Justice Delayed Is Justice Denied:
A Proposal for Ending the Unnecessary Detention of Asylum Seekers

Michele R. Pistone[*]

Soon after its discovery by Europeans more than 500 years ago, the “New World” of America began to be regarded by both its own populace and those around the world as a sanctuary for victims of government oppression. This remains America’s favorite image of itself. Yet, despite this favored image, the reality is that, as you read this Article, hundreds of people who fled their home countries to seek protection from government-sanctioned oppression are languishing in Immigration and Naturalization Service (INS) administrative detention. Under current practices, the INS detains asylum seekers, including those who have been found by government officials to have a significant possibility of establishing eligibility for asylum,[1] in prison-like environments from the time they arrive at a U.S. airport or border crossing until final adjudication of their claims.

Recent events have sharply reduced the need for detention. Yet the INS fails to recognize that its detention practices have been overcome by recent events and maintains its broad detention practices. Retention of the status quo with respect to detention practices for asylum seekers is a real mistake that must be rectified. The consequences of the INS’s detention practices are severe, both to individual asylum seekers and to the asylum adjudication process as a whole.

This Article examines how, when, and why the INS detains asylum seekers pending adjudication of their claims. It is based in part on my observations made during visits to several facilities where asylum seekers are detained, and in numerous interviews with detained asylum seekers and with

high-ranking INS officials charged with implementing the INS’s detention practices. Part I briefly summarizes relevant asylum law and describes the INS’s recent attempts to implement a parole system for asylum seekers. Part II describes the conditions under which asylum seekers are detained and the toll that detention takes on them. Part III examines the adverse impact that detention has on the asylum adjudication process, as being in custody severely impedes asylum seekers’ ability to present thoroughly their asylum claims. The rationales that the INS has professed in support of its detention policies—to deter undocumented immigration, to prevent absconding, and to protect the public safety—are discussed in Part IV.

Part V then argues that the force of two of these three rationales, namely, the deterrence and absconding rationales, has been substantially reduced as a result of recent changes to immigration law enacted as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA).[2] Part VI examines why the INS has failed to appreciate the reduced weight of the deterrence and absconding rationales post-IIRIRA and concludes that the failure is attributable to a combination of bureaucratic realities that make the status quo preferable in the eyes of the INS.

Finally, the Article concludes with a legislative proposal, based on the federal criminal pre-trial detention laws, to create a parole system for asylum seekers who have been found by government officials to have a credible fear of persecution.

I. The Asylum Adjudication and Parole Processes

A. The Asylum Adjudication Process

The INS is authorized to deport, or remove,[3] those persons who are in the United States without permission. A grant of asylum is a form of relief from removal by the INS. In order to establish a claim for asylum, the applicant has the burden of proving to an immigration law judge or INS asylum officer that she is unable or unwilling to return to her country of nationality[4] because of a well-founded fear[5] of persecution[6] on account of one of five grounds: “race, religion, nationality, membership in a particular social group, or political opinion.”[7]

Asylum claims are decided in two different procedural contexts. Affirmative application procedures apply when the asylum applicant, after entering the United States, applies for asylum prior to the initiation of removal proceedings.[8] In contrast, defensive application procedures apply when the application for asylum is made only after the INS has apprehended

the applicant and begun proceedings to remove the individual from the United States.

Individuals who have entered into the United States and have not been apprehended by the INS, regardless of their immigration status, can affirmatively apply for asylum by submitting an application to the INS.[9] If asylum is granted, the applicant is then authorized to apply for a work permit,[10] and one year after receiving asylum, for permanent residency.[11] After the applicant is granted asylum, he or she can apply for asylum for a spouse and children.[12] If the asylum office does not grant asylum, the case is referred to the immigration court, where proceedings to remove the applicant from the United States, commonly referred to as “removal proceedings,” begin immediately.

On the other hand, individuals who have been apprehended by the INS before affirmatively applying for asylum, including asylum seekers who arrive at the border without proper travel documents[13], follow a different procedure. They are not entitled to an opportunity for an asylum officer to adjudicate their claim. Rather, they are usually put into removal proceedings before immigration judges where they can raise a claim for asylum as a defense.

INS detention policies generally apply to this later group of asylum applicants. Under current practices, people who are apprehended by the INS at an airport or border and are determined to be inadmissible comprise the largest group of detained asylum seekers.[14] Generally, they are detained by the INS from the time they are apprehended until the conclusion of removal proceedings against them.[15]

Asylum seekers are temporarily permitted to remain in the United States if they indicate at the secondary interviews that they are afraid to return back to their home countries. They constitute a small fraction of arriving undocumented individuals—less than 200 individuals per month.[16] These arriving asylum seekers are fortunate because they comprise the small minority of the group of arriving undocumented individuals who are not returned back to their home countries directly from the border. But their good fortune is not unadulterated. After the secondary interview, these “fortunate” few are sent to detention centers where they may remain in U.S. government custody for months until their asylum claims are adjudicated.[17] Most will remain in custody even after a government official determines that they have a credible fear of being persecuted if they are returned back home.[18]

B. The Parole Practices

Beginning in the early 1990s, the INS attempted to implement an administrative program, known as the Asylum Pre-Screening Officer Program (APSO), to screen credible asylum seekers for parole from detention.[19]

The APSO program’s twin objectives were to “ensure that genuine asylum seekers are not needlessly detained while they pursue their claims and to help the agency make well-reasoned use of its limited and expensive detention space.”[20] As the INS Commissioner explained in a policy memorandum to INS officials describing the program when it was first initiated:

The [INS has] limited detention space. By adopting the Parole Project, the Service [would] be able to detain those persons most likely to abscond or to pose a threat to public safety rather than

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base the detention decision solely or primarily on the availability of detention space.[21]

Under the APSO program, asylum pre-screening officers[22] were charged with interviewing asylum seekers to determine whether release was warranted. Factors considered important to this determination included whether the applicant’s asylum claim was credible and her identity established,[23] whether she had community ties,[24] and whether any statutory bars would preclude an ultimate grant of asylum protection.[25] APSO interviews were scheduled upon the “written request for parole or for a pre-screening interview from the applicant’s attorney.”[26] After the interview, the parole criteria findings, together with a recommendation on whether or not to parole the individual,[27] were sent to local district offices, where release decisions would be made.

Parole orders under APSO could be conditional: parolees could be required to present themselves to the INS when required, to notify the INS of any address changes, and to continue with their removal proceedings.[28] Furthermore, if the district director determined that the applicant satisfied some but not all of the parole criteria mentioned above, or “where other fac-

tors suggest a strong risk that the person [would] . . . not appear as required,” the person could be required to post a bond.[29]

The efforts to establish through APSO a nationwide release program and the concomitant attempts to systemize the program through policy and procedure directives from INS headquarters have fallen far short of expectations. A 1996 internal evaluation of the APSO program found that it operated “inefficient[ly], inconsistent[ly] from district to district”[30] and “unevenly around the country.”[31] In most cases, APSO interviews were not conducted absent a request by the detainee’s attorney.[32] While the parole function has recently been folded into new procedures to identify asylum seekers from among the larger group of arriving undocumented individuals,[33] the INS’s record of inconsistent parole decision-making persists.[34] Parole decisions fluctuate within the same jurisdictions over time, and local districts often do not follow policy directives from headquarters.[35] As a result, in some districts, virtually all defensive asylum applicants are detained from the day they enter the United States until their asylum claims are finally adjudicated, a period that can span ninety days or more.[36]

II. Costs of Detaining Asylum Seekers

The costs and burdens of detaining asylum seekers pending adjudication of their claims are high. There are monetary costs for each day an asylum seeker is detained. Scarce legal resources are spent on such matters as traveling to distant detention facilities. Further, detention imposes psychological and medical costs on asylum seekers and adversely impacts the physical and psychological well-being of detainees. Social relationships with friends and family are strained as those outside of detention expend tremendous amounts of time and resources trying to help the detainees both emotionally and legally. These costs and burdens make detention a harsh reality.

A. Conditions of Detention

The INS uses three types of facilities to detain asylum seekers: government-owned Service Processing Centers (SPC), which are operated by the detention and deportation branch of the INS; privately operated “contract facilities”; and state, local, and county jails, in which the INS rents bed space as needed.[37] Many of these facilities also house convicted criminals, who, in the case of local jails, are serving criminal sentences, or, in the case of SPC and contract facilities, have completed their sentences and are awaiting deportation.[38]

While the different facilities vary in size, shape, and population, the physical facilities in which asylum seekers are housed are all emphatically prisons; they have multiple layers of locked doors (which open only after the door behind it is closed), surveillance systems that closely monitor and regulate movement throughout the facility, “lock-downs” to count inmates regularly, use solitary confinement to punish detainees, and are surrounded by walls and/or barbed-wire fences.

