U.S. Commission on Civil Rights

Crossing Borders: An Examination of Civil Rights Issues Raised by Current Immigration Laws, Policies, and Practices

Briefing Summary

December 8, 2000

As part of its mandate to investigate civil rights issues of national concern, the U.S. Commission on Civil Rights organized a briefing on asylee and refugee civil rights concerns in December 2000 titled “Crossing Borders: An Examination of Civil Rights Issues Raised by Current Immigration Laws, Policies, and Practices” (“Crossing Borders”). This briefing reflected the Commission’s historical and continuing interest in addressing civil rights challenges facing immigrants who come to the United States seeking a new and better life or to escape persecution.

The Crossing Borders briefing explored the obstacles and perceived injustices faced by asylum seekers and other refugees in the U.S. border control and immigration process. The briefing focused, in particular, on possible violations of asylee civil rights in the detention process, equal protection concerns in deportation practices, and the impact of INS delays in processing asylum applications. In all, four panelists addressed the Commissioners at the briefing: Martha Barnett, president of the American Bar Association; William Schulz, executive director of Amnesty International USA; Jocelyn “Johnny” McCalla, executive director of the National Coalition for Haitian Rights; and Marisa Demeo, regional counsel for the Mexican American Legal Defense and Education Fund (MALDEF). 

Panelist Discussion

Martha Barnett, president of the American Bar Association (ABA), was the first panelist to address the Commissioners. She stated that the ABA, like others in the legal community and the nation in general, “has a deep and abiding interest in the situation that faces immigrants in the United States.”[1] The panelist noted that she recently returned from a trip to Chicago, where she observed a dire shortage of lawyers for people seeking asylum. She noted that in Cook County there are many children who arrive in the country without parents or documentation of any kind, and who are unable to speak English. Many of these children, according to Ms. Barnett, were stolen and smuggled into the United States to be sold.[2]  

Ms. Barnett reported that the ABA offers several immigration-related programs, including a Coordinating Committee on Immigration Law that coordinates the activities of various sections of the ABA that deal with issues relevant to immigration. These include, but are not limited to, the Individual Rights, Litigation, and International Law Sections. Ms. Barnett also noted that the ABA advocates for just immigration policies. For example, the ABA is lobbying to revise provisions of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA)[3] that are detrimental to asylum seekers, particularly the expedited removal process. 

William Schulz, executive director of Amnesty International USA,[4] noted that everyone forced to flee his or her country to escape persecution has a right to asylum. Indeed, the United States was, in many respects, the architect of this principle. Yet, “asylum seekers arriving in the United States without proper documents are automatically locked up, often indefinitely, without knowing when or if they will be released.”[5] Dr. Schulz noted that asylum seekers are often treated like criminals or worse, since they are frequently denied a fair opportunity to contest their detention or post bond. He argued that, like criminals, the conditions of their confinement “are sometimes degrading, involving such things as strip-searches, shackling, chaining, and verbal and physical abuse.”[6]  

Dr. Schulz stressed that there are U.N. Conventions and Protocols, ratified by the United States, which provide that “the very detention of asylum seekers should be avoided, and if detention is necessary, it should be demonstrated by means of a prompt, fair, individual hearing.”[7] Yet, according to Dr. Schulz, the United States continues to routinely detain asylum seekers, often without hearings. 

During his testimony, Dr. Schulz was critical of IIRIRA, calling its provisions “drastic.”[8] Under IIRIRA, those who reach U.S. shores face an expedited removal process that allows for the summary return of people who enter the country without documents or with fraudulent documents, unless those people immediately express a fear of persecution—that is, “credible fear” or an intention to apply for asylum.

According to Dr. Schulz, the current system has three problem areas: the expedited removal program, the mandatory detention of asylum seekers, and the treatment of asylum seekers during confinement. He discussed the case of a 29-year-old Chinese woman, Chen Yu Gui, who claimed persecution in China because of its repressive birth-control policies. After being denied credible fear asylum, she jumped off the staircase leading to the plane that was to deport her and died from the fall.[9]  

In discussing mandatory detention, Dr. Schulz referred to the case of Jimmy Johnson, a 37-year-old native of Liberia who arrived in this country in 1994.[10] Despite that Johnson was declared a refugee and granted asylum, he was confined for six years while the INS appealed the judge’s decision. 

In talking about the confinement conditions faced by asylum seekers, Dr. Schulz also discussed the case of a democratic opposition leader from Guinea who was tortured for his political activities and then fled to the United States, only to be denied credible fear asylum. The only thing that saved the Guinean from deportation was that INS officers dropped him four times while carrying him to the plane and injured him so badly that he had to be hospitalized.[11]  

Jocelyn “Johnny” McCalla, executive director of the National Coalition for Haitian Rights,[12] maintained that since the era of the Reagan administration, mandatory detention has been sporadically imposed on Haitian asylum seekers. He noted that the administration launched the Haitian Migrant Interdiction Operation, which directs the Coast Guard to intercept and turn back Haitian refugees found in international waters. If Haitians reach U.S. land, however, they are to be detained pending a determination on their asylum requests. Mr. McCalla noted that since the 1980s, the interdiction policy has been applied to others seeking to immigrate and has become known as the wet foot/dry foot policy.[13]

