Washington, DC – The Biden administration has imprisoned tens of thousands of asylum seekers in violation of United States and international law, a rights group has said in a new report, just weeks before large numbers of people are expected to arrive at the country’s southern border.
In a report published on Thursday, Human Rights First said that Immigration and Customs Enforcement (ICE) has held tens of thousands of people in jails instead of allowing them to live in the US with their families or sponsors as their asylum cases are decided.
The group said that jailing asylum seekers is “inhumane, unnecessary, and wasteful” and has needlessly subjected people to severe physical and psychological harm, medical neglect and discrimination.
“Jailing asylum seekers is fundamentally dehumanising and cruel,” said Becky Gendelman, an associate attorney for research refugee protection at the group and the report’s author.
“It cuts them off from legal representation and subjects them to horrendous conditions of confinement, it inflicts physical and psychological harm and it can be re-traumatising for people who have fled persecution,” Gendelman told Al Jazeera in an interview.
The report, entitled “‘I’m a prisoner here’: Biden administration policies lock up asylum seekers”, found that since President Joe Biden took office in January of last year, asylum seekers were held in detention centres for 3.7 months on average.
This included those who passed their so-called credible fear interviews, during which an asylum seeker is expected to explain to an immigration officer why returning to their country of origin could put them in danger.
The detention of asylum seekers is generally prohibited under international law, except in exceptional circumstances. The International Covenant on Civil and Political Rights prohibits detention that is unreasonable, unnecessary, disproportionate or arbitrary.
Rights organisations also say the detention of asylum seekers, who have not committed a crime, is unlawful and a violation of their right to freedom of movement.
The report comes as the US on May 23 is expected to end a pandemic-era policy invoked in March 2020 that allowed authorities to expel the majority of those seeking asylum at the border, citing the need to protect the country from the spread of the coronavirus.
More than 1.8 million expulsions have been conducted under Title 42, with asylum seekers sent back to Mexico or their country of origin, according to government figures.
“While the Biden administration has turned away and expelled many asylum seekers under Title 42 it has also subjected many whom it doesn’t expel to prolonged and cruel detention,” Gendleman said.
Under an agreement with Mexico, the US can only expel people from Mexico, Guatemala, Honduras and El Salvador under Title 42.
Gendelman says many of those jailed have been asylum seekers whom the US could not expel to Mexico. According to the report, people from Cuba, Haiti, Nicaragua, Venezuela as well as several countries in Africa have been subjected to prolonged detention.
Biden had pledged to eliminate prolonged detention, end the use of for-profit immigration detention centres, and uphold the legal right to seek asylum. But amid record-high arrivals at the US-Mexico border and attacks from his Republican rivals, Biden has kept in place several restrictive policies that his predecessor Donald Trump had championed.
The Biden administration has come under frequent criticism from immigrant advocates and progressive Democratic leaders urging the president to do more to uphold its responsibility towards asylum seekers.
Trump, a president who made discouraging asylum an important policy goal, sought to detain asylum seekers for the duration of their proceedings, arguing most would not show up to their court hearings if they are allowed into the US while they wait for the outcome of their cases.
But this claim has been refuted, and according to TRAC Immigration, a data-gathering organisation at Syracuse University, in the 2019 fiscal year, 98.7 percent of asylum seekers who were not detained showed up to every court hearing.
Human Rights First’s report said the mass jailing of asylum seekers is also the result of Biden administration policy (PDF) that designates people who cross the border, including asylum seekers, as a “threat to border security” and a priority for enforcement, according to a February 2021 ICE memo.
“We urge the Biden administration to stop jailing asylum seekers as it ends the illegal Title 42 policy. It should instead welcome them with dignity and use community-based programmes,” Gendleman said.
DHS did not immediately respond to Al Jazeera’s request for comment on the report.
‘Like I was a criminal’
Salma, a human rights and opposition activist from Uganda, said she fled to the US in July 2021 after being detained and tortured. She claimed asylum after landing in Los Angeles, California. She said she was detained for six hours at the airport and then transported to the Adelanto detention centre. She said she was chained during the three-hour drive there.
“First of all, you’re hungry, you’re tired and then you’re chained,” Salma, 30, who used a pseudonym because her asylum case is still pending, told Al Jazeera. “They chained my hands, legs and wrists like I was a criminal,” she said.
Two days later, she was given a credible fear interview, which she passed. Still, she was not allowed to leave the detention centre; she said she was told it was because she did not have relatives in the US who could sponsor her.
She was also not able to contact a lawyer right away, her belongings, including her phone and passport, were taken away, and her hair locks were cut off. The detention centre was so cold, she said, that some women there got nosebleeds, while the food was of such low quality that it was often thrown away.
NEW: @humanrights1st report, "I'm a Prisoner Here," documents the jailing of tens of thousands of asylum seekers under the Biden administration in dangerous and cruel conditions. https://t.co/MoCg0Iluaf
— Rebecca Gendelman (@becky_gendelman) April 21, 2022
She was given a medical parole a month and a half later after she realised that she was pregnant. She said she had a miscarriage a month after her release. “There is no way someone can survive without eating proper food,” she said.
According to TRAC, 23,827 asylum decisions were made during the 2021 fiscal year, down from 60,079 a year prior. In 2021, the number of people who were granted asylum was 8,349 and an additional 402 were granted another type of relief.
US Justice Department data also showed that more than 1.5 million asylum cases were pending in the courts as of the first quarter of the 2022 fiscal year.
Meanwhile, Human Rights First’s report found that Black asylum seekers were detained on average for nearly 4.3 months – 27 percent longer than asylum seekers who are not Black.
Sabri, an asylum seeker who spoke to reporters on Thursday using a pseudonym, said he crossed the US-Mexico border in August 2021 after fleeing Sudan with his wife. He said his requests for parole were denied multiple times even after he passed his credible fear interview.
He said officers took their belongings and separated him from his wife. He was held at Winn Correctional Center in Louisiana, while his wife was sent to another detention centre in the state.
“I thought the US government would treat me well after everything that I had been through,” Sabri said. “But the government detained me for five-and-a-half months.”