Where asylum seekers are detained in centers that also house criminal inmates, the asylum seekers are typically not treated differently from the general prison population.[39] Guards receive no special training about asylum seekers.[40] Indeed, prison staff in many detention centers do not know which

of the inmates under their guard are criminals and which are asylum seekers.[41] With no way of distinguishing between the two subgroups of inmates, members of the two groups are often treated the same way—as criminals. They are subject to frequent strip searches, pat downs, and prolonged isolation in solitary confinement as punishment for minor infractions.

Other conditions under which asylum seekers live are also similar to conditions faced by criminal inmates.[42] For example, detained asylum seekers are forbidden from wearing their personal clothing, and are required to wear the facility’s prison-like uniforms. Likewise, they are forbidden from keeping their personal property with them in the facility.[43] Detention facility officials also strictly monitor and regulate inmates’ access to visitors.[44] Asylum seekers also are not permitted to move around freely within the detention centers. They spend most of the day in their cells, which, depending upon the detention facility, are either small cells with as little as two in-

mates or larger “pods” in which more than 100 detainees may live.[45] Reports of overcrowding persist.[46] Some complain that they are denied such things as soap, sanitary napkins, and toilet paper.[47] Detained asylum seekers’ access to the outdoors is also regulated.[48] Recreational opportunities are generally limited to such things as communicating with fellow detainees, watching television, and playing board games and cards.[49] English as a Second Language classes are taught at some detention centers by outside volunteer organizations, but attendance is limited and not all who want to are able to attend.[50]

This last fact is particularly problematic, as an inability to speak English can substantially contribute to the oppressiveness of asylum seekers’ detention experiences. SPC and contract detention facilities are required to pro-

vide each detainee with a copy of a “detainee handbook,” which sets out the rules and practices of the detention center. Detained asylum seekers are expected to read the handbook and to abide by the rules it describes, but it is not translated into foreign languages.[51] Thus, although asylum seekers may be unable to read and understand the handbook, they are nonetheless expected to live by the rules set out in it and are disciplined if they disobey them or fail to follow facility procedures.[52]

B. Costs of Detention

1. Costs on Asylum Seekers’ Psychological and Physical Health

The psychological and physical costs of detaining asylum seekers under prison-like conditions, measured in terms of the deterioration in detainees’ physical and mental health, can be severe. For various reasons, when asylum seekers arrive at a detention facility, their physical and mental health may be weak. Many have recently been persecuted or tortured and may be suffering from severe physical injuries or mental ailments[53] that are directly attributable to their persecution. “Most refugees have been exposed to high levels of violence and other types of traumatic events in their country of origin and during their journey to their host country.”[54] As a consequence, asylum seekers and torture victims often suffer from post-traumatic stress disorder (PTSD) as a result of the trauma suffered.[55] They may experience severe

memory loss, depression, unresponsiveness, mistrust, flashbacks and related physiological symptoms that arise when recalling the traumatic events of their persecution.[56] Compounding these ailments is a general feeling of isolation and helplessness; most asylum seekers have been forced to flee their homes, jobs, friends, family and social networks to a country whose language they do not speak and whose customs they do not understand. Few have ever traveled outside their home countries.

Asylum seekers’ delicate physical and mental health often deteriorates even further while they are detained. The deterioration in physical health can be attributed in part to the stress of being detained and in part to the inadequate medical health facilities at detention centers. Moreover, there is an increased risk of infectious disease when people live together in close quarters. As the Director of the Public Health Service at the Krome SPC explained, “overcrowding poses a health problem due to the lack of cleanliness and appropriate air circulation.”[57] She explained that the health service in the Krome detention facility “noticed an increase in respiratory and skin conditions.” [58] These conditions, if not urgently addressed, could result in epidemics. Illnesses such as tuberculosis and chicken pox tend to spread rapidly among detainees, particularly when new arrivals are commingled with the general population before they are medically tested.[59] Further, the food served in detention centers is often unfamiliar to recent immigrants and their bodies are not accustomed to the diet. As a result, detained asylum seekers often complain of “chronic stomach problems, such as nausea, heartburn, and diarrhea.”[60] In addition, restriction in a confined prison environment may cause sensory deprivation, which can lead to dizziness and blurred vision.[61] And even those correctly diagnosed with illnesses often face difficulty complying with their doctor’s orders because of institutional inflexibility.[62]

The mental health illnesses of victims of torture can also be exacerbated in detention because the conditions of their detention may reactivate the trauma they suffered.[63] Studies have shown a “significant association be-

tween recent and cumulative lifetime stress.”[64] This relationship may be reflected in “heightened vulnerability of traumatized individuals to subsequent stressors, as a result of an increased sensitivity to stress from past [trauma] or depleted coping capability.”[65] Indeed, the “supplemental impact of events,” such as prolonged imprisonment, can explain the “onset, persistence, and severity of PTSD.”[66]

In other cases, detainees’ mental health deteriorates because they are unable to make sense of their situation. They do not understand the connection between their actions—fleeing persecution or torture to the United States without proper travel documents—and their situation, i.e., being detained in a prison.[67] Many view prison as a place to detain people who have been convicted of a wrong to society. They view the United States as a nation that values democratic principles and is founded on the notion that fundamental human rights should be available to all people. Yet, they find themselves in jail and cannot understand why, particularly if they do not speak English. An unfortunate circle of mistrust can easily ensue, as the detainee’s feelings of confusion may exacerbate certain other symptoms of PTSD, such as distrust of authority figures.[68]

In addition to the adverse physical and mental impact of detainees’ inability to rationalize their situation, detention facilities generally have only limited medical personnel on staff to treat health problems.[69] These medical personnel visit the facilities for limited periods during the week, and are not constantly on call.[70] Their time at the facility typically is apportioned primarily to conducting physical examinations of all new arrivals to the facility; treatment for emergency conditions is a second priority.[71] As a result, de-

tainees often have to wait weeks after requesting medical attention to see a medical doctor. Treatment for mental health disorders in detention facilities is similarly sparse.[72] Most INS detention facilities do not have mental health professionals on staff.[73] Yet, the long-term effects of PTSD remain “unless they are specifically addressed in treatment.”[74]

Language barriers in detention further impede detainees’ access to medical and psychological assistance.[75] While medical staff may look for signs of depression during initial physical exams, as one psychologist has noted, “it is hard to know what is going on if someone doesn’t speak English.”[76] Detainees express similar complaints. A pregnant woman, who was detained in the Wicomico County Detention Center, explained that she did not understand much English when she first arrived at the facility.[77] Thus, when she was asked by an officer during intake whether she was suicidal she answered “yes,” thinking that she was telling the officer that she was “sad.” She was placed on suicide watch in a solitary confinement cell, with no bedding or clothing except for a paper gown. Over the next few days, she struggled to explain that she was not suicidal, but was unsuccessful without an interpreter. She was finally released from solitary confinement when a doctor consented to her transfer to a regular cell; she had been in solitary confinement for five days.[78]

Language barriers also inhibit asylum seekers’ understanding of their medical diagnosis and treatment alternatives. For example, one detainee who suffered a miscarriage explained that she did not understand the interpreter who interpreted during her surgery and thus “expressed confusion about why she had needed an ‘abortion.’”[79]

Detained asylum seekers’ handicap in communicating with their doctors, coupled with slow responses to requests for medical attention, often leads to mismanagement and misdiagnosis of health problems by the INS and prison authorities. One of the most flagrant cases involved a Sri Lankan man who

had complained of heart problems.[80] His attorney had notified the INS that his client suffered from heart problems, and had requested that the client be released from detention to pursue proper medical treatment. The request was denied. The client subsequently died of a heart attack while in detention.[81]

Other egregious incidents also have been noted. For example, Yvenie Emmanuel, a Haitian woman who was more than two months pregnant when she was first detained in the Wicomico County Detention Center, was locked for five days in solitary confinement without fundamental hygienic supplies such as clothes, sheets, soap or a toothbrush.[82] She later complained to a nurse that her stomach looked flatter than it had when she arrived at the facility, but was denied a doctor’s visit. Later that evening, Ms. Emmanuel started suffering from severe pain in her stomach. When she went to the restroom, she noticed that she was bleeding. Recognizing the urgency of her situation, prison guards transported her to a hospital, with shackles strapped to her hands and feet. She remained shackled throughout her surgery. She miscarried the baby.[83]

2. Adverse Impact of Detention on Ability to Secure Counsel

Unlike American citizens facing criminal charges, asylum seekers do not have a statutory right to counsel. Their ability to be represented by counsel is a “privilege,” not a right.[84] While the privilege to consult with an attorney is theoretically available to asylum seekers in detention, for a number of reasons, detention often inhibits or encumbers detainees’ ability to contact and retain counsel. As a result, many detained asylum seekers are forced to represent themselves pro se.

