Why Some Asylum Seekers Find Detention — Not Freedom — in New Jersey

Caren Chesler | November 16, 2016 | Immigration
Immigrants fleeing their home countries can spend years in detention in New Jersey before their fates are decided — and then face deportation

Credit: Martin Griff
The Essex County Jail is one of the facilities that ICE uses to hold detainees, sometimes for months if not for years.
After being tortured by government security forces for his pro-democracy views, a man from Togo sought asylum in the United States. Identified only as “Emmanuel” because he fears for the safety of his family back home, he arrived at an airport here in March 2014, was classified an “arriving alien” and sent to the Elizabeth Contract Detention Center while his asylum application wound its way through the courts. He was initially denied, but an appeals board remanded his case back to an immigration judge for redetermination. All the while, he remained detained. His attorneys applied for him to be released four times, but each time he was denied for undisclosed reasons.  By the time his application was approved, he had been in detention for two-and-a-half years.

[img-narrow:/assets/16/0518/0120]A woman named “Carla” was severely abused by her former partner in the Dominican Republic for years before she decided to flee to America. When she arrived at a New York airport in March 2015 and expressed a fear of returning home, she was detained at the Delaney Hall Detention Center in New Jersey while she applied for asylum. Despite having letters of support from four U.S. citizen sponsors, including her fiancé, and a cousin who was a New York City police officer, as well as having no criminal history and a valid passport proving her identity, she was denied parole under the rationale that she was a “flight risk.” She was granted asylum but spent five months in detention awaiting that ruling.

A Syrian torture survivor has been held at the Elizabeth Detention Facility for over a year, despite having provided 13 documents to establish his identity and a letter of support from First Friends, a social service organization that has a long history of supporting and housing asylum seekers paroled from New Jersey detention centers. U.S. Immigration and Customs Enforcement denied parole, saying he failed to establish his identity and that he was a flight risk. In July 2016, he passed a “credible fear interview,” a prerequisite for applying for asylum and an acknowledgement by the immigration court that he faced a risk of torture if returned to Syria —yet he continues to be held in detention.

As the number of immigrants seeking asylum in America has risen over the past several years, so has the percentage of them being detained without bail. And with so many cases now clogging up the court system — and so few judges to hear them — their time in detention can six run months to a year, or even longer. Immigration advocates question why so many are being detained in what is essentially a jail-like setting, with such inadequate physical and mental healthcare that some have actually died while in detention.

“These are people who are overwhelmingly asylum seekers, some of whom have PTSD, and they’re put into facilities with no outdoor recreation,” said Michelle Gonzalez, an immigration attorney formerly with the American Friends Service Committee’s Immigrant Rights Program in Newark and now with the Americans for Immigrant Justice in Miami. “They come here thinking, ‘I want to save my life.’ They don’t come here thinking, ‘I’m going to end up in jail for a year and not even know if in the end, I’m going to win my case.’”

Indeed, detention is very similar to jail. There is no freedom of movement, detainees wear jail uniforms color coded according to their security levels. And there are restrictions on visitors and phone calls. In fact, some detention centers in New Jersey are actually located inside county correctional facilities.

And yet detention for asylum seekers was not meant to be punitive. It was simply supposed to be a way to make sure arriving aliens showed up at their deportation hearings. It was meant for immigrants considered either a security risk or a flight risk. Many of those being detained are neither.

“You’re putting some people in detention who are really not a threat to society and not a risk to flight, which are the two main conditions that someone is supposed to have reviewed to determine whether or not they need to be detained,” said Harlan York, an immigration attorney in Newark.

The Fear Interview

Asylum seekers are entered into a process called Expedited Removal if they indicate that they are afraid to return to their country, and are referred for a “fear interview” (A “credible fear interview” is for individuals without a prior deportation from the United States; a “reasonable fear interview” is for those with a prior deportation).

If someone passes this interview, he or she is allowed to seek asylum in the immigration court system. If they are found not to have a credible/reasonable fear of persecution, they cannot file an asylum application and are deported. Consequently, anyone who has passed a fear interview is someone the government has found to have some real fear of persecution, attorneys say.

In New Jersey, there are four detention facilities, one of which is privately run (Elizabeth Detention Center); the remainder operate within Hudson, Bergen, and Essex county jails. There are about 700 detainees in Essex, 100 in Hudson and about 300 in the Elizabeth Detention Center. Those held in Bergen have their cases heard in New York courts. Immigrants are typically kept separate from the general jail population, but the lines become a little blurred when people in detention for immigration violations are also hardened criminals.

