United States: Circumstances in which US authorities seize an asylum claimant’s passport and/or other identity documents, including whether this happens if a person is detained prior to their credible fear interview; whether the person is given a copy of the seized documents or could request a copy of the seized documents; if requested, whether asylum claimants are provided copies as a matter of course
1. In Cases of Detention and/or Removal
The Department of Homeland Security (DHS)'s Immigration and Customs Enforcement (ICE) branch manages the US civil immigration detention system (US n.d.b). In correspondence with the Research Directorate, a unit chief of the ICE's Enforcement and Removal Operations (ERO) stated the following:
Upon initiation of proceedings for the removal of an alien, U.S. Immigration and Customs Enforcement (ICE) Enforcement and Removal Operations (ERO) will generally confiscate any foreign and domestic government-issued documents either in the alien’s possession or submitted to ICE ERO by the alien. ICE ERO will generally retain all confiscated documents during the pendency of proceedings, as well as with regard to aliens subject to a final order of removal, even if released from ICE ERO custody.
Upon release of an alien from detention, the decision to retain or return any particular document will be made on a case-by-case basis, and be based on operational and evidentiary needs. Copies of passports and other identification documents retained by ICE ERO may be provided to the alien upon assessment of the alien’s expressed need, unless there is an operational concern to restrict access. (ibid. 28 Apr. 2016)
The unit chief indicated that there is no legislation concerning the circumstances in which documents are seized and that "ICE officers seize documents under their authority as immigration officers" (ibid.).
In correspondence with the Research Directorate, the Deputy Legal Director for Human Rights First (HRF), a "non-profit, nonpartisan international human rights organization based in New York, Washington, DC and Houston" (HRF n.d.) that provides free legal representation to asylum applicants and advocates on refugee and asylum issues, provided information based on her experience and observation (Deputy Legal Director 11 Apr. 2016). She stated that if an asylum claimant is detained, DHS "routinely seizes whatever identity documents the person has in his or her possession" (ibid.). The same source explained that this typically happens when a person requests asylum upon arrival in the US or shortly after crossing the US-Mexico border and is detained before their credible fear interview (ibid.). She noted that the practice of seizing passports and other identity documents is "universal" in cases where the asylum claimant is detained and has the documents with them at the time of the detention (ibid.). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.
The Deputy Legal Director of HRF stated that the passport is supposed to be returned to the claimant after the claimant wins his or her case or is removed from the US by DHS, unless the document is found to be fraudulent, in which case it is retained permanently (ibid.). However, she noted that the documents are not always returned when a claimant is granted asylum, particularly if the claimant and/or his attorney fail to ask for them at that time, after which she described the process of recovering original documents from the DHS as "notoriously difficult" (ibid.). The same source explained that if a claimant was detained by DHS, released, and sought asylum in Canada before their immigration proceedings in the US were concluded, their passport and other identity documents would typically remain in the possession of DHS (ibid.). Similarly, a procedural manual for asylum representation published in 2015 by the National Immigrant Justice Center [1], reports that if DHS obtains the client's passport, it will not be returned until the proceedings in the US have ended (Oct. 2015, 64).
The Deputy Legal Director said that, in her experience, the claimant is not always given a copy of the seized documents by DHS, and that "the situations where DHS spontaneously gives a copy of those documents to the asylum claimant are in the minority" (Deputy Legal Director 11 Apr. 2016). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response. The Deputy Legal Director noted that government counsel is required to provide a copy of the document to the asylum claimant if they are introducing it as evidence, and, in other circumstances, will usually provide a copy if it is requested, particularly if the request is made in court or at a hearing (ibid.). However, she stated that,
if a person is released from detention without having received a copy of any documents seized from him or her by DHS, getting a copy of them from DHS counsel could prove logistically difficult (due to file transfers and lack of staffing of the case while it is between courts) and as a practical matter this would likely require the filing of a request under the Freedom of Information Act. (ibid.)
2. Cases Not Involving Detention
In correspondence with the Research Directorate, a senior liaison officer with the US Citizenship and Immigration Services (USCIS) explained that the process by which USCIS handles original documents submitted by asylum claimants is outlined in the Affirmative Asylum Procedures Manual [2] (US 12 Apr. 2016). The manual indicates that when a claimant provides an original document, the asylum officer makes a copy of the document, signs it and writes "'original seen and returned'" along with the date (US Dec. 2015, 16). The manual also states the following:
[a]n Asylum Officer may receive a document as evidence and consider it in conjunction with the adjudication of the asylum application. The Asylum Officer may retain the document for purposes of determining its authenticity until the conclusion of the adjudication.
When an adjudication is complete and a document has been determined to be authentic and to belong to the bearer and is not needed by USCIS for any other lawful purpose, USCIS must promptly return the document to the applicant. The Asylum Office may give the original document to the applicant at the time he or she picks up the decision or may mail the document to the applicant. If the Asylum Office returns the document to the applicant in person, the applicant should sign on the file copy of the document that he or she received the original. If the Asylum Office mails the document, it must be sent via certified mail with a return receipt.
After the completion of the adjudication by the Asylum Officer, a fraudulent document or document that was fraudulently obtained may be retained. The Asylum Officer does not need the applicant's permission to retain the document. (US Dec. 2015, 16-17).
