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June 22, 1998
Inconsistency at I.N.S. Complicates Refugees' Asylum Quest
By MIRTA OJITO
hey are both students from Congo who fled to the United States, certain they would have been killed in the political turmoil at home. Bakam Mimpongo, 21, was caught at Kennedy International Airport, trying to enter with fake papers. Bisinwa Borumbi, 22, stowed away in a cargo ship and was seized in Jacksonville, Fla.
Each gave similar accounts of persecution, of paramilitary groups ravaging villages and taking prisoners, of their desperate need for asylum.
But in the United States, their paths have sharply diverged. Ms. Mimpongo spent five months and 10 days in a Federal detention center in Queens last year before being granted asylum. Mr. Borumbi, detained in Miami in February of this year, was freed on parole after three weeks, but his case has not yet been resolved.
Immigration lawyers and advocates for refugees point to the different treatment of cases like these as a sign that Federal immigration laws are applied unevenly throughout the country. Important decisions -- from how long it takes to review an asylum seeker's case to whether he or she is quickly paroled or detained for months -- seem to hinge more on the number of beds available at a detention center than on a cohesive national policy.
Since April 1, 1997, when a new law took effect, the Immigration and Naturalization Service has detained all asylum seekers upon arrival and required them to go through a procedure called "expedited removal." The process was intended by Congress to reduce the number of false claims for asylum. The law denies asylum seekers full hearings with legal representation and the right to Federal appeals unless they can quickly convince immigration officials that they have a "credible fear" of persecution in their homeland. Those found to have no "significant possibility" of winning asylum are swiftly deported.
Those whose claims are found plausible can be freed on parole. The law specifies, however, that parole be granted only case by case and only for "urgent humanitarian reasons or significant public benefit."
But since Congress never defined "urgent humanitarian reasons," the I.N.S. has allowed its 33 district directors to exercise their discretion in deciding whether to keep detainees behind bars.
"Congress has raised the bar as to who can be paroled, making it more difficult to justify releasing someone from detention," said Russell A. Bergeron Jr., an I.N.S. spokesman in Washington. "And what's urgent and humanitarian for one district director may not be so for another."
The inconsistencies in granting parole are dizzying, said Charles Wheeler, who monitors the cases of asylum seekers nationwide as the supervisor of the detention project at the Catholic Legal Immigration Network, a private advocacy group in San Francisco.
In El Paso, he said, many asylum seekers have to post bond before being paroled. In Los Angeles and New Jersey, asylum seekers are usually released, but only if family members will sponsor them. In Miami, virtually everyone is released. In New York, virtually no one is.
"If, in fact, this law was conceived to send a strong message abroad that the United States was getting tough on immigration," Mr. Wheeler said, "then the message ought to be a consistent one.
Right now the message is: If you come through Miami, you are O.K., but don't come to New York. You'll be stuck in detention."
A recently released study and interviews with more than a dozen lawyers and their clients confirm Mr. Wheeler's findings. While some asylum seekers are allowed to argue their cases shortly after arrival, others languish in detention for months, sometimes surrounded by criminals in jails. Some are released after posting bond as low as $5,000, or simply by providing the address where they plan to reside. While some women with children are released immediately, others are held for months, separated from their children. Lawyers said that clients with identical cases might be treated differently from one month to the next.
Immigration lawyers and advocates for refugees say that these irregularities are an especially urgent issue now because the swiftness of deportations under the new law makes the need for a good, timely defense more critical than ever.
Under the old law, people who requested asylum were allowed to stay in the country while their cases were heard by immigration judges. If the judges ruled against them, they could appeal to the Board of Immigration Appeals and then the Federal courts, a process that could take a year or more.
Now, detainees are under pressure to prepare a compelling case quickly -- and lawyers say this is a difficult task.
Instead of freely searching for lawyers and preparing their cases, detainees who do not speak English or know the laws of the United States must often wait for lawyers to spot them and visit them at detention centers, usually out-of-the- way places that resemble jails and afford little privacy.
There is no way of knowing precisely how many people have been affected adversely by the law, because the Federal Government does not keep statistics of how many people who go through the new procedures are denied asylum. But asylum seekers are always a tiny percentage of the hundreds of thousands people who seek entry into the United States every year. From August of last year through the end of January, for example, 1,300 new arrivals expressed a fear to return home. Of those, 1,066 were sent to detention centers; the rest were deported.
"How we treat asylum seekers is a reflection of who we are as a nation," said Leonard S. Glickman, executive vice president at the Hebrew Immigrant Aid Society in Manhattan, the group that helped Ms. Mimpongo win her case. "The law was not just for the benefit of the country. It was also supposed to help those who needed help. That's where we have fallen short."
