Americans are shocked by the surge of refugees in Europe, but we are ignoring the refugee tragedy in our own country.
Thousands of asylum seekers who come to the United States must fight their cases in immigration court, too often from behind bars. More than 41,000 people applied for asylum in the last fiscal year in court, and many eligible individuals likely fail to apply. These refugees are invisible to us because of Department of Homeland Security detention policies.
When people seeking asylum arrive in this country — at land borders, airports or any port of entry — they are often incarcerated in remote detention centers. After fleeing civil war and persecution, they face months or years in prison-like conditions, caught up in a system that more often than not hinders rather than helps them gain the status they deserve.
The recently opened Mesa Verde Detention Facility in Bakersfield is illustrative. It is a privately run 400-bed detention center, one of more than 250 immigration detention facilities nationwide. The vast majority of the detainees at Mesa Verde wish to request asylum, and most will have to win their cases before they will be released. They will “appear” in immigration court, in San Francisco, via video conferencing. Facing a camera, with the judge hundreds of miles away, they will try to navigate the complex laws governing asylum, sharing stories of abuse, torture, persecution and humiliation.
According to the federal government, people seeking asylum, like others facing deportation, do not have the right to an attorney unless they can pay for one or find someone to represent them for free, which isn’t easy. In a study we conducted, we found that only about one-third of the individuals in immigration custody with cases in the San Francisco Immigration Court are represented by a lawyer at any point in their proceedings.
Periodically, a handful of overburdened volunteer attorneys make the five-hour trek to Bakersfield from the Bay Area in an attempt to help. The last trip, in mid-September, demonstrated the futility of this effort.
The lawyers — including one of us — waited in the detention center’s cafeteria. What seemed like a never-ending line of people streamed through the doors, all desperate for help — more than 200 refugees from all over the world: Cameroon, Somalia, the Democratic Republic of Congo, Sudan, Guatemala, Honduras, El Salvador and Mexico. They recounted stories of genital mutilation, assassinations, torture and war in their home countries. In the United States, they were being treated like prisoners: held behind bars, wearing jumpsuits, controlled by guards and with limited access to phones or any communication with the outside world.
The volunteer attorneys were permitted to provide a brief orientation on the law, but the need for further assistance was overwhelming. Bay Area nonprofits and clinics had the resources to fully represent no more than one or two of the detainees. The rest would have to make do with a handout optimistically titled “How to Apply for Asylum.”
One woman from Central America turned in her blank 10-page asylum application to a lawyer in defeat. “I guess I have no right to apply for asylum here; you should take this,” she said, pushing the papers across the table. “No, no, you need to fill it out and turn it into the judge,” the lawyer said. “Well, I don’t read English. Can you fill it out with me?” Looking at the long line of other refugees, the lawyer had to say no. She replied, “Well then I guess refugees have no rights here.” Her words stung, but she wasn’t exactly wrong.
We have seen many people give up their asylum cases. They make the impossible decision to return to persecution or torture because there is nobody to help them here. Locked in a cell, unable to read or write in English, without the help of a lawyer, they have no hope. As one former prisoner said, “It’s like handing us a scalpel and anesthesia and asking us to perform our own surgery; it’s impossible.”
It isn’t impossible to be granted asylum without an attorney, but the statistics are not promising. Our study showed that detained individuals facing deportation in San Francisco Immigration Court are three times more likely to win their cases if they have representation. But no public or private funder has stepped up to provide that assistance, and efforts like the volunteers in Bakersfield simply don’t have the capacity to address even a small proportion of the need.
If remoteness of detention, and the isolation of asylum seekers, is meant to render the United States’ refugee crisis invisible, that calculation has prevailed. Worse, if the U.S. detention system is set up to coerce refugees not to apply for asylum, it is succeeding.
Holly Cooper is a lecturer and associate director of the Immigration Law Clinic at the UC Davis School of Law. Jayashri Srikantiah is a professor of law and director of the Immigrants’ Rights Clinic at Stanford Law School.