The Department of Homeland Security, Refugees, and Asylum Seekers

LCHR Report: The Department of Homeland Security, Refugees, and Asylum Seekers "

On Saturday, March 1, 2003, the enforcement and services functions of the Immigration and Naturalization Service (INS) were transferred to the new Department of Homeland Security. Unless the Administration, the new Department of Homeland Security and the U.S. Congress take concrete steps, asylum seekers and refugees who now fall within the jurisdiction of the new Department will become increasingly more vulnerable as immigration services and enforcement functions are separated and as immigration functions are viewed narrowly as matters of security.

The mission of the Department of Homeland Security is set out in Section 101 of the Homeland Security Act. The Department’s mission includes: preventing terrorist attacks in the U.S., reducing the vulnerability of the U.S. to terrorism, and minimizing the damage from terrorist attacks. There is no stated objective of ensuring that the U.S. lives up to its obligations to refugees and asylum seekers, obligations that stem from both U.S. law and international conventions as well as its tradition of welcoming those fleeing persecution.

The urgent need for the Department to appreciate this objective is underscored by the fact that the Department has chosen, as two of its initial decisions relating to asylum seekers, to take steps that seek to subject asylum seekers to extended periods of detention based on their nationality and to deprive these asylum seekers of the chance to have a meaningful review of the need for detention in their individual cases. First, on the eve of war with Iraq, the Department took the extraordinary step of announcing to the press a plan to detain asylum seekers of Iraqi and other unspecified nationalities for extended periods of time, a step which effectively labels refugees seeking asylum in the U.S. as threats to our security. This announcement was quickly followed by the Department's decision to ask the Attorney General to issue a ruling depriving Haitian asylum seekers (also asserted to be threats to "national security") of the right to have immigration judges make individualized determinations concerning the need for their detention.

There is no innate contradiction between the new department’s security objective and the broader government interest in providing a welcoming environment for newcomers to the United States, and in particular shelter from persecution. The transfer of responsibilities to the new department however requires an express recognition of the positive contribution refugees make to this country, and a clear mission to safeguard these U.S. values in its pursuit of enhanced security. The conduct of fair refugee and asylum procedures and the maintenance of security are objectives that can both be met. The former need not be sacrificed to the latter.

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