1

Re: Statement for the Record: “Asylum Fraud: Abusing America’s Compassion?” in the House

Judiciary Subcommittee on Immigration and Border Security

From: National Immigrant Youth Alliance

To: House Judiciary Subcommittee on Immigration and Border Security

Date: February 10, 2014

The National Immigrant Youth Alliance (NIYA) has worked with undocumented immigrant youth since

2010. For the past two years, our work has expanded to include advocacy with and for recent

immigrants, included asylum seekers and refugees. We work with individuals from across the world that

come to the United States seeking not only a better life, but simply to survive. They are fleeing violence

and persecution and see the United States as a safe haven. We have a process in which these vulnerable

individuals are supposed to have their basic rights respected and their cases reviewed. However, what

we see all too often is abuses in this process and by those who are supposed to ensure safety and due

process for asylum seekers who present themselves at our borders and ask for refuge.

We do believe the system is in need of reforms and immediate attention. No human being should ever

be treated the way we have seen asylum seekers treated at our ports of entry. So we are glad to have

this opportunity to speak about asylum abuses, and work together to create a stronger process that

provides better protections for those seeking a safe home.

Findings Worthy of Investigation

“Mexicans Can’t Get Asylum”

Any immigrant subject to expedited removal proceedings who expresses an intention to apply to

asylum, a fear of persecution or torture, or a fear of returning to his or her home country must be given

a credible fear of persecution or torture interview by an Asylum Officer before being removed.

However, immigrants who present themselves at US Ports of Entry and are subject to expedited

removal, and thereafter express a fear of returning to their home countries are being wrong denied

credible fear interviews.

In the summer of 2009, Martin Reyes-Valles (A#089-540-000) approached the El Paso Port of Entry.

Months before, Martin had witnessed an execution at the hands of organized crime in his home town of

Juarez. Members of the cartel began to threaten Martin, saying they would kill him and his family. Soon

thereafter, in the middle of the night, the family’s home was burned to the ground. Martin approached

the Port of Entry seeking refuge, only to be turned away by an agent; he was told “there is no asylum for

Mexicans.” After this incident, Martin had no choice but to attempt to illegally enter the United States;

he was caught, and only then given a credible fear interview. Martin received a positive interview,

however is now detained at the El Paso Detention Center.

2

On April 13, 2012, Rosa Hilda Carrera-Moreno, (A#205-483-791) left the United States, where she had

lived for over 20 years, for Chihuahua City, Mexico. Rosa’s two sons, both Dreamers, had just been

murdered; "I found blood and pieces of my son's skull at the crime scene." Once back in Mexico, Rosa

attempted to investigate the murder of her kids. That’s when the threats against her life began. Rosa

fled Mexico out of fear and turned herself in at the U.S. Port of Entry seeking refuge. However, she was

told “Mexicans can’t get asylum.”

Hearing this, and knowing she would be killed in Mexico, she had no choice but to enter illegally. Rosa

was caught by U.S. Border Patrol, prosecuted by the Department of Justice for illegal entry, and spent

several months in Federal Prison. After her prison sentence, Rosa was transferred to the El Paso

Detention Center, where she finally received a fear interview. She passed her interview, but, because of

her felony illegal entry conviction, she was denied parole from detention. Rosa has two U.S. citizen

children, ages 8 and 16, awaiting her return. As a result of the asylum abuse carried out by Port of

Entry agents, Rosa’s long term detention has resulted in nearly $100,000 in wasted tax payer money.

Prolonged Detention of Asylum Seekers:

Asylum seekers are detained in direct violation of Directive No.: 11002.1 by John Morton, the former

director of Immigration and Customs Enforcement (ICE). This directive went into effect January 4, 2010,

however many agents refuse to follow it and asylum seekers remain in prolonged detention. It reads in

part:

“…[W]hen an arriving alien found to have credible fear establishes to the satisfaction of

DRO his or her identity and that he or she presents neither a flight risk nor danger to the

community, DRO should, absent additional factors, parole the alien on the basis that his

or her continued detention is not in the public interest.”

During a four-month internal investigation of the El Paso Detention Center —September of 2013

through January of 2014— our organizers uncovered over 100 instances of individuals being denied

parole. All of these immigrants are seeking

asylum, and have passed either their credible

or reasonable fear interviews. In addition, all

of the over 100 immigrants had also provided

DRO and ICE officials with sponsorship

documents. To this day many of the

immigrants we first interviewed months ago,

remain detained.