While in detention, asylum seekers are isolated from the outside world, where resources may be available to assist them and where it would be more likely that they would learn about and be able to take advantage of those resources.[85] They often have little or no command of the English

language,[86] and have limited financial resources to make telephone calls from the detention facility.[87] They often have medical or psychological ailments that undermine their ability to take the steps necessary to obtain counsel. Limited access to the outside world, in turn, frustrates asylum seekers’ ability to contact representatives, friends, or relatives who can assist them through the asylum adjudication process.[88]

Compounding these barriers to asylum seekers’ access to legal service providers, jails are often located in remote towns where the legal bar is small. Consequently, since the asylum seekers are detained, and not at liberty to travel to cities with more legal resources, the limited supply of legal representation means that the cost of representation will increase and that, for reasons of cost or unavailability of counsel, some detainees will remain unrepresented.[89] Given that asylum seekers typically have few financial resources and are less familiar with U.S. legal practices than others in these facilities, they are often the ones who remain unrepresented.[90]

Those asylum seekers who are housed in detention facilities located close to metropolitan areas are more fortunate; there is a possibility that even if they are unable to contact legal representation on their own, they may nonetheless be identified by lawyers who are willing to represent them for little or no fee. A few nongovernmental organizations have staff attorneys and legal assistants dedicated to representing detained asylum seekers.[91] These

organizations have developed presentations that can be given to a large number of detainees at once, in an effort to increase the economy and efficiency of providing legal counseling.[92] During the presentations, a lawyer or legal assistant addresses the fundamentals of U.S. immigration law and procedures, including the asylum adjudication process and alternative relief that may be available to the detainees. These presentations are designed to provide asylum seekers with information about the process, and they may also include a discussion of non-asylum options, such as voluntary departure[93] and other means of removal, which would shorten time spent in detention.[94]

Where such “know-your-rights” presentations are conducted, they have been successful. One such presentation, given by the Florence Immigration and Refugee Rights Project in Florence, Arizona, has been embraced by the INS as a model to be duplicated around the country.[95] However, the concept of rights presentations has not been so eagerly embraced at all detention facilities. In some jurisdictions, nongovernmental organizations that provide free legal assistance to detained asylum seekers report being denied access to the detained asylum seeker community.[96] Despite these and similar efforts to identify detained asylum seekers and connect them to lawyers, there is not enough pro bono representation to adequately represent all of the detained asylum seekers who warrant their assistance.

Those asylum seekers who are fortunate enough to contact legal representatives face additional hurdles in convincing the lawyers to represent them while they are detained. The opportunity cost of representing a detainee is significant. Consultation with detained asylum seekers is much more burdensome for lawyers than consultation with asylum seekers who are not in detention.[97] The most significant cost is of the lawyer’s time. Because detention facilities are often located in rural or suburban areas that are far from cities where most pro bono legal services are located, lawyers need to spend considerable time simply traveling to and from the detention centers.[98] If the same lawyer spent that travel time in her office, she could consult with many more asylum applicants. This investment of time and resources in representing a detained asylum seeker is multiplied when the lawyer needs either the assistance of an interpreter to communicate with her client, or a medical expert, such as a medical doctor or psychologist, to corroborate the client’s story through a medical or psychological examination.[99]

Added to the investment of travel, once the lawyer arrives, there is no guarantee that a private interview room will be available in which to interview her client. Counsel often have to wait, sometimes for hours, to meet with their detained clients.[100] The possibility that meeting rooms will not be available must be factored into any commitment that lawyers who represent detained asylum seekers must make.

In addition, asylum seekers are sometimes transferred from one detention center to another.[101] The transfers are often accomplished without any prior notice to the detainee, her friends or relatives, or even her legal representative. Attorneys often learn of the transfer only upon arriving at the detention center to meet with a client.[102] Many of the detention facilities to which these detainees are transferred are in “desolate, remote areas, wholly lacking in counsel and/or . . . translators.”[103]

III. THE ADVERSE IMPACT OF DETENTION ON THE ASYLUM ADJUDICATION PROCESS

Together, the above-mentioned costs of detention do more than simply temporarily inconvenience a few thousand individuals each year. These costs impede the ascertainment of truth in the asylum adjudication process, with both permanent and severe consequences. Detention adversely impacts an asylum seeker’s ability to find and hire counsel, to prepare and present an asylum claim, and to provide credible and detailed testimony. The cumulative effect is to undermine the ability to achieve the ultimate goal of the process—to distinguish between deserving and undeserving asylum applicants, and to grant protection to deserving applicants. This state of affairs is particularly lamentable given that the stakes are so high. Indeed, only in cases involving capital offenses are the stakes so often as high, and there, tellingly, special rules have been established to ensure against inaccurate negative determinations.

A. Poor Mental Health Impedes Ability to Discuss Claim

A failure to adequately treat the physical and mental health-related problems related to imprisonment, torture, or persecution inhibits an asylum seekers’ ability to protect their best interests and seek out legal representation. Indeed, the side effects of PTSD can become so overwhelming for an

asylum seeker that they can prevent the individual from articulating the basis for his or her claim.[104] For example, female refugees who have been victims of rape and other forms of sexual violence are often unable to speak about their persecution; they often mistrust others, experience recurring nightmares, suffer from depression and experience feelings of extreme isolation.[105] These women typically have to undergo months of therapy before they are able even to explain their fears.[106] Others may become so depressed that their ability to present their asylum claims is severely impaired.[107]

Refugees with PTSD reveal their “histories reluctantly and incompletely.”[108] Common symptoms of PTSD include avoiding “thoughts, behaviors, and any activities that would remind them of the past.”[109] On direct questioning, most do not elaborate “in any more detail or initially describe any personal reactions to the situation.”[110] Studies show that refugees with PTSD usually have to be “encouraged to give more detail of what they experienced” but can do so only after “trusting relationships” have been established.[111]

B. Detention Impedes Ability to Satisfy Burdens of Proof and Persuasion

Asylum cases are difficult to prove. The INS grants asylum to only roughly twenty percent of affirmative asylum applicants,[112] and an even smaller percentage of litigated claims are granted by immigration courts.[113] The low approval rates are attributable in part to the fact that most asylum seekers are unrepresented, and consequently may wrongfully be denied protection because they are unable to prepare their claim adequately. Indeed, the approval rates of represented asylum seekers far exceed those of unrepre-

sented individuals.[114] The low approval rates are also attributable, in part, to the fact that the burdens of proof and persuasion rest on the asylum seeker, who, particularly when detained, face substantial hurdles in meeting them.[115] Given these impediments, we cannot be confident of the veracity of decision making in the cases of unrepresented asylum seekers.

Determinations as to whether or not an individual has met her burdens, and thus warrants asylum protection, are fact-intensive inquiries made on a case-by-case basis. These findings are made after a hearing in which the applicant may be represented by counsel (provided that it is at no expense to the Government); the evidence against her (other than national security information) is examined;[116] the applicant may present evidence on her own behalf, and may cross-examine any witnesses presented against her.[117] The hearings typically focus on an account of particular events that cause the applicant to fear returning to her home country, so that the adjudicator can determine whether the fear is well-founded, and an analysis of whether the persecution is on account of one of the five statutory grounds—race, religion, nationality, political opinion, or membership in a particular social group.

1. Detention Impedes Ability to Prepare Cases

Detention hinders asylum seekers’ ability to present thorough asylum claims. Meetings between asylum seekers and their lawyers are less convenient and less private when the applicants are detained. Many detention centers do not have satisfactory facilities for attorney-client meetings; either the facility is not equipped with rooms in which attorneys and clients can talk face to face or the facility does not have a sufficient number of rooms to accommodate all lawyers during business hours.[118] Due to the lack of such facilities, communication between attorney and client is limited and thus, it is difficult for lawyers to uncover fully facts that are “sufficiently detailed to provide a plausible and coherent account of the basis of the alien’s alleged fear.”[119]

Moreover, being in detention frustrates asylum seekers’ ability to work efficiently with their representatives. Detained asylum seekers are not able to locate witnesses, gather evidence, or otherwise assist their attorneys in case preparation.[120] Commentators have attributed similar costs to criminal pre-trial detention in the United States:

[The detained defendant] cannot help locate witnesses or evidence which may be more accessible to him than to an outsider. His contacts with counsel may be impeded by having to plan a [case] from cramped jail facilities within the limited hours set aside for visitors. The pretrial prison experience may adversely affect his demeanor and attitude in the courtroom or on the witness stand.[121]

These costs apply to an even greater extent to asylum seekers, who, unlike criminal defendants, do not have the benefit of court-appointed counsel and often represent themselves pro se.[122]

