U.S. Committee for Refugees World Refugee Survey 2002 - United States

During 2001, the United States hosted an estimated 492,500 refugees and asylum seekers in need of protection, including about 396,000 pending asylum applicants, about 28,000 persons granted asylum during the year, and some 68,500 newly resettled refugees.

During the year, 64,731 asylum seekers filed applications with the Immigration and Naturalization Service (INS), a 35 percent increase from 2000. New arrivals in 2001 registered 59,432 asylum claims. The remaining 5,299 applications had been previously filed, but administratively closed, and were reopened during the year.

Because an asylum seeker may file for asylum on behalf of his or her spouse and children, each case may represent more than one individual. INS did not provide the number of individuals who filed for asylum during the year, and the exact number of asylum seekers in the United States during 2001 was unknown.

INS asylum officers approved 20,487 applications for asylum and denied or referred 15,756, for a 56.5 percent approval rate. This represented an increase from an approval rate of 52 percent in 2000.

The largest number of asylum seekers in 2001 came from Mexico, with 9,178 applying during the year, up dramatically from 3,936 in 2000. The approval rate for Mexicans was 7 percent. The next largest group of asylum applicants was Chinese, with 8,760 applications and an approval rate of 64 percent (up from 6,476 applications and a 55 percent approval rate in 2000). Colombians represented the third largest group, with 7,280 applicants and an approval rate of 62.5 percent (in 2000, 2,747 Colombians applied for asylum; the approval rate was 68 percent). The next largest groups were Haitians (5,068; approval rate 36 percent), Indians (2,125; approval rate 57 percent), Salvadorans (2,063; approval rate 16 percent), Guatemalans (1,990; approval rate 18 percent), and Somalis (1,853; approval rate 81 percent). Among the nationalities with the highest asylum approval rates with INS asylum officers were Afghans (89.5 percent), Burmese (89 percent), Iraqis (82 percent), Somalis (81 percent), and Iranians, Ethiopians, and Sudanese (72 to 76 percent).

Although more asylum applications were filed in 2001 than in previous years, the INS continued to reduce the backlog of cases that had climbed to 464,000 in 1995. By year's end, 324,438 asylum applications were pending with the INS asylum office. These included 161,872 Salvadoran cases (about 216,908 persons), 96,329 Guatemalan cases (about 129,080 persons), and 17,342 Haitian cases (about 23,238 persons). Many of these cases represent individuals who may qualify for permanent legal status in the United States under the Nicaraguan and Central American Relief Act of 1997 (NACARA) and the Haitian Refugee Immigration Fairness Act of 1998 (HRIFA), and whose applications for asylum will be closed if they are granted permanent resident status. However, asylum seekers arriving from Guatemala and El Salvador after 1990, and from Haiti after 1995, are ineligible for relief under these laws.

The backlog of cases pending before immigration judges, housed in the Executive Office for Immigration Review (EOIR), increased substantially in 2001. At the end of the year, 71,439 cases were pending, up from 55,720 in 2000. Immigration judges granted 7,817 asylum cases in 2001 and denied 14,932, an approval rate of 34 percent. The largest volume of immigration court cases decided, by nationality, were Chinese (6,023; approval rate 44 percent), Haitians (2,903; approval rate 12 percent), Indians (998; approval rate 50 percent) and Colombians (997; approval rate 38 percent). Nationalities with the most EOIR cases pending at year's end were Mexicans (19,033) and Chinese (9,107).

Refugee Resettlement

The United States resettled 68,426 refugees in fiscal year 2001, decreasing from 72,515 in 2000 and 85,006 in 1999. The United States resettled fewer than half the number of refugees admitted in 1992, when the resettlement program reached its historical peak.

The largest number of refugees (14,888) was from the former Soviet Union, increasing for the first time after a ten-year decline. The number of refugees from Bosnia (14,594), the second largest group to be resettled, has declined each year since 1998. The third largest group was Iranians (6,582), followed by Sudanese (5,958) and Somalis (4,939). Vietnamese admissions continued to decline: 3,109 Vietnamese were admitted in 2001, a 93 percent decrease since 1992.

Nationality groups resettled in significantly larger numbers in 2001 than in 2000 included Afghans, Iranians, Ethiopians, Sierra Leoneans, and Sudanese.

Included in the total number of Sudanese resettled in the United States during the year were more than 2,000 Sudanese youth. These refugees – known as the "Lost Boys" – were young men over the age of 18 who had been orphaned and left homeless and wandering for years. After the refugees found their way to the Kakuma refugee camp in Kenya, the United States accepted 3,400 for resettlement.

