Claire R. Thomas, Director, of the Asylum Clinic and an Adjunct Professor of Law at New York Law School || Credit: Claire R. Thomas

‘Why Am I In Jail?’ Wonder Asylum-Seekers Fleeing Hell

By Claire R. Thomas

“I’ve never been in prison before,” the detained immigrants ask. “Do you have any advice for me?”

I spent the weekend volunteering in the Albany County Correctional Facility to provide legal counsel for the immigrant men and women transferred to the jail from the Southern Border. Over 300 immigrants from at least 36 different countries are now detained in this upstate facility. Thanks to the cooperation of the sheriff and the hard work of volunteer attorneys from Albany Law School, the New York Immigration Coalition, and The Legal Project, as well as dedicated volunteer interpreters, there is a continuous presence of pro bono immigration lawyers in the facility from 8 p.m. to 9:30 p.m., 7 days a week.

The detained immigrants with whom we spoke came from countries located on five continents. They told us that we were the first people who explained to them their current location in United States, the next steps they would undergo in the immigration process, as well as their basic legal rights. All had been detained by the U.S. Department of Homeland Security in early June, meaning they were all civilly incarcerated for more than a month and a half without access to an attorney.

“Why am I in jail? I am not a criminal.”

Many of the people we met with had come to a port of entry, a designated crossing point along along the U.S. border, and requested asylum. They had escaped oppressive political regimes, torture and detention in abysmal conditions by governments in their home countries.

They did not understand why they fled from hell and found themselves in jail in the United States. For those who seek to enter the United States without a visa, immigration laws allow for “expedited removal,” or a fast-track deportation process without seeing a judge, unless the individual states that she is afraid to return to her home country.

For the past 25 years, the U.S. government has made a conscious choice to detain those who express fear and are seeking asylum, despite a variety of proven, cost-effective alternatives to ensure that immigrants appear at their deportation hearings.  

Unlike the inmates in the jail’s general population, the detained immigrants remain in custody for an indeterminate stay. There is no sentence imposed, no official timeframe for release. The parents detained in Albany who had been separated from their children are not part of the current court-mandated efforts to reunite families as their children had already been released to the care of spouses or relatives in the United States.

Many of the immigrant men and women had memorized the date they entered the facility, but few knew how many weeks had passed since they arrived in Albany. When we informed them of the date, they were horrified by how much time had passed. Days ticked by in a monotonous blur. They had committed no crime nor were they being criminally charged, yet they remained in a county jail, locked in their cells for many hours of the day.

“How long will my asylum case take?”

We explained to the immigrant detainees that the process was akin to climbing a mountain. They had started their ascent by coming to the border of the United States and expressing fear, and would now have a credible fear interview, the first step in the asylum process. This interview would occur while they were detained in Albany by phone with a DHS Asylum Officer. If successful, they would hopefully be eligible for bond and release from the facility.

But the peak of the mountain that they still have to climb will loom overhead for the foreseeable future.

Upon release, these men and women will likely have regular check-ins with the nearest Immigration and Customs Enforcement office and they will also have a deportation case in the closest immigration court.

To be clear, no one will leave the Albany County Jail having been granted asylum. These men and women will have to fight—likely for years— for an immigration judge to actually hear their cases for asylum in court. It is important to remember that there is no appointed counsel and that all immigrants, regardless of age, must find their own attorney to ensure that their case for asylum is timely filed.

As of May 2018, over 714,000 cases were pending in Immigration Courts nationwide, meaning that each person’s “day in court” would likely be many years away. While waiting, the men and women will be in a liminal state—eligible for work authorization six months after filing their asylum cases, but not able to reunite with the family members they left behind in danger in their home countries.

The immigrant men and women be not be eligible to obtain any federally-funded public benefits. Thus, culturally and linguistically competent regular mental health care will remain out of reach for most during this long waiting period.

At the same time, Attorney General Jeff Sessions’ efforts to dismantle and undermine the asylum process will continue to impact the ultimate success of their claims for immigration relief.

As there is no procedure for people outside of the United States to request asylum protection without being at the border or physically inside the country, some of the immigrants we met had already literally climbed mountains by crossing the Andes en route to safety.

They had been robbed, assaulted and tormented during a months-long journey. Yet, they persisted in search of a life with security and basic dignity.

Despite having an even more challenging mountain to climb in order to be released from detention and ultimately gain asylum protection in the United States, the immigrants we met with remain hopeful for their future.

This indefinite detention of asylum seekers is a denial of due process rights. And it is inhumane.

Detention has not, nor will it likely ever, serve its supposed deterrent effect, as desperate people will continue to flee and seek protection at the doors of the United States when they have no other choice.

The ability to seek asylum, regardless of how an individual enters the country, is a right under both U.S. domestic law and international treaty obligations. But this right becomes farcical if immigrants are detained indefinitely, warehoused in remote locations, denied basic legal information for months, and made to combat an increasingly hostile immigration system without appointed counsel

Thomas is the Director of the Asylum Clinic and an Adjunct Professor of Law at New York Law School.

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