi Apprehensions. The new apprehension policy is similar to the government roundup of Arab and Muslim noncitizens following the attacks of Sept. 11, 2001. Then, the government detained hundreds of persons from countries with links to Al Qaeda, many of whom were not in lawful immigration status. Many were detained for extended periods and then sent back to their countries of origin. Now the government is seeking out and detaining Iraqis whom it believes may sympathize with Iraqi president Saddam Hussein. The DHS said it is detaining Iraqi nationals who have been identified using a range of intelligence criteria as possibly posing a threat to the safety and security of the American people. According to the Washington Post, the DHS is unwilling to release further details about the criteria it is using to determine which Iraqis to detain because the operation is ongoing.

Participating in the operation are FBI agents, who are assisting officers of the BICE. Under a little publicized order signed by Attorney General John Ashcroft on Dec. 18, 2002, FBI agents may investigate, determine the location of, and apprehend non-U.S. citizens who are in the U.S. unlawfully or who have violated any other law or regulation relating to visas, admissions of noncitizens, or the maintenance of immigrant or nonimmigrant status. The order also allows FBI agents to enforce the special registration rules of 8 CFR sec. 246.1(f). (For more on the special registration program, see "DOJ Proposes Rules to Monitor Certain Nonimmigrants," Immigrants' Rights Update, July 29, 2002, p. 2). The attorney general's order was not published in the Federal Register and was not publicly disclosed at the time it was issued.

The BICE is the new department that serves as the primary investigative arm of the DHS. Its mission includes investigating a broad array of activities related to terrorism and other perceived threats to U.S. security, such as terrorists' financing, money laundering, illegal arms dealing, immigration fraud, and migrant smuggling.