In 2001, six countries were eligible for family-based refugee processing. The Priority Three (close family) eligibility list included Angola, Burundi, Congo-Brazzaville, Congo-Kinshasa, Sierra Leone, and Sudan.

The United States halted its refugee resettlement program immediately following the September 11 attacks on New York and Washington. President Bush authorized the resumption of the program in November, but the United States did not admit any refugees until the government concluded a security review of the resettlement program and issued new security-related procedures in December.

At the end of the year, the government was conducting refugee interviews in 4 of 16 overseas refugee-processing facilities: Bangkok, Havana, Vienna, and Ho Chi Minh City. In the last three months of the year, the United States admitted fewer than 800 refugees. During the same period in the previous year, the United States resettled more than 14,000.

Temporary Protected Status

The attorney general is authorized to designate temporary protected status (TPS) for foreigners who would be endangered if returned home. TPS is based on any of three circumstances: ongoing armed conflict; environmental disaster; or "extraordinary and temporary conditions" that prevent safe return. Unlike asylum, which requires an individualized adjudication, TPS is given to all eligible persons from the designated country or other geographic entity who register and who are present in the United States as of the date of the designation.

At year's end, TPS was in effect (having been re-designated from prior years) for certain nationals of Somalia, Sierra Leone, Sudan, Burundi, and Angola. In March, the attorney general designated nationals from El Salvador for TPS for one year because of devastating earthquakes in that country. TPS was also in effect for Nicaraguans and Hondurans who fled devastation caused by Hurricane Mitch, and for nationals of Montserrat. However, the U.S. Committee for Refugees (USCR) does not consider victims of environmental disasters as refugees, and does not include nationals of countries who have been granted TPS on this basis in the World Refugee Survey's tally of the world's refugees.

In 2001, USCR and other nongovernmental organizations (NGOs) continued their campaign for TPS for Colombians. In an April press release, USCR said: "The U.S. government has, rightly, granted TPS to people who could not return to their countries because of damage from volcanoes and earthquakes, yet it denies this temporary protection to people fleeing a three-sided conflict that has made Colombia one of the most dangerous places on earth." Colombia was not designated for TPS in 2001.

In March, a group of humanitarian and human rights organizations, led by USCR, called on the U.S. government to grant TPS to Chechens living in the United States, citing the ongoing conflict and humanitarian crisis in the Russian republic. Chechens were not granted TPS during the year.

Deferred Enforced Departure

Deferred enforced departure (DED), like TPS, is a discretionary mechanism used by the attorney general to suspend temporarily the removal of a specific population and allow them to work legally while they are protected from removal. Unlike TPS, DED has no specific statutory authority and is not necessarily based on ongoing armed conflict or other specifically defined legal criteria in the country of origin.

In September, President Bush announced a one-year extension of DED for 10,000 to 15,000 Liberians. President Bush indicated that the return of Liberians from the United States and other countries to which they fled would "cause the involuntary repatriation of many thousands of Liberian refugees in West Africa, causing instability in Liberia and the region."

Asylum Procedure

Under the normal asylum procedure, INS asylum officers either grant asylum based on a first-instance interview, or refer removable aliens whose asylum cases are not granted to immigration judges, who consider the asylum claims in the context of removal proceedings. The procedure is designed to be completed within 180 days of the filing of the asylum application (including consideration by both the INS asylum officer and the immigration judge).

Asylum cases are subject to administrative review by the Board of Immigration Appeals (BIA), and to judicial review. Although the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 largely eliminated judicial review of immigration decisions, it remained available in asylum cases.

Those who do not file asylum applications within one year of entry into the United States may be precluded from having their asylum claims heard either by an INS asylum officer or an immigration judge.

The INS bars work authorization for the first 180 days after the claim is filed (or until asylum is granted). Public benefits are unavailable to asylum seekers. Permission to work is authorized for cases on the docket for more than 180 days if the applicant does not cause the delay.

Refugees and asylees are eligible for cash and medical assistance for eight months from the date they are admitted to the United States (in the case of refugees) or granted asylum (in the case of asylees). Refugees and asylees are also eligible for certain social services for five years.

Asylum seekers are entitled to representation by counsel, but not at the government's expense. In reality, because of the high cost of legal assistance and the scarcity of pro bono legal services, approximately 90 percent of detained asylum seekers are not represented by counsel during their proceedings.

