[Blog]

The detention-oriented policy of DHS towards unadjusted refugees is particularly disturbing due to the vulnerable nature of those individuals who arrive on our shores in refugee status. Refugees are only admitted to the US once they have proven that they have experienced past persecution in their native country or have a well-founded fear of future persecution in that country. This persecution must be because of race, religion, nationality, membership in a particular social group, or political opinion. Subjecting unadjusted refugees to detention may exacerbate existing traumas in individuals who have experienced past persecution and runs counter to the intent behind the Refugee Act, which was to encourage individuals feeling persecution in their native countries to find safety and freedom in the United States through lawful immigration status.

There are several other reasons to be concerned by the ongoing practice of jailing unadjusted refugees:

• Very few refugees are even aware that they are required to obtain their green cards after being physically present in the US for one year. Currently, there is no system in place to alert them to this requirement. Making matters worse, the I-94 card issued to resettled refugees contains no expiration date, which many refugees interpret to mean that they are able to stay in the US permanently without further action.
• Once a refugee is detained for failing to apply for adjustment of status, he faces a lengthy time in detention, as he must remain detained throughout the pendency of his application. Although USCIS recently created an expedited route for green card applications brought by unadjusted refugees in detention, the adjudication process still takes approximately 4-6 months, and in some rare cases it can be longer than a year. Moreover, many refugees encounter delays in filing their applications because they have difficulty obtaining the hefty filing fee and arranging the necessary medical exam and vaccinations while they are in detention.
• If the adjustment application is denied and the refugee is placed in removal proceedings, this means even more months, or possibly years, of detention ahead. Because refugees are treated as “arriving aliens” —a special immigration category that affords fewer rights and protections -- they are not permitted to ask the Immigration Judge for release from detention under bond and are solely dependent on the mercy of the Department of Homeland Security to be released.

In its report, Human Rights Watch takes the position that it would be far more effective to do away with the requirement that refugees adjust their status after one year in the United States by conferring lawful permanent residence at the same time that an individual is granted asylum or admitted into the country under the refugee resettlement program. Because individuals are carefully vetted for possible grounds of inadmissibility during the process by which they obtain their refugee or asylee status, the work done by DHS during the adjustment stage is largely duplicative of these efforts – and quite costly for the agency.  Making permanent residence automatic for asylees and refugees would streamline the immigration process for these foreign nationals and, most importantly, bring an end to the harsh detention-oriented regime for refugees who fail to adjust.

While this would amount to a radical change in law, it is clear that radical changes are needed. It is hoped that the Human Rights Watch report, coupled with ongoing litigation in the US District Court for the District of Arizona (Dong v. Holder, No. 09-01594 (D. Ariz., August 27, 2009)) on this issue, will result in changes to how unadjusted refugees are treated under the immigration laws. In the meantime, if you are currently in the United States in refugee or asylee status but have not yet obtained LPR status, we recommend that you consult Willmoth Immigration Law to ensure that you remain in full compliance with the U.S. immigration laws.