Attorneys say immigrants are being detained — perhaps erroneously — because of a 2014 Department of Homeland Security (DHS) memo that called for detention of so-called Priority 1 immigrants. In New Jersey, ICE, an immigration enforcement arm of the DHS, considers asylum seekers to fall into that category, said Robyn Barnard, associate attorney for Refugee Representation at Human Rights First in New York City.

“ICE has repeatedly said that recent arrivals are a priority for enforcement,” Barnard said. “Recently arrived asylum seekers typically have not had any prior criminal or immigration history in the U.S. Many are eligible for parole, but it appears they remain detained because DHS believes they fall within the DHS 2014 Priorities for Enforcement policy.”

While it’s not clear how many of those in detention are asylum seekers, 102,436 individuals nationally passed through a fear interview in fiscal 2016. That figure is nearly double the number of credible-fear interviews completed in fiscal 2015.

Indeed, the number of asylum seekers being detained nearly tripled between 2010 and 2014, according to Human Rights First. In fiscal 2010, just 15,683 asylum seekers, or 45 percent of all of those in the removal proceedings, were detained. That number rose to 44,228, or 77 percent, in fiscal 2014. While Texas has the most asylum seekers held in ICE or ICE-contracted detention centers — 19,806 in fiscal 2014 — New Jersey is up there, after Arizona, Louisiana, and California, with 2,445. The population of detained asylum seekers here more than tripled between 2013 and 2014.

The growth in asylum seekers has compounded the problem for detainees because it has created a logjam in the courts, making it take longer for cases to be heard — meaning those in detention are sitting there longer, despite international law requirements for prompt court review.

As of August 2016, there were 512,190 cases pending before immigration court. In New Jersey, that number is 27,391, according to Trac data. Nationally, the average time needed for an immigration case to wind its way through the courts in fiscal 2016 was 566 days. In New Jersey, that figure was 781. Five years ago, it was 301.

“Before, you got it done in less than six months. That’s how it should be — when someone is detained,” said Lloyd Munjack, Detention Attorney in the American Friends Service Committee’s Immigrant Rights Program. “I know they have backlogs on the nondetained calendar. That’s understandable. The people are not detained. They’re going on with their lives. They’re free. But these people are in jail.”

The New Jersey Perspective

In New Jersey, where immigration cases are heard in either Elizabeth or Newark, the problem was exacerbated last October when it was decided that all cases involving detainees would only be heard in Elizabeth, where there is only one immigration judge and one to two that rotate in. Newark has eight immigration judges.

Federal court officials declined to say why they decided to do this. But some attorneys suggested it was to deal with the swell of women and children fleeing persecution in Central America, a group who make up what’s called the “surge docket,” because federal officials wanted their cases to be adjudicated quickly.

Women are not less likely to be detained than men. According to Barnard, There are some good policies that DHS has in place that mean that pregnant women will be released from detention. But that is all. It largely depends on and individual case and the number of bed spaces available. (It may be that there are only a few available for women in a given state.)

Overall, these changes doubled — even tripled — the amount of time it takes an asylum case to wind its way through the courts. Where it used to take 1-2 weeks for an initial hearing, it now takes five to seven weeks, and where a final hearing might take three to four months, it may now take five to six months. And all that time, asylum seekers are sitting in a detention facility.

“I think there were a lot of reasons that we’re not privy to, like streamlining, only having one location to hear detained cases, and since Newark was dealing with the surge docket, maybe it couldn’t handle more. But after the initial switch, it did go up by a couple of months,” said Raquiba Huq, supervising attorney at the Legal Services of New Jersey in Edison.

The Executive Office for Immigration Review (EOIR), the arm of the Justice Department that runs the immigration court system, would only say they now have a judge in Newark who is hearing some detainee cases from Elizabeth, but the wait is still several months longer than it was before the switch last October.

“Please note that the Executive Office for Immigration Review’s detained docket remains a priority for the agency,” said Kathryn Mattingly, a spokeswoman for EOIR.

ICE, for its part, says it makes custody determinations on a case-by-case basis with a priority for detention of serious criminal offenders and other individuals who pose a significant threat to public safety, says Alvin Phillips, a spokesman for ICE. Factors taken into consideration include criminal history, compliance history, immigration legal stage, and community ties, he said. 

Making matters worse, many asylum seekers aren’t being granted bail hearings. In fact there’s been a sharp decline in bail hearings over the past five years. In 2012, ICE granted parole to 80 percent of arriving asylum seekers who passed a credible fear interview. By 2015, that figure was down to 47 percent, according to ICE data.

