We know about this newest Emma Lazarus nightmare because Human Rights Watch just published a report about it -- "Jailing Refugees: Arbitrary Detention of Refugees in the US Who Fail to Adjust to Permanent Resident Status."
The 40-page report examines the detention of refugees for failure to file for lawful permanent resident status, even though US immigration officials already put them through a thorough vetting process at the time they were recognized as refugees.
The report recommends changing US law to close the legal loophole that allows for detaining these refugees and to give them lawful permanent residence when the US grants them asylum or admits them to the country under its overseas refugee resettlement program.
"For the US government to bring persecuted refugees to this country and then turn around a year later and jail them because they didn't file immigration forms is ironic to the point of absurdity," says Bill Frelick, refugee policy director at Human Rights Watch. "This mindlessly bureaucratic policy unnecessarily traumatizes refugees and their families, not to mention wasting the government's resources."
The report is based on interviews with 17 refugees in immigration detention in Arizona and Pennsylvania and with legal aid providers in Arizona, Pennsylvania, Maryland, New York, and Washington, DC, all of who worked with refugees detained for failure to adjust their status.
Sebastian Nyembo (a pseudonym) was only eight when he was resettled from the Democratic Republic of Congo. He did not know about the requirement. "I was eight years old," Sebastian told Human Rights Watch. "My father passed away. When I got older I realized I needed it, but I didn't know it was mandatory."
When Human Rights Watch visited him in August 2009 at the remote Eloy Detention Center in the Arizona desert, he had not spoken to his two children, ages 7 and 4, since his arrival four months earlier. His son has sickle cell anemia, which requires expensive medical care, but Sebastian had been unable to provide for the children since his detention. "My wife, she been going through a lot," he said. "My house went for foreclosure."
Although the law is not applied uniformly, ICE interprets section 209(a) of the Immigration and Nationality Act as mandating detention of all refugees who have been in the US for 12 months who have not filed to adjust their status, until they have filed for adjustment and their applications have been adjudicated. In Arizona, where Human Rights Watch conducted most of its interviews, refugees were sometimes detained for several months in remote, desert locations, and in some cases for longer than a year, without being formally charged with any legal offense.
The majority of resettled refugees interviewed by Human Rights Watch said that before their detention, they were unaware that they were required to file for adjustment of status. Most believed that filing for adjustment of status was optional, and were unaware of any potential legal repercussions for failure to file after one year.
"These people are no danger to their communities, nor are they a flight risk," Frelick said. "But detaining them separates them from spouses and children, interrupts their education and costs them their jobs - not to mention the new trauma for those with post-traumatic stress disorder."
The US is a state party to the International Covenant on Civil and Political Rights, which states that no one shall be subject to arbitrary arrest or detention (Article 9). This prohibition means that a person may be deprived of liberty, even if provided for under domestic law, only to meet a legitimate aim, and only in cases where it is necessary and proportionate, such as when alternatives to detention are not possible. An arrest or detention is arbitrary if not carried out in accordance with domestic law, or if the law is itself arbitrary or extremely broadly worded.
Failure to adjust immigration status is not a chargeable criminal or civil offense. So unlike sentences of a specific length imposed for criminal convictions, the length of detention for resettled refugees is indefinite. When people are detained for this reason, they are held until they complete their application and the application has been fully adjudicated. This may take 4 to 6 months, and in some cases longer than a year.
"Jailing Refugees" urges the US Congress to change the law that currently permits ICE to detain these refugees and calls on Congress to grant legal permanent residence to all recognized refugees in the US, given that their cases have already been considered in depth as part of the asylum or refugee resettlement process. In the meantime, it also calls on ICE to stop detaining these refugees and to permit them to file for adjustment from their own homes and communities.
The experience of being detained often without understanding why or how to get out of detention can cause great anxiety and depression. Sebastian Nyembo told Human Rights Watch "I'm a good person, a good hearted person, but I'm gonna give up. I don't have no fight in me."
Some might argue that the current law should remain unchanged because it gives US immigration authorities an opportunity to examine refugees after one year to see if they should be removed because of criminal behavior. "Jailing Refugees'" central recommendation that refugees be admitted with lawful permanent resident status would still allow US immigration authorities to put criminals into removal proceedings. "Under existing law, US immigration authorities have ample grounds for initiating removal proceedings against lawful permanent residents convicted of crimes and for detaining them during those proceedings," said Frelick.
Now, none of this will come as news to the Department of Homeland Security, the super-bureaucracy that runs our immigration machinery, and its Immigration and Customs Enforcement (ICE) unit. The Secretary of DHS, Janet Napolitano, has already taken a lot of heat for the incredibly poor performance of ICE. She has outlined her plans to improve and reform conditions for thousands of refugees currently being held in detention.
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