In cases where personal background information is unavailable, the applicant’s testimony is measured against background information about the

conditions in the applicant’s home country. Courts expect that “general background information about a country, where available, will be included in the record as a foundation for the applicant’s claim.”[123] The burden falls on asylum applicants to produce such “supporting evidence, both of general country conditions and of specific facts sought to be relied on by the applicant.”[124] Failure to provide such supporting evidence is seen as a failure to establish the burden of proof: “[e]ven if an alien is found to be credible, if there is no context within which to evaluate her claim, she has failed to meet her burden of proof because she has not provided sufficient evidence of the foundation of her claim.”[125]

In In re S-M-J-, for example, the Board of Immigration Appeals[126] found that even though the asylum seeker’s testimony was credible, she failed to meet her burden of proof because she did not provide sufficient general information about country conditions in her home country.[127] For example, the BIA pointed out that the respondent did not provide any information to prove that her tribe exists or that other groups would seek to harm members of it.[128] “Consequently, there [was] no background information against which to judge her claim.”[129] The court explained that when available, information about the history or political climate of a country should be provided through “corroborative background evidence such as country reports provided by a credible source or an expert witness.”[130]

Detained asylum seekers usually do not have access to relevant legal or background resource materials. Indeed, until recently, the INS did not have any standards concerning the content of legal libraries at detention facilities.[131] Even though these standards are in place, they do not apply to non-

INS facilities such as local, county, and city jails where many asylum seekers are detained;[132] therefore, the contents fall far short of alleviating concerns about the availability of sufficient corroborative materials. The standards do not require libraries to maintain up-to-date information about country conditions. Rather, in INS service processing centers and contract detention facilities, required reference materials are limited to the State Department’s annual Country Reports on Human Rights Practices, printed each February for the preceding year, and Human Rights Watch—World Report, which is printed annually and covers only selected countries.[133] No current newspapers, country conditions updates, or reports from other “credible sources”[134] are required to be kept in the libraries. Even with all the relevant legal and country condition resource materials necessary to present a claim for asylum, only the minority of asylum seekers fluent in English are able to use them.

2. Detention Adversely Impacts Ability to Testify Credibly

As to the presentation of evidence of a fear of persecution, most, if not all asylum cases focus on the direct testimony of applicants regarding events that took place in foreign countries, involved foreign governments, and are characterized in terms of foreign norms and cultures. Given the nature of this testimony, judgments as to whether or not an applicant has satisfied her burdens of proof and persuasion typically hinge on the applicant’s credibility,[135] with particular attention given to the level of detail in the account,[136]

the applicant’s demeanor,[137] and whether or not the account is internally consistent.[138]

Various factors influence whether or not an applicant satisfies these evaluation criteria. For example, “[i]ndividuals who have recently emigrated from areas of considerable social unrest and civil conflict may have elevated rates of Posttraumatic Stress Disorder. Such individuals may be especially reluctant to divulge experiences of torture and trauma . . . .”[139] They typically “avoid thoughts, feelings, or conversations associated with the trauma,” “avoid activities, places, or people that arouse recollections of the trauma,” and are often unable “to recall an important aspect of the trauma.”[140] Without an appropriate diagnosis or treatment, however, such inability to remember details of one’s persecution may be interpreted by the court as indicia of deception. Moreover, the side effects of PTSD may adversely impact a detained asylum seeker’s ability to discuss enough details of her persecution to establish eligibility. The side effects may also cause the asylum seeker to have poor concentration and a confused memory. If not diagnosed and treated before the hearing, these symptoms of PTSD can lead to an adverse assessment of the asylum seeker’s credibility on the witness stand.

The practice of conducting removal hearings via video conference—a practice that is limited to hearings for detainees—can also be confusing to asylum seekers.[141] During video conference hearings, asylum seekers remain detained and are connected to the courtroom via video, while the judge, INS counsel, detainee’s counsel, and an interpreter, if necessary, are all physically present in the courtroom.[142] The detainees view the courtroom proceedings

on a television screen from the detention facility.[143] They provide direct testimony and are cross-examined via video. This system hurts detainees in at least two ways. First, asylum seekers are not able to consult privately with their attorneys during the hearing. Second, it is more difficult for an asylum seeker to establish his or her credibility when testifying via video.[144]

3. Detention Adversely Affects Ability to Demonstrate Legal Standards are Met

Finally, detention also impedes an asylum applicant’s ability to satisfy the difficult legal standard of an asylum proceeding. The issue of what constitutes each of the five grounds of persecution, like other legal standards, has been subject to considerable legal wrangling and is continually evolving in response to “changing notions of human rights violations” abroad.[145] For example, in light of the clan-based persecution in Somalia’s tribal conflict, since early 1990 many Somalis have sought asylum in the United States because they fear persecution based on their membership in a particular Somali clan. These asylum applicants have argued that membership in a Somali clan constituted membership in a particular social group within the meaning of section 208(a) of the INA. In 1996, the BIA agreed, and held that because Somali clan members share ties of kinship and linguistic commonalities, members of a clan could be characterized as a particular social group for purposes of adjudications of asylum claims.[146] Indeed, the term “persecution” is not defined by statute and “various attempts to formulate such a definition have met with little success.”[147] Due to these evolving notions of protection, asylum cases often challenge the boundaries of the law and thus often pose insurmountable difficulties to the majority of detained asylum seekers, who are pro se applicants.

In addition to the problems unrepresented asylum seekers face in proving that what they suffered constitutes persecution, asylum seekers also often do

not understand the necessity of proving a connection between their persecution and one of the five statutory grounds for asylum.[148] For example, a woman may testify at her hearing that she fears returning to her home country because her family will kill her, but may not explain why they plan to kill her. The adjudicator may find the applicant credible and actually believe that she will be killed if sent back. But if a nexus is not established between the fear and one of the five grounds—fear of reprisals by one’s family alone is not sufficient for a grant of asylum under the INA—the adjudicator would be compelled to deny asylum. If this same applicant had a basic understanding of the law or were represented by someone who did, she would understand that she needs to establish that, for example, her family was motivated to harm her because she supports an opposition political party, while the family is an ardent supporter of a current dictator. Similarly, a man may explain to the immigration judge simply that he fled his home country because he deserted the army and as an army deserter he would be subject to persecution. The mere fact that he deserted his home country’s army may not warrant asylum protection.[149] However, if the reason he deserted the army is that it is against his religion, and the laws are selectively enforced against people who follow his religion, an adjudicator might find the applicant met the asylum standard, presuming, of course, that the applicant knew enough about the law to mention these crucial facts.[150]

Additionally, asylum claims often suffer from a failure to trace the chain of causation far enough. For example, an applicant’s testimony may suggest that she is fleeing discrimination and economic hard times, which is not a ground for asylum protection, and as a result the applicant may be denied asylum. Yet, analysis of the conditions in the applicant’s home country may reveal that the government systematically discriminates against the applicant’s particular religious or other group, depriving the group of fundamental rights such as education, employment, and housing. If pervasive and persistent, such discrimination could rise to the level of persecution within the meaning of the INA.[151] Similarly, persecution does not generally include prosecution.[152] But asylum has been granted even though the persecution took the form of prosecution for a crime, when it has been proven that the statute was enacted as a means to justify persecution.[153] Without the assis-

tance of attorneys, asylum seekers face problems in organizing and presenting such facts to the adjudicator in a coherent fashion that explains why they meet the statutory requirements.

C. Detention Motivates Abandonment of Valid Claims

Prolonged detention pending an asylum hearing also acts, in some cases, to induce genuine asylum seekers to abandon their claims in the hope of facilitating an earlier release from detention, in spite of the fact that they may suffer further persecution if returned to their home country. For example, Mr. S.S., a torture victim from Iran, whose sibling was living in the United States and who had a wife and two American-citizen children living in Mexico, abandoned his asylum claim after living in jail for several months. He explained to me that the prospect of spending considerably more time in jail, where his diabetic condition remained untreated, and from where he could not adequately provide care for his wife and children[154] bothered him and impeded his ability and willingness to proceed with his claim.[155]

IV. THE RATIONALES ADVANCED IN SUPPORT OF DETENTION PROVIDE INADEQUATE SUPPORT FOR THE CURRENT DETENTION SYSTEM

Given the substantial costs of the prehearing detention of asylum seekers and the adverse impact of detention on the accuracy of the asylum adjudication process, it seems clear that only compelling countervailing reasons could justify detention of credible asylum applicants. The rationales that the INS has advanced to support its asylum detention policy are: (1) to prevent applicants for admission from absconding; (2) to protect the public safety; and (3) to deter future applicants from attempting to enter the country illegally.