We have found that this abuse of asylum seekers is not limited to the El Paso facility, we have received

reports from immigrants around the nation, from San Francisco to Louisiana, citing concerns over long-

term detention of parole eligible immigrants.

The New York Times recently reported on a group of five men who fled Sri Lanka after civil war

devastated their homes and made their lives there very dangerous. These men, despite passing credible

fear interviews and cooperating with FBI interviews regarding human smuggling, have been detained

since late 2010, over 3 years. Research and news reports show that if they are deported they are likely

to be tortured and killed. However, the Judge who hears asylum cases where they are detained in South

3

Florida, Judge Rex Ford, denies 93.4% of asylum claims, including the cases of these men. Disparate

statistics in the asylum grant rates of Immigration Judges mean that if these men had had their cases

heard by another judge they likely would have been granted asylum 3 years ago. However, a lack of

oversight and accountability has left them imprisoned and likely to be deported.

http://www.nytimes.com/2014/02/03/us/tamils-smuggling-journey-to-us-leads-to-longer-ordeal-3-

years-of-detention.html?_r=2

Inconsistency of Fear Interviews:

Rosy Griselda Rojas-Gallego (A#205-930-278) presented herself at the Nogales, Arizona U.S. Port of

Entry on September 22nd, 2013. On September 30th, 2013, along with 30 other immigrants, Rosy’s

cousin, Ana Maria Dominguez-Rojas (A#206-167-328) did the same at the Laredo, Texas U.S. Port of

Entry. Both cousins, having lived together in Mexico, were seeking refuge here in the U.S. Ana received a

positive credible fear interview in October and was released in early November of 2013. However, Rosy

remains detained at the Eloy Detention Center in Arizona. Both cousins lived together in Mexico and

they both fled for the same reasons. They are indigenous and have faced persecution and violence at

school and at home for being indigenous. Yet, they have been given drastically different treatment

under the asylum process of this country.

Leobardo Medrano (A#206-202-014) fled Mexico and came to the United

States in November 2013 with his friend Jonathan. A car they were driving

was shot at by cartel members after another friend was murdered by the

cartel and they were warned not to be seen in the neighborhood again.

Despite the fact that Leobardo and Jonathan came to the United States

together fleeing the same violence, Jonathan was denied credible fear and

deported while Leobardo passed the interview and remained detained for

months. In December, the New York Times reported on this as a widespread problem. Entire families

present themselves together at the Port of Entry and explain their fears to Asylum Officers. However,

some are allowed to remain temporarily to pursue asylum claims while other family members are

immediately deported.

http://mobile.nytimes.com/2013/12/29/world/americas/path-to-asylum-for-mexicans-bearing-

letter.html?from=homepage

Extreme Delay in Asylum Seekers Receiving Interviews:

Citing the extreme bias in the granting of Mexican asylum cases, on July 22nd, 2013 nine immigrants

publically presented themselves at the Nogales, Arizona U.S. Port of Entry. The immigrants, all citing

fears of living in Mexico, requested asylum in the U.S. The nine were transferred to the Eloy Detention

Center and were told that their initial credible fear hearing would not take place until 7-months later, in

February of 2014. While the nine were detained, it came to our attention that numerous other

immigrants at the same facility have been waiting for extended periods of time (6 to 10 months) for

their initial fear interviews.

This too is not unique to this facility, Werner Arreaga (A# 079-793-292) was transferred to a Louisiana

detention center in February of 2013 and he did not receive his reasonable fear interview until 4-months

later, on June 28th, 2013. The nine immigrants who presented themselves on July 22nd were released

4

from detention upon receiving a positive fear interview. Werner however, despite receiving a positive

(reasonable) fear interview, was not released until August, after his attorney submitted an addition U

Visa petition, on his behalf. This process coerces asylum seekers into giving up their asylum claims and

agreeing to their own deportations.

Extreme Bias Towards Asylum Claims from

Mexico, Latin American and Central

America:

In the first nine months of 2013, over

23,000 asylum applications were filed on

behalf of Mexican nationals. Of these

claims, very few ever see their day in court

and those that do are unlikely to be granted

asylum. According to DHS statistics, in 2012

there were 17,506 affirmative asylum applications granted, but only 337 were for Mexican nationals and

340 for Colombian nationals, which is 1.9% of applicants from those countries.

