For Many Refugees, the Journey to America Ends in a Cold Jail Cell
Hussein Mohamed took a hard road to America. Born into a minority clan in a nation rife with ethnic conflict, the boyish 24-year-old with gangly limbs and intense brown eyes describes fleeing his village in Somalia in 2012 after gunmen threatened to kill him. Mohamed says he was forced to quit his jobs as an English teacher and taxi driver and escape to neighboring Kenya. After making his way to South Africa, he forked over his life savings to human smugglers, who shipped him across the Atlantic to Brazil and guided him north through the jungles of South and Central America into Mexico.
When he finally arrived at a border crossing in Brownsville, Texas, this past summer, Mohamed thought he'd safely reached the end of a harrowing ten-month journey. He had no inkling of the ordeal awaiting him on the other side of the Rio Grande.
Mohamed approached a U.S. Border Patrol agent and recounted his story. He explained that he wanted to seek asylum, a classification of refugee status granted to people who arrive in the United States having fled persecution in their homeland. He was immediately handcuffed and placed in immigration detention: a cold, cramped cell in a privately owned and operated prison facility. Soon after, along with hundreds of other detainees, he was herded onto a cargo plane and transferred without explanation to a jail in Newark, New Jersey.
Eight months later, Mohamed is seated in the jail's makeshift visitor center, a stuffy gymnasium with rows of plastic chairs and tables arranged on the basketball court. It has been more than a year since he spoke with his family in Somalia, and he fears the worst. He knows exactly one person in America, a fellow Somali immigrant who lives somewhere in California. He dreams of moving there, finding work, maybe starting a family.
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Instead, he will likely be deported, shipped back to the war-torn country on the Horn of Africa he worked so hard to escape. Mohamed's request for asylum was denied because he lacks a passport or other documents to confirm his identity. He has filed an appeal, and his detention ticks on indefinitely.
There are no statutory limits to the amount of time a non-citizen like Mohamed may be held in immigration detention. When the process goes smoothly, asylum seekers tend to be released in a matter of weeks. Many end up imprisoned for much longer. Approximately 6,000 survivors of torture — exiles from Iran, Myanmar, Syria and other nations with brutal regimes — were detained in immigration jails while seeking asylum over the past three years, according to a 2013 report by the Center for Victims of Torture.
"It's really tragic," says Amelia Wilson, staff attorney for the American Friends Service Committee, a faith-based organization that aids asylum seekers. "They're fleeing persecution, and many of them have just fled institutions of incarceration in their home country. Through guile or luck or the right contacts, they manage to get out of their country. They come here and they're promptly detained. They're shocked. They're not criminals. In fact, they're following the legal procedure the government has put in place for them to get protection."
Over the past five months, the Village Voice, a sister paper to the Houston Press, visited detainees at two immigration detention centers and conducted extensive interviews with outreach workers, attorneys, academics and other experts on the asylum process. The investigation revealed how a process created to save innocent lives has come to embody some of the worst aspects of American immigration policy: The nation's system of mass deportations and incarceration has devastating consequences for vulnerable individuals who seek nothing more than safety and a new beginning.
The immigration overhaul the Senate passed in June 2013 addresses several issues with asylum, but the legislation remains stalled in the House of Representatives. Raising concerns about fraudulent claims, some Republican leaders are now pushing draconian measures that would put even more asylum seekers behind bars. House Judiciary Committee chairman Bob Goodlatte, a Republican from Virginia, has said the asylum system is "exploited by illegal immigrants in order to enter and remain in the United States."
"The tone of immigration politics, even when it comes to asylum seekers, has gotten really vicious," says Alina Das, co-director of the Immigrant Rights Clinic at the New York University School of Law. "People have generally forgotten what it means to be seeking asylum in our country. It's really disturbing, and I think it's a sad commentary on how easily a minority of elected officials can hijack an issue that should really speak to core American values."
Though the political climate looks bleak for advocates of asylum reform, an ongoing pilot project offers a glimmer of hope. The project allows Immigration and Customs Enforcement officials at facilities in New York City, Newark, San Antonio, Chicago and Minneapolis-St. Paul to release select detainees seeking asylum into a program coordinated by the Lutheran Immigration and Refugee Service. As of March 31, the program has helped secure temporary housing and social services for 32 people, including survivors of torture, victims of domestic abuse and LGBT individuals, all of whom would otherwise have remained jailed indefinitely.
"There's growing recognition from ICE that maybe detention is not appropriate for all of these folks," says Megan Bremer, a staff attorney at the Lutheran refugee service. Early successes aside, Bremer cautions that the arrangement is only temporary and receives zero government funding. "A lot of programs locally are running on a deficit. If it wasn't for all the volunteers providing time and services, the program would not be in existence."