With respect to absconding, the concern is that immigrants who are released into the general population may not appear at their immigration court hearings or for removal or may abandon their claims and disappear into the underground economy, thereby placing upon the government the burden of locating them before their removal can be effected.

A “better safe than sorry” premise underlies the concern for public safety rationale, which is based on the unknown potential of immigrants for criminal activity. Detention is viewed as a means of protecting the public from the possibility that arriving immigrants may pose a threat.

Finally, it is thought that a policy of detaining those who arrive at the border without sufficient travel documents will discourage immigrants from attempting to enter the country without proper documentation. The theory is that, sooner or later, potential immigrants will learn that they will be detained upon arrival if they come to the United States without proper documentation. Once this is learned, it is thought that the prospect of spending considerable time in jail will deter such intending immigrants from coming to the United States.[156]

A fundamental difference exists between these rationales, which has not yet been fully appreciated by the INS or commentators and has important implications for detention policy. Specifically, deterrence is a rationale of a different kind than the safety or absconding rationales. While the safety and absconding rationales are capable of being directly applied to individual cases, leading to varying detention decisions on a reasoned basis, deterrence may not be so capable. Indeed, the idea of detaining any single individual on the ground of deterrence, while simultaneously paroling others, is irrational. Rather, the role of deterrence is more general; it acts as a sort of prism that can affect one’s view of the other concerns. The “felt necessity” for deterrence, in other words, informs the assessment of the other concerns. Thus, when the need for deterrence is keenly felt, other rationales are more broadly applied to detain more people. Conversely, when the need for deterrence appears less compelling, other rationales may more often be interpreted to allow parole rather than detention of an asylum applicant.

The last two decades have offered compelling proof for this view. The historical record is clear that the deterrence rationale actually prompted the INS to adopt a more strict, standard detention policy in the early 1980s. That this policy has prevailed ever since and still prevails today becomes clear after closely scrutinizing the INS’s pronouncements and practices concerning detention and parole.

A. Historic Change to More Restrictive Detention Practices was Brought about by Heightened Perceptions about the Need for Deterrence

Before deterrence became a leading concern, detention was almost never used. Indeed, since 1954, when the Attorney General announced that “[o]nly those deemed likely to abscond or those whose freedom of movement could be adverse to the national security of the public [would] be detained,”[157] detention of undocumented individuals arriving in the United States was “the exception, not the rule.”[158] That changed in the

early 1980s when the U.S. government was faced with mass influxes of refugees from the Caribbean. In particular, in the spring of 1980, a boatlift from the Cuban port of Mariel brought 125,000 refugees to the United States within a span of a few months.[159] At approximately the same time, significant numbers of refugees from Haiti were continuing to seek U.S. protection.[160]

Critics attributed the unprecedented sudden influx of immigrants from Cuba and Haiti to the fact that U.S. laws provided inappropriately substantial incentives for people to enter the United States without documents. In particular, it was argued that arriving immigrants were too readily paroled into the United States, rather than detained, and too readily given work authorization pending adjudication of their immigration proceedings, which often took months or even years to complete. Thus, the argument went, an immigrant who came to the United States without proper travel documents simply had to assert that she wanted political asylum and she would be at liberty to live and work in the United States for months or even years pending the adjudication of her claim, regardless of the claim’s merits. The courts confirmed this sentiment, reasoning that the combination of being granted work authorization and being paroled from detention “provided the greatest inducement to the ultimate swollen tide of undocumented aliens.”[161]

In response to this perception, a special governmental task force was established to examine, among other things, alternative means of deterring future mass influxes of immigrants.[162] With respect to deterrence, the task force recommended that the government “detain as a matter of course all arriving immigrants who could not establish a prima facie claim for admission to this country.”[163] The deterrent was directed at “those who might see

an asylum claim as a means of circumventing U.S. immigration laws.”[164] By detaining them, the new arrivals would not be able to obtain a work permit.[165] The Reagan Administration adopted this recommendation,[166] marking the first time in U.S. history that detention was used generally as a means to deter immigration.[167] The general hope was that prospective immigrants would learn that they would be put into detention if they came to the United States, and would therefore decide not to make the trip.[168] Thus, the historical record is clear that the more strict detention policy adopted in

the early 1980s coincided with a heightened belief that a stronger deterrent was needed, and is in fact attributable to that belief.

B. Present Detention Practices Show that the Deterrence Rationale Continues to Control Decision-Making Concerning Detention of Asylum Seekers

Deterrence has continued to dominate asylum seeker parole decision-making. The fact that deterrence guides the application of the safety and absconding rationales to parole decision-making is evinced, as explained in Part IV.B.1 infra, through several anomalies surrounding parole decision-making. In addition, the predominance of the deterrence rationale in current parole decision-making practices is further demonstrated by comparing the current system to the notion of how a system designed predominately to deter would look. As explained in Part IV.B.2 infra, the current system closely resembles a deterrence-focused system.

1. The INS Makes Little Effort to Ensure the Safety and Absconding Rationales are Effectively and Uniformly Applied

Although the INS at times professes reliance on the rationales of prevention of absconding and protection of public safety in its parole decision-making, this assertion of reliance is unconvincing in light of several anomalies that suggest that these two rationales are treated more as an incantation than as an explanation. Consider the following: (1) criminals are released on bond while asylum seekers with no record of criminality languish in detention, in apparent disregard of the safety rationale;[169] (2) the INS’s parole decisionmakers have not shown an interest in collecting proof about appearance rates for asylum seekers and discount evidence that asylum seekers in fact are not absconding when paroled, while simultaneously alleging that the potential for absconding is what inhibits them from making positive parole decisions;[170] and (3) personnel at

INS headquarters tolerate vast discrepancies in release rates among local districts, proving that districts do not uniformly apply the rationales,[171] and overlook local offices’ failure to follow procedures[172] designed to ensure consideration of the professed rationales.[173]

When considered together, these anomalies suggest that something other than the professed rationales of preventing absconding and protecting public safety most influences individual parole decisions. And, as explained below, that something plainly is deterrence.

2. Detention Bed Space Availability, as a Surrogate Means for Achieving Optimal Deterrence, Controls Parole Decision-Making

Finally, to determine whether deterrence stands as the dominant motive behind the current system, it might prove instructive to imagine what a deterrence-focused system would look like. A detention system focused predominately on deterrence would essentially seek to detain as many individuals as it had the capacity to detain. The only practical limitation would be the availability of detention bed space. In an effort to continue to increase its deterrence capacity, it would continuously try to increase its detention bed capacity.

Tellingly, this is essentially the system that the INS operates. Detention bed space more often than not is what guides parole decisions. Indeed, the established practice by many local INS district offices[174] is to decide whether or not to release an asylum seeker from detention based upon the availability of detention beds. Many districts have essentially adopted a de facto policy of not granting parole if they have an available detention bed.[175]

The ubiquitousness of this de facto policy has been confirmed by many INS officials of various ranks.[176] Indeed, INS policy personnel at headquar-

ters explain discrepancies in release rates between various local districts not by reference to different applications of the safety and absconding rationales by local district directors, but by reference to detention beds available to them. For example, the INS General Counsel recently explained that “detention bed availability is the determinative factor in deciding whether to release.”[177] Phyllis Coven, former INS Director of International Affairs, echoed the fact that the availability of detention beds often dictates whether one is detained or not by explaining that “beds go a long way” in justifying parole decisions.[178] As a result, she stated, “release of asylum seekers [post IIRIRA] has been negligible in certain districts” where beds are readily available.[179] Numerous local INS officials also have confirmed that the availability of bed space continues to dictate their release decisions.[180]

Moreover, the INS continues to press for substantial increases in detention capacity, even though current capacity is more than twice that of only six years ago.[181] And, despite regular increases in detention bed capacity over

the last several years, the INS continues to assert that it needs additional detention bed capacity. In sum, if deterrence were officially made the only objective behind detention policy, current policy would not need to change much, if at all. However, this very fact also suggests that if the need for deterrence is shown to be exaggerated in a particular context, then a substantial change in detention policy may very well be warranted.

V. FORCE OF RATIONALES IN LIGHT OF IIRIRA

Although the INS appears not to recognize it, the force of these rationales, as applied to asylum seekers after apprehension at an airport or border, has declined appreciably since IIRIRA was adopted.[182] Indeed, even assuming the general validity of all three rationales as applied to asylum applicants from the early 1980s until recently, in light of the changes brought about by IIRIRA, only one of the professed rationales can currently be considered more than an anachronistic concern.

