I am Bishop Nicholas DiMarzio, Bishop of Camden, New Jersey, and chairman of the National Conference of Catholic Bishops' Committee on Migration. Thank you for the opportunity to submit this testimony on the vital issue of U.S. asylum policy.

Mr. Chairman, I first would like to thank you for calling this hearing and for your leadership on asylum protection and other issues affecting immigrants and refugees. Your leadership is sorely needed and welcomed at a time when the United States' commitment to protecting the persecuted has waned. I would also like to extend my appreciation to Senator Kennedy for his tireless efforts on behalf of refugees and asylum-seekers. Indeed, we can trace the very establishment of our refugee protection laws to Senator Kennedy's vision and determination.

The year 2001 marks the fiftieth anniversary of the 1951 Convention relating to the Status of Refugees (hereinafter, "the Convention"), to which the United States has committed itself by signing the 1967 Protocol relating to the Status of Refugees (hereinafter, "the Protocol") and enacting national legislation on refugees. July 28, 2001 is the fiftieth anniversary of the Convention and June 20, 2001 has been designated by the United Nations as World Refugee Day. Your convening of this hearing on U.S. asylum policy is timely and appreciated. I suggest, Mr. Chairman, that it would be an excellent idea for the Subcommittee to convene soon another hearing that is more focused on international refugee protection, including refugee admissions, resettlement and overseas refugee programs.

Mr. Chairman, the U.S. Catholic bishops have long been committed to improving the plight of refugees and asylum-seekers. Indeed, we harken back to the plight of the Holy Family, including the infant Jesus, who fled into Egypt to escape the tyranny of King Herod. Jesus teaches us that in the face of the refugee and asylum-seeker we see the face of Christ: "For I was hungry and you gave me food, thirsty and you gave me drink, a stranger and you welcomed me" (Matthew 25:35). In response to our Lord's call, the Catholic Church in the United States, through the work of Migration and Refugee Services of the U.S. Catholic Conference, the Catholic Legal Immigration Network (CLINIC), our Catholic Charities agencies, and Catholic Relief Services, provides basic needs and resettlement assistance to refugees and asylum-seekers throughout the world.

The U.S. Catholic bishops are deeply concerned about recent changes in the U.S. laws and policies relating to asylum-seekers. The Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA), the Antiterrorism and Effective Death Penalty Act (AEDPA), and the policies that have resulted from these two laws erected a number of barriers against bona fide asylum-seekers. These include expanded interdiction policies, the routine detention of asylum- seekers, the use of summary exclusion/expedited removal, and the systematic rejection of certain asylum claims. Tragically, U.S. allies and other nations have followed the U.S. lead by increasingly refusing asylum protection to bona fide asylum-seekers. Our testimony will highlight our concerns and offer our recommendations for reforming the U.S. asylum system.

Much of my testimony focuses upon IIRAIRA's negative impact on asylum-seekers. Many of my recommendations are reflected in the provisions of the Refugee Protection Act of 1999, introduced in the 106th Congress. We would welcome and offer our support to a reintroduction of this legislation during the 107th Congress.

My testimony today will focus upon asylum procedures, the use of expedited removal and the detention of asylum-seekers. I will then provide recommendations that can either be pursued through legislation, regulation or internal administrative guidance to alleviate some of the harsh effects of these laws and practices.


Summary of Recommendations

In summary, we recommend the following:

1. A repeal of the one-year deadline for filing asylum applications;
   
2. A repeal on the 1,000 cap on asylum for those who flee coercive family planning policies;
   
3. A repeal of expedited removal/summary exclusion or, at a minimum, the adoption of measures which ameliorate its harsh effects;
   
4. A repeal of the current detention policy of asylum-seekers, allowing for exceptional detention of asylum-seekers for limited purposes and in facilities that at least meet the INS's own standards;
   
5. The systematic release of asylum-seekers found to have a credible fear of persecution from detention; and
   
6. The development and funding of alternatives to detention, especially for unaccompanied children, pregnant women, and families.

