WASHINGTON – More people seeking asylum in the U.S. could be detained and then jailed longer under a new Homeland Security Department policy for people wanting safe harbor.
The new policy applies to people placed in so-called expedited removal, a broad post-Sept. 11 category for immigrants who arrive in the U.S. seeking asylum or whose immigration paperwork is incorrect, invalid or nonexistent.
Immigration and Customs Enforcement, a division of the Homeland Security Department, said it issued the new policy Nov. 6 to make detention rules for asylum seekers more consistent and clear. But refugee advocates say it sets tougher standards for asylum seekers to win parole from detention.
"It's a sign of the times, with legitimate fear of terrorism morphing into an inability to distinguish between people who are terrorists and people who are victims of terrorism and asylum seekers," said Gideon Aronoff, president and CEO of the Hebrew Immigrant Aid Society.
The U.S. generally grants safe harbor to refugees fleeing persecution because of their race, religion, nationality, membership in a particular social group or political opinion. Last year, the country granted asylum to 26,113 people, according to Homeland Security Department statistics. Most were from China, followed by Haiti and Colombia.
Asylum seekers are in detention in federal immigration facilities and county jails around the country. Exactly how many is unknown because ICE has not released statistics for two years, despite congressional mandates.
A total of 5,252 people claimed to have a credible fear of persecution in the fiscal year that ended Sept. 30. Sixty-three percent of those claims were handled by ICE's asylum office in Houston, according to Homeland Security Department statistics.
Of the total, 3,182 people established credible fear and 1,062 did not. The remainder of the claims were withdrawn.
The numbers do not include Cubans requesting asylum because they are not placed in expedited removal.
Under old rules, asylum seekers placed in expedited removal had to establish they are not flight or security risks, prove their identity and show they have a credible fear of persecution if returned to their home country.
The new policy says detention and removal officers also must decide whether the person is seriously ill, a juvenile, pregnant, a witness in judicial, administrative or legislative proceedings or whether detention of the person is not in the public interest. The policy does not define public interest.
"It's important to remember this is not about a criminal population. They have a credible fear and are victims of persecution," said Eleanor Acer, director of refugee protection for Human Rights First, a member of a coalition of evangelical and advocacy groups that wanted Homeland Security to enforce the old rules.
In cases of people who requested asylum from deeper within the country -- such as when a tourist visa ran out -- an immigration judge can issue bond and order their release from detention.
Susan Cullen, ICE director of policy, said the agency is not adding new tests for detention release. The agency responded to the advocates' requests for consistency and clarity, she said. The second part of the policy comes directly from federal laws mandated by Congress for foreigners placed in expedited removal, she said.
Expedited removal was adopted to keep people in the country illegally from disappearing after being released on bond.
"Before it wasn't quite as clear to our field officers what they had to look at," Cullen said.
The agency chose not to define public interest to allow officers flexibility, she said. The policy also directs officers to collect information on parole denials and releases that will be collected monthly and analyzed.
But New York attorney Josh Bardavid, who represents asylum seekers, said once governments adopt stricter detention standards, it's difficult for them to retreat.
"Rarely is there political will in existence to take a step back and say, 'Maybe we shouldn't be doing this,"' Bardavid said.
The U.S. Commission on International Religious Freedom found in a 2005 study mandated by Congress that the expedited removal policy puts people with legitimate asylum claims at risk of being returned to their home countries to be persecuted or tortured.
The commission also found asylum seekers were being jailed with criminals while they waited for a decision on their claims. In a follow-up study this year, the commission said little had changed.