Asylum Seekers Trade Torture for Jail

Undocumented asylum seekers--some fleeing clan violence in Somalia, rape in Kosovo or forced sterilization in China--are sent to urban detention centers and rural county jails when they arrive in America.

Held without bail, they are virtually without rights under U.S. law because they don’t have valid passports or visas.

Mohamed Jama Abdille has been among them. He grew up an orphan in Somalia, and the mystery of his parentage made him suspect in the East African nation where alliances are built on clan heritage. Although a judge found his tale of torture and repeated arrest true, Abdille was jailed in the United States for 21 months.

Karyna Sanchez said she fled her ex-husband’s death threats after their political differences spiraled out of control in Ecuador. When the Immigration and Naturalization Service put her in a New York detention center, the young mother handed her 3-year-old daughter over to friends.

According to the Lawyers Committee for Human Rights, she saw her daughter only twice during the year it took to get their case heard. Sanchez dropped her asylum claim after losing the first round. Last year, mother and daughter were deported.

Patrick Mkhizi grew up in Zaire, the son of an opponent to then-President Mobutu Sese Seko. He came to America aboard a Greek freighter after being beaten and imprisoned by soldiers he says attacked his family on Oct. 7, 1996.

Mkhizi won asylum after more than three years in INS custody, some of it spent in isolation. When he won his case last November, guards at a York, Pa., jail awoke him in the middle of the night without explanation, drove him 171 miles to the INS facility in Elizabeth, N.J., and set him free with $2.03, according to INS records.

Beginning this month, the INS will phase in new standards giving inmates better access to attorneys and legal materials, but the rules don’t guarantee legal representation or other rights that Americans take for granted.

*

Asylum approvals by the INS rose from 2,908 in 1991 to 18,556 in 1996.

Before April 1997, the INS presumed many undocumented asylum seekers to be well intentioned. The United States gave them working papers and let them begin building lives while immigration courts processed the paperwork.

But by the mid-1990s such cases buried the INS. More and more people seemed to call themselves refugees just to get the green card that came with an asylum application. Some took jobs and disappeared into the population, skipping their asylum hearings.

Then Congress rewrote immigration law to secure the nation’s borders, reduce the flow of illegal drugs and protect American jobs.

Since 1997, everyone whose passport or visa isn’t in order when he or she arrives has been deported or incarcerated. The fight for asylum can be long: 35 days on average, but years in some cases.

Getting tough seems to have made an impact: The number of asylum seekers dropped from 155,868 in 1996 to 124,777 in 1998.

Although there are no firm numbers available on fraudulent asylum claims filed before 1997, INS spokeswoman Karen Kraushaar says the new law did what Congress intended--it reduced baseless claims the agency once had to litigate.

Because they lack valid passports, the identities of asylum seekers are usually in question, INS officials said. Some could be criminals or terrorists, making them a potential threat to the United States.

Detaining undocumented immigrants has given the INS time to investigate claims before claimants can melt into the population.

Fleeing the Congo

Pierre Ditunga Mulamba arrived at John F. Kennedy Airport in New York last April, telling authorities he had been beaten, starved and shocked with electricity for his political activism in the Democratic Republic of Congo. He escaped by using a tourist visa in someone else’s name.

“It was the only way for me to travel. If I got to the United States, I could tell them the reason I left,” he said in a recent interview.

When he arrived, Mulamba was detained.

The INS has about 20,000 people locked up on any given day. Most are criminals waiting to be deported, but about 3,000 a year are asylum seekers like Mulamba.

Asylum is granted only to those persecuted because of their race, religion, nationality, social group or politics.

Mulamba requested asylum after debarking the plane, and authorities eventually found his story true. But INS agents at the border don’t have the power to judge a case’s merit. They brought him to the Wackenhut Correctional Facility in Queens, where he was given an orange prison jumpsuit and confined to a windowless dormitory with other detainees who ate, slept and showered under guard. A chain-link barrier obscured the sky over the center’s courtyard--the only place inmates are allowed outside.

“I didn’t have any idea about detention,” Mulamba said. “When I got there, I was shocked because it was jail.”

Months of Preparation

Eleanor Acer, senior asylum coordinator for the Lawyers Committee for Human Rights, believes detaining undocumented asylum seekers is unfair, especially in a country “founded on the refugee tradition.”

She worries most about legal representation for those in INS custody, in part because a Georgetown University study found asylum seekers who have lawyers are four to six times as likely to win their cases as those without.

Applicants need expert witnesses to testify, a doctor to confirm past tortures, and documents from overseas to back up their stories. It can take two months or more for a lawyer to prepare a case.

But refugees are not assigned taxpayer-funded lawyers the way criminal defendants are. It’s up to the defendant to pay or find someone to help for free. And many are indigent, Acer said.