The Deputy Legal Director of HRF stated that,
[w]here an asylum seeker is never detained, DHS may or may not come into possession of the person's passport or other identification documents and may or may not retain them. Lawyers typically offer to make such original documents available to DHS counsel for their review when a case is in removal proceedings, and DHS counsel may or may not avail themselves of that option. (Deputy Legal Director 11 Apr. 2016)
In correspondence with the Research Directorate, a senior attorney at Freedom House Detroit, a temporary home for asylum seekers in Detroit that assists claimants in the affirmative asylum, stated that it is not common for US authorities to seize an asylum claimant's passports during the affirmative process, unless it is suspected of being fraudulent or containing fraudulent information, but it is "more common" during the defensive asylum process (Senior attorney 19 Apr. 2016).
Regarding the procedures for requesting the return of original documents submitted to USCIS "to establish eligibility for any immigration benefit," the USCIS senior liaison officer said that there is a form and instructions for requesting the return of original documents (G-884) (US 12 Apr. 2016). This form, G-884, Request for the Return of Original Documents (Attachment 1), as well as the document, Instructions for Form G-884, Request for the Return of Original Documents (Attachment 2), are attached to this Response. For a pending case, the USCIS website instructs requesters to submit the G-884 to the USCIS district, sub-office or service center that is processing the claim, or, if a final decision was issued, to the "USCIS office or service center that performed the last action on your case" (ibid. n.d.a). The website of the DHS's ICE branch notes that requests for documents in Alien files (A-files) are under the control of USCIS and requests for documents should be directed to USCIS (ibid. n.d.c).
This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of sources consulted in researching this Information Request.
Notes
[1] The National Immigrant Justice Center (NIJC) is a program of Heartland Alliance, an "anti-poverty organization" that "works in communities in the US and abroad to serve those who are homeless, living in poverty, or seeking safety" (Heartland Alliance n.d.). The NIJC advocates for and provides legal services to immigrants, refugees, and asylum seekers in the US with the help of pro bono attorneys (NIJC n.d.).
[2] According to the USCIS website, there are two ways of obtaining asylum in the US: the affirmative process and the defensive process (US n.d.d). Claimants who are physically present in the US, regardless of their immigration status, can apply for asylum affirmatively by making an application to USCIS (ibid.). The defensive process is for applicants in removal proceedings and those claims are brought before an immigration judge in adversarial ("courtroom-like") proceedings (ibid.). In cases where affirmative asylum claims are rejected, USCIS refers the case to the immigration courts for the defensive process (ibid.).
References
Deputy Legal Director, Refugee Representation, Human Rights First (HRF). 11 April 2016. Correspondence with the Research Directorate.
Heartland Alliance. N.d. "About Us." [Accessed 25 Apr. 2016]
Human Rights First (HRF). N.d. "About Us." [Accessed 25 Apr. 2016]
National Immigration Justice Center (NIJC). October 2015. Basic Procedural Manual for Asylum Representation Affirmatively and in Removal Proceedings. [Accessed 12 Apr. 2016]
National Immigration Justice Center (NIJC). N.d. "About NJIC." [Accessed 25 Apr. 2016]
Senior attorney, Freedom House Detroit. 19 April 2016. Correspondence with the Research Directorate.
United States (US). 28 April 2016. Enforcement and Removal Operations (ERO), Immigration and Customs Enforcement (ICE), Department of Homeland Security (DHS). Correspondence from a unit chief to the Research Directorate.
United States (US). 12 April 2016. Citizenship and Immigration Services (USCIS), Department of Homeland Security. Correspondence from a senior liaison officer.
United States (US). December 2015. Citizenship and Immigration Services (USCIS), Department of Homeland Security (DHS). Asylum Division: Affirmative Asylum Procedures Manual (AAPM). [Accessed 12 Apr. 2016]
United States (US). N.d.a. Citizenship and Immigration Services (USCIS), Department of Homeland Security (DHS). "G-884, Return of Original Documents." [Accessed 19 Apr. 2016]
United States (US). N.d.b. Immigration and Customs Enforcement (ICE), Department of Homeland Security (DHS). "Detention Management." [Accessed 19 Apr. 2016]
United States (US). N.d.c. Immigration and Customs Enforcement (ICE), Department of Homeland Security (DHS). "FOIA Overview." [Accessed 19 Apr. 2016]
United States (US). N.d.d. Citizenship and Immigration Services (USCIS), Department of Homeland Security (DHS). "Obtaining Asylum in the United States." [Accessed 20 Apr. 2016]
Additional Sources Consulted
Oral sources: America Immigration Lawyers Association; Americans for Immigration Justice; National Immigration Justice Center; United States – Immigration and Customs Enforcement, Department of Homeland Security, embassy in Ottawa.
Attachments
- United States (US). N.d. Citizenship and Immigration Services (USCIS), Department of Homeland Security (DHS). "G-884, Request for the Return of Original Documents." [Accessed 19 Apr. 2016]
- United States (US). N.d. Citizenship and Immigration Services (USCIS), Department of Homeland Security (DHS). "Instructions for Form G-884, Request for the Return of Original Documents." [Accessed 19 Apr. 2016]