The Immigration & naturalization Services has issued new guidelines on releasing asylum-seekers from INS detention. ‘The new policy expands a ‘pilot project begun in 1990 to parole asylum-seekers at ports of entry and in INS detention. According to an April 20,1992 memorandum signed by INS Commissioner Gene McNairy, the change will allow the Service to detain those persons most likely 16 abscond or to pose a threat to public safety rather than to base the detention decision solely on the availability of detention space.
Under Mc Nary’s memo, which ; reproduced in Appendix II of Release, the new policy will apply to all INS detention facilities and contract detention facilities and major ports of entry where INS personnel are available to conduct pre-screening interviews.
In May 1990 the INS began a pilot project to release from detention certain excludable aliens ‘with pending asylum claims. The program, which ran for 18 months, grew out of discussions between the Service and some refugee assistance organizations, including the New York-based Lawyers Committee for Human Rights. Under the project, the Service released’ about 200 aliens in Los ‘Angeles, Miami, New York and San Francisco. The aliens had to ‘meet certain conditions for release, including promising to report monthly to the INS and to appear for any proceedings.
“The Lawyers Committee, which monitored the program, found generally high rates of alien compliance with the reporting and appearance requirements. In a ‘September 9,1991 letter to Commissioner McNairy, Arthur ‘C. Helton, the director of Lawyers Committee’s Refugee Project, stated that released aliens’ rate of compliance with the project’s reporting requirement was 93%. Likewise, compliance with the appearance requirement was 95%. The findings of the Lawyers Committee, Helton said, “demonstrate that a well-conceived and carefully administered release program that works closely with the community can address the government’s interests in preventing absconding and targeting for detention those who pose dangers to the community, as well as avoiding the unnecessary detention of refugees,”
The INS’ own evaluation of the pilot parole program was more mixed claimed that aliens who were denied asylum and whose appeals failed absconded or accepted resettlement to Canada rather than surrender for removal.
Nevertheless, Joan C.Higgins, INS Assistant Commissioner for Detention and Deportation, drafted recommendations to extend and expand the pilot parole program. The Commissioner’s April 20 directive generally follows those recommendations.
McNary’s memorandum sets forth the criteria under which an excludable alien who has applied for asylum may be paroled pending adjudication of his or her case. The memo first outlines prescreening procedures to be conducted at certain major airports and other ports of entry. The asylum pre-screening officers (APSOs) may be members of the INS’ asylum corps or inspectors or other INS officers specially trained in asylum law and interviewing techniques. The INS is developing a training course in asylum law and interviewing techniques for APSOs, and is also developing operating procedures for the APSOs at ports of entry.
The INS will also conduct prescreening interviews at all INS detention facilities and contract detention facilities. These interviews will be conducted wherever possible by APSOs, Pending the wide availability of trained APSOs, however, Service attorneys will conduct the interviews, The memo outlines the criteria for release, which largely mirror those of pilot program. In making a determination whether to recommend parole for an asylum seeker, an interviewer must determine that certain requirements have been met, First, the interviewer must find that the person’s true identity has been determined. Second, the interviewer must determine that the allegations in the individual’s asylum application “appear to be credible and to provide substantial support for the application or request.” In the case of an individual who has requested asylum upon arriving at a port of entry, the interviewer must consider the person’s statements in support of the asylum claim, and any other information available. Third, the interviewer must determine that the individual has not (1 ) participated in the persecution of any other person on account of race, religion, nationality, membership in a social group, of political opinion; (2) been convicted of an aggravated felony; (3) been convicted by a final court Judgement of a particularly serious crime in the U.S. constituting a danger to the community; (3) firmly resettled elsewhere; or (5) been considered a danger to the security of the U.S.
Fourth, the person must have legal representation as defined under 8 CFR 292.1, and/or a place to live and employment or other means of support. Finally, the person must agree to: (1) contact the appropriate INS office each month and indicate any change in his or her address, employment, or representation; (2) appear for all hearings before the Executive Office for Immigration Review and for interviews with the INS: (3) appear for deportation, if he or she is ultimately ordered excluded; and (4) report for detention if he or she fails to comply with the above requirements, or is convicted of a felony or three or more misdemeanors,
If an individual meets all of these criteria, and no other factors suggest an “unusually strong risk that the person will not appear for further proceedings,” the interviewer should recommend that the individual be paroled. In cases where the individual does not meet all of the criteria, or where other factors suggest a strong risk that the person will not appear as required, the INS district director may require that the a lien post a bond. Also, upon review the district director may determine that the exclusion or deportation proceedings should be terminated and refer the person’s case to the asylum branch for processing.
Reacting to the new policy, Helton said that tends the “brutal policy of unnecessarily detaining refugees in the United States. The Justice Department and the INS are to be congratulated for their efforts to promote a more enlightened approach toward immigration control and refugee protection.”
The Lawyers Committee estimates that there were over 7,500 aliens currently in INS detention. About 1,000 of these are asylum seekers, who were detained after arriving in an airport without proper documents,
McNary’s memorandum comes at the same time the Justice Department is considering in introducing legislation to allow the summary exclusion of aliens who arrive at ports of entry without proper documents. The draft bill would allow arriving aliens who express a desire to apply for asylum in the U.S. to be interviewed by specially-trained INS officers to determine if the aliens have a credible fear of persecution. If so, the aliens would then be paroled in to apply for asylum.
It is at this point that the new April 20 release directives would come into play. Presumably many of those asylum-seekers would then be screened again to determine if they are eligible for release from detention. Thus, it is possible that at some point in the future an asylum-seeker arriving at a port of entry would have to go through two pre-screenings,” one to be paroled into the U.S. and one to be released from detention, in addition to the full-blown asylum application process.
Of course, all this is still speculative The summary exclusion bill has not even been introduced yet, and may not be for a while. Even if it is introduced, its fate is uncertain. One congressional staffer , recently expressed optimism about the bill’s prospects, noting that if the Justice Department does not ask a member of Congress to introduce its bill, some members may “take matters into their own hands.” Other sources, however, have expressed doubts that such a bill will pass this year. (Source Interpreter Releases April 27, 1992) .
Article extracted from this publication >> May 29, 1992
