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CLINIC Report on Credible Fear and Expedited Removal

Cite as "AILA InfoNet Doc. No. 97110559 (posted Nov. 5, 1997)"

M E M O R A N D U M

To: Interested Persons
From: Charles Wheeler and Mary McClenahan, CLINIC
Re: Report #4 on Credible Fear/Expedited Removal
Date: October 29, 1997

The following report provides updated information on INS implementation of expedited removal and the credible fear screening process. It also discusses the continued detention of aliens whose credible fear application has been approved. It is based on information supplied by the INS and advocates assisting immigrants in this process.

Unaccompanied Minors

On August 21st, the INS issued a formal memo regarding the treatment of unaccompanied minors subject to expedited removal. The new policy guidelines affect the charging of these minors during the inspection stage, permitting them to withdraw their request for admission, and detaining them for expedited removal proceedings. Whenever appropriate, the INS inspector should allow unaccompanied minors to withdraw their request for admission, rather than putting them into expedited removal proceedings and subjecting them to a potential formal order of removal. The agent must be satisfied that the minor understands the legal process and that a relative, guardian, or consular agent is informed of the action taken. This includes making sure the minor does not have a fear of persecution if returned to his or her home country. Also, the minor must only be returned to his or her country of citizenship, unless "immediate and continuous" transit through a third country will be permitted. Only minors who have engaged in criminal activity that would be considered an aggravated felony if committed by an adult or who have previously been formally removed, excluded, or deported should be removed under expedited removal proceedings.

The factors that the INS will consider in determining whether to permit minors to withdraw their application for admission include the seriousness of the offense in seeking admission, previous findings of inadmissability, and any intent to violate the law.

Those minors who are not permitted to withdraw their application for admission will normally be put into INA 240 removal proceedings, rather than expedited removal. This will allow the minor to seek any defenses to inadmissability and removal, and have a formal hearing before an immigration judge. The INS will usually allege that these minors are inadmissable due to a lack of entry documents and possible public charge, but will not allege misrepresentation or fraud. Minors in these proceedings may be released on parole or placed in an approved juvenile facility or shelter.

Secondary Inspection

The INS remains resolute in denying any outside organizations access to secondary inspection for the purpose of monitoring the expedited removal process. In the meantime, advocates who have interviewed clients after they have gone through the process report the following problems:

Clients report being shackled to benches in airport holding rooms for up to 18 hours before being transferred to local jails or INS detention centers. During this time they are denied food and are separated from traveling companions or family members. As with all persons in secondary, they are denied the right to make a phone call.

The INS has translated the M-444, "Information About Credible Fear Interview," into 13 foreign languages, but many persons still receive only the English version. The "free legal services list" is only provided in English, resulting in most clients failing to understand its significance. The lists are largely unhelpful, anyway, since they are often comprised of agencies that do not provide representation to persons in detention.

In addition to completing the I-867B, "Sworn Statement," some INS inspectors are asking prolonged questions and recording detailed responses from persons who claim a fear of return to their home countries. The purported basis for this extended interrogation is language in Chapter 17 of the Field Officer's Manual, which authorizes inspectors to "ask sufficient follow-up questions to determine the general nature of the fear or concern." These notes are then used as a basis for possible conflicting statements later in the credible fear process.

Inspectors are supposed to provide persons screened in for a credible fear with a copy of their sworn statement (I-867B). In practice, however, advocates report that clients rarely receive the sworn statement at secondary. Later, in detention, the asylum officers give detainees a copy of the I-867B, but only if they request it. But detainees are not informed of their right to request the form, hence few receive it.

Credible Fear Process

Over 1,000 persons have been screened in for a credible fear interview since the process started on April 1, 1997. The INS supplied no new statistics on approval rate, but indicated that the rate for the first three months (80 percent approval) had remained fairly constant. The following problems have been identified by advocates representing persons in this process:

Although clients are allowed to make phone calls while detained in INS facilities, many are unable to exercise this right because their address books and other personal possessions are taken away from them at the airport. Obtaining access to these possessions typically takes several days, by which time the credible fear interview has already taken place. Most facilities only allow collect calls to be made, which prevents clients from calling most local agencies. Some facilities sell "phone cards" to detainees on designated days, but only those clients who were traveling with U.S. currency can benefit from this.