Asylum seekers are not allowed to speak to a lawyer or immigration judge until after they have met with at least two INS agents. Under the law enacted in 1996, they must first pass through a preliminary INS inspection, then explain their fear of returning home to a second agent. Remaining silent means being deported under the Illegal Immigration Reform and Immigrant Responsibility Act.

Later, during a more lengthy INS interview, detainees are allowed an attorney to help explain the process, but the rules don’t allow the lawyers to make closing statements or object to any INS questions.

“This really adds to their trauma,” said Panos Moumtzis, a spokesman for the United Nations High Commission on Refugees. “Just the sound of the cells and the prison guards, for some of them it’s exactly what they have gone through back home.”

*

Some immigration officials say detention keeps immigrants safe and relatively comfortable while the Executive Office for Immigration Review decides a case.

“If you are deserving of asylum, we think you should get it as quickly as possible,” said John O’Malley, the INS assistant commissioner for deportation and detention. “And it does happen relatively quickly in the detention centers.”

Long-term detainees, he said, are usually held because they have already been denied asylum and are appealing, or because of difficulty obtaining travel papers from their home countries.

Still, INS is considering alternatives to detention. A pilot study by the Vera Institute of Justice found 84% of asylum seekers did show up in court when they were reminded of hearings and had a supervisor check in with them periodically. The cost was 55% less than detention, the study said.

Sen. Edward M. Kennedy (D-Mass.) has introduced a bill to end mandatory detention for asylum seekers who are not considered a flight risk or danger. The legislation would also allow the courts to order the INS to parole certain detainees.

But Daniel Stein, executive director of the Federation for American Immigration Reform, says the United States cannot afford to maintain more open asylum policies of the past, in part because terrorism is a threat.

He says the most cost-effective way to handle refugees is to sponsor camps near their home countries, not bring them to the United States. And when they do make it here, he believes temporary detention is a small price to pay for a lifetime in America.

“Asylum law can’t protect everybody from the vexation and difficulties of living life in countries where politics and life is unstable,” Stein said. “It’s not fair to be admitting people who happen to get here.”

*

Frank Lipner, an asylum lawyer for the Hebrew Immigrant Aid Society in New York, believes the cost of detention--at least $40 million a year--is too high. He also worries about detainees’ health.

In one instance, Lipner said a man who tested negative for tuberculosis when the INS took him into custody had to be retested upon release. He had been exposed to TB at Wackenhut.

Depression and anxiety may also be common. In a letter titled “Only the Corpse Knows the Torment of the Grave,” Abdille, the Somali immigrant jailed in Kennesaw, Ga., wrote from his cell that he had “fallen into the hands of merciless people.”

In broken English, he compared jail to a cemetery, his fellow inmates to the dead. The letter included a drawing of a man in shackles being pulled to the ground. The caption reads: “Behind bars 540 days and calling for help.”

A judge ordered the INS not to send Abdille back to Somalia, so the agency is trying to deport him to South Africa, where he lived for a year before coming to the United States. There, too, he was beaten, but immigration officials believe those attacks were random and don’t justify asylum.

The INS freed Abdille earlier this month pending resolution of his case. No explanation was given for the decision.

Dr. Allen Keller, director of the Bellevue/New York University Program for Survivors of Torture, said many refugees are traumatized, and detention can worsen their symptoms. He said nightmares and trouble sleeping are common among those he has treated.

According to the INS, all detainees held for more than 72 hours have access to psychiatric care. If detainees refuse meals or cry often, a doctor or nurse may ask if they need help.

“They do have compassion,” said Gene Migliaccio, who heads immigration health services. “What we tell our folks is, we really add dignity to this process of detention.”

But organizations that represent detainees said mental health services have been offered only to those who are suicidally depressed or schizophrenic, not to people who suffer from general depression or anxiety.

“Forget it,” said John Plummer, a spokesman for the Hebrew Immigrant Aid Society. “They don’t really see that as a problem.”

*

INS hearings are often closed to the public. Records are sealed to protect individual privacy, partly because many asylum seekers have endured humiliating torture or sexual abuse. Others fear retribution against their families back home, so journalists aren’t allowed to see records without an individual’s permission.

In contrast to criminal cases in which the accused has the Sixth Amendment right to be informed of the “nature and cause of the accusation” against him, several Iraqi immigrants have been detained on the basis of secret evidence. In a California case--that of brothers Ali Mohammed Karim and Mohammed Mohammed Karim--the information was eventually declassified. Afterward, Judge D.D. Sitgraves called the government’s case “weak at best.”

“It is apparent to this court,” she wrote, “that the INS never adequately critiqued or investigated the information they received.”

Sitgraves granted the men asylum in June.

*

Immigration and Naturalization Service: https://www.ins.gov

Report on the Implementation of Expedited Removal: https://www.uchastings.edu/ers