Mr. Chairman, the U.S. bishops believe that our nation's asylum system should afford those who request asylum on our shores an opportunity for more direct access to trained Asylum Officers, Immigration Judges, the Board of Immigration Appeals (BIA) and the federal courts. Further, we believe that asylum-seekers as a general rule should not be detained. In our 1995 statement, One Family Under God, the U.S. Catholic bishops outline a position in this regard. "Political asylum must remain a real option. Appropriate due process protections, a user-friendly system, and access to legal representation are important variables in maintaining a healthy system." [1]

Access to Asylum Procedures

Current law limits access to asylum procedures and to necessary protection. With the enactment of IIRAIRA, a one-year filing deadline was imposed for the submission of asylum applications. IIRAIRA provides for exceptions to this deadline, but these exceptions do not adequately address the needs of many asylum-seekers, including traumatized and unaccompanied children asylum-seekers, who may need years to understand that they can apply for asylum and then need more time to get the needed legal assistance to submit an asylum application. These exceptions also do not adequately meet the needs of those asylum-seekers who must file within a "reasonable period" of time after the deadline if they have an excused late filing. It has been INS's practice to interpret "reasonable period" to be a few months although unaccompanied children asylum-seekers and particularly traumatized individuals may need more than a few months after the deadline to submit an application.

In order to provide fairer access to asylum procedures, we support the repeal of the one-year filing deadline for asylum applications. At a minimum, traumatized individuals, particularly unaccompanied children asylum-seekers, should be treated liberally with regard to determining whether they may have an excused late filing either because of "changed circumstances" or "extraordinary circumstances." When such asylum-seekers file after the one-year deadline, the Immigration Judge should take a liberal view in determining whether they have filed their asylum applications within a "reasonable period."

IIRAIRA also amends the definition of a refugee contained in the Refugee Act of 1980 by explicitly recognizing as refugees individuals fleeing coercive family planning policies. However, the law imposed a 1,000 person per year ceiling on the number of people who can make use of this relief. Consequently, the 1,001st person to be recognized as deserving of relief under this provision is granted conditional asylum and cannot make full use of the benefits of asylum. These include obtaining a stable, durable solution leading toward eventual citizenship, the ability to be joined in the United States by close family members and the ability to receive n asylee benefits from the Department of Health and Human Services' Office of Refugee Resettlement. A conditional asylee who is a minor may also "age-out" and be excluded from asylee benefits for minors before he or she receives a final grant of asylum.

We urge that the 1,000 person per year ceiling for asylum grants based on a coercive family planning policy be repealed, as it is contrary to international refugee law to impose such a ceiling. In the meantime, until such a repeal is achieved, adult conditional asylees should be allowed to apply for work authorization and to apply for a social security number if they cannot obtain asylee or refugee benefits. With regard to unaccompanied minor conditional asylees, the INS and the Office of Refugee Resettlement of the Department of Health and Human Services should provide access to asylee benefits.

Expedited Removal/Summary Exclusion

Of foremost concern to the U.S. bishops is the regular use of expedited removal to screen and deport would-be asylum-seekers who enter U.S. ports of entry. Persons in deportation and exclusion proceedings should be afforded adequate due process to ensure that claims to asylum may be justly addressed. [2]

Unfortunately, expedited removal does not afford persons such due process. IIRAIRA provides for the expedited removal of individuals from the U.S. who arrive at U.S. ports of entry with no documents or documents determined to be false or fraudulently obtained. Individuals subjected to expedited removal who state that they fear return to their country of origin are detained while awaiting a determination from INS as to whether they have a credible fear of persecution.