Obtaining competent and affordable interpreters remains the biggest challenge for agencies representing clients in this process. Usually, advocates must arrange for the interpreter to accompany them to the facility. The companies that provide telephonic interpretation are expensive and often unreliable. The INS routinely uses one of these companies (Language Service of America), which has led to significant problems. Key words or portions of the client's testimony is sometimes omitted or incorrectly interpreted, resulting in damaging credibility findings.

Asylum officers are instructed to deny credible fear if it is believed that the applicant has been convicted of an aggravated felony. However, they cannot deny the credible fear application on the basis of the applicant's firm resettlement or persecution of others, or other bars.

Detainees are sometimes forced to choose between visiting with their attorney or eating lunch, since legal visits routinely occur around this time. Food cannot be brought in from the outside and given to the detainee. Although INS facilities are supposed to make special accommodations, they rarely do. The INS Office of International Affairs admits that something should be done locally to correct this problem.

Advocates are sometimes forced to wait anywhere from one to three hours at the detention facility before the client is brought out for visitation. The INS explains that during this time they are trying to locate the person and make arrangements to escort them to the visitation room.

Although applicants are supposed to receive copies of the asylum officer's notes of the credible fear interview, this practice is irregular. In one facility, pro se applicants are never provided with the notes, and are told they can obtain them only if an attorney requests them. Advocates have experienced difficulty in meeting with their clients and preparing them for the credible fear interview within the short amount of time allowed. Since the asylum office is under pressure to conduct the interview within 48 hours of the applicant's arrival, and complete all processing of the credible fear application within a week, officers are stingy in their granting continuances beyond 24 hours. In contrast, they sometimes take weeks before issuing a decision in a case. Also, it is not uncommon for the INS to fail to alert the asylum office when an applicant is screened in for a credible fear interview, resulting in potential asylum seekers languishing in detention indefinitely.

There is no national policy for allowing a credible fear applicant to withdraw his or her application for admission and be returned, although the INS has recently said it would issue such a policy. Local Reports

New Jersey

The INS District Director in New Jersey allows local voluntary agencies to run a detention representation project that assists detainees in expedited and section 240 removal proceedings. Attorneys conduct weekly information presentations for new arrivals in expedited removal, attend credible fear interviews, and represent detainees in their asylum hearings after they pass credible fear. The project obtains the names of new arrivals from the asylum office. The Elizabeth Detention Center is one of the only locations in the country where the Asylum Pre- Screening Officer (APSO) parole program functions. Clients routinely complain of certain conditions in the facility, including insufficient food, frequent placement in solitary confinement, and forced sedation.

New York

The detention representation project described above also serves the Wackenhut Detention Center in New York. Following a long struggle to gain access, participating agencies are now conducting weekly informational presentations for new arrivals and screen cases for full representation. The INS provides the names of the new arrivals. The project is working with local law schools to involve students in the credible fear process.

Miami

The Florida Immigrant Advocacy Center (FIAC) and Catholic Legal Immigration Network, Inc. (CLINIC) have joined forces in an attempt to meet the legal needs of persons in the credible fear process who are detained at the Krome detention facility. They have experienced an increase over the last two months in the number of persons seeking their assistance. A total of 111 persons have been screened in for credible fear interviews from April through August, while 777 were removed under expedited removal during the same period. The local asylum office regularly refers low income clients to them; the two attorneys essentially operate out of the waiting room in Krome. All of the problems identified above are manifested in the Krome facility, in addition to the presence of a particularly unsympathetic asylum officer and immigration judge.

Los Angeles

CLINIC recently opened an office in Los Angeles to represent persons in the San Pedro detention facility. That attorney has begun assisting and preparing persons for their credible fear interviews. The local asylum office is supportive of CLINIC's new role and provides names of detainees who might need assistance.

