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By William J. Aceves
For a country founded by immigrants fleeing religious persecution, the
United States is now implementing a policy on political asylum that mocks
our noble history. This policy has incarcerated thousands of innocent
individuals whose only offense was to suffer persecution abroad and then
seek refuge in the United States. It is a policy that few Americans see but
many innocents suffer.
Under U.S. law, individuals who have been persecuted because of race,
religion, nationality, political opinion or membership in a particular
social group may apply for political asylum. To be eligible for asylum,
individuals must submit an application and supporting documentation to the
Department of Homeland Security. These applications are then reviewed by
immigration officials. If the application is granted, asylum-seekers are
allowed to remain in the United States, apply for work authorization and
eventually seek citizenship. For decades, this policy has offered comfort
and protection to countless refugees, from political dissidents in Africa to
religious minorities in Asia.
In the 1990s, U.S. immigration policies became increasingly restrictive
toward asylum-seekers. Since 2001, these policies have become even more
Draconian. In a tragic turn, individuals fleeing persecution are now
regularly imprisoned in county jails, federal detention centers and private
facilities while U.S. immigration officials process their applications.
Our treatment of these immigrants is not an American narrative our country
should seek to write. Individuals who have neither violated the law nor been
charged with a crime have languished in detention centers for months or even
years. Families are often torn apart, and children have been separated from
their parents.
Asylum-seekers are routinely transferred to detention centers far from
relatives. In some facilities, visitors are not even allowed to touch
detainees, and they are separated by Plexiglas and forced to communicate by
telephone.
The conditions of detention are equally troubling. Asylum-seekers are
regularly detained in facilities with convicted criminals. They are forced
to undergo invasive searches and daily head counts. Even children are
subjected to these security measures. Living conditions often fall well
below U.S. and international standards. Medical treatment is spotty, and
injuries may go untreated. Psychological care is seldom provided.
The plight of torture victims is particularly troubling. It is no surprise
that many asylum-seekers are also victims of torture. But these victims are
not receiving needed counseling while in detention. Studies have found high
rates of anxiety, depression and post-traumatic stress disorder among
detained asylum-seekers. And the psychological harm worsens as the length of
detention increases. Even the bipartisan U.S. Commission on International
Religious Freedom has criticized this policy and the conditions of
detention, arguing that they create a serious risk of psychological harm to
asylum-seekers.
Detention of asylum-seekers should only be used as a last resort,
particularly since alternative programs exist. Individuals whose asylum
applications are pending can be monitored in numerous ways, each of which is
more humane and less costly than current detention policies. Individuals can
be required to post bond or make regular visits to immigration officials. If
there are unique concerns, electronic monitoring is a less invasive method.
Earlier this year, the U.N. special rapporteur on migrants, who visited San
Diego in 2007, expressed concerns about the overuse of immigration detention
in the United States. Indeed, he argued that the "availability of effective
alternatives renders the increasing reliance on detention as an immigration
enforcement mechanism unnecessary."
San Diego County currently maintains one private detention facility that
houses about 700 immigration detainees, many of them asylum-seekers. The San
Diego Correctional Facility in Otay Mesa has been denounced by human rights
organizations for its treatment of detainees. Lawyers and health care
professionals have complained that placing their clients in these facilities
undermines their efforts to provide quality and effective assistance. The
San Diego facility has been criticized by the inspector general for the
Department of Homeland Security. It also has been the subject of a federal
lawsuit alleging degrading conditions. This lawsuit seeks to ensure that the
conditions of confinement are humane and comply with all appropriate
constitutional and statutory safeguards. It is troubling, therefore, to
consider that a second detention facility, which would house nearly 3,000
immigrants, is now in the planning stages in San Diego.
The cost of detaining one asylum-seeker at the San Diego Correctional
Facility is estimated to be $89.50 per day, though total costs are
undoubtedly higher. But the cost to these detainees, who have done nothing
wrong, is immeasurable. When individuals seek refuge in our country, we
should offer them protection, not prison bars.
_____
Aceves is a professor of law and associate dean for academic affairs at
California Western School of Law in San Diego.