The irregularities in the process -- and the fact that much of it remains closed to public scrutiny -- have led members of Congress to call for a study of the ways the I.N.S. deals with asylum seekers. The bill directs the United Nations High Commissioner for Refugees to study whether immigration officers are "detaining such aliens improperly or in inappropriate conditions."
"We have heard many complaints and we are concerned," said Elizabeth Kessler, general counsel of the Senate's immigration subcommittee, whose chairman is Senator Spencer Abraham of Michigan. "We do have a Federal law, and it should be interpreted the same way."
Immigration officials in Washington said they would welcome such a study.
A report released in May -- the first independent study of the new procedure -- indicates that the number of days asylum seekers remain in detention is higher in New York than anywhere else in the nation. The study, prepared by the International Human Rights and Migration Project of the Markkula Center for Applied Ethics at Santa Clara University in California, revealed that by the time the study ended, the average number of days in detention for detainees in New York was 92, while for detainees in San Francisco the average was 44 and for those in Miami it was 62.
The I.N.S. has dismissed the study as "flawed.," Karen Musalo, a co-director of the study, said that asylum seekers -- sometimes mothers and their children -- are routinely kept in detention in New York for months until a judge hears their case.
That is what happened to Sivajini Kadambarathnam, 35, and her 13-year-old son, Rajakumar. The two were stopped on March 12, upon arrival at Kennedy Airport without documents from Sri Lanka, and ordered detained, her immigration records show. But because no children are allowed in the Wackenhut detention center in Jamaica, Queens, Rajakumar was sent to a center for juveniles in Miami.
"I cried and cried and cried," said Mrs. Kadambarathnam, who fled her country after her husband was taken away by the military last year. "But then they put handcuffs on me and that shut me up. No one had ever done that to me before."
Immigration officials said they were willing to release the boy, but not the mother, to sponsors. But the sponsor would not take the boy by himself, so the two remained in detention but separated, one of her lawyers, Eileen Collins Bretz, said. The I.N.S said the two were separated because minors were not allowed in the New York detention center. Mrs. Kadambarathnam was granted political asylum and released on June 2, after nearly three months in detention. Her son had been released a day earlier.
In Miami, where the influx of Haitian and Central American immigrants seldom lets up, the Krome detention center routinely releases asylum seekers who can show they have a place to stay, said Stacey Taeuber, a pro-bono lawyer who works with detainees. The policy was different last year: to be released on parole, asylum seekers needed to post a $5,000 bond.
One of Ms. Taeuber's clients was Gabriel Jaime Castaño, 28, a Colombian immigrant who said he had no intention of seeking political asylum when he arrived at Miami International Airport in January with a visitor's visa. A farmer from near Medellín, Mr. Castaño said he had gone to Miami to escape his country's violence for a few weeks. He was tired of paying off both the army and the guerrilla -- with 20 live chickens a month -- to stay alive, he said.
Immigration officers detained him because they did not believe he intended only to visit, Mr. Castaño said. After consulting with lawyers there, he said he realized that asking for political asylum would get him out of detention faster than sticking to his original claim.
That tactic would probably not have worked in New York. When the Wackenhut detention center fills up, asylum seekers are sent to a detention center in Elizabeth, N.J., or to the York County Jail, in York, Pa., said Mark Thorn, a spokesman from the I.N.S. office in New York. Judy Epstein, a spokeswoman from the Hebrew Immigrant Aid Society, said that one of the agency's clients -- a 20-year-old woman from Ghana who has been detained for seven months -- was recently transferred to Pennsylvania. The woman, Swaibatu Mohammed, told the agency that five other women were moved with her.
In years to come, the I.N.S. intends to detain even more people as it builds more detention facilities, Mr. Bergeron, the I.N.S. spokesman in Washington, said. In doing so, he said, the agency would be following the mandate of Congress, which since 1996 has allocated $205.3 million to add 7,364 spaces to the agency's current detention capacity and 882 positions to its payroll.
Already, the I.N.S. has 15,000 beds in nine detention facilities, prisons and an array of local jails around the country, an 80 percent increase from the number of beds available just three years ago. Yet, Mr. Bergeron said, to accommodate all the people the law mandates be detained -- those who seek entry into the United States with no papers or with fraudulent documents -- the agency will have to double its current detention capacity.
"For the first time now," Mr. Bergeron said, "we have both the statutory mandate to detain them and the space to hold them."
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