Gender-based Persecution

In January, in one of her last acts in office, Attorney General Janet Reno vacated the Board of Immigration Appeals' decision in Matter of R-A, in which the Board had declined to grant asylum to a Guatemalan victim of spousal abuse on the grounds that it had "not" been shown that the government of Guatemala encourages its male citizens to abuse its female citizens." Attorney General Reno remanded the case for the BIA to reconsider after the INS finalized a rule, proposed in December 2000, that addressed gender-based asylum claims.

The proposed rule restates that gender can form the basis of a particular social group and recognizes that domestic violence may, under certain circumstances, qualify the victim for a grant of asylum. The INS did not finalize the rule during the year.

In March, the U.S. Court of Appeals for the Ninth Circuit ruled that a 19-year-old Mexican woman, Rosalba Aguirre-Cervantes, had a well-founded fear of persecution at the hands of her abusive father. The Ninth Circuit said that immediate family members constituted a "particular social group" within the meaning of the refugee statute.

Children

Some 8,500 children seek asylum in the United States each year. Almost three-quarters of them are unaccompanied by an adult; approximately 5,000 are subject to INS detention.

No attorneys or legal guardians are appointed to represent children in immigration proceedings, and children with asylum claims often bear the burden of proving their claims in court without assistance. Many children are detained during their proceedings, either in private shelters, juvenile detention centers, or local jails.

In a practice widely condemned as unreliable by NGOs and numerous medical authorities, the INS relies on dental and bone examination in determining whether an asylum seeker is an adult or a juvenile – and consequently, where an asylum seeker should be detained – when no other proof of age is available.

In November, the INS deported a 13-year-old Honduran child while his asylum case was pending on appeal. The child's attorneys were unable to locate him in Honduras during the year. Under U.S. law, an asylum seeker cannot be deported until there is a final order of removal.

Legislation to relegate the responsibility for unaccompanied minors to a department outside of the INS, end the practice of detaining children with adults and juvenile delinquents, and require appointed legal counsel and guardians for children was pending during the year, but did not become law.

Burmese on Guam

During the last months of 2000 and the beginning of 2001, about 1,000 Burmese asylum seekers, mostly ethnic Chin, arrived in Guam, a U.S. territory in which U.S. immigration and asylum laws apply. Many came to Guam under a program designed to encourage tourism that allowed Burmese and nationals of other designated countries to enter the territory without a visa. The United States terminated this program in January.

While the government did not detain most of the Burmese asylum seekers on Guam, 38 who admitted at the airport that they were asylum seekers rather than tourists were detained in the Guam Detention Center, where families were separated. In January, after a delegation of church officials and reporters visited Guam to document the living conditions of the Burmese asylum seekers, the INS released the detained asylum seekers and quickly ruled on all of the asylum claims. Nearly all of the asylum seekers were granted asylum and allowed to travel to the U.S. mainland during the year.

Expedited Removal

Since 1996, upon an immigrant's arrival in the United States, an immigration officer may "order the alien removed from the United States without further hearing or review" if the officer determines that the alien arrived without proper documents. An exception is made if the alien "indicates an intention to apply for asylum ... or a fear of persecution."

If the individual who entered without inspection or with false documents makes an asylum claim, the immigration officer must refer him or her to an asylum officer. If the asylum officer determines that the alien does not have a "credible fear" of persecution, the officer may order the alien removed from the United States "without further hearing or review."

The legal standard for screening asylum seekers – a credible fear of persecution – requires potential claimants to demonstrate a "significant possibility ... that the alien could establish eligibility for asylum" according to the "well-founded fear of persecution" standard used under current law for adjudicating asylum claims. Asylum officers must take into account the credibility of the asylum seeker and "other facts" known to the officer in making the credible fear determination.

An immigration judge may review the asylum officer's negative decision only if the asylum seeker requests it. The review must be conducted within seven days after the asylum officer's order.

The power of an immigration officer to exclude an improperly documented person summarily, without further hearing or review, applies not only to persons just arriving, in the literal sense. It also includes any person (except for Cubans arriving by air) who has not been admitted or paroled into the United States and who has not been in the country continuously for at least two years.

While the INS announced its first expansion of the expedited removal program in 1999, saying the agency would apply expedited removal to some detainees serving sentences for illegal entry into the United States, the planned expansion had not occurred by the end of 2001.

The INS is required to detain all asylum seekers while the determination of credible fear of persecution is pending. After an asylum officer determines that an alien does have a credible fear of persecution, INS district directors have the discretion to continue to detain the alien while the asylum application is considered, or to grant parole. In 2001, INS district directors continued to vary in their willingness to release asylum seekers.

