Why Is the Department of Homeland Security Incarcerating Refugees Across the U.S.?

Last month, President Obama authorized the admission of 80,000 refugees into the U.S. in fiscal year 2010, something every President has done annually since passage of the Refugee Act of 1980. The United States has long recognized the importance of providing a safe haven for refugees. Beginning with laws granting refugee status to displaced persons after World War II and culminating with the comprehensive Refugee Act of 1980, the U.S. has sought to safeguard those who are unwilling or unable to return to their homeland based on a "well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion."

Despite this commitment to helping refugees resettle in the U.S. permanently, the Department of Homeland Security (DHS) and its sub-agency, Immigration and Customs Enforcement (ICE), have adopted a policy of incarcerating refugees who have not adjusted to permanent resident status after one year of residency in the U.S. (“unadjusted refugees”). Often ICE comes in contact with unadjusted refugees who have had some contact with local law enforcement; however ICE also has detained refugees who have no criminal charges pending against them. In recent months, advocates have alerted DHS and ICE about such detained refugees in regions including Minneapolis, MN; Florence, AZ; Eloy, AZ; York, PA; Atlanta, GA; Los Angeles, CA.

ICE defends this detention policy by citing section 209(a) of the Immigration and Nationality Act (INA) which states that refugees who have not acquired permanent resident status after one year “shall return or be returned to the custody of the Department of Homeland Security for inspection and examination for admission.” ICE says “return to custody” means that refugees who have not applied for permanent resident status after one year may be detained and held while they complete their adjustment application and while ICE’s sister organization, U.S. Citizenship and Immigration Services (USCIS), adjudicates it. This interpretation is particularly unfair since the law prohibits refugees from applying for permanent residence until one year after they have been admitted to the U.S. as refugees. In essence, ICE detains refugees for not doing what the law bars them from doing.

ICE’s interpretation of the law has particularly harsh consequences for refugees. First, the refugee is not in removal proceedings, so he or she cannot request bond before an Immigration Judge. Without an opportunity to be released, the refugee must complete the adjustment application process in detention -- for example, he or she must appear for the required USCIS interview and obtain vaccinations while detained. In some cases, the process can take over a year.

Second, even if USCIS denies the refugee’s application for adjustment and he or she is placed in removal proceedings, ICE has charged the refugee as an "arriving alien." Under the relevant law, "arriving aliens" may not ask an Immigration Judge for a bond hearing and are entirely dependant on ICE -- the prosecutor in the case—for release from detention. The interpretation of refugees as “arriving aliens” is incorrect because refugees have already been admitted to the U.S. as a refugee. Despite this, when the agency charges them as "arriving aliens," refugees are unable to seek release from detention from a neutral decision-maker -- neither during the pendency of the adjustment application, nor during removal proceedings.

In Arizona—where representatives of detained refugees recently filed a number of habeas lawsuits challenging the detention of unadjusted refugees—ICE stated that it will release unadjusted refugees or put them in removal proceedings within 48 hours. It also promised to stop charging refugees in removal proceedings as "arriving aliens," which therefore enables refugees to seek bond from a neutral immigration judge. Yet in light of these changes, advocates in Arizona report that unadjusted refugees continue to spend time in detention and cannot proceed with their immigration cases until DHS adjudicates their adjustment applications. In addition, DHS has not officially committed to these changes or to any widespread changes in policies related to detention of unadjusted refugees.