An Immigration Officer decides whether an individual, who at this stage has no access to counsel and is at secondary inspection, is referred to an Asylum Officer for a credible fear determination or is removed from the United States. There is no review of the Immigration Officer's decision, either by an Immigration Judge, the judiciary or a non-governmental organization. Non-governmental organizations have not been allowed to monitor the procedures used by Immigration Officers to refer individuals to Asylum Officers. Only UNHCR, a specialized agency of the United Nations, which admits to having staffing and other resource constraints, may have access to the work of the Immigration Officers. Currently, no external entity is systematically monitoring Immigration Officers at secondary inspection. We are concerned that there is limited capacity for INS to conduct monitoring of its personnel to ensure that no refugees are mistakenly being returned to where they would face persecution and thus expert non-governmental organizations should conduct such monitoring.

Mr. Chairman, expedited removal results in the deportation of approximately 75,000 persons a year who do not have the opportunity to present their cases to an immigration judge. Because of the clear fact that some number of those subject to expedited removal have valid asylum claims and are sent back to their persecutors, we favor repeal of this provision of IIRAIRA. It is our view that this provision of U.S. law violates basic human rights and dignity. A nation founded on the principle of freedom and democracy should not summarily reject those who come to our shores to escape tyranny and persecution.

Absent the outright repeal of expedited removal, we recommend the following changes to the law to ameliorate its ill effects:

• Expedited removal should be applied only to emergency migration situations as defined by the Attorney General of the United States;
  
• Expedited removal should not be applied to asylum seekers fleeing a country in which systematic persecution is occurring or an armed conflict is taking place;
  
• An immigration judge, the BIA or the federal courts should review the decision of an immigration officer to remove an individual from the United States;
  
• Representatives of private organizations and international organizations should be given access to the secondary inspection process and asylum-seekers should be made aware of the presence of such experts to assist them; and
  
• INS should be required to facilitate access to legal representation for those at secondary inspection and the credible fear examination.

In conclusion, Mr. Chairman, we support a comprehensive overhaul of our nation's asylum system to ensure that bona fide asylum-seekers have appropriate due process protections and are not unnecessarily detained. In summary, we recommend the following:

1. A repeal of the one-year deadline for filing asylum applications;
   
2. A repeal on the 1,000 cap on asylum for those who flee coercive family planning policies;
   
3. A repeal of expedited removal/summary exclusion or, at a minimum, the adoption of measures which ameliorate its harsh effects;
   
4. A repeal of the current detention policy of asylum-seekers, allowing for exceptional detention of asylum-seekers for limited purposes and in facilities that at least meet the INS's own standards;
   
5. The systematic release of asylum-seekers found to have a credible fear of persecution from detention; and
   
6. The development and funding of alternatives to detention, especially for unaccompanied children, pregnant women, and families.

1. U.S. Catholic Bishops' Committee on Migration, One Family Under God, September 1995, p. 6. The bishops considered international human rights principles when establishing their position on asylum. By preserving the institution of asylum, the U.S. upholds Article 14 of the Universal Declaration of Human Rights which provides that everyone has the right to seek and enjoy asylum. The Executive Committee of the Office of the United Nations High Commissioner for Refugees, of which the United States is a member, stated in 1999 that given the growing concern among States about trafficking and the resulting limitations on access to asylum, the institution of asylum is of crucial importance to the international protection of refugees. See Executive Committee Conclusion No. 87.
   
   
2. One Family Under God at 16. The U.S. expedited removal policy erodes refugee rights provided for under international law. Expedited removal, without providing for the review of the Immigration Officer's decision regarding removal, calls into question the U.S.'s compliance with Articles 16 and 33 of the 1951 Convention relating to the Status of Refugees. These articles provide respectively for refugee access to courts and no return in any manner whatsoever to where a refugee would face persecution. Expedited removal also does not conform with the provisions of Executive Committee Conclusion No. 30 which is supposed to guide the refugee policies of governments like the United States when dealing with the problem of abusive applications for asylum or refugee status.
   
   
3. One Family Under God at 15. The U.S. practice of detaining asylum-seekers erodes refugee rights provided for under international law. Article 31 of the Convention provides that the "Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened..., enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence." The U.S. practice of detaining asylum-seekers also does not conform with Executive Committee Conclusion No. 44 on the detention of asylum-seekers and refugees.