March 19, 2003

Operation Liberty Shield – A Chance To Crack Down On Asylum fraud

Whatever else it is, the Department of Homeland Security’s “Operation Liberty Shield” is great news for immigration law enforcement - potentially.

The asylum detention provisions announced Monday by Secretary Ridge are some of most welcome and long-overdue measures ever designed for stopping asylum fraud and closing the detention revolving door of the EOIR Immigration Court system.

Asylees now account for more than 30,000 entries to the U.S. every year.

With Homeland Security now in control of all former Immigration and Naturalization Service functions, Secretary Ridge announced that the department would start detaining all asylum applicants from countries where al-Queda members, sympathizers and other terrorists originate. Bravo!

Detaining asylum-seekers throughout the deportation limbo of the EOIR Immigration Court makes good sense.

Secretary Ridge called it a “reasonable and prudent temporary action [to] make sure that those who are seeking asylum, number one, are who they say they are and, two, are legitimately seeking refuge in our country because of political repression at home, not because they choose to cause us harm or bring destruction to our shores.”

But Ridge’s action is only temporary. The concept of detaining asylum seekers “for the duration of their processing period” should be implemented permanently.

Asylum-seekers are one of the most egregious groups of fugitive aliens identified by the Office of Inspector General - in 1996, and again in February, 2003. [PDF version] They simply won’t allow themselves to be deported.

For aliens actually ordered deported in Immigration Court, who were not granted relief from removal, and who exhausted all of their lengthy appeals, the OIG found that:

97 percent of all asylum-seekers from ANY country who were released from immigration custody were never apprehended again by the federal government, and were never deported

94 percent of aliens from terrorist-supporting countries who were released from immigration detention were never found again, and were never deported

87 percent of all aliens released from immigration custody were never caught again, and were never deported

But if the aliens remained in immigration custody throughout the entire Immigration Court hearing process, guess what the Inspector General found?

An amazing 92 percent of detained aliens ordered removed were actually sent back to their native countries!

The OIG report documents the obvious -- it’s the detention, stupid!

After all, it’s easier to actually deport illegal aliens and criminal alien residents when they’re already locked up!

The Inspector General confirmed that releasing aliens for the purpose of attending future Immigration Court hearings is a disaster. The success rate for actual deportations drops from 92 percent to 13 percent as the aliens walk out of custody and back to the streets on an immigration bond.

And when the government releases illegal aliens who have no business being in the United States in the first place, anything is possible.

Detaining asylum-seekers will smoke out fraud and abuse in Immigration Court, reduce the outrageous 97 percent fugitive rate, and weed out opportunists abusing the “credible fear” asylum review process. “Operation Liberty Shield” is right on the money.

But the immigration judges may not agree. The EOIR could throw a monkey wrench in the plan because it still controls all the bond hearings and appeals in Immigration Court.

If an asylum-seeker is nabbed at any port of entry, Homeland Security has sole control over the alien's detention. The same is true for all aliens covered by expedited removal.

But illegal aliens who seek asylum once they’re within the U.S. are different. They have their custody status set by DHS - they’re either held without bond or given the opportunity to post an immigration bond. However, unlike “arriving aliens,” they have the right to have their custody status reviewed (translation: bond lowered) by the EOIR immigration judges.

My solution: opt for full enforcement of Section 235(b) of the Immigration Act, giving DHS expanded power to bypass Immigration Court altogether, as the Attorney General recently did for aliens arriving by sea.

Juan Mann [send him email] is a lawyer and the proprietor of DeportAliens.com.