No judicial review of expedited removal orders is permitted, except for aliens who claim under oath that they have already been lawfully admitted for permanent residence, admitted as a refugee, or granted asylum.

UNHCR continued to monitor the expedited removal process throughout the year. In January, the INS authorized limited NGO access to INS "secondary inspection" – where credible fear determinations take place – at U.S. ports of entry. An NGO may request permission from an INS district director to observe the process, which the district office can grant at its discretion.

In 2000 (the most recent year for which statistics were available), 85,796 foreigners were removed through the expedited removal process, a 4 percent decrease from 1999. The vast majority of these removal orders took place on the U.S.-Mexico border; about 91 percent of those removed were Mexican. Legislation to limit the use of expedited removal to emergency situations was pending in 2001, but did not become law.

Anti-terrorism Measures

After the September 11 attacks on the United States, the Bush Administration issued a series of rules concerning the detention and removal of immigrants. Immediately following the attacks, Attorney General John Ashcroft extended from 24 to 48 hours the amount of time he can hold a noncitizen in custody before charging the individual with an immigration violation and deciding whether or not the detainee should be released. "In the event of an emergency or other extraordinary circumstance," the new rule gave the attorney general an indefinite period of time to detain a noncitizen, with or without charges.

In October, President Bush signed into law the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001, which contained numerous provisions that affect immigrants. The new provisions broadened the definitions of "terrorism," "terrorist activity," and "terrorist organization" for purposes of deportability and inadmissibility, created additional mechanisms for the attorney general to detain and deport a noncitizen as a terrorist, and established a new ground of inadmissibility for spouses and children of those inadmissible on terrorist grounds.

The USA PATRIOT Act also established new detention rules, mandating the detention of any noncitizen the attorney general "certifies" as a terrorist suspect, even if the noncitizen is eligible for or is granted relief from removal, including asylum.

Under the new law, the attorney general has seven days to charge a detained noncitizen who is "certified" as a terrorist suspect with a deportable offense. However, a noncitizen need not be charged with a terrorism-related ground of removal in order to be subject to mandatory detention.

A noncitizen detained under the provisions of the USA PATRIOT Act who has not been removed or whose removal "is unlikely in the reasonably foreseeable future" may be detained indefinitely "if the release of the alien will threaten the national security of the United States or the safety of the community or any person."

In November, Ashcroft announced that the government would no longer reveal the number of people detained pursuant to the investigation of the September 11 attacks. Until the date of the announcement, the government had said that 1,182 people had been arrested, but did not disclose the detainees' names, places of detention, reasons for arrests, or the number of those released.

Also in November, President Bush issued an order that allowed special military tribunals to try noncitizens charged with terrorism. Under the order, a tribunal has the authority to create its own trial procedures and requires only a two-thirds majority to convict and sentence. The tribunal can impose the death penalty; the proceedings can be secret and can be held anywhere in the world; and there is no right to review by any court.

Detention and Removal

An average of 20,000 individuals were in INS custody each day during the year, including 3,000 asylum seekers. Since 1996, the INS has been required to detain almost all aliens with criminal records in removal proceedings pending the outcome of those proceedings or their removal; all asylum seekers in the expedited removal process until the claimants have established a credible fear of persecution; all arriving aliens who appear inadmissible; and all persons who have been ordered removed for at least 90 days following the order.

About 40 percent of detainees were held in facilities whose sole or main purpose is to detain people because of their immigration status; 60 percent were held in state and county jails. In some facilities, immigrants and asylum seekers were commingled with criminal inmates.

In 2000, the INS issued a set of 36 detention standards intended to establish uniform requirements for various aspects of detention. The guidelines – which are not regulations and therefore not legally enforceable – create standards for treatment of immigration detainees, including access to telephones, legal counsel, group rights presentations, legal materials and copiers, medical treatment, recreation, and religious observance. The new standards were phased in at all facilities run directly by the INS or private INS contractors throughout 2001. The INS indicated that it plans to have all facilities holding immigrants and asylum seekers – including all state and local jails – in compliance with the standards by the end of 2002.

The INS held more than 3,400 detainees with final removal orders in 2001 because the detainees' countries refused to accept them or because they were stateless. Many of these "indefinite" or "post-order" detainees initially entered the United States as refugees from Cuba, Laos, Vietnam, the former Soviet Union, and elsewhere. Under INS interpretation of changes made to U.S. immigration law in 1996, refugees and stateless persons who committed crimes and who were ordered deported were subject to detention for indefinite periods after they completed their criminal sentences.