The Lawsuits

The bail situation was deemed so unfair that there have been several lawsuits in federal court. In New York, which is in the federal court system’s Second Circuit, a recent ruling guarantees that detainees will have a bail hearing if they have been sitting in jail for six months awaiting trial. New Jersey, however, is in the Third Circuit, where there is no such requirement, though there is a lawsuit pending requesting that one be implemented. Immigration attorneys say the disparity in treatment is unfair and can most clearly be seen in the County Correctional Facility, where detainees from both New York and New Jersey are housed.

“The biggest thing I’m dealing with right now in New Jersey is that two facilities here rent to NY ICE, where the Second Circuit came down with a case last October that said anyone detained six months is entitled to a bail hearing. So all of those people in those facilities are getting bail hearings. The Third Circuit has not had the same case, so New Jersey people don’t get those hearings,” said Lauren Anselowitz, an immigration attorney with Harlan York & Associates. “We’re still trying to figure out where the case law will go in New Jersey.”

The New York case, known as Lora v. Shanahan, addressed whether the government may subject individuals to prolonged periods of immigration detention without a bond hearing. While the court held that the mandatory detention statute authorizes detention, it can only be for a reasonable period. When detention exceeds that reasonable period, the noncitizen is entitled to an individualized hearing where the government must show that continued detention is necessary to prevent flight or danger to the community.

But while immigration lawyers say both the Second and Third Circuit cases address issues of detention and bail, a case that speaks most closely to immigrant detainees was a class-action suit in the Ninth Circuit called Jennings v. Rodriguez, which said immigrants who have been in detention for six months or longer, fighting deportation, are required to have a bond hearing. The case is now before the U.S. Supreme Court, and if immigration advocates prevail, all detainees will be guaranteed a bail hearing after six months — though it doesn’t mean bail will be granted. But just having a hearing will be a big win, advocates say.

Immigrants don’t just lose their freedom of movement by being detained. It may hurt their chances of prevailing in court. A report released in June 2016 by two Seton Hall law professors, titled “Deportation Without Representation: The Access-to-Justice Crisis Facing New Jersey’s Immigrant Families,” found that detainees in New Jersey who were represented by an attorney were three times more likely to prevail in court than those without a lawyer. Another study, released in September 2016, found that 86 percent of detained immigrants are unable to secure representation. The paper in the University of Pennsylvania Law Review last December, entitled “A National Study of Access to Counsel in Immigration Court,” drew on data from more than 1.2 million deportation cases decided between 2007 and 2012 and found that just 14 percent of detained immigrants were able to secure representation, compared with two-thirds of nondetained immigrants.

Poor Medical Conditions Leading to Death

Questions have also been raised about the quality of medical care in detention facilities. In fact, deficient medical care contributed to the deaths of at least seven immigrants in detention, according to a report published in July by the advocacy group Human Rights Watch.

Earlier this year, ICE published the results of its internal examination into the deaths of 18 immigrants who were being held in detention between 2012 to 2015. The rights organization asked two doctors with expertise in prison healthcare to review the agency’s international examinations. The doctors found subpar care contributed to at least seven of those deaths. The report also found evidence of the misuse of isolation for people with mental disabilities, and inadequate mental health evaluation and treatment.

“In 2009, the Obama administration promised major immigration detention reforms, including more centralized oversight and improved healthcare. But these death reviews show that system-wide problems remain, including a failure to prevent or fix substandard medical care that literally kills people,” Clara Long, a researcher at Human Rights Watch, wrote in the report.

The doctors in the report, Dr. Marc Stern, an affiliate assistant professor of public health at the University of Washington who was formerly health services director for Washington State’s Department of Corrections, and Dr. Allen Keller, an associate professor of medicine at New York University and director of the medical school’s Center for Health and Human Rights, found evidence of “substandard and potentially dangerous care” in most of the ICE examinations. In seven cases, medical staff members failed to follow up on critical symptoms and were slow to seek emergency treatment, providing “inadequate care” that was probably a factor in the deaths.

In New Jersey, a 56-year old man from Ecuador named Victor Antonio Ramirez-Reyes entered the United States on a tourist back in 1996, applied for asylum in April of 2007, and after being denied, was arrested and put into the Elizabeth Detention Center in September of 2011. Twenty days later, he was dead after having a heart attack.

On the morning of his death, he had gone to the detention center’s infirmary at about 5:30 a.m. to get his blood-pressure medication. While waiting to be brought back to his cell, he had a seizure. Two detainees with him called for help. Detention officers arrived and found Ramirez-Reyes lying back in a chair with his arms stretched out, his eyes rolled back into his head. They called an RN, who gave him smelling salts but did not try cardiopulmonary resuscitation or use a defibrillator machine because she said he was still breathing and had a pulse. In fact, he didn’t receive any CPR or defibrillation until EMTs arrived from nearby Trinitas Regional Medical Center, more than 10 minutes later. He was pronounced dead an hour later.