This is a particular problem for Mexican asylum seekers. Despite real violence and persecution, less than

2% of Mexican asylum cases are granted. Human Rights Watch has documented growing gang violence

in the country, while the Department of Justice reports continue to show that almost no Mexican

asylum cases are granted. http://www.hrw.org/news/2013/10/18/dispatches-asylum-seekers-us-face-

real-fears. Unfortunately, the United States has a long history of denying the asylum process to certain

populations. Professor Bill Hing cites the coercion of Salvadoran asylum seekers into signing voluntary

departure in the 1980s instead of being given the ability to apply for asylum as an example. In this case,

the Ninth Circuit court noted that “This pattern of misconduct flows directly from the attitudes and

misconceptions of INS officers and their superiors as to the merits of Salvadoran asylum claims and the

motives of class members who flee El Salvador and enter this country.” (letter attached) As described

above, many Mexican asylum seekers are in fact turned away at the border and denied their

opportunity to seek asylum.

We hope this committee takes a close look at this clear abuse of asylum law as it plays out with extreme

bias towards claims coming forward from nationals of certain countries. One main claim we hear from

officials, as to reasons for these denials, is that “…they should report the violence to their government.”

This claim goes without taking into account the large, cartel led, corruption within the Mexican

government, especially within local governments. This large scale corruption has been widely

documented by the U.S. government; in December of 2013, the San Antonio division of the FBI made

public an indictment against the former Governor of the State of Tamaulipas, Mexico, Tomas Yarrington

Ruvalcaba. In the indictment the FBI cites extreme corruption, and collaboration with the Gulf Cartel.

http://www.fbi.gov/sanantonio/press-releases/2013/former-governor-of-state-of-tamaulipas-mexico-

indicted-in-the-southern-district-of-texas

“According to the indictment, beginning in approximately 1998, Yarrington received

large bribes from major drug traffickers operating in the Mexican state of Tamaulipas,

including the Gulf Cartel. In return, Yarrington allegedly allowed them to operate their

5

large scale, multi-ton enterprises freely, which included the smuggling of large quantities

of drugs to the United States for distribution. From 2007 to 2009, Yarrington allegedly

became involved in the smuggling of large amounts of cocaine through the Port of

Veracruz into the United States.”

Extreme Cost of Asylum Abuse:

We agree that the asylum system needs to be strengthened so that those who come the United States

seeking protection are provided with safety and due process. Just taking into account the 106 individuals

mentioned in this brief report, the U.S. Government has spent an estimated $2,103,400 for their long

term detention. This detention comes at the cost of, on average, $159, a day (DHS FY 2014 Budget

Justification, pg.1336.) All of the victims of asylum abuse mentioned in this report would have, and

should have, been eligible for immediate release on Parole, having met their credible/reasonable fear

bar. The 106 individuals mentioned in this report are just a minor reflection of the larger issue of asylum

abuse, as we see it.

We thank the committee for their review of this matter. For additional information please contact The

National Immigrant Youth Alliance via email at asylum@theniya.org

November 4, 2013

President Barack Obama

The White House

Washington, DC

Re: Dream 30 and Credible Fear

Dear President Obama:

I write to you today with grave concern for the “Dream 30”, young people who arrived at the

Laredo Port of Entry on September 30th and requested both humanitarian parole and asylum.

Twenty-six of these young people are currently detained at the El Paso Processing Center, and all

have received credible fear interviews after expressing fear of returning to Mexico (or, in one

case, Peru). However, seven have received negative determinations of credible fear and may now

be subject to removal, and I am concerned that an unreasonable standard for credible fear has

been imposed. I urge you to intervene in the credible fear screenings to ensure that the proper,

more generous credible fear standard be followed.

The immigration system allows for those who express a fear of return at our borders to receive a

credible fear interview, rather than being summarily deported. This is essential to protecting those

who may face danger abroad, but have little understanding of our legal system and few resources

with which to prove their case. And it is essential to maintaining the United States as a safe haven

for those who have been persecuted at home. The credible fear concept functions as a pre-

screening standard that is broader and less rigorous than the “well-founded fear of persecution”

standard that is required for an actual asylum application. A finding of credible fear merely gives

the prospective immigrant the opportunity to apply for asylum in removal proceedings. Without

this more generous screening standard, the nation risks returning immigrants to grave dangers,

including situations involving political violence, police corruption, gang violence, and torture.

For this very reason, the denial rate for credible fear interviews was less than 9 percent.