Beyond the humanitarian concerns, the cost of detaining asylum seekers and other nonviolent immigrants creates an enormous burden for American taxpayers. The Department of Homeland Security budget for "custody operations" in the 2014 fiscal year is $1.84 billion. According to DHS's own estimates, if the agency used electronic ankle monitoring and other less expensive alternatives instead of detention, the government could save more than $1.44 billion annually: a 78 percent reduction in costs.
Yet every day at airports and border crossings around the country, immigrants like Mohamed — who committed no crime beyond seeking to save his own life — are locked up for weeks, months and even years. And if they are sent home, deportation can be tantamount to a death sentence.
The two most famous asylum seekers in recent history are Edward Snowden and Julian Assange, but those cases are hardly typical. The ex-National Security Agency contractor fled first to Hong Kong and then to Moscow after supplying journalists with a trove of information about controversial U.S. spy tactics; the WikiLeaks co-founder sought refuge in an Ecuadorian embassy in London amid fears he'd be extradited to Sweden to face sexual-assault charges. Perhaps the only thing these men have in common with the average asylum seeker in the United States is that they are stuck in legal limbo waiting to resolve their claims.
Unlike Snowden and Assange, the vast majority of asylum seekers are anonymous. In 2012, according to the United Nations, 45 million people worldwide were forcibly displaced owing to persecution and conflict. While the majority became refugees, roughly 1 million sought political asylum. (The only difference between an asylum seeker and a refugee is location: Refugees typically remain near their homeland when they initiate the process, while asylum seekers arrive at their desired destination without prior authorization.)
Several ancient societies, including the Greeks, Hebrews and Egyptians, respected the right of asylum, but the framework that exists today was established in 1951 to deal with millions of displaced people in the aftermath of World War II. As a party to the United Nations Convention Against Torture, the United States agreed to "not return refugees to countries where their life or freedom would be threatened and where they are more likely than not to be tortured." In the old days, asylum seekers were rarely detained.
With the 1993 bombing of the World Trade Center, everything changed. Later that year, 60 Minutes broadcast a report emphasizing the fact that Sheik Omar Abdel Rahman, the suspected mastermind behind the attack, had applied for asylum. The sound bite that stuck was provided by a representative from the Federation for American Immigration Reform, an anti-immigrant group: "Every single person on the planet Earth, if he gets into this country, can stay indefinitely by saying two magic words: 'political asylum.'"
In truth, Abdel Rahman had entered the United States on a tourist visa and received a green card despite his status on a terrorist watch list. He didn't apply for asylum until years later, and his claim was ultimately rejected. But the damage was done. According to a 1998 report on asylum by the Cato Institute, a libertarian think tank in Washington, D.C., the 60 Minutes segment "created the impression that few, if any, claims of asylum in the United States are legitimate." In the aftermath, federal agencies adopted more-stringent standards for identification of asylum seekers (typically requiring a passport, birth certificate or other form of ID) and imposed a minimum 180-day waiting period before issuing a work permit.
Unsatisfied with these reforms and reacting to a broader influx of undocumented immigrants, Congress passed a sweeping overhaul of the nation's immigration laws in 1996. The legislation set a one-year deadline for immigrants to apply for asylum and created an "expedited removal" process to swiftly deport anybody who arrives at a port of entry without proper documentation. For the first time in history, arriving asylum seekers were subject to mandatory detention.
"That became somewhat of a game-changer," says Annie Sovcik, director of the Washington, D.C., office of the Center for Victims of Torture. "From there, you started to see an overall growth in the detention system itself, both in the number of people detained on a daily and annual basis, as well as in the different categories of people that are held."
The immigration detention boom had begun, and it would only get bigger. The number of beds in immigration jails has more than quintupled since 1996, rising from 6,280 to 34,000 in 250 facilities across the nation in 2014. Since 2006, Congress has required ICE to keep all 34,000 of those beds perpetually filled, a provision known as the bed mandate. Critics of this no-vacancy policy argue that civil immigration offenders with no criminal history have no business behind bars.
Partnering with the Torture Abolition and Survivors Support Coalition, Sovcik coauthored a report in 2013 about detention's psychological toll on asylum seekers. Drawing on testimony from dozens of former detainees, the report details the appalling conditions found in some detention facilities along the southern border. The findings echoed another report from 2013 by Americans for Immigrant Justice.
"The temperature in the cells is so cold that [Customs and Border Patrol] officers themselves refer to them as 'hieleras,' or iceboxes, in Spanish. Detainees' fingers and toes turn blue and their lips chap and split due to the cold. Blankets are not provided. These crowded hieleras have no mattresses, beds or chairs," the Americans for Immigrant Justice report states.
