There is a broad consensus that our immigration system is in desperate need of an overhaul. Comprised of a hopelessly complicated patchwork of laws enacted in response to events like the 1993 World Trade Center bombings and the 9/11 attacks, the immigration system creates narrow pathways for some immigrants to come to or remain in the United States, while making it almost impossibly hard for others, including many fleeing torture and persecution.
Now, with the presidential election behind us and Republicans recognizing that their support for harsh immigration policies cost them the vote of the fastest-growing ethnic group in the country, it looks as though comprehensive immigration reform may be just around the corner.
President Obama has been laying the groundwork by stating that after dealing with the budget, his next major effort will be enacting immigration reform. Republican Senators who had been prepared to work on immigration reform during the last term are dusting off their old proposals. And a group of prominent Republicans have started a PAC aimed at giving cover to Republican lawmakers who want to support immigration reform but fear reprisals.
Achieving meaningful immigration reform will be no small feat. And many different facets of the immigration system will need significant attention. But a few relatively simple changes could have profound effects on some of the most vulnerable immigrants — asylum seekers and immigration detainees.
The US accepts more asylum seekers — those who flee persecution and torture in their home countries — than any other country in the world. Our devotion to protecting victims of human rights abuses is laudable. But while we accept tens of thousands of asylum seekers, we bar many others for unnecessary or trivial reasons.
To ensure that we abide by our legal obligation to give asylum to victims of persecution and torture, any truly comprehensive immigration reform bill must:
Repeal the one-year bar
Immigrants are barred from applying for asylum if they submit their applications more than one year after arriving in the US. This arbitrary and unnecessary “one-year bar” (pdf) has prevented tens of thousands of asylum seekers with otherwise valid claims from gaining protection in the US. It does nothing to deter fraud in the asylum system, and adds to the cost of adjudicating asylum claims. Several bills (pdf) have already been introduced in Congress that would eliminate the one-year bar, and the Obama administration has publicly stated that it favors repeal.
Material support bar
Asylum seekers who have provided “material support” (pdf) to terrorists are barred from receiving asylum. Although perhaps well-intentioned, the material support bar is too broad, and does not include a definition of what constitutes “material support.” Until recently, for example, health professionals who provided medical care to wounded people who happened to be affiliated with terrorist organizations could be denied asylum.
Congress must either eliminate the material support bar or ensure that it is written narrowly so that asylum seekers who have provided support unknowingly, incidentally, or under duress are not erroneously denied asylum.
End Expedited Removal
The Expedited Removal process gives Customs and Border Protection (CBP) agents at the border the power to turn away immigrants seeking to enter the US without proper documentation. While giving CBP agents this power is problematic enough, when applied to asylum seekers who are forced to flee their countries and arrive at the US border with no documentation, it risks returning thousands of legitimate refugees to countries where they will be persecuted, tortured, or even killed.
Though the Expedited Removal process has safeguards meant to ensure that asylum seekers are allowed to enter and apply for asylum, studies have shown that they are insufficient. And even if asylum seekers are allowed to enter, most are immediately thrown into immigration detention centers pending the outcome of their cases.
While the way we treat asylum seekers is abysmal, our immigration detention system is a national embarrassment. No package of immigration reforms will be truly comprehensive unless it begins the process of dismantling immigration detention. At the very least, Congress must:
Improve conditions of immigration detention
The vast majority of immigration detainees are held in conditions that are indistinguishable from those in prisons and jails, in spite of the fact that the purpose of immigration detention is not to punish. Indeed, many detainees have never been convicted of a crime, and many others are asylum seekers who were tortured in prisons in their home countries. Detainees are subjected to frequent abuse and harassment, substandard medical care (and a near-total lack of mental health care), and prolonged and unnecessary solitary confinement.
Congress must direct US Immigration and Custom Enforcement (ICE) to enact a set of civil detention standards that will be binding on detention facilities, and end the use of prison-based immigration detention.
Reduce funding for immigration detention & increase funding for alternatives to detention
Immigration detention costs over $2 billion a year — an average of around $160 per detainee per night, or about $5 million per night, much of which goes to line the pockets of executives at private prison corporations. Alternatives to detention (ATDs) (pdf) cost as little as 14 cents a day, and have been repeatedly shown to be effective in ensuring that immigration detainees appear in court and comply with removal orders.
If Congress is serious about saving money, shifting funding from detention to ATDs would go a long way, with the added benefit of allowing immigrants to remain with their families and communities pending the outcome of their cases. At the same time, Congress must end “mandatory detention,” in which certain immigrants are not permitted to be released from detention until their cases have been decided.
Increase funding for immigration courts to reduce backlog
Immigration courts are hopelessly backlogged; hundreds of thousands of immigrants, including many detainees, are funneled through only a couple hundred judges each year. This backlog means that many detained immigrants spend long periods in immigration detention at taxpayer expense, and that many non-detained immigrants spend years wondering whether they will be allowed to remain in the United States. Clearing this backlog should be a top priority for Congress, which should immediately increase funding for the immigration courts so that they can hire more judges, clear out their backlogs, and adjudicate cases quickly.
Improve access to counsel for people in removal proceedings
Immigrants have the right to be represented by counsel in immigration court — but not at government expense. Immigration judges spend countless hours walking immigrants through their options in court, further stalling an already slow process. Federally-funded Legal Orientation Programs (LOPs) provide legal information to immigration detainees in 25 detention facilities around the country — a small fraction of the over 250 facilities that hold detainees. Mentally ill immigrants, illiterate immigrants, immigrants with limited or no English proficiency, and even immigrant children are forced to represent themselves in court.
Congress should at the very least dramatically increase funding for the Legal Orientation Programs, while providing money to begin widespread piloting of a system of appointed counsel for immigrants, and particularly immigration detainees.
It is a testament to the complexity of the immigration system that the reforms listed above are only the tip of the iceberg. But by chipping away at the barriers to asylum and by reforming the deplorable immigration detention system, Congress can demonstrate its commitment to ensuring that the US lives up to its desire to be an exemplar of human rights for the rest of the world.