The negative credible fear findings thus far in the seven Dream 30 cases are worrisome. The

apparent cursory fashion in which these negative decisions were made are reminiscent of three

tragic procedural eras in the asylum history related to Central America refugees, Haitian refugees,

and Jewish refugees from Europe during World War II.

Treatment of Central American Refugees

The Ninth Circuit opinion in Orantes-Hernandez v. Smith, 919 F.2d 549 (9th Cir. 1990), reveals

that immigration officials engaged in a strategy that foreclosed the opportunity to apply for

asylum for Salvadorans during the 1980s.

Generally, after aliens were apprehended, either border patrol agents or INS officers processed

School of Law

Faculty

2130 Fulton Street

San Francisco, CA 94117-1080

Tel 415.422.6842

Fax 415.422.6433

usfca.edu/law

them. INS processing of detained aliens consisted of an interrogation combined with the

completion of various forms, including form I-213, "Record of Deportable Alien," and the

presentation of form I-274 "Request for Voluntary Departure." Although the arrested Salvadorans

were eligible to apply for political asylum and to request a deportation hearing prior to their

departure from the United States, the vast majority of Salvadorans apprehended signed voluntary

departure agreements that commenced a summary removal process. Once a person signed for

voluntary departure in the course of INS processing, he or she was subject to removal from the

United States as soon as transportation could be arranged. A person given administrative

voluntary departure in this manner never had a deportation hearing, the only forum before which

the detained person could seek political asylum and mandatory withholding of deportation.

The Smith court found that the widespread acceptance of voluntary departure was due in large

part to the coercive effects of the practices and procedures employed by INS and the unfamiliarity

of most Salvadorans with their rights under United States immigration laws. INS agents directed,

intimidated, or coerced Salvadorans in custody who had no expressed desire to return to El

Salvador, to sign form I-274 for voluntary departure. INS agents used a variety of techniques to

procure voluntary departure, ranging from subtle persuasion to outright threats and

misrepresentations. Many Salvadorans were intimidated or coerced to accept voluntary departure

even when they had unequivocally expressed a fear of returning to El Salvador. Even when an

individual refused to sign form I-214, "Waiver of Rights," INS officers felt that they could

present the person with the voluntary departure form.

The court also found that INS processing officers engaged in a pattern and practice of

misrepresenting the meaning of political asylum and of giving improper and incomplete legal

advice, which denied arrested Salvadorans meaningful understanding of the options presented and

discouraged them from exercising available rights. INS officers and agents routinely advised

Salvadorans of the negative aspects of choosing a deportation hearing without informing them of

the positive options that were available. Without informing them that voluntary departure could

be requested at a deportation hearing, INS officers advised detainees that if they did not sign for

voluntary departure they could be formally deported from the United States, and that such a

deportation would preclude their legal re-entry without the pardon of the Attorney General.

INS officers and agents routinely told Salvadoran detainees that if they applied for asylum they

would remain in detention for a long time, without mentioning the possibility of release on bond.

Similarly, without advising that an immigration judge could lower the bond amount and that there

were bond agencies that could provide assistance, INS agents regularly told detainees that if they

did not sign for voluntary departure they would remain detained until bond was posted. Some

agents told individuals the monetary bond amount they could expect or the bond amount given to

other Salvadorans, without telling them that the bond amount ultimately depended upon the

circumstances of the individual.

INS officers commonly told detainees that if they applied for asylum, the application would be

denied, or that Salvadorans did not get asylum. INS officers and agents represented that

Salvadorans ultimately would be deported regardless of the asylum application. INS officers and

agents misrepresented the eligibility for asylum by saying that it was only given to guerillas or to

soldiers. INS processing agents or officers further discouraged Salvadorans from applying for

asylum by telling them that the information on the application would be sent to El Salvador, and

stating that asylum applicants would never be able to return to El Salvador. INS processing

officers also used the threat of transfer to remote locations as a means of discouraging detained

Salvadorans from exercising their rights to a hearing and to pursuing asylum claims.

Furthermore, INS agents often did not allow Salvadorans to consult with counsel prior to signing

the voluntary departure forms, although they acknowledged that aliens had this right. Even those

Salvadorans fortunate enough to secure legal representation were often unable to avoid voluntary

departure, as INS' practice was to refuse to recognize the authority of counsel until a formal

notice of representation (Form G-28) was filed. Due to the rapid processing of Salvadoran

detainees, it was often physically impossible for counsel to locate their clients and file Form G-28

before the client was removed from the country.

