The Morton Memo and Asylum Seekers:

An Overview of the U.S. Mandatory

Detention Policy

VANESSA WOODMAN DE LAZO

ABSTRACT
Non-refoulement compels the very existence of refugee and asylum
law. Under this international customary norm, nations agree that no one
shall be forced back into a state of persecution if it can be shown that his or
her life or freedom would be threatened on account of race, religion,
nationality, membership in a particular social group, or political opinion.
However, this and other rights are threatened when asylum seekers are
forced into detention upon arrival to the United States. In 2010, John
Morton, former Director of ICE, issued a memorandum outlining the civil
immigration-enforcement priorities, as they relate to the apprehension,
detention, and removal of non-citizens. Of the three groups of immigration
offenders outlined in the memo, individuals posing a threat to national
security or the public interest remain DHSs and ICEs main concern.
Despite the fact that U.S. law statutorily protects non-refoulement
under the Refugee Act of 1980, the subsequent interpretation of the Act, in
conjunction with the mandatory detention policies enforced under the
Morton Memo, has led to the deterioration of asylum seekers entitled
protections in the United States. The Morton Memo, as applied to asylum
seekers, frustrates the applicants rights to counsel which inevitably results
in reducing their chances of success, regardless of the authenticity of their
claims. This results in the repatriation of tens of thousands of genuine
refugees each year, in direct violation of non-refoulement. Even though
there are viable alternative methods to detention that cost a fraction of the

Juris Doctor, magna cum laude, New England Law | Boston (2014). B.A., Comparative
Religion, University of Vermont (2006). I would like to thank my husband and my family for
all of their love and support.

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price and could lessen the burden placed on pro bono attorneys, ICEs
current enforcement of the Morton Memo and its parole guidelines
continue to violate international law. Further consideration must be given
to our international obligations, the applicants right to counsel, and the
guidelines for humanitarian grants of parole so that asylum seekers have a
fair chance of overcoming their unique and unfortunate condition.

INTRODUCTION

he concept of sheltering and protecting a stranger may seem at odds

with modern society, especially when the stranger is foreign to the
custodians culture and customs; however, the tradition of providing
sanctuary is a notion interlaced throughout the tapestry of humanitys rich
and complex history.1 Refugee law, in modern America, is one way
individuals fleeing persecution from countries all across the world are able
to access the American Dream.2 Benefitting from our fiercely-protected
civil liberties, asylum seekers may find refuge in a land far away from
home.3 Unlike many other areas of law, U.S. refugee law is part of a
greater constellation of interdependent sources of international law which
has matured over centuries in response to the global phenomenon of fearmotivated flight, or human displacement caused by serious human rights
violations.4
Domestic refugee law determines which individuals may find
sanctuary in the United States and which individuals may not. 5 Through
regulating, restricting, and defining the ways in which foreigners can
access the protection of U.S. law, multiple government agencies work to
defend our borders and values while upholding our obligations under
international law.6 International refugee law, on the other hand, has a
much broader and complex duty.7 Acting predominantly through the
United Nations High Commissioner for Refugees (UNHCR),
international refugee law establishes and defends the rights of all
individuals who, as potential or actual victims of persecution, have been

1 KAREN MUSALO ET AL., REFUGEE LAW AND POLICY: A COMPARATIVE AND INTERNATIONAL
APPROACH 3 (Carolina Academic Press 4th ed. 2011) [hereinafter REFUGEE LAW].
2