San Francisco

The Lawyers Committee for Civil Rights and CLINIC are in the process of establishing a local pro bono project to assist persons subject to credible fear proceedings. The INS has agreed to provide persons screened in for credible fear interviews a special notice informing them of their right to seek free legal assistance. The notice gives a toll-free number that applicants can call, which will have recorded messages in several languages describing the credible fear process and an opportunity to leave their name and place where they are being held. The INS has agreed to provide these persons access to telephones at secondary inspection, "unless circumstances do not allow sufficient time to call from the secondary inspection area." Also, non-attorneys wishing to meet with these persons while they are detained in local jails will be provided the same extended visitation privileges as attorneys.

Chicago

For reasons that remain unclear, local nonprofit agencies are not receiving requests for assistance from persons detained for credible fear interviews. However, the approval rate is apparently high, due probably to sympathetic asylum officers. Applicants screened in at airports in St. Louis, Detroit, or other mid-west cities have been held for weeks in detention before their credible fear interviews are conducted.

Continued Detention

When the applicant is found to have a credible fear, he or she is placed in INA 240 removal proceedings. The case is scheduled for a master calendar hearing before an immigration judge, where the person can pursue an asylum claim. The statute and regulations allow for these persons to be paroled out of detention during the pendency of their asylum claims. It was originally believed that persons passing credible fear would be released, since a credible fear finding is essentially the same standard used by the same adjudicators in the APSO process when determining whether asylum applicants with credible asylum claims can be released from detention.

In fact, when the credible fear process began in April, the INS favored release of those who were approved, and planned for a parole rate of approximately 80 percent. The INS now admits that those plans "are off the table." The vast majority of credible fear applicants are kept in detention throughout the pendency of their asylum claim. While the average amount of time in detention for persons who are being subjected to expedited removal is three days, for those screened in for credible fear, it is 52 days. And that figure will increase, given the new non-release policy. The shortest amount of time in detention for those who have been found to have a credible fear is two weeks.

High ranking officials in the INS have justified their change in policy by stating that, "We now have the bed space." The Congressional Research Service provided statistics on the number of beds that the INS currently has at its disposal: 12,500, with an additional 3,000 planned for next year. The INS has agreed to meet with advocates on a quarterly basis to address problems relating to the detention of immigrants, and will soon name a "point person" to handle such concerns.

One of first concerns will be the absence of any national policy or uniform standards for the parole of these persons out of detention. At the present time, each INS district director is left to fashion a local strategy. For example, detainees in Elizabeth, NJ can be released upon the submission of an affidavit from a family member who promises to provide support and guarantee the alien's appearance at future hearings. Across the river in New York, the same detainee would only be released if he or she were in need of serious medical attention, which is the same standard used by the INS in Chicago. In Miami, the only condition the district director sets is whether the applicant can post a $5,000 bond. In Los Angeles and San Francisco, where these applicants were routinely released on their own recognizance, the district directors are releasing no one.

Remedies to Expedited Removal

Persons ordered removed through the expedited removal process have few options or remedies. They are statutorily barred from re-entry to the United States for five years. Two lawsuits are pending challenging the constitutionality of this process: one addresses the rights of asylum applicants (Liberians United v. Reno); the other addresses the rights of citizens, LPRs, refugees, parolees, and nonimmigrants (Wood v. Reno).

In addition to those lawsuits, a U.S. company sued the INS this summer when one of its employees was improperly denied admission and ordered removed (Falk Corporation v. Reno). The INS recently entered into a settlement in that case where the agency agreed to cancel the Notice and Order of Expedited Removal, admit the employee to the U.S., remove any computer- generated advisories concerning the employee from immigration databases, enter a finding that the employee had remained in lawful immigration status during the relevant period, and return his social security card and driver's license, which it had seized.

One attorney was also successful in having his client readmitted after an order of expedited removal. The attorney submitted to the local district director a Form I-212, "Application for Permission to Reapply for Admission After Deportation or Removal," which is still authorized pursuant to INA sec. 212(a)(9(iii) and 8 CFR sec. 212.2(g). The regulations even allow for the approval of the application retroactive to the date the order of removal was entered, thus voiding the original order. 8 CFR sec. 212.2(i). The attorney was successful in these efforts, but not without the assistance of local media, which had criticized the INS for its actions.

The following persons contributed to this report: Joan Friedland, Anna Gallagher, Laurie Joyce, Don Kerwin, Charles Kuck, Carolyn Perkins, Roy Petty, and Stacey Taeuber.

 
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