In June, the Supreme Court ruled in the consolidated cases of Reno et al. v. Ma and Zadvydas v. Underdown and Immigration and Naturalization Service that immigrants and refugees who have committed crimes in the United States cannot be locked up indefinitely because the government has no place to send them. The Supreme Court held that an immigrant could only be detained for a period reasonably necessary to bring about his or her removal from the United States. The Court defined the "reasonable period" as six months, but indicated that the ruling would not necessarily prohibit detention for longer than six months in all cases.

Immediately after the ruling, Attorney General Ashcroft, characterizing the Supreme Court's decision as an "emergency situation," issued a memorandum directing the INS to continue to detain immigrants affected by the ruling unless a detainee could prove there was "no significant likelihood that they will be removed." Indefinite detention persisted throughout the year, particularly after September, when Ashcroft issued a rule explicitly authorizing the practice.

Also in June, the Supreme Court ruled that the INS could not apply 1996 immigration laws, which mandated the detention and removal of most immigrants and refugees who commit crimes, retroactively to individuals who pleaded guilty before the laws were passed. The court also ruled that the right to judicial review of INS interpretations of law survived the 1996 immigration statutes.

The first 1996 immigration and terrorism law allows immigrants to be jailed and deported for reasons of "national security" on the basis of classified evidence that neither immigrants nor their attorneys are permitted to examine. After taking office in January, President Bush pledged not to use secret evidence against immigrants. However, after September 11, the Justice Department asked a federal appeals court for a broad ruling to authorize the use of secret evidence in removal cases.

At least 350 immigrants died in the U.S. while illegally crossing the U.S.-Mexico border in 2001. NGOs and some Mexican government officials blamed the deaths on U.S. border policies that deter immigrants from crossing into cities along the border. As a result, more immigrants attempted to cross into the United States in dangerous, remote areas, where they risked death from dehydration, exposure, drowning, and hypothermia. The U.S. Border Patrol rescued a number of immigrants who attempted to cross the border in remote areas in 2001.

Interdictions

U.S. Coast Guard migrant interdictions on the high seas decreased 6 percent from 2000 to 2001. In fiscal year 2001, the Coast Guard interdicted 3,948 migrants. Haitians (1,391) were the largest nationality group to be interdicted. Ecuadorians (1,020) were the second largest group, decreasing slightly from 1,244 in 2000, but significantly increasing from 298 in 1999 and none in any preceding year. Interdictions of Cubans, the third largest group, decreased from 1,000 in 2000 to 777 in 2001. Only 53 Chinese were interdicted in 2001, in contrast to 1,092 in 1999. The Coast Guard also interdicted 659 Dominicans during the year, slightly more than the number interdicted in 2000.

USCR criticized INS operating instructions to its officers aboard Coast Guard cutters, saying that the rules were prejudicial. Given the inadequacy of shipboard screening interviews, USCR regards foreigners who have been returned pursuant to the interdiction program to have been denied a fair opportunity to seek asylum.

Interdicted migrants were not entitled to any asylum screening, regardless of whether they were interdicted in international or U.S. territorial waters.

The INS does, however, provide a minimal level of asylum screening to interdicted persons on an ad hoc basis and slightly more screening to Chinese and Cubans.

Under the U.S. government's "wet foot/dry foot" policy, Cubans intercepted at sea are screened for asylum claims. Those whom the United States believes have legitimate claims to asylum are brought to the United States or resettled in other countries; all others are returned to Cuba. Those who evade interception and set foot on U.S. soil can apply for permanent residency after one year. On the other hand, interdicted Haitians are generally summarily returned, and have no right to residency in the United States.

In December, the Coast Guard interdicted 187 Haitians off the Florida coast. For safety reasons, the Coast Guard brought the asylum seekers to shore instead of returning them directly to Haiti.

Immediately following the asylum seekers' arrival, the INS district office in Miami began detaining nearly all Haitian asylum seekers – even after establishing that the asylum seekers had a "credible fear" of persecution. Before December, the Miami INS office routinely released asylum seekers who passed their credible fear interviews – including 96 percent of asylum seekers from Haiti. However, nearly all of the more than 200 Haitian asylum seekers who arrived in December remained detained at the end of the year, while 91 percent of non-Haitians who arrived during the same time period were released. The INS denied any official change in detention policy.