Id.
See id.
4 Id.
5 See id. at 4.
6 See id.
7 REFUGEE LAW, supra note 1, at 4.
3

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deprived of formal or effective protection in their states of origin.8 Only

after international refugee law articulates the refugee standard does the
United States finds a basis for providing individuals with forms of relief
and legal protectionmost typically and desirably in the form of asylum.9
International and domestic differences aside, one of the overall notions
that compels the very existence of refugee and asylum law is the concept of
non-refoulement.10 Under this notion, nations agree that no one shall be
forced back into the control of the persecuting state which forced them to
flee if it can be shown that the persons life or freedom would be
threatened on account of race, religion, nationality, membership in a
particular social group, or political opinion. 11 This theory of protection
reflects the international communitys devout pledge to guarantee all
persons the enjoyment of certain human rights, including the rights to life,
freedom from torture, and liberty and security of the person. 12 These, and
other rights, are threatened when an asylum seeker is forced to return to a
life of inevitable persecution.13
However, these rights are also threatened when asylum seekers are
forced into detention upon arrival to the United States. 14 Policies that
enforce the detention of non-citizens arriving with faulty immigration
documents, or no documents at all, fail to consider the unique and
unfortunate plight of the asylum seeker. 15 Most often, asylum seekers are
fleeing from their home countries and are either unable or unwilling to
expose themselves to their ruling governments to obtain the necessary
documents required to leave the country and immigrate into the United
States.16 Furthermore, it is often difficult for asylum seekers to prove their
claims of persecution upon arrival because many of them have endured
unspeakable atrocities, suffer from post-traumatic stress and other anxietyrelated disorders, and have not had the time or the wherewithal to create a
compelling and comprehensive file in English documenting the various
8

Id.
Id.
10 See United Nations Convention Relating to the Status of Refugees, art. 33, July 28, 1951,
19 U.S.T. 6259, 189 U.N.T.S. 137 [hereinafter 1951 Convention].
9

11

See id.
U.N. High Commr for Refugees, UNHCR Note on the Principle of Non-Refoulement (Nov.
1997), http://www.unhcr.org/refworld/docid/438c6d972.html [hereinafter UNHCR Note].
13 Id.
14 See Kristen M. Jarvis Johnson, Fearing the United States: Rethinking Mandatory Detention of
Asylum Seekers, 59 ADMIN. L. REV. 589, 59192 (2007).
12

15

See id.
See Mary Meg McCarthy, Pro Bono Attorneys: Making a Life & Death Difference in Asylum
Cases, CBA REC., May 2001, at 42, 42.
16

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stages of their horrific lives.17 This difficulty is exacerbated when asylum

seekers are held in a U.S. detention facility and are unable to secure
effective legal counsel to assist them in creating a viable claim for asylum
and/or withholding of removal.18
This Note argues that the current U.S. immigration detention policy,
prioritized and enforced through John Mortons 2010 memorandum,
violates the United States obligation under international law. Furthermore,
as applied to asylum seekers, the policy directly contradicts its announced
purposethe conservation of scarce fiscal resources. 19 Part I describes the
international origin of refugee and asylum law. Part II demonstrates how
the United States adopted international policies through the ratification of
treaties and the enactment of legislation. Additionally, Part II outlines the
current policy behind the Department of Homeland Securitys (DHS)
U.S. immigration detention system, as articulated in the 2010
memorandum. Part III argues that the detention policy under the
memorandum is contrary to the principle of non-refoulement. Part IV
asserts that the U.S. detention policy, as applied to asylum seekers, neither
protects national security, nor is fiscally sound as an approach to the
unique legal issues that their cases present.
I.

The Origin of Refugee and Asylum Law

A. The Geneva Convention of 1951

State-supported persecution of classes within a society is a perpetual

condition of humanity, yet the international communitys legal
responsibility to protect the victims of such persecution did not emerge
until after World War I.20 In 1921, the League of Nations elected a High
Commissioner to define, allocate, and repatriate Russian refugees
following the collapse of the Ottoman Empire.21 This marked the first
attempt by the international community to create legal protection for
victims of persecution.22 By 1951in the face of one of the greatest
17 See Noel Brennan, A View from the Immigration Bench, 78 FORDHAM L. REV. 623, 62425
(2009).
18 Jorge Bustamante, U.N. Gen. Assembly Human Rights Council, Promotion and
Protection of All Human Rights, Civil, Political, Economic, Social, and Cultural Rights,
Including the Right to Development: Rep. of the Special Rapporteur on the Human Rights of
Migrants: Addendum: Mission to the United States of America, 68, U.N. Doc.
A/HRC/7/12/Add.2 (2008) [hereinafter Bustamente Report].
19

See infra Parts IIIIV.

