October 12, 2004
Office of Regulations and Rulings
Bureau of Customs and Border Protection
1300 Pennsylvania Avenue, N.W.
Washington, D.C. 20229
Dear Sir or Madam:
The U.S. Conference of Catholic Bishops ("USCCB") and its subsidiary, the Catholic Legal Immigration Network, Inc. ("CLINIC"), submit the following comments to the Department of Homeland Security ("DHS") in response the Federal Register notice of August 11, 2004, expanding the use of expedited removal, pursuant to Section 302 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). We stand in opposition to the expansion of this procedure as contained in the notice and provide the following comments regarding the implementation of this expansion.
We are concerned that providing Border Patrol enforcement officers the authority to remove an alien from the country who may have a bona fide asylum claim without the benefit of adjudication or review by an immigration judge will have the effect of returning such bona fide asylum seekers back to their persecutors. This is in contradiction to the principle which prohibits refoulement, as outlined in the 1951 U.N. Convention on the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees, of which the United States is a signatory.
In order to prevent this result, such enforcement officers, who do not have experience in asylum law or in working with victims of persecution, should not be given the power to remove an alien from the country without appropriate review by an asylum officer and immigration judge. Granting Border Patrol officers this authority represents a conflict of interest, in that officers are trained to detain and deport aliens who have entered without inspection, not ascertain whether an alien has a bona fide asylum claim. It is likely that apprehended aliens will not feel comfortable to express fears of persecution to an enforcement officer who is trained to deport them, particularly in a detention environment and an environment in which they feel intimidated or fearful.
At a minimum, safeguards should exist to ensure that bona fide asylum-seekers are given access to an asylum officer in all cases; that arriving aliens who are apprehended are provided clear guidelines as to their rights and a clear opportunity to articulate their fears; and that third parties, preferably a qualified non-profit organization, are given access to the procedure and to aliens who are subject to the expedited removal process. None of these safeguards are spelled out in the notice.
Providing Safeguards in the Expedited Removal Process
USCCB opposed the enactment of Section 302 in 1996 and has opposed the use of expedited removal at ports-of-entry since 1997. We have long expressed concern, for example, that an asylum-seeker at a port-of-entry, either an airport or seaport, may have difficulty expressing a fear of return to a uniformed and armed inspector, particularly after being fatigued after an arduous flight or voyage. This concern is compounded when the alien has been in the desert for several days, often deprived of food and water. We find it problematic, at best, and inconceivable, at worse, that an alien who may be suffering from severe physical and emotional distress would confide a fear of persecution to an arresting officer who is in uniform and carrying a weapon, usually in a detention center or in a detention setting.
While the Border Patrol agent may ask in a sworn statement whether the alien has a fear of return, there is evidence that an alien will remain reluctant to raise a fear of return to the agent. Often aliens have expressed a fear of return to an immigration judge which was not expressed to an enforcement officer because of the presence of a weapon and uniformed the officer. For example, many asylum-seekers have experienced persecution from law enforcement authorities in their countries and have an innate fear of law enforcement authorities. They have been traumatized and do not want to risk further punishment or trauma by confiding in another law enforcement official, this time a U.S. Border Patrol agent.
In this regard, we are deeply concerned that an asylum officer would not be part of the initial screening process performed by a Border Patrol agent. We recommend that asylum officers are given access to each alien who is not referred to a credible fear interview, particularly given that many of the aliens will be held in one facility in a sector.
We are also concerned that asylum officers may not be readily available to speak with an alien who has expressed a fear of return, given that an asylum office does not exist in either Tucson or Laredo, the two sectors which will initially implement the policy. Before the publication of the notice, most non-Mexican asylum seekers have been released from detention pending their court hearing. Expedited removal requires the detention of asylum-seekers until an asylum officer determines that the alien has a credible fear of persecution. Moreover, even after a determination has been made, DHS retains the discretion to further detain an asylum-seeker.
Since detention can be a traumatic experience for asylum-seekers who have already experienced persecution, we believe that asylum-seekers should be detained for the minimum time possible. A review of DHS detention statistics on the parole of asylum-seekers demonstrates that there is no national parole policy and that practices relating to the detention and release of asylum seekers vary wildly from district to district. As this expansion of expedited removal will mandate detention until a credible fear determination, it is imperative that DHS end its arbitrary detention practices and issue regulations to ensure that only those asylum seekers who pose a flight or security risk are detained.
Moreover, given that expedited removal mandates the detention of asylum seekers at least until the credible fear determination, it is imperative that DHS more aggressively pursue alternative forms of detention. At this time, all asylum-seekers in the Laredo and Tucson sectors are detained in prison or prison-like facilities which are inappropriate for asylum-seekers.
Therefore, we ask DHS to provide more detail on the availability of asylum officers to conduct credible fear interviews in a timely manner and to spell out a post determination release policy, so that aliens are not held in detention unnecessarily. Training of Border Patrol Agents
We are further troubled that Border Patrol agents will not be properly trained in this procedure to minimize the risk of error. As mentioned, a conflict of interest exists when an enforcement officer is asked to perform an adjudication task better performed by adjudication officers. Border Patrol agents, occupied by their main task of apprehending aliens, are not trained in asylum law and are not experienced in recognizing the signs of persecution, both physical and emotional. Without appropriate oversight by a trained asylum officer or third party, the likelihood that such signs will be missed is high. Combined with the general reluctance of an asylum-seeker to articulate his or her fear to an enforcement officer, an environment is created which maximizes the risk that a mistake will be made and minimizes the opportunity for the correction of that mistake. In our view, no amount of training for Border Patrol agents mitigate the risk of error.
In this regard, we request that a third party, preferably a non-profit organization with expertise in asylum law, be allowed access to aliens who have been placed in expedited removal. Since it is likely that removal would take several days and that the majority of such aliens would be held in one local facility, allowing such access would be achievable. USCCB and CLINIC are in a position to recommend qualified groups in Tucson and Laredo to perform this important task.
Moreover, immigration issues arise which do not directly relate to expedited removal. For example, while the majority of aliens apprehended by the Border Patrol may not be eligible for relief, many such aliens are returning to the United States after short visits home and may be eligible to qualify for cancellation of removal. The notice indicates that the Border Patrol will exercise discretion in referring such aliens for a hearing before an immigration judge. An officer also has discretion in referring other aliens, such as Salvadorans, who may be eligible for relief as class members in American Baptist Churches v. Thornburgh, 760 F. Supp. 796 (N.D. Cal. 1991) litigation, for a hearing. We request that DHS fully explain how Border Patrol agents will be trained in these matters of immigration law.
Finally, we are concerned that expedited removal decisions, and sworn statements which will later be considered in immigration court for those aliens referred for an asylum determination, will be issued by a single officer whose only oversight will be a paper review done by his supervisors. There will be no court reporter, non-governmental organization, attorney, or other witness to the expedited removal "proceeding" conducted by the Border Patrol officer. Children and Families
Given that expedited removal will only be applied to a minority of Border Patrol apprehensions, it would not be an undue burden to require that all expedited removal interviews be recorded for quality assurance purposes. The current procedures for supervisors to review the paper file is grossly inadequate, as the supervisors will not be in a position to determine whether the sworn statement accurately reflects the interview between the Border Patrol agent and the alien. Recording the interview would protect the Border Patrol agent from false accusations of abuse as well as the due process rights of the alien.
Of utmost concern is how unaccompanied alien children will be considered in this new process. More than 8,000 non-Mexican unaccompanied alien children are identified as entering the United States each year and come into U.S. custody. Most, if not all, are referred to the Department of Health and Human Services We strongly urge that unaccompanied alien children are excluded from this policy, as is consistent with current policy at ports-of-entry. The notice does not explicitly exclude unaccompanied alien children from the new policy, but gives Border Patrol officers discretion. This is clearly unacceptable. Children do not have the same ability as adults to articulate their fears, particularly in a hostile setting. In most cases, these children have experienced trauma during their journey to the United States or in their homelands. As in current practice, unaccompanied alien children should be referred to Health and Human Services for assessment and the provision of services.
On a related issue, we are concerned with how this new policy may be applied to families. USCCB has received reports along the border that children have been separated from parents in the removal process, depending on the legal status of the child and appropriate detention setting. It is not an unusual occurrence that parent (s) and children enter the United States together and are apprehended together. In our view, families with children should be given special consideration and be given access to an asylum officer in all circumstances. To the degree possible, families should be kept together in the least restrictive setting and every consideration should be given to their claim (s). Conclusion
Finally, we find the publication of the notice without public comment disquieting. The notice states that the Department published the notice in advance in accordance with the Administrative Procedures Act (APA) 5 U.S.C. 553 (b)(3)(B) and d(3), citing that delay in implementation of the policy would be "impracticable, unnecessary, and contrary to public interest." This reasoning dismisses the value of public comments and disregards the right of the public, including organizations with expertise in the area, to express their concerns and to work with the Department in good faith to minimize the adverse impact of the new policy. We question whether the new policy meets any of these standards, in that there are other views which hold that the new policy is not in the public interest and is itself impracticable and unnecessary. We hope that DHS will take into consideration and incorporate the comments of USCCB , CLINIC, and other organizations if it chooses to move ahead with the new policy.
In conclusion, USCCB and CLINIC oppose the expansion of expedited removal to the border regions of the United States and request that the Department rescind the new policy. We believe that the policy could lead to the return of bona fide asylum-seekers to their persecutors, a violation of the norms of international law, and a betrayal of the values upon which our democracy was founded. Sincerely,
Carlos Ortiz Miranda
Associate General Counsel