"They've signed up for a certain degree of hardship during these journeys," Sovcik says of asylum seekers in general. "But at that moment when they believe they've reached a place they can ask for help, they're handcuffed and taken into cold rooms. They have no idea what's going on. There's a certain degree of shock in that experience that adds to the intensity of their trauma."
Research has shown that the longer asylum seekers are incarcerated, the more emotionally fragile they become. A team led by Dr. Allen Keller, an associate professor of medicine at the NYU School of Medicine and director of the Bellevue/NYU Program for Survivors of Torture, interviewed 70 asylum seekers detained in New York, New Jersey and Pennsylvania for a study published in The Lancet in 2003.
"What we found were very alarmingly high levels of psychological distress among asylum seekers in detention," Keller tells the Voice. "There was a clear correlation between the length of time in detention and the severity of these symptoms, including depression, sadness and hopelessness, as well as profound symptoms of anxiety and post-traumatic stress."
In 2009, ICE issued new parole standards: If arriving asylum seekers pass a "credible fear" interview, they can be eligible for release. Nevertheless, the U.S. Commission on International Religious Freedom issued a report in April 2013 concluding that ICE "continues to detain asylum seekers under inappropriate conditions in jails and jail-like facilities."
A spokesman for ICE did not respond to repeated requests for comment for this story.
Megan Bremer, who helped organize the LIRS's pilot program, says her organization received approval from ICE before agreeing to discuss the project.
"Until there's some movement from Congress on the bed mandate, ICE really feels its hands are tied," Bremer says. "Unfortunately, there's a lot of divisive rhetoric right now and fear-mongering about who is coming into this country."
In Texas, even as illegal immigration has fallen in recent years, the number of children arriving alone at the border has soared. Before 2012, only 6,000 or so "unaccompanied children," as the system labels them, were detained at the border in any given year. That number has doubled every year since, and this year, experts estimate, agents will nab 50,000 or 60,000, most of whom are fleeing gang violence in Honduras, Guatemala and El Salvador. Recognizing this surge, the Department of Justice, which appoints and employs immigration judges, has worked to create special juvenile dockets, assigning all the children's cases in each city to the same judge.
It's designed to help judges tailor the proceedings for children and to avoid having kids mixed with adults on busy hearing days. But in Dallas, that meant many of these cases landed on the desk of Dietrich Sims, easily the city's most controversial immigration judge. He rejects pleas for asylum at a rate higher than that of almost any other judge in the country, and he's known for routinely ignoring the will of the government's own attorneys, especially when they opt not to pursue deportation.
Between 2007 and 2012, Sims, who would not talk to us for this story, denied 84 percent of asylum applications, a higher denial rate than all but about 30 of the 275 judges in the system.
Early one morning in January, the wooden pews in Sims's courtroom were filled with spiky-haired teen boys, nervous relatives and young girls draped in pink. It was the morning of Sims's juvenile docket, a series of rapid-fire hearings for kids facing deportation. Out in the hall, a two-year-old was sleeping in her mom's arms, waiting her turn.
Before Sims entered, the government's lawyer, Lynn Javier, chatted with the opposing attorney. His client, a teenage girl from El Salvador, was seeking something called Special Immigrant Juvenile Status. For her to get it, a state family court judge would have to rule, separately, that her parents had abandoned her or that at least one had been killed.
Her lawyer planned to ask Sims for time to pursue that ruling. The government was on board, too. Yet everyone seemed unsure about whether he would agree.
"Judge Sims's concern is that the state court is handing them out like candy," Javier told the lawyer. "That's why he gets a little crazy about it."
The judge would eventually oblige. But throughout the hearing, he would flash signs of a unique disagreeability that frustrates immigrants, their lawyers, and even the Immigration and Customs Enforcement lawyers who pursue deportation.
It started with the case of a tiny Honduran girl in pink, two tight braids tracing the back of her hair. She was ten. When Sims asked her lawyer how she pleaded, Javier, the attorney for ICE, interjected. She asked Sims to terminate the case.
"She is not a law enforcement priority and we don't anticipate she'll become one," Javier explained.
"If she was not an enforcement priority, the government didn't need to put her into removal," he said, clearly annoyed.
"We no longer wish to proceed," Javier responded, curtly.
"Is this because of her age? Is there a difference between someone who is ten years old and someone who is 16 years old?"
The judge would eventually relent, but he voiced the same frustration in his next case. It involved a younger girl with a similar pink sweatshirt and a similar story. Nine. Honduras. Fled violence, arrived alone.