In conclusion, the Smith court noted:

The record before this Court establishes that INS engages in a pattern and practice of

pressuring or intimidating Salvadorans who remain detained after the issuance of an OSC

to request voluntary departure or voluntary deportation to El Salvador. There is

substantial evidence of INS detention officers urging, cajoling, and using friendly

persuasion to pressure Salvadorans to recant their requests for a hearing and to return

voluntarily to El Salvador. That this conduct is officially condoned, even in the face of

complaints, demonstrates that it is a de facto policy. The existence of a policy of making

daily announcements about the availability of voluntary departure, coupled with the

acknowledgement that the policy is designed to free-up scarce detention space, supports

the conclusion that INS detention officers make a practice of pressuring detained

Salvadorans to return to El Salvador. This conduct is not the result of isolated

transgressions by a few overzealous officers, but, in fact, is a widespread and pervasive

practice akin to a policy. . . .

This pattern of misconduct flows directly from the attitudes and misconceptions of INS

officers and their superiors as to the merits of Salvadoran asylum claims and the motives

of class members who flee El Salvador and enter this country.

Thus, the court entered the following order:

1. [INS and border patrol agents] shall not employ threats, misrepresentation, subterfuge

or other forms of coercion, or in any other way attempt to persuade or dissuade class

members when informing them of the availability of voluntary departure pursuant to 8

U.S.C. § 1252(b). The prohibited acts include, but are not limited to:

(a) Misrepresenting the meaning of political asylum and giving improper and incomplete

legal advice to detained class members;

(b) Telling class members that if they apply for asylum they will remain in detention for a

long period of time, without mentioning the possibility of release on bond or indicating

that bond can be lowered by an immigration judge and that there are bond agencies which

can provide assistance;

(c) Telling Salvadoran detainees the amount of bond given to other class members,

without indicating that the bond amount ultimately depends upon the circumstances of

the individual class member;

(d) Telling class members that their asylum applications will be denied, that Salvadorans

do not get asylum, or that asylum is only available to guerillas or soldiers;

(e) Representing to class members that the information on the asylum application will be

sent to El Salvador;

(f) Representing to class members that asylum applicants will never be able to return to

El Salvador;

(g) Indicating that Salvadoran detainees will be transferred to remote locations if they do

not elect voluntary departure;

(h) Advising Salvadorans of the negative aspects of choosing a deportation hearing

without informing them of the positive options that are available;

(i) Refusing to allow class members to contact an attorney; and

(j) Making daily announcements at detention facilities of the availability of voluntary

departure.

The bias that INS officials and asylum corps officers exhibited toward both Guatemalan and

Salvadoran asylum applicants was further exposed in American Baptist Churches v. Thornburgh,

760 F.Supp. 796 (N.D. Cal. 1991). As the New York Times reported on the case:

Such applications have long presented the Government with an embarrassing choice. The

United States supports the Governments of El Salvador and Guatemala, and at the same

time it is asked by asylum applicants to find that they have a "well-founded fear of

persecution" if they are returned home. Every approval of an application for political

asylum thus amounts to an admission that the United States is aiding governments that

violate the civil rights of their own citizens.

Since 1980 the Government has denied 97 percent of applications for political asylum by

El Salvadorans and 99 percent of those by Guatemalans. During the same time,

applications for political asylum by Eastern Europeans, Nicaraguans and residents of

other countries have a high percentage of approval. For example, 76 percent of

applications by residents of the Soviet Union were approved, as were 64 percent of those

by residents of China.1

1 Katherine Bishop, U.S. Adopts New Policy for Hearings On Political Asylum for Some Aliens, N.Y.

Times, Dec. 20, 1990, at B18.

A settlement was reached requiring the INS to readjudicate the asylum claims of certain

Salvadorans and Guatemalans who were present in the United States as of 1990, and who had

sought immigration benefits. The case, known as the “ABC litigation” began in 1985 as a

nationwide class action on behalf of Salvadorans and Guatemalans. The plaintiffs alleged that the

INS and the Executive Office of Immigration Review were biased in their asylum adjudication

process for those two nationalities. Under the settlement, these Central Americans were eligible

for new asylum interviews.