See REFUGEE LAW, supra note 1, at 19.
21 Id.
22 See id.
20

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humanitarian disasters of our timethe UNHCR emerged to provide

Holocaust victims international protection.23
The Geneva Convention Relating to the Status of Refugees (the
Convention) attempted to define ways that certain classes could qualify
for asylum in other countries, mostly within the European region.24 To
obtain protection, an individual had to qualify as a refugee under the
technical definition articulated in Article I of the Convention. 25 This
definition required that the victim have a well-founded fear of being
persecuted for reasons of race, religion, nationality, membership of a
particular social group or political opinion, as a result of events that
occurred in Europe before January 1, 1951.26 The Convention also required
that the refugee be currently located outside of his or her country of
national origin and unable or unwilling to return because of a wellfounded fear of persecution.27 Despite the potential for universal
characterization, it eventually became clear that geographical and temporal
limitations restricted the Conventions definition.28
B. The 1967 Protocol
In response to the limitations of the Conventions definition, the
Protocol Relating to the Status of Refugees (Protocol) was enacted in
1967.29 Lifting its predecessors myopic boundaries, the Protocol expanded
the Conventions original definition by recognizing all victims of
persecution as refugeesregardless of whether their well-founded fear of
persecution arose from any time period in any geographical region.30 Other
than expanding the geographical and temporal scope of a refugee, the
Protocol did not make any additional changes to the state of the law.31
C. Non-Refoulement
Rooted within the very basis of refugee and asylum law is the concept
of non-refoulement.32 This idea derives from the French term refouler and is
23

See id. at 1920, 23.

See 1951 Convention, supra note 10.
25 See id.; REFUGEE LAW, supra note 1, at 3334.
26 1951 Convention, supra note 10.
27 Id.
28 REFUGEE LAW, supra note 1, at 34.
29 Id.
30 See Protocol Relating to the Status of Refugees art. 1, Jan. 31, 1967, 19 U.S.T. 6223, 606
U.N.T.S. 267 [hereinafter 1967 Protocol].
24

31
32

REFUGEE LAW, supra note 1, at 34.

See 1951 Convention, supra note 10.

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most generally associated with refusing entry at an international border.33

Under this concept, [n]o Contracting State shall expel or return (refoule)
a refugee in any manner whatsoever to the frontiers of territories where his
life or freedom would be threatened on account of his race, religion,
nationality, membership of a particular social group or political opinion.34
This protection is now a customary norm in international refugee and
asylum lawcharacterized as a corner-stone of the international
protection of refugees[.]35
The non-refoulement principle is also reflected in the universal right to
seek and enjoy a life free from persecution, as set forth in Article 14 of the
Universal Declaration of Human Rights. 36 Non-refoulement, as described
in both articulations of international law, reflects the international
communitys unfaltering commitment to guarantee all persons the
enjoyment of certain human rights, including: life; freedom from torture
and other inhumane treatment or punishment; and liberty and security of
the person.37 Forcing an asylum seeker to return to a life of perpetual
danger and foreseeable persecution endangers these and other rights in
direct contradiction of the universal obligation of non-refoulement.38
Under the Convention, parties are not required to offer admission to an
arriving refugee.39 Instead, the Convention prohibits parties from forcing
asylum seekers back into their persecutors control upon determination
that the return would threaten their lives or freedom.40 This restriction on
treaty parties, unlike other normalcies in immigration law, is unique
because it is not conditioned upon the legal presence of the non-citizen
within the borders of a foreign land.41 Therefore, the international
33 See Elwin Griffith, Problems of Interpretation in Asylum and Withholding of Deportation
Proceedings Under the Immigration and Nationality Act, 18 LOY. L.A. INTL & COMP. L.J. 255, 276
(1996).
34