Again, Javier said the government didn't want to proceed. Again, Sims asked why the government had detained her in the first place, though surely he knew the answer,.
"The law requires us to detain her," Javier said.
"But does the law require you to put her in proceedings?" Sims asked.
"Prosecutorial discretion is available to us."
"There's been a change in circumstances?"
"Yes," she said. "A change in our desire to prosecute the case."
Javier was clinging hard to those words, "prosecutorial discretion." They're part of President Obama's strategy to slow deportations, which, to the chagrin of his supporters, have risen to record levels during his presidency. They're also vital to the government's efforts to unclog the immigration legal system, where the average case takes 19 months and more complicated ones take several years. Sims appears to despise the use of discretion, routinely ignoring attempts to cooperate by opposing attorneys. That drives lawyers crazy, including the government's.
The day the little girls in pink saw their cases dismissed, at the insistence of ICE and over Sims's clear frustration, most of the kids got what they asked for. Within days the news had already swept through immigration lawyers' offices across the city: Sims was off the juvenile docket. With no explanation, the Justice Department had reassigned those cases to a different judge.
Officials declined to say why, but lawyers in Dallas have a hunch. Not long before reporters started showing up in Sims's courtroom, the American Immigration Lawyers Association, a national trade group, had filed a complaint with Sims's bosses. Then, in January, at least two private attorneys sent complaints of their own, identifying a handful of juveniles whom Sims had ordered removed over the objection of ICE.
Whatever motivated the change, it was no small undertaking. Practically overnight, thousands of cases were moved from Sims's docket.
A series of reports by the Transactional Records Access Clearinghouse at Syracuse University "found extensive disparities in how the nation's immigration judges decide the thousands of individual requests for asylum that they process each year." In New York, where judges decide one out of every four asylum cases in the United States, the disparity has improved in recent years but remains an area of concern. One judge approved just 5 percent of asylum cases in a single year. Another judge in the same building approved 67 percent of such cases.
The inherent randomness is commonly known as "refugee roulette," a phrase coined in a 2008 Stanford Law Review report. Analyzing more than 270,000 decisions by immigration judges and asylum officials over a four-and-a-half-year period, the authors concluded that "in many cases, the most important moment in an asylum case is the instant in which a clerk randomly assigns an application to a particular asylum officer or immigration judge."
Benicio "Benny" Diaz, a staff attorney at American Gateways in San Antonio, a nonprofit agency that works with refugee and asylum seekers, spends a lot of his time visiting detention centers when he isn't taking on clients' cases. While waiting for their cases to be heard, some are able to get out of detention through parole or by bonding out.
But it's not easy. In order to qualify for parole, asylum seekers are required to confirm their identity and show proof of "community ties," which, practically speaking, entails proving they have a friend or family member with a spare bedroom. It's harder than it sounds: Documents may have been lost, stolen or confiscated, and asylum seekers seldom have local contacts to rely on.
And there's a trade-off, Diaz says. Asylum seekers who are not in detention can expect to have their hearings pushed back even further — by months or years, he says.
Every asylum seeker has a heartbreaking story to tell. Unfortunately, the tales aren't always true. In 2012, federal prosecutors in Manhattan filed an array of charges against 30 attorneys, paralegals, interpreters and others accused of helping dozens of Chinese immigrants file fraudulent asylum claims. One lawyer was caught on tape telling his client to "just make it up" if immigration officials probed for details of the forced-abortion narrative he'd scripted for her.
The high-profile Chinatown case — it was the subject of a front-page story in The New York Times, headlined "An Industry of Lies" — has contributed to backlash against asylum seekers that advocates fear could have tragic consequences for those with legitimate claims.
The elected official leading the campaign against asylum seekers is Bob Goodlatte, the Republican chairman of the House Judiciary Committee. On February 11, Goodlatte presided over a hearing for the Judiciary Subcommittee on Immigration and Border Security ominously titled "Asylum Fraud: Abusing America's Compassion?"
"Our nation's record of generosity and compassion to people in need of protection from war, anarchy, natural disaster and persecution is exemplary and easily the best in the world," Goodlatte began. "We grant asylum to tens of thousands of asylum seekers each year. We expect to continue this track record in protecting those who arrive here in order to escape persecution. Unfortunately, however, because of our well-justified reputation for compassion, many people are tempted to file fraudulent claims just so they can get a free pass into the United States."
Goodlatte claimed that 70 percent of asylum applications are fraudulent and stated that "the rule of law is being ignored and there is an endemic problem within the system that the [Obama] administration is ignoring."
