Detaining 'Unadjusted Refugees'

Great Analysis of the DHS's policy on detaining "unadjusted refugees" via Immigration Impact:

Despite [President Obama's] 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.