Unfair Treatment of Haitian Asylum Applicants

In Haitian Refugee Center v. Smith, 676 F.2d 1023 (5th Cir. 1982), the Fifth Circuit chastised the

federal government for unfair processes that were imposed on Haitian asylum applicants. In

response to the repressive Duvalier regime that caused political and economic havoc in Haiti in

the 1970s, many Haitians fled to the United States seeking refuge. Large numbers sought asylum

once they reached the shores of Florida. A backlog developed, so INS officials implemented an

accelerated program to deal with the situation. The program of accelerated processing to which

the Haitians were subjected by the INS-termed the "Haitian Program"- embodied the

government's response to the tremendous backlog of Haitian deportation cases that had

accumulated in the INS Miami district office by the summer of 1978. By June of that year

between six and seven thousand unprocessed Haitian deportation cases were pending in the

Miami office. These staggering numbers were not the result of a massive influx of Haitians to

south Florida over a short period. Although significant numbers of Haitians had entered the

United States from Haiti and the Bahamas in the spring of 1978, the backlog was primarily

attributable to a slow trickle of Haitians over a ten-year period and to the confessed inaction of

the INS in dealing with these aliens.

Many officials provided input in the planning process of the Haitian project. Assigned by the

Deputy Commissioner of the INS with the task of assessing the Haitian situation in Miami, INS

Regional Commissioner Armand J. Salturelli submitted the recommendation, among others, that

processing could be expedited by ceasing the practice of suspending deportation hearings upon

the making of an asylum claim. Salturelli acknowledged that this would contravene internal

operations procedures, but suggested that those procedures should be cancelled or "at least be

suspended insofar as Haitians are concerned." One July 1978 report from the Intelligence

Division of INS to the Associate Director of Enforcement advised in absolute terms that the

Haitians were "economic" and not political refugees and, in belated recognition of the obvious,

warned the Enforcement Division that favorable treatment of these Haitians would encourage

further immigration. Associate Director of Enforcement, Charles Sava, later visited Miami to find

space for holding an increased number of deportation hearings and to discuss with Miami

personnel the processing of Haitians. Out of those discussions arose recommended deterrence

measures, which Sava outlined in a letter to Deputy Commissioner Noto. These included

detention of arriving Haitians likely to abscond, blanket denials of work permits for Haitians,

swift expulsion of Haitians from the United States, and enforcement actions against smugglers.

Planning of the Haitian program culminated in a memorandum sent on August 20, 1978 by

Deputy Commissioner Noto to INS Commissioner Leonel J. Castillo. The memo explained the

basic mechanics of the accelerated processing already being implemented in the Miami district

office. Among the specifics set forth were the assignment of additional immigration judges to

Miami, the instructions to immigration judges to effect a three-fold increase in productivity, and

orders for the blanket issuance of show cause orders in all pending Haitian deportation cases.

In accordance with the goal of high productivity demanded of the Miami office, Acting District

Director Gullage issued a memorandum to all personnel in the office, stating "processing of these

cases cannot be delayed in any manner or in any way. All supervisory personnel are hereby

ordered to take whatever action they deem necessary to keep these cases moving through the

system." The Haitian cases were processed at an unprecedented rate. Prior to the Haitian program

only between one and ten deportation hearings were conducted each day. During the program,

immigration judges held fifty-five hearings per day, or approximately eighteen per judge. At the

program's peak the schedule of deportation hearings increased to as many as eighty per day.

At the show cause or deportation hearing, the immigration judges refused to suspend the hearing

when an asylum claim was advanced, requiring the Haitians instead to respond to the pleadings in

the show cause order and proceed to a finding of deportability. The order entered by the judge

allowed the Haitian ten days for filing an asylum claim with the district director, then ten days to

request withholding of deportation from the immigration judge if the asylum deadline was not

met. Failure to seek withholding in a timely manner effected automatic entry of a deportation

order.

Deportation hearings were not the only matter handled during the Haitian program. Asylum

interviews also were scheduled at the rate of forty per day. Immigration officers who formerly

had worked at the airport were enlisted as hearing officers for these interviews. Prior to the

program such interviews had lasted an hour and a half; during the program the officer devoted

approximately one-half hour to each Haitian. In light of the time-consuming process of

communication through interpreters, the court concluded that only fifteen minutes of substantive

dialogue took place. Consistent with the result-oriented program designed to achieve numerical

goals in processing, the Travel Control section in the Miami office recorded the daily totals of

asylum applications processed. The tally sheet contained space only for the total number of

denials; there was no column for recording grants of asylum.