The 70 percent statistic comes from a 2006 report from the Government Accountability Office on benefit fraud. The authors analyzed 239 asylum cases and concluded that 29 of them — or 12 percent — were fraudulent. To reach the alarming 70 percent figure, Goodlatte included an additional 138 cases from the report that exhibited "possible indicators of fraud."
He also cited "a separate DHS report [that] shows that the Obama administration is abusing current law by not detaining certain individuals seeking asylum."
Upon request, Goodlatte's office provided the Voice with a draft copy of a 2012 DHS report to Congress titled "Detained Asylum Seekers." According to the report, 68,795 people applied for asylum in 2012. Of those, 24,505 (roughly 36 percent) were detained. The average stay was about 79 days, but nearly 25 percent were held for 90 days or longer.
In point of fact, anyone who sets foot in this country and seeks asylum is detained, if only briefly. Those who meet the criteria to be considered "affirmative" applicants — meaning they applied within a year of arriving, possess proper identification and have followed regulations — are rarely detained for any length of time.
"In practice, only a very small number of affirmative asylum applicants are detained," the report reads. "On the other hand, many defensive applicants...are detained for at least some portion of the processing of their immigration cases."
Those "defensive applicants" — people fighting deportation because they fear returning to their homeland, including those who passed a "credible fear" interview — accounted for more than 23,000 cases of detention in 2012. Defensive applicants include people who failed to apply for asylum within a year of arriving in the U.S. and individuals like Hussein Mohamed, the young Somali detained in New Jersey. His mistake was to walk across the border and immediately approach a border patrol agent to make his claim. By crossing on foot and essentially turning himself in, Mohamed became a member of a subset of asylum seekers subject to "expedited removal," a type of deportation proceeding with mandatory detention.
"In the perverse way the system works right now," Lutheran refuge services attorney Megan Bremer explains, "if you come to the border and ask for asylum, you're considered a defensive asylum applicant. If you actually leave the airport — I don't know where you go — but the next day, you go to the immigration office and ask for asylum, then you're affirmative. It makes no sense."
Bremer says the results of the ongoing pilot project with ICE prove that asylum seekers should not be incarcerated. "The people that are being referred [by ICE officials], they represent no danger to our community," she insists. "They have credible claims. They would be released except for the lack of community ties."
It costs about $160 per day to keep each asylum seeker in immigration detention. It costs nothing to release them on parole to the nonprofit groups participating in the LIRS pilot program. Bremer says the fiscal considerations are helping "put feet to the fire" to prove to Congress that the program is safe and saving taxpayers' money. The federal budget for immigration detention and deportation stands at $2.8 billion a year, with less than $100 million devoted to alternatives to detention such as electronic ankle monitoring.
Bremer says the lack of federal funding for the pilot program "really limits the ability to deepen the capacity or scale up across geographic areas. It's not going to grow to meet the need without deeper pockets."
In order to secure additional funding after the pilot programs in New York, New Jersey and San Antonio end in June, Bremer and other advocates must convince politicians like Goodlatte, ICE officials and the general public that asylum seekers deserve compassion. Misconceptions about the asylum process and suspicions of fraud make matters difficult.
The uncomfortable truth is that there is no surefire way to prevent fraud. The very nature of asylum requires officials to take people at their word to a certain extent. Documents and witness testimony are available in some instances, but there is often no way for officials (or journalists, for that matter) to independently verify the facts as asylum seekers relate them, short of personally traveling to conflict zones like Syria or lawless corners of Somalia and Pakistan.
A 31-year-old Pakistani man named Khan incarcerated at a New Jersey detention facility says he has spent the past seven months behind bars waiting for a decision on his asylum claim. He says he was forced to flee his home in Pakistan's tribal region after the Taliban executed his parents and threatened to kill him, his wife and their children.
"The Taliban, they killing all the time," Khan says in broken English. To emphasize this point, he lifts his hands and makes a tat-tat-tat noise as if hoisting a machine gun. "The Taliban doesn't know the word 'sorry.' You may be fine for one year, two year, three year, four year — then maybe 15 years they come for you."
Khan explains that a judge had asked him for police reports of the killing and death certificates for his parents, but those records either didn't exist or were impossible for his friends and family in Pakistan to obtain. It's likely impossible to verify his story without visiting his village to investigate.
Khan tells his tale the same afternoon Mohamed speaks of his escape from Somalia. As the African describes walking through a Brazilian jungle with human smugglers and dodging bandits along the migrant trail in Central America, he is clearly aware of how implausible it sounds.
"I tell the truth," he interrupts himself to declare. "I cannot lie before God."
Joe Tone and Margaret Downing contributed to this article.
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