A. Use of Detention as a Deterrent Is an Outdated Remedy for a Resolved Problem

While in the 1980s and early 1990s detention may have substantially contributed to the intended goal of deterring undocumented individuals from coming to the United States and filing unmeritorious asylum claims, the potency of detention to serve this rationale has decreased dramatically in recent years. The sharp reduction in the usefulness of detention as a deterrent can be attributed in large part to changes in asylum laws enacted as part of IIRIRA. These statutory changes are themselves designed to deter the same group of people that the Reagan Administration’s detention policies were designed to deter.[183] As a result, IIRIRA’s amendments reduced the usefulness of and, concomitantly, the need for, detention as a deterrent in at least two significant respects.

1. The Group of Individuals Sent to Detention Is a Narrowly Selected Subset of the Pre-IIRIRA Group

Most importantly, IIRIRA changed dramatically the class of individuals being sent to detention centers. Under the previous laws enacted in the early 1980s, any potential immigrant who arrived at the U.S. border or airport without documentation or whose documentation was suspected of being fraudulent had an opportunity for a formal hearing before an immigration judge.[184] The majority of these individuals elected to have hearings before the immigration court.[185] The hearings often did not take place for months or years after their arrival in the United States. Under the detention policy in place in 1996, when IIRIRA took effect, most undocumented individuals were sent to detention centers to await their hearings.

Under IIRIRA’s expedited removal provisions, however, two separate procedural screenings operate to reduce the universe of people entitled to formal immigration court hearings. The first screening takes place at airports and border crossings immediately after a person arrives at the border with false travel documents, documents suspected of being procured by fraud,[186] or no travel documents at all.[187] During these screenings, immigration inspectors at the airports and border crossings interview all undocumented individuals to determine whether they are entitled to stay in the United States. Only those who have lawful immigration status or who indicate to a government inspector that they have an intent to apply for asylum or a fear of persecution are not subject to immediate removal.[188] But the vast majority of undocumented immigrants make no such claim and are removed within two days.[189] Thus, under current U.S. procedures, approximately 4000

individuals per month are ordered removed from airports or borders and are immediately sent back to their country of nationality by an immigration inspector.[190] Only an average of 200 people per month indicate a fear of persecution in their country of nationality at these initial screening interviews.[191]

Those individuals who express a fear of being returned or who request asylum protection are then taken to INS detention facilities.[192] At the detention centers they are subject to a second screening, commonly known as a “credible fear interview.” There, an asylum officer[193] interviews them to determine whether their asylum claims are credible.[194] Only those who establish that they have a credible fear of persecution[195] at these interviews are eligible for a hearing before an immigration judge.[196] Approximately twenty percent of those sent to credible fear interviews are determined not to have a credible fear of persecution and are screened out of the process.[197]

As a consequence of the new expedited removal laws, the class of arriving immigrants that is sent to detention centers to apply for asylum protection before immigration judges is a narrowly selected subset of the undifferentiated and substantially larger group that detention was originally designed to deter.[198] Most of the other thousands of arriving undocumented individuals have been screened out through the expedited removal process and swiftly removed from the United States back to their home countries, many without ever reaching a detention center.[199]

Moreover, under current laws, these detained asylum applicants have already passed two separate screenings by government official—an INS secondary inspector and an INS asylum officer—and have been found to have credible claims for asylum. Nonetheless, under current practices, the vast majority of asylum seekers whose claims are deemed credible at these two screenings are detained by the INS from the time they enter the country until the conclusion of their removal hearing before immigration judges.[200] Any review of the judges’ decisions typically spans a period of at least several months.

2. IIRIRA Reduced the Potential for Abuse of the Asylum Process

In addition to the fact that the class of people subject to detention today is significantly different and substantially smaller than the group that the detention policies were originally designed to deter, IIRIRA also sharply reduced, or eliminated completely, the inducements that many thought promoted gaming of the asylum system in the past.[201] When the detention policy was first adopted as a means of deterring undocumented immigration, the asylum adjudication process that was in place varied greatly from the process that exists today. At that time, people were paroled into the country while they awaited their immigration court hearings. Because of significant backlogs in the adjudication of asylum claims, which were primarily due to a lack of sufficient resources, applications often remained on file for months or even years before they were addressed.[202] Asylum applicants could work

legally in the United States throughout this period; an individual could receive a work permit upon submitting an asylum application to the INS, regardless of the merit of the asylum claim. Moreover, the previous system did not impose any sanctions on frivolous asylum applicants. The combination of these factors was perceived by many to promote the filing of frivolous asylum claims.

However, since 1995, the Executive Office of Immigration Review (EOIR) and the INS have taken several significant steps, many of which were later codified in IIRIRA, to address the perceived problems in the asylum adjudication process.[203] In particular, under the new laws, asylum seekers are no longer eligible for a work permit upon filing an application for asylum.[204] Therefore, the filing of a frivolous asylum application no longer benefits people who merely want to obtain work authorization. In addition, because the INS and EOIR increased their staffs of asylum adjudicators after 1995, claims are now being decided at record speed.[205] Indeed, current laws require adjudication of asylum claims within 180 days.[206] Thus, the prospect of legally working for months or years pending adjudication of one’s case has been eliminated. IIRIRA also imposes sanctions for filing frivolous asylum claims, including disqualifying all frivolous applicants from receiving any benefits under the INA.[207] Together, these changes to the asylum adjudication process, coupled with other restrictive immigration policies,[208] have sharply reduced the possibility that the asylum system is an avenue for overcoming otherwise strict U.S. immigration laws in an effort to gain work authorization and later permanent residence in the United States. As a result, unmeritorious asylum applications are further deterred.[209]

In sum, before the INS began using detention to deter arriving undocumented individuals in the early 1980s, if it was faced with an influx of thousands of undocumented individuals, some of whom were asylum seekers and some of whom were not, its only option would be to release all such individuals into the community, grant them work authorization, and hope that they would appear for their immigration court hearings, which would not take place until months or years later. In contrast, under the post-IIRIRA system, expedited removal procedures screen arriving individuals once they arrive at the border. Those who are not entitled to remain in the United States are subject to immediate removal. They are not entitled to hearings before immigration judges or to work permits. Only those who establish to U.S. government officials at secondary inspections and again during credible fear reviews that they are entitled to remain are eligible for hearings before immigration judges.

These changes, however, have not caused the INS to reconceptualize the need for detention post-IIRIRA. Rather, it continued on as before, without recognizing that the class of individuals subject to detention post-IIRIRA only includes those found to have credible fears of persecution and that the incentives for filing frivolous claims have been largely eliminated. As a result, the INS detains credible asylum seekers pursuant to a system designed to deter an entirely different group of people.

Deterrence, of course, must be understood to mean no more than discouraging unmeritorious asylum claimants from abusing the asylum adjudication process to gain undeserved protection in the United States; otherwise, it would be inconsistent with domestic laws and international treaty obligations that offer protection from return to genuine asylum seekers.[210] Since deterrence, properly defined, has already been achieved through IIRIRA’s statutory changes, the use of detention for deterrence purposes has become an outdated remedy for a problem that no longer exists. Those who are cur-

rently being subject to detention are not people who the United States should want to discourage from pursuing their claims; rather, they are U.S. government-certified “credible” asylum seekers.

B. Likelihood of Absconding is Reduced by IIRIRA

Given that the deterrence rationale as applied to undocumented arriving asylum seekers has been undermined by IIRIRA, the weight given to the absconding rationale in parole decisions must be examined through a “prism” in which the need for deterrence is not substantial. As mentioned in Part IV.A supra, historically, in such circumstances, the absconding rationale was not thought sufficient to justify widespread detention of undocumented individuals.

The absconding rationale should also be reevaluated post-IIRIRA strictly on its own merits because, as explained below, just as IIRIRA eliminated the utility of detention to deter frivolous asylum claims, it also decreased in several ways the probability that asylum seekers who are released from detention will abscond pending the adjudication of their claims on the merits.