1951 Convention, supra note 10.

See James E. Crowe, III, Running Afoul of the Principle of Non-Refoulement: Expedited
Removal Under the Illegal Immigration Reform and Immigrant Responsibility Act, 18 ST. LOUIS U.
PUB. L. REV. 291, 299 (1999) (quoting COLLOQUIUM ON THE INTERNATIONAL PROTECTION OF
REFUGEES IN CENTRAL AMERICA, MEXICO AND PANAMA, CARTAGENA DECLARATION ON
REFUGEES (Nov. 22, 1984), available at http://www.oas.org/dil/1984_cartagena_declaration_on
35

_refugees.pdf).
36 See UNHCR Note, supra note 12.
37 Id.
38 Id.
39 See Crowe, supra note 35, at 297.
40 Id.
41 See 8 U.S.C. 1158(a)(1) (2012); Kendall Coffey, The Due Process Right to Seek Asylum in the
United States: The Immigration Dilemma and Constitutional Controversy, 19 YALE L. & POLY REV.

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community interpreted and upheld non-refoulement as a right guaranteed

to all asylum seekers regardless of the illegality of their status and
irrespective of whether or not they have been formally recognized as
refugees.42
II. Domestic Adoption
A. United States and the Refugee Act of 1980
While the United States was not a party to the original Convention of
1951, it acceded to the Protocol in 1967.43 However, adherence to the
principles set forth in the Protocol remained discretionary until 1980 when
Congress passed the Refugee Act.44 The Refugee Act codified the doctrines
articulated in the Convention and the Protocol, effectively binding the
United States to the requirements imposed upon signatory parties. 45
Through the enactment of the Refugee Act, the United States bound itself
to the non-refoulement principle and pledged to never forcibly return a
person arriving at its borders upon finding that such person has a wellfounded fear of persecution.46
The Refugee Act created two possible forms of legal protection for
victims of persecution.47 First, following statutory procedures, if arriving
non-citizens can meet their burdens of proofto show that they are
refugees within the meaning of the Refugee Actvarious agencies acting
on behalf of the U.S. government have discretion to grant asylum. 48 The
discretionary status of asylum includes a pathway to permanent residence,
which ultimately leads to citizenship through naturalization. 49 On the other
hand, if arriving non-citizens can show that their life or freedom would be
threatened on account of one of the five protected grounds, the agency is
303, 313 (2001).
42 See U.N. High Commr for Refugees, Conclusion Adopted by the Executive Committee
on the International Protection of Refugees 7 (Dec. 2009), available at http://www.refworld.org/
docid/4b28bf1f2.html.
43 Crowe, supra note 35, at 302.
44 Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102 (codified as amended in scattered
sections of 8 U.S.C.); Crowe, supra note 35, at 302.
45 See Crowe, supra note 35, at 302.
46 Id. at 300.
47 Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102 (codified as amended in scattered
sections of 8 U.S.C.); see Crowe, supra note 35, at 30203.
48 8 U.S.C. 1158(b)(1)(A) (2012).
49 See Benefits and Responsibilities of Asylees, U.S. CITIZENSHIP IMMIGR. SERVICES, http://
www.uscis.gov/humanitarian/refugees-asylum/asylum/benefits-and-responsibilities-asylees
(last updated Apr. 1, 2011).

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mandated by the non-refoulement principle to grant them a form of relief

known as withholding of removal.50 Unlike asylum, this legal status does
not afford direct permanent-residency benefits.51 Although arriving noncitizens can receive work authorization through withholding of removal, 52
they cannot adjust their statuses to permanent residence or gain
citizenship.53 By codifying the definition of refugee into U.S. domestic
law, and formally recognizing non-refoulement by creating the
withholding of removal status the Refugee Act represented an important
advancement in the United States commitment to upholding international
law and policy.54
B. Reform and Detention
Issues in immigration law often revolve around detention. 55 In 1996,
Congress enacted the Illegal Immigrant Reform and Immigrant
Responsibility Act (IIRIRA) which dramatically expanded the use of
detention in both exclusion and removal proceedings.56 In 2004, under the
shadow of 9/11, the newly revived phrase of national security,
commonly invoked in the immigration law arena, was used to justify the
enactment of the Intelligence Reform and Terrorist Prevention Act. 57 This
Act authorized the construction of approximately 40,000 additional
detention bed spaces, which doubled the average bed space used at the
time.58 Predictions estimated this construction would increase detention

50

See 8 U.S.C. 1231(b)(3)(A) (2012); Crowe, supra note 35, at 30203.