Hearings on requests for withholding deportation also were being conducted simultaneously with

asylum and deportation hearings, at several different locations. It was not unusual for an attorney

representing Haitians to have three hearings at the same hour in different buildings; this kind of

scheduling conflict was a daily occurrence for attorneys throughout the Haitian program. The INS

was fully aware that only approximately twelve attorneys were available to represent the

thousands of Haitians being processed, and that scheduling made it impossible for counsel to

attend the hearings. It anticipated the scheduling conflicts that in fact occurred. Nevertheless the

INS decided that resolving the conflicts was "too cumbersome for us to handle" and adopted the

attitude that everything would simply work out.

Under these circumstances, the court concluded that the INS had knowingly made it impossible

for Haitians and their attorneys to prepare and file asylum applications in a timely manner. The

court found that adequate preparation of an asylum application required between ten and forty

hours of an attorney's time. The court further estimated that if each of the attorneys available to

represent the Haitians "did nothing during a 40 hour week except prepare [asylum applications],

they would have been able to devote only about 2 hours to each client."

The results of the accelerated program adopted by INS are revealing. None of the over 4,000

Haitians processed during this program were granted asylum.

In the end, the federal court of appeals struck down the accelerated program as a violation of

procedural due process. The government was forced to submit a procedurally fair plan for the

orderly reprocessing of the asylum applications of the Haitian applicants who had not been

deported.

Turning Away Jewish Refugees During World War II

In the 1930s, for example, the United States turned away thousands of Jews fleeing Nazi

persecution (e.g., SS St. Louis), in large part because of powerful restrictionist views against

certain ethnic, religious, and racial groups. Congress and U.S. consular officers consistently

resisted Jewish efforts to emigrate and impeded any significant emergency relaxation of

limitations on quotas.

The plight of European Jews fleeing Nazi Germany aboard the ship SS St. Louis in 1939 is a

horrific example of how restrictionist views were manifested toward refugees at the time. In a

diabolical propaganda ploy in the Spring of 1939, the Nazis had allowed this ship carrying

destitute European Jewish refugees to leave Hamburg bound for Cuba, but had arranged for

corrupt Cuban officials to deny them entry even after they had been granted visas. It was the

objective of Nazi propaganda minister Joseph Goebbels to prove that no country wanted the Jews.

The St. Louis was not allowed to discharge its passengers and was ordered out of Havana harbor.

As it sailed North, it neared United States territorial waters. The U.S. Coast Guard warned it

away. President Franklin D. Roosevelt had said that the United States could not accept any more

European refugees because of immigration quotas, as untold thousands had already fled Nazi

terror in Central Europe and many had come to the depression-racked United States.

Nearly two months after leaving Hamburg, and due to the efforts of U.S. Jewish refugee

assistance groups, the ship was allowed to land in Holland. Four nations agreed to accept the

refugees—Great Britain, Holland, Belgium and France. Two months later, the Nazis invaded

Poland and the Second World War began. Over 600 of the 937 passengers on the St. Louis were

killed by the Nazis before the war was over. When the United States refused the St. Louis

permission to land, many Americans were embarrassed; when the country found out after the war

what happened to the refugees, they were ashamed.

Closing

Recognizing credible fear is not a grant of asylum. It merely recognizes that the person has shown

a significant possibility that that the applicant can meet the standard for asylum before an

immigration judge. It simply gives the person a chance for a fair hearing in an immigration court.

The standard for credible fear is not meant to be high. In a case that I litigated, NS v Cardosa-

Fonseca, 480 U.S. 421 (1987), the Supreme Court recognized that the “well-founded fear”

standard for asylum can be met even when a 10 percent chance of persecution is established. And

the credible fear standard is meant to be an even lower burden than well-founded fear.

The Dream 30 are young people that deserve fair treatment. Your administration should not be

associated with the tragic asylum eras of the past that I have outlined above. Politics should not

get in the way. I urge you to treat them fairly in their bid for refuge in this country and to give

their cases due consideration. If they have a credible fear, they should be allowed to make a case

for asylum in front of an immigration judge, rather than be subject to expedited removal. I urge

you to protect the integrity of the asylum system that has been designed to be symbol of hope and

freedom throughout the world.

Sincerely,

Bill Ong Hing

Bill Ong Hing

Professor of Law, University of San Francisco

Professor of Law Emeritus, University of California, Davis