First, given that under IIRIRA, claims of the vast majority of asylum seekers in detention have already been found by government officials to be credible, they are more likely to want to pursue their claims in immigration court.[211] This is particularly true since there are many benefits to receiving asylum protection. For example, once an applicant is granted asylum, she can immediately apply for work authorization and begin to earn money to support herself.[212] She can also apply for a refugee travel document, which would authorize her to travel outside of the United States.[213] In addition, one year after receiving asylum, the applicant can apply to the INS to adjust her immigration status to permanent residency and to apply for legal status for her spouse and children. All of these incentives favor the individual’s appearance at her immigration hearings.[214] Consequently, the potency of the absconding rationale is minimal in a post-IIRIRA world.[215] Indeed, Senator Spencer Abraham, Chairman of the Senate Subcommittee on Immigration, recently recognized that “asylum seekers have strong incentives to show up for their asylum hearings, particularly after they have made the threshold showing that they have a so-called ‘credible fear’ of persecution in their home countries.”[216] He explained that “Congress recognized this when it

mandated the detention of asylum seekers during the brief period before they have demonstrated credible fear, but did not require detention after credible fear has been shown.”[217] Findings by the Commission on Immigration Reform lend further support. In its 1997 Report to Congress, it found that post-IIRIRA the risk of absconding by those deemed by asylum officers to have credible claims was minimal enough not to warrant the use of “scarce detention resources” to detain them.[218]

C. The Safety Rationale

Finally, the safety rationale also has been used to justify detention by the INS. Although there is a paucity of evidence that quantifies the risk of criminal activity by asylum applicants in general, the safety rationale certainly retains some visceral appeal. However, as with absconding, post-IIRIRA the safety rationale as applied to asylum claimants also must be evaluated in light of the substantially reduced need for deterrence. Moreover, in light of the fact that the rationales of deterrence and absconding have been undercut by IIRIRA’s changes, serious questions exist as to whether the safety rationale in isolation can be deemed sufficient to justify detention. Obviously, the use of public safety concerns, by themselves, to deny parole absent a demonstrated showing of prior criminal activity in a particular case is particularly troubling when, as here, there are no statistics quantifying the rate of asylum seeker criminal activity in general.

VI. BUREAUCRATIC BIASES FAVOR DETENTION OVER RELEASE

In light of the costs of detention, why has the INS not taken into account in asylum seeker parole decision-making that the events that initially prompted its reliance on detention, i.e., to deter influxes of groups of undifferentiated, undocumented individuals, have been substantially addressed by IIRIRA, thus calling into question the utility and need of detention post-IIRIRA of credible asylum seekers?

The answer derives from a combination of bureaucratic realities that, in the eyes of the INS bureaucracy, make a deterrence-inspired, “bed-centric” policy preferable to one focused on the ostensible detention rationales of preventing absconding and protecting the public safety. In particular, the bed-centric policy is: (1) more consistent with the dominant enforcement

mission, (2) easier to apply, (3) more appealing to the bureaucratic instinct for self-preservation, and (4) less depletive of the appropriated budget.

A. Bureaucratic Performance Concerns Favor Detention over Parole

The INS is charged with what are often considered competing missions. First, the INS is charged with enforcing the immigration laws that prohibit entry without proper documents and promote the removal of unauthorized individuals from the United States. In addition, the INS has a service function involving adjudicating applications for immigration and naturalization benefits available under the INA.[219] Critics argue that the INS’s enforcement functions frequently overshadow and even undercut its service mission.[220] The INS’s interpretation and application of IIRIRA provide ample evidence in support of the critics’ charges. For example, the INS has been quick to use IIRIRA to maximize its expanded enforcement mission, yet slow to grasp the implications of IIRIRA for its service function. As a result, the INS has engaged in, inter alia, efforts to deport legal permanent residents because of minor offenses committed years before, to deny entry and imprison business travelers with valid visas issued by the State Department, to deport vacation travelers with validly issued visas, and to restart deportation proceedings after fifteen years of inaction. [221] All of these actions test the bounds of the INS’s expanded enforcement authority. Some of these actions were later retracted under pressure when the INS conceded that it had more discretion under the statute than it first asserted. Nevertheless, the enforcement culture of the INS prevails, particularly among local INS dis-

trict offices.[222] Indeed, “specializing in enforcement has been the way to the top at the INS.”[223]

Local districts, which have sole authority over parole decisions, resist paroling asylum seekers because they see it as antithetical to their enforcement priorities.[224] There is always a possibility that individuals who are released from detention on parole could fail to appear at their court hearings and consequently complicate efforts by the INS to locate them when they are ordered to be removed. District offices are evaluated in large part based upon the number of individuals removed from their districts each year and not upon the number of asylum seekers released on parole.[225] Paroling asylum seekers is viewed by local districts as undermining the INS’s enforcement function since the ability to enforce and effectuate a removal order is directly linked to the ability of the INS to locate the individual who has been ordered to be removed.[226]

The possibility, no matter how slight, that asylum seekers will fail to appear at hearings or for removal, thus, weighs heavily against parole. Indeed, critics of the INS’s enforcement bias assert that the culture of the INS “has bred an ‘enforcement mentality’ that ‘infects’ INS personnel undertaking other tasks. As a result, many adjudicators are thought to begin their tasks with a predisposition to doubt applicants and to deny applications.”[227] With the possibility of absconding weighing against parole, and the absence of performance incentives favoring parole of asylum seekers from detention, the tendency of decision makers, whose performance will be based in part on actions of parolees, is to deny parole unless there are not sufficient detention beds.

B. Bureaucratic Ease Favors Detention over Parole

Local district offices make parole decisions based on bed availability in part because it is easier to find out whether there is an empty bed in a detention facility than it is to apply the rationales to the particular facts of each individual case. It is simply human nature to favor methods that are least taxing of one’s time and energy, and bureaucrats are not immune from this natural impulse.[228] Businesses in a capitalist society have numerous substantial incentives—both positive and negative—to struggle against this tendency, e.g., the lure of financial reward on the one hand, and the specter of bankruptcy on the other. With government bureaucracies, however, the incentives that most affect behavior in a private business are non-existent, or at least much less readily apparent. In such an environment, the bureaucratic analogue to Newton’s first law—bodies at rest tend to remain that way—is especially likely to find itself supported by considerable empirical proof, unless something comes along to disturb the rest. In a government bureaucracy, that something must be a heightened sense of mission or a managerial insistence upon adherence to new standards, with severe consequences for failing to comply.

There is no heightened sense of mission within the Service about the parole program for asylum seekers because the program “has not been a core commitment of the agency” for years.[229] Indeed, as explained above, the sense of mission throughout the INS is antithetical to parole; it is focused predominately on the Service’s enforcement function.[230] And, it is well recognized, an “agency with a strong mission will give perfunctory attention, if any at all, to tasks that are not central to that mission,”[231] much less to tasks that are antithetical to the primary mission.

As far as compelling adherence to administrative parole policies by the imposition of negative sanctions, commentators and former high-ranking INS officials have noted that there is no sense of accountability by local districts to INS headquarters.[232] According to some commentators, as a general

rule, “[p]olicies and practices vary from district to district, headquarters-to-field communication is notoriously poor, and managers are rarely—if ever—held accountable for neglecting the service side of the agency’s work or for tolerating enforcement practices that are at variance with agency policies.”[233]

C. Detention Is Appealing to the Self-Preservation Instinct

In addition to the fact that a detention policy based on available bed space is easy to apply and facilitates local offices’ enforcement mission, the policy appeals to the instinct of district directors to preserve their professional status. It is natural for district directors to prefer to make the mechanical decision of whether or not to parole an individual asylum seeker based on available bed space rather than to apply the various detention considerations in a discretionary manner because of the greater potential for blame to be assessed individually when a discretionary decision goes awry. For example, there is always a possibility that someone who is released from detention could pose a danger to the community. If a parolee does in fact cause harm to another person, the district director under whose watch that individual was released could be deemed responsible for not recognizing and protecting against the potential for violence. If, on the other hand, the district director resists paroling individuals from detention unless lack of detention space forces her hand, the blame could be deflected from the district director to the fact that the system lacks sufficient beds. Thus, by making decisions based on the amount of available detention space, the district director shields herself from responsibility for the actions of parolees.

The current detention system also appeals to directors’ self-preservation instinct for a second reason. In the past, the INS has faced findings of systematic bias by its adjudicators against specific groups of non-citizens.[234] Mechanical application of detention and parole policy based on bed availability offers protection against the possibility that truly individual reviews could be attacked as exhibiting a policy of systematic bias or discrimination

in the decision-making process, an allegation that could easily threaten further career advancement.

D. The User Fee, a Budgetary Anomaly, Favors Detention

An additional consideration favoring the current system arises from a budgetary anomaly that facilitates detention of asylum seekers. Section 286 of the INA authorizes the Attorney General to charge and collect an “inspections user fee,”[235] in the amount of six dollars per individual, which is added to the purchase price of international airline tickets and collected by the airlines.[236] In fiscal year 1997, more than $360 million was deposited into the inspections user fee fund.[237] The use of these funds is circumscribed by statute: the INA sets aside these dedicated funds for financing immigration inspections, detention and removal of inadmissible individuals, and immigration support.[238]

Detention is funded out of this account for “inadmissible aliens arriving on commercial aircraft and vessels” or individuals who “attempted illegal

entry into the United States through avoidance of immigration inspections at air or sea ports-of-entry.”[239] Included in these categories are asylum seekers who were found inadmissible at airports and were sent to detention facilities pursuant to the expedited removal procedures.[240] Indeed, asylum seekers account for the most person-days-in-detention[241] within the group of inadmissible individuals who are detained under the provision.[242] Most other inadmissible individuals are subject to expedited removal and are usually deported within two days of their arrival.[243]

Thus, most asylum seekers do not compete with other detainees for the INS’s limited detention resources. Resources to fund most asylum seekers in detention are separately appropriated through the user fee.[244] In 1997, approximately 1500 detention beds were funded by the inspections user fee, the majority of which were located within close proximity to the largest airports of entry.[245] By statute, these “user fee beds” cannot be used to detain anyone other than “inadmissible aliens arriving on commercial aircraft.”[246] In other words, they may not be used to detain, for example, criminal detainees.