See In re Salim, 18 I. & N. Dec. 311, 315 (BIA 1982).
52 See Hiroshi Motomura, Haitian Asylum Seekers: Interdiction and Immigrants Rights, 26
CORNELL INTL L.J. 695, 71415 (1993).
51

53

See id.
See Crowe, supra note 35, at 30203.
55 See, e.g., NATL IMMIGR. F., THE MATH OF IMMIGRATION DETENTION: RUNAWAY COSTS FOR
IMMIGRATION DETENTION DO NOT ADD UP TO SENSIBLE POLICIES 1 (Aug. 2012) [hereinafter THE
MATH], available at http://www.immigrationforum.org/images/uploads/MathofImmigration
54

Detention2012.pdf; Johnson, supra note 14, at 601.

56 Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No.104208, 110 Stat. 3009-546 (codified as amended in scattered sections of 8 U.S.C.); see Crowe, supra
note 35, at 291.
57 Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No. 108-458, 118 Stat.
3638 (codified as amended in scattered sections of 50 U.S.C.).
58

During the first two quarters of Fiscal-Year 2004, the Department of Homeland Security
detained an average of 22,812 non-citizens daily. See MICHAEL JOHN GARCIA & RUTH ELLEN
WASEM, CONG. RESEARCH SERV., RL32616, 9/11 COMMISSION: CURRENT LEGISLATIVE PROPOSALS
FOR U.S. IMMIGRATION LAW AND POLICY 9 (2004), available at http://digital.library.
unt.edu/ark:/67531/metacrs5952/m1/1/high_res_d/RL32616_2004Oct18.pdf.

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costs by $3.2 million per day.59

As a result of these laws, asylum seekers became one of the groups
targeted for detention as illegal entrants.60 Although the UNHCR
Guidelines officially prohibit punishment that restricts the movement of
asylum seekers on account of their illegal presence, these policies continue
to be carried out.61 Pursuant to the regulations, asylum seekers arriving at
the U.S. border without the proper documentation are placed into
expedited removal proceedings.62 During this time, asylum seekers will
almost inevitably remain in a U.S. detention facility awaiting a credible fear
interview63 and final adjudication of their claims.64 The time that asylum
seekers spend in detention facilities varies from several months to several
years, depending on the merits and procedural intricacies of their claims.65
Between 1954 and 1982, the U.S. government paroled most asylum
seekers into the country while they awaited adjudication of their claims.66
However, by the mid-eighties, mandatory detention of asylum seekers
wasand still remainsthe procedural norm in response to the increasing
undocumented population.67 The United States and other countries that
commonly detain newly-arrived asylum seekers argue that if they do not
invoke a standard detention practice, it is unlikely that an asylum seeker
will cooperate with the adjudicatory process.68 These nations also
rationalize their policies by arguing that asylum seekers should be
detained in the interest of national security. 69 However, there is a third, and

59 See Johnson, supra note 14, at 601 n.60 (This figure is the total increase in detention costs
if the beds were filled at the approximate $80 per detainee, per day cost.).
60 Id. at 59397.
61 See U.N. HIGH COMMR FOR REFUGEES, GUIDELINES ON APPLICABLE CRITERIA AND
STANDARDS RELATING TO THE DETENTION OF ASYLUM-SEEKERS 1 (1999), available at http://
www.coe.int/t/dg3/children/News/DetentionGuidelinesENG.pdf [hereinafter GUIDELINES];
Johnson, supra note 14, at 59395.
62 Through the enactment of IIRIRA and subsequent immigration legislation, modern
immigration law and DHS regulations now require that all inadmissible non-citizens arriving
at a port of entry, including asylum seekers who are inadmissible for lacking valid
immigration documentation, be placed into expedited removal. See Johnson, supra note 14, at
590.
63

8 U.S.C. 1225(b)(1)(B) (2012).

See 8 U.S.C. 1229(a) (2012) (detailing the removal proceeding process, which applies to
defensive asylum seekers).
64

65

See Johnson, supra note 14, at 590.