A Department of Homeland Security investigation found Ramirez-Reyes had told the detention medical staff that he had a history of high blood pressure, hypertension, and high cholesterol, but they failed to properly monitor his vital signs and medications. In fact, he wound up getting double doses of medication on a daily basis. When he began having trouble breathing, he submitted what was called a sick-call slip with the staff nurse, but instead of forwarding it to the doctor, she sent it off to be filed, so when the doctor saw him about lab results, his symptoms were never discussed. The department concluded that the detention center had inadequate nighttime staffing, inadequate monitoring of abnormal blood pressure findings, and that the staff nurse was unaware of 2010 guidelines for basic life support and showed up at an emergency without bringing the proper equipment.

“Victor Ramirez-Reyes died of heart disease — a treatable condition — after healthcare providers delivered grossly substandard care by failing to monitor and control Mr. Ramirez’s blood pressure,” according to the American Civil Liberties Union, Detention Watch Network, and the National Immigrant Justice Center, which released a report in February 2016, entitled, “Fatal Neglect: How ICE Ignores Deaths in Detention.”

They note that another individual died at the Elizabeth facility less than a month later, who, like Ramirez-Reyes, had reported a history of hypertension and yet did not receive appropriate care. In fact, the authors say eight detainees died while in custody between 2010 to 2012 largely because of egregious violations of U.S. Immigration and Customs Enforcement (ICE)’s own standards for medical care.

Medical care in detention facilities — and even the quality of food — has been a concern for some time, said Alexandra Goncalves-Pena, another attorney with the American Friends Service Committee.

She says she has one client who is 72 years old and had to have open-heart surgery while he was detained. He entered the United States in 1999 and because it costs money to obtain citizenship — Goncalves-Pena described his client as “working poor” — he put it off. He then got picked up for a domestic-violence incident, wound up in the criminal justice system. The domestic-violence charge went away, but because of his immigration status he was turned over to ICE and is now in Delaney Hall, taking a regimen of seven pills a day for health issues related to a stroke he’d had in the past and his recent open-heart surgery.

“I have seen the scar. This poor man was crying,” Goncalves-Pena said. “My focus now is why is this man, who is 72 years old and has a history of pretty serious health problems, being detained, especially given all of the reports coming out of people dying and receiving such poor treatment in ICE custody. With this potential liability, alone, aren’t they freaked out enough to say, ‘I’ll just release you?’”

ICE spokesman Phillips says the agency remains committed to providing a safe and humane environment for all those in its custody, including affording access to necessary and appropriate healthcare.

“ICE takes the death of any individual that occurs in the agency’s custody very seriously,” Phillips said. “Under ICE’s protocols, a detainee death triggers an immediate internal inquiry into the circumstances.”

He notes that the findings cited in the ACLU report are the result of exhaustive case reviews conducted by ICE’s own Office of Detention Oversight, which was established in 2009 as part of the agency’s comprehensive detention reforms. The agency has also established a cadre of Detainee Medical Coordinators who are assigned to each of the agency’s field offices to closely monitor complex cases.

Six of the eight facilities referenced in the ACLU report, including the Adelanto Detention Facility, Eloy Detention Center, ICA Farmville, Denver CDF, Elizabeth CDF, and El Paso SPC, have since transitioned to meet ICE’s 2011 Performance Based National Detention Standards, the most rigorous operating requirements imposed by the agency, Phillips said.  A seventh site, Weber County, has not been used by ICE to house immigration detainees since 2011, he said.
“These developments reflect ICE’s continuing resolve to improve the conditions of confinement for all those in the agency’s custody. ICE has made substantial progress on implementing reforms across its detention system and that important work is ongoing,” Phillips said.

Gonzalez sees the detention situation as a symptom of a larger issue, of tax dollars being overwhelmingly spent on enforcement — things like the militarization of the border, ICE officers picking people up in raids — leaving little left for the courts. She likened it to the drug war, where more is spent on enforcing the laws than on actually dealing with the drug problem.

“(The courts) simply are not provided with enough funding to have enough judges and prosecutors to hear the number of cases being presented by such huge enforcement,” Gonzalez said, noting that the courts have actually told the asylum offices that there are huge piles of Notices to Appear that they haven’t even looked at.”

“You can’t hold them in there forever,” Gonzalez said. “Honestly, right now, it’s such an overwhelming situation that almost everyone is going to be subject to ‘unreasonable’ detention. Advocates all over New Jersey are scrambling to determine how to address it.”