Commentary

10.02.17

The Right to Asylum: Migration Law

By

Favianna Rodriguez in her outstanding artwork titled, “Migration is Beautiful” draws butterflies to represent the migration of people across the world. Butterflies, unlike people, can fly over the border, over the border guards, over the fences, and even over Donald Trump’s proposed border wall. Although there is a certain beauty in pursuing dreams, educational or career opportunities in their migratory flights, some are seen as ‘ex-patriots’ and are respected or envied for their “brave transition” to a new country, whereas some are seen as ‘unwanted migrants,’ particularly those who enter a country illegally.

While searching for ‘illegal migrants,’ government officials often commit illegal practices.

This is a dichotomy, because both groups aim to migrate for a better future, a better life, yet one group is considered distinguished or professional and the other alien. The ‘illegal’, the ‘aliens’, the ‘undocumented’ – are tags people put on those who contribute to the mosaic of society, and strengthen the fabric of America. Those who migrate with all these labels attached deserve societal support and should be treated with dignity, yet they are often greeted in a dehumanizing manner, and their fate, unfortunately, may be decided the moment they enter the country they emigrated to. Ironically, these practices oppose the very words we have mounted on the Statute of Liberty. Emma Lazarus’ poem represents how we once felt about migrants:


Mother of Exiles […] cries she
With silent lips. “Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tost to me,
I lift my lamp beside the golden door!”

There has to be a breaking point, a moment when the privileged carriers of citizenship say, “welcome!” to disenfranchised asylum seekers and migrants. We have the opportunity, right now, to show respect for human rights by encouraging our lawmakers to protect the Deferred Action for Childhood Arrivals (DACA), to stand against the President’s proposed Muslim Ban, which arbitrarily prohibits the arrivals of residents from certain countries based on their faith, and to end the detention of asylum seekers including newborns and children.

There is a lot to be taken care of, but the first step, as always, is to raise awareness. Therefore, I am inviting you to learn more on detention of asylum seekers from the law professor and a forerunner of the Immigration & Human Rights Clinic at the Akron University School of Law — Professor Elizabeth Knowles:

  • Q: Could you tell us more about the contract between the Department of Homeland Security (DHS) together with the Immigration and Customs Enforcement (ICE) and private detention corporations in regards to asylum seekers?
  • A: The contract between the DHS and ICE and these private prisons includes CoreCivic (formerly knowns as the CCA – Corrections Corporation of America) and GEO. CoreCivic is the larger of these two, and does have quite a few contracts through the US with the DHS. They contract with the government, so the government has space for non-citizens to be detained for pending outcome of their removal proceedings and to hold them even if they are not in the removal proceedings before the court. They may be in expedited removal which is actually the type of removal that arriving foreigners are in, until they receive a credible fear determination from the asylum officer in their proceedings.The facilities that have these contracts are usually large facilities. I directed a legal team in San Diego, CA and we serviced the noncitizens that were detained at Otay Mesa detention facility near San Diego on the border with Mexico. That facility has the capacity for about 15,000 detainees. By the time I left the American Bar Association (ABA) Immigration Justice Project, every day, I would receive a roster form the detention facility of who was detained, what countries they were from, and how long they were there. We have a range of one thousand detainees every day of the week. They were detained there for their removal proceedings. ICE depends on these contracts with the private prisons in order to carry out their operations and prepare individuals for removal. This removal occurs after an immigration proceeding in which the individual has not qualified for any type of relief.
  • Q: What is the cost of this ‘outsourcing’?
  • A: It is expensive. I think it comes out to about 90 dollars per day at the private detention center to house non-citizens there.We need to think about how that time is compounded. They are detained from the moment they enter the United States, then they wait a couple weeks for their interview, and then wait a few more weeks to obtain the results. So, we are already at 28 days, with that 90 dollars prospect. It is approximately within the third month when the hearing takes place. Say their claim gets denied and they did not get asylum from the immigration judge. But they have a right to appeal. They have 30 days to submit their notice of appeal. It may take two to three months when they are still detained while they are waiting for the pendency of their appeal. They get their decision back maybe they are denied again; maybe they want to take it to the Sixth Circuit, and that may take really long time. It is not unusual to see people detained for over year or two years if they fully exhaust their appellate rights. It is quite expensive.
  • Q: Is there any cap on how long you can be detained?
  • A: A: There is! If they already exhausted all of their appellate remedies. If they have a final order, then they cannot be detained for 180 days beyond that. Or else, they would have a claim for habeas corpus. And they can file a habeas corpus petition in the federal district court. But they cannot file that if they have an appeal pending and their order is not final. And then they still have to show up in their claim for a habeas corpus petition. Should they pursue that then the government is unlikely would remove them in the foreseeable future.
  • Q: Is the detention only one alternative?
  • A: There are other alternatives. It really depends on the officer that encounters the induvial, or if the individual is with the family members, the ages of the family members, the make-up of the group that is arriving, etc. What I would see a lot in San Diego – a family would arrive at the border together. Let us say there is a mother, a father, a 19 years old daughter, and a three years old son. In majority of situations like that – the 19-year-old daughter would be detained, the father would be detained, and the mother and that three-year-old son would be paroled in, and they would be allowed to reunite with whichever family member of individual in the United States that they told the officers they could live with.The mother and the son could be put into immigration removal proceedings, and so could the father and the 19-year-old daughter. The father and the 19-year-old daughter are detained; they are moving on a faster docket than the mom and the son. The father has the credible fear interview and he does not pass; the daughter gets credible fear interview and she passes. They suffer from the same situation they fled the same place; but then, because of whatever happened during that interview, the asylum officer decided that the dad does not have a credible fear. He does not go forward, but the daughter does, and mom and son are in proceedings and they say “what happened to dad?” The expedited removal process continues and the government is free to remove that individual unless the judge in his or her review decides there is some merit to their claim there.

    What is the fate of persons lodging their application for asylum? What are the “baby jails”? How does look the legal way to asylum and what happens when asylum is granted or denied? – follow our website next week for another entry on the right to asylum.

DISCLAIMER — The views expressed in this article are the author’s own and do not necessarily reflect the views of the ACLU.

* Prof. Elizabeth Knowles is an Assistant Clinical Professor of Law at the University of Akron School of Law which she joined in 2016. At Akron Law, she supervises the Immigration & Human Rights Law Clinic and teaches asylum law. Before coming to Akron, she served as the Executive Director of the American Bar Association’s Immigration Justice Project (IJP). She is a member of the California State Bar, the American Immigration Lawyers Association, and the American Constitution Society (more information about prof. Knowles can be accessed over here: https://goo.gl/NZ1vJB).

* Lukasz W. Niparko LL.M., is a Humanity In Action Fellow (HIA) at the ACLU of Ohio. He graduated from the European University Viadrina with a degree in international human rights and humanitarian law. Prior to coming to the ACLU, Lukasz has served with various NGOs such as The Association for Legal Intervention, The Helsinki Foundation for Human Rights, and Polish Humanitarian Action.


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