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United States: End Detention of Refugees for Failure to File Forms

Refugees Detained Arbitrarily for Failing to File for Green Cards After One Year of US Residence

(Washington, DC) - US Immigration and Customs Enforcement arbitrarily detains refugees and holds them indefinitely for failing to meet paperwork requirements, Human Rights Watch said in a report released today. People who have already been accepted as refugees face an often confusing requirement to apply for a green card for legal permanent resident status, after a year in the United States.

The 40-page report, "Jailing Refugees: Arbitrary Detention of Refugees in the US Who Fail to Adjust to Permanent Resident Status", examines the detention of refugees for failure to file for lawful permanent resident status, even though US immigration officials already put them through a thorough vetting process at the time they were recognized as refugees. Although only a small number of refugees are jailed for this purpose, and the number appears to have decreased under the Obama administration, the detentions continue to be selective and arbitrary, and therefore a violation of international human rights law. The report recommends changing US law to close the legal loophole that allows for detaining these refugees and to give them lawful permanent residence when the US grants them asylum or admits them to the country under its overseas refugee resettlement program.

"For the US government to bring persecuted refugees to this country and then turn around a year later and jail them because they didn't file immigration forms is ironic to the point of absurdity," said Bill Frelick, refugee policy director at Human Rights Watch. "This mindlessly bureaucratic policy unnecessarily traumatizes refugees and their families, not to mention wasting the government's resources."

The report is based on interviews with 17 refugees in immigration detention in Arizona and Pennsylvania and with legal aid providers in Arizona, Pennsylvania, Maryland, New York, and Washington, DC, all of whom worked with refugees detained for failure to adjust their status. Although the Department of Homeland Security informed Human Rights Watch that the policy is under review, it declined to comment on the findings of the report because the issue is under active litigation. 

Each year, the US government sends officials overseas to interview thousands of people displaced by persecution and conflict, classifies a select number as refugees in need of resettlement, and brings them to the United States. After a year in the United States, every resettled refugee is required to apply for lawful permanent resident (LPR) status, more familiarly known as a "green card," in a procedure known as "adjustment."

The government does not formally notify them of the upcoming deadline and the refugees' limited English, ignorance about the requirement, confusion over the legal process, and lack of resources often keeps them from filing on time.

Sebastian Nyembo (a pseudonym) was only 8 when he was resettled from the Democratic Republic of Congo. He did not know about the requirement. "I was eight years old," Sebastian told Human Rights Watch. "My father passed away. When I got older I realized I needed [to apply for a green card], but I didn't know it was mandatory."

When Human Rights Watch visited him in August 2009 at the remote Eloy Detention Center in the Arizona desert, he had not spoken to his two children, ages 7 and 4, since his arrival four months earlier. His son has sickle cell anemia, which requires expensive medical care, but Sebastian had been unable to provide for the children since his detention. "My wife, she been going through a lot," he said. "[The] house went for foreclosure."

Although the law is not applied uniformly, ICE interprets section 209(a) of the Immigration and Nationality Act as mandating detention of all refugees who have been in the US for 12 months who have not filed to adjust their status, until they have filed for adjustment and their applications have been adjudicated. In Arizona, where Human Rights Watch conducted most of its interviews, refugees were sometimes detained for several months in remote, desert locations, and in some cases for longer than a year, without being formally charged with any legal offense.

The majority of resettled refugees interviewed by Human Rights Watch said that before their detention, they were unaware that they were required to file for adjustment of status. Most believed that filing for adjustment of status was optional, and were unaware of any potential legal repercussions for failure to file after one year.

 "These people are no danger to their communities, nor are they a flight risk," Frelick said. "But detaining them separates them from spouses and children, interrupts their education and costs them their jobs - not to mention the new trauma for those with post-traumatic stress disorder."

The US is a state party to the International Covenant on Civil and Political Rights, which states that no one shall be subject to arbitrary arrest or detention (Article 9). This prohibition means that a person may be deprived of liberty, even if provided for under domestic law, only to meet a legitimate aim, and only in cases where it is necessary and proportionate, such as when alternatives to detention are not possible. An arrest or detention is arbitrary if not carried out in accordance with domestic law, or if the law is itself arbitrary or extremely broadly worded.

Failure to adjust immigration status is not a chargeable criminal or civil offense. So unlike sentences of a specific length imposed for criminal convictions, the length of detention for resettled refugees is indefinite. When people are detained for this reason, they are held until they complete their application and the application has been fully adjudicated. This may take 4 to 6 months, and in some cases longer than a year.

"Jailing Refugees" urges the US Congress to change the law that currently permits ICE to detain these refugees and calls on Congress to grant legal permanent residence to all recognized refugees in the US, given that their cases have already been considered in depth as part of the asylum or refugee resettlement process. In the meantime, it also calls on ICE to stop detaining these refugees and to permit them to file for adjustment from their own homes and communities.

The experience of being detained often without understanding why or how to get out of detention can cause great anxiety and depression. Sebastian Nyembo told Human Rights Watch "I'm a good person, a good hearted person, but I'm gonna give up. I don't have no fight in me."

Some might argue that the current law should remain unchanged because it gives US immigration authorities an opportunity to examine refugees after one year to see if they should be removed because of criminal behavior. "Jailing Refugees'" central recommendation that refugees be admitted with lawful permanent resident status would still allow US immigration authorities to put criminals into removal proceedings. "Under existing law, US immigration authorities have ample grounds for initiating removal proceedings against lawful permanent residents convicted of crimes and for detaining them during those proceedings," said Frelick.

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