See REFUGEE LAW, supra note 1, at 96364.
67 See id. at 964.
68 Id.
69 Id.
66

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often unstated, argument explaining that these countries invoke such harsh
practices as a way to deter individuals fleeing persecution from seeking
asylum.70 The historical record is clear that the deterrence rationale
actually prompted the [United States] to adopt a more strict, standard
detention policy in the early 1980s.71
C. The Morton Memo
While national security was used as a reason to justify the dramatic
increase in the use of detention in immigration removal proceedings in the
early 1980s and again in 2004, from 1996 to 2006 the United States
imprisoned 65% of the detained non-citizen population for non-violent
criminal offenses.72 Furthermore, in 2009 and 2010, over half of the noncitizens detained did not have a criminal record, and nearly 20% of the
detainees who did have a record had one because of a traffic violation.73
With increasing immigration violations and decreasing resources, over the
past two years, U.S. Immigration and Customs Enforcement (ICE) has
attempted to monitor its haphazard and sweeping policies to more
effectively target individuals whose removal remains a high priority to the
agency.74
In 2010, John Morton, former Director of ICE, issued a memorandum
(Morton Memo) outlining the civil immigration enforcement priorities as
they relate to the apprehension, detention, and removal of non-citizens.75
ICE only has the funding to deport less than 4% of the estimated 11 million
undocumented persons.76 In the face of these economic restrictions, the
Morton Memo announces three different groups that the agency will
prioritize as targets of its removal efforts: (1) non-citizens who pose a threat
to national and public security; (2) recent entrants of the United States who
do not have valid immigration documents; and (3) persons who remain in
the United States despite a removal order issued against them. 77

70 See Michele R. Pistone, Justice Delayed Is Justice Denied: A Proposal for Ending the
Unnecessary Detention of Asylum Seekers, 12 HARV. HUM. RTS. J. 197, 225 (1999).
71

Id.
See THE MATH, supra note 55, at 4.
73 Id.
74 Id.
75 SHOBA SIVAPRASAD WADHIA, IMMIGR. POLY CTR., READING THE MORTON MEMO:
FEDERAL PRIORITIES AND PROSECUTORIAL DISCRETION 4 (Dec. 2010) [hereinafter READING THE
MORTON MEMO], available at https://cliniclegal.org/sites/default/files/Shoba%20Wadhia%20
72

The%20Morton%20Memo%20December%202010.pdf.
76 Id.
77 Memorandum from John Morton, Assistant Secy, ICE, on Civil Immigration

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Individuals who pose a threat to national security or the public interest

remain DHSs and ICEs main concern of the three groups of immigration
offenders outlined in the Morton Memo.78
As a result of the Morton Memo, members of the three prioritized
groups, once apprehended, will most likely be subject to mandatory
detention pending the outcome of their cases.79 Asylum seekers typically
fall within the second group as they often arrive to the country without
valid immigration documents. 80 The Morton Memo states that the agencys
main goal is to use its limited resources in the most effective and efficient
way possible in order to combat breaches of national security and threats to
public safety.81 Although this goal sounds perfectly reasonable in theory, a
critical review of the policies and procedures executed under the authority
of the Morton Memo, as applied to asylum seekers, demonstrates a
violation of international law,82 as well as outrageous and irrational
spending habits that contradict the resource-saving goals the Morton
Memo purports to achieve.83
Because the Refugee Act allowed for two forms of relief, one of the
earliest issues the courts addressed was the different burden-of-proof
standards each form required.84 In the seminal cases, INS v. Stevic85 and INS
v. Cardoza-Fonseca,86 the U.S. Supreme Court considered the burdens of
proof necessary