An able and well-financed advisory committee, comprised primarily of representatives of airline carriers, monitors the inspections user fee account to ensure that it is not used outside of the statutory parameters.[247] Since air-

line passengers pay the user fees, which are reflected in higher airline ticket prices, the airlines have a considerable interest in ensuring that the funds are used for immigration operations associated with travel by air, and not for unrelated operations. And, indeed, the airline industry places considerable pressure on the INS to use the funds according to the statutory constraints. As Janet Thomas, the Director of Facilitation for the Air Transport Association of America and a member of the immigration user fee advisory committee has explained, the “airlines keep a careful eye on the use of beds by the INS, [since] we don’t want the INS to use user-fee beds for non-user-fee individuals.”[248]

Funds to finance the detention of most detainees other than inadmissible individuals arriving by airplane, on the other hand, are specifically and separately appropriated by Congress. For years, the INS has complained that Congress has not appropriated enough funds for it to detain all of the people who could legally be detained. Indeed, as mentioned above, the INS estimates that in fiscal years 1998 and 1999 it would need between 20,000 to 32,000 beds and 20,000 to 35,000 beds, respectively, if it were able to locate and process all individuals “subject to detention” pursuant to IIRIRA’s mandatory detention provisions.[249] And, due to insufficient detention space, the INS reported that, in the six-month period ending July 31, 1997, it was unable to detain approximately 13,000 individuals who otherwise would have qualified for detention.[250]

Since funds allocated through the user fee account cannot be used to fund the local district’s general detention or other needs,[251] there is no opportunity cost to detaining asylum seekers who arrive by air when user fee beds are available. If the beds remain “vacant,” there will only be a surplus in the user fee account. But such a surplus could not be captured by the local districts and reallocated to their other needs. “The inability of public managers to capture surplus revenues for their own use alters the patterns of incentives at work in government agencies.”[252] In this case, the pattern of incentives created by the user fee favors the use of its revenues to detain asylum seekers.[253]

This incentive structure is particularly evident in the parole decision-making of the New York and the New Jersey districts. John O’Malley, Associate Commissioner for Detention and Deportation, noted that with the opening of detention facilities dedicated to detaining user fee individuals in New York and New Jersey,[254] “it is less likely that asylum seekers will be released.”[255] Indeed, statistics show that the average asylum seeker who has established a credible fear of persecution is detained eighty-eight days in the Elizabeth detention facility in Newark, New Jersey, which has 170 beds funded by the user fee account.[256] Similarly, the average asylum seeker detained at the 200-bed detention facility in Queens, New York spends ninety-two days in detention.[257]

In sum, local district directors have multiple incentives to use detention beds to detain asylum seekers and few, if any, constraints on such use. Predictably, their actions are consistent with this pattern of incentives. As a result, asylum seekers who have been determined to have credible fears of persecution and who have substantial incentives to appear at all hearings are detained pending adjudication of their asylum claims, even though all of the evidence indicates that such a practice “is not a good use of scarce detention resources.”[258]

VII. CRIMINAL PRE-TRIAL DETENTION SYSTEM AS A MODEL FOR REFORM

Because of the substantial strength and apparently intractable nature of the institutional biases favoring detention, it would seem to put hope before experience to think that future agency-inspired efforts to improve detention decision-making for credible asylum seekers will succeed when all others have failed. The parole practices of local district offices are unlikely to change significantly as long as bureaucratic incentives and budgetary concerns still favor detention over parole, and, thus, long term results in accord with the prevailing incentive structure can be expected. Accordingly, any

efforts to ensure that a release policy for credible asylum seekers becomes viable on a permanent and system-wide basis needs to come as a clear statement from Congress, as, in Newton’s terms, an outside force is needed to move a body at rest.

This section proposes legislation that would overcome the narrow institutional biases of the INS while taking into account all legitimate government interests, including the interest in accurate decision-making on the merits of asylum claims. The proposal is based on the system established for pre-trial release decision-making in the federal criminal context. In that context, release before trial is the norm. There are constitutional limits, most notably the Eighth Amendment’s proscription against “excessive bail,” and statutory limits that usually require the government to release suspected criminals before trial on the merits. The most notable statutory restrictions are found in the Bail Reform Act of 1984 (BRA),[259] which limits the use of detention in an effort to protect the arrestee’s liberty interest. Collectively, these safeguards provide significant substantive and procedural protections to criminal arrestees.

The BRA is an appropriate model for reform of the asylum parole system because, like asylum prehearing detention, protecting the public safety and limiting the risk of flight have traditionally been goals of the criminal justice system’s pre-trial detention programs.[260] The BRA’s system addresses these two sets of concerns, yet includes substantive protections to facilitate just decision-making. In addition, in both the criminal pre-trial release and the credible asylum seeker parole contexts, deterrence cannot legitimately be considered a leading rationale. Thus, the BRA provides a model that affords ample consideration of the government’s legitimate interests in determining whether an asylum seeker who has been determined to have a credible fear of persecution should be released from detention on parole.

A. Impetus for the Bail Reform Act of 1984

The policies underlying the Bail Reform Act of 1984 contrasted sharply with previous criminal detention and release policies.[261] For example, in a significant change from prior law, the BRA authorized courts to incorporate potential danger to the community into their decision-making.[262] Before

enactment of the BRA, federal courts were not permitted to detain individuals pending trial based on their potential dangerousness to the community.[263] Thus, when courts were confronted with the decision of whether to release a person thought to be potentially dangerous to society, the common practice was to use “an indirect method of achieving detention through the imposition of financial conditions beyond [the defendant’s] reach.”[264] In describing pre-BRA detention practices, Senator Kennedy wrote: “it appears to be an established practice for judges to set high bail or to jail a suspect because the court is convinced the accused is dangerous and will commit another crime if released.”[265]

The BRA was enacted in response to a growing concern that the then-existing federal bail laws failed in two respects. First, they did not adequately “address the alarming problem of crimes committed by persons on release.”[266] Second, because of the practice of many judges to use “sub rosa preventive detention through the arbitrary imposition of high money bail,”[267] the existing bail laws were criticized as arbitrary and unfair. The BRA addressed both concerns. With respect to the problem of crimes committed by people who were released on bail, the BRA gave “the courts ade-

quate authority to make release decisions that gave appropriate recognition to the danger a person may pose to others if released.”[268] By permitting courts to consider the defendant’s potential criminality, lawmakers encouraged courts to address detention issues “honestly and effectively.” [269] Under the BRA, the “defendant would be fully informed of the issue before the court, the government would be required to come forward with information about dangerousness, and the defendant would be given an opportunity to respond directly.” In Congress’ view, the new bail procedures “promote[d] candor, fairness, and effectiveness for society, the victims of crime—and the defendant as well.”[270]

While the BRA differs sharply from previous law by expressly authorizing courts to detain defendants before trial based on their potential dangerousness to the community, it plainly favors release on personal recognizance.[271] The BRA permits judicial officers to order pre-trial detention only upon a finding that release on personal recognizance will not reasonably assure the individual’s appearance or will endanger community safety.[272] As described in detail below, unlike asylum parole decisions, detention determinations under the BRA are not made by partial adjudicators in an ad hoc process; rather, they are made in an open process before judicial officers whose actions and decisions are circumscribed by statute and regulations—a process that ultimately protects defendants’ procedural rights.

B. Procedural Protections Afforded in Federal Criminal Pre-Trial Detention

The BRA provides arrestees with a number of procedural rights before pre-trial detention can be ordered. Most importantly, a decision to detain someone pre-trial can be made only after a hearing before a judicial officer.[273] The hearing must be held “immediately upon the person’s first appearance before the judicial officer,” which is usually within forty-eight hours.[274] Pre-trial detention issues are typically addressed during the arrestee’s first appearance

before a judicial officer, thereby diminishing the likelihood that the individual could remain in detention for substantial periods of time without appropriate relief.[275] Special rules apply in the case of a defendant who is not a United States citizen or lawful permanent resident, and who is found to pose a risk to the community or a risk of absconding.[276] In such cases, the judicial officer must order detention of up to ten days, in order to give the government enough time to contact the INS, before release is determined.[277] Although “the deprivation of liberty of up to ten days, [was recognized as] a serious matter,”