Mr. McCalla stated that from 1991 to 1994, several thousand Haitians were interdicted while attempting to reach the United States. The U.S. response to Haitian asylum seekers was interdiction and deportation pursuant to the wet foot/dry foot policy. The position of the United States changed only briefly, from November 1991 to February 1992, when a federal court banned immediate repatriation of Haitian asylum seekers. This resulted in the government’s holding Haitians at the naval base in Guantánamo Bay, Cuba, and instituting a screening process for determining whether an asylum seeker had a credible fear of persecution. Before this court injunction, only Haitians who reached U.S. soil received a hearing for a determination of credible fear. As noted by Mr. McCalla, the U.S. Supreme Court later lifted the injunction against repatriation, and President George H.W. Bush issued an executive order eliminating the hearing process and returning to the policy of automatic repatriation.[14] Still, Mr. McCalla noted that during the period of the ban, some 11,000 of 23,000 Haitians who had credible fear hearings were able to establish that they had a credible fear of persecution.[15]

Mr. McCalla also discussed more recent interdictions of Haitian asylum seekers. He noted that on January 1, 2000, the Coast Guard interdicted a boat with about 400 Haitians, a dozen Dominicans, and two Chinese nationals approximately two miles off Key Biscayne, Florida. INS officials, he said, decided to return all the passengers to Haiti except those in need of medical care. He noted that, because of political unrest, more than 1,000 Haitians had taken to the high seas in an effort to reach American shores and obtain asylum in 2000.[16]

Mr. McCalla also reviewed various pieces of legislation affecting asylum seekers. He noted that in 1997, Congress passed the Nicaraguan and Central American Refugee Act (NACARA), which granted permanent legal status to thousands of Nicaraguan and Cuban refugees. In 1998, Congress passed the Haitian Refugee Immigration Act, which extended permanent legal residence to Guantánamo Haitians and their immediate relatives. Still, there were restrictions. Haitians who entered the United States illegally to flee repression in Haiti or entered legally but stayed beyond the legal limits were not eligible for relief if they had not applied for asylum before December 31, 1995. Moreover, he noted that Haitians applying for asylum under this statute had nine months to obtain various documentation, often from Haiti, which was extremely difficult if not impossible. Ultimately, only about 25,000 Haitians were able to file their application by the deadline. He noted that a bill before the Congress, the Latino Immigration Fairness Act,[17] would resolve some of these problems by mandating that Haitians be treated the same as similarly situated Central Americans.[18]

Maria Demeo, regional counsel of the Mexican American Legal Defense and Education Fund, stated that IIRIRA eliminated many due process protections previously provided to immigrants.[19] According to Ms. Demeo, since the passage of the IIRIRA in 1996, the expedited removal process has made it much easier to turn immigrants away at ports of entry. This is particularly troublesome for asylum seekers who are not afforded an opportunity to establish credible fear. Second, in the area of language accessibility, she noted that President Clinton had signed an executive order that requires federal agencies to ensure that their own activities, as well as their federally funded activities, reach persons with limited English proficiency; one of the agencies most reluctant to comply with the order was INS, even though it—perhaps more than any other agency—must communicate with non-English speakers.[20]

She noted that under the IIRIRA, INS officers often decide to deport immigrants without review from a judicial or quasi-judicial officer. She noted that the act requires mandatory detention if the INS is planning to pursue administrative deportation against an immigrant. She noted that the act makes small offenses, even if committed in the past, equivalent to major offenses, thus subjecting an immigrant to mandatory detention and deportation. Consequently, an immigrant could be detained and deported for a shoplifting offense or fight committed prior to 1996 while he or she was in high school. Ms. Demeo noted that such “ex post facto,” or after-the-fact, laws have been found unconstitutional under U.S. criminal laws, but not under immigration laws and policies.[21]

Before closing, Ms. Demeo reiterated the need for legislation that would allow Caribbean peoples, Central Americans, and Haitians fleeing persecution parity with Cubans and Nicaraguans seeking refuge in the United States.[22]

Discussion of Relevant Government Immigration Policies and Recommendations

At the Commission’s briefing, panelists made several recommendations to reinforce immigrant and asylee rights. For immediate problems facing those already in the asylum process, the panelists said detention proceedings should place the burden of proof on the federal government to justify an individual’s detention.

In addition, to ensure that the rights of asylum applicants are protected and not abused, the panelists suggested that there be systematic monitoring of the INS with respect to:

• The detention and parole of asylum seekers.

• Publication of data on the detention of asylum seekers.

• Publication of data on the interaction between immigrants and the INS.

• Compliance of the INS with its agreement with the American Bar Association to redress detainee inability to access counsel.

Finally, with respect to reform and implementation of existing and proposed governmental policy on immigration and refugees, the panelists also suggested that:

• The federal government should examine broad policy questions to improve the naturalization and visa process, so that the deterrence of terrorism does not affect commerce and family reunification.

• Briefings and hearings should be held to maintain public discussion of asylum values that may not be embraced by some institutions that are addressing evolving immigration laws.

• The implementation of antiterrorism legislation should be monitored, particularly with respect to the detention of immigrants. There was a concern by panelists that the powers granted to law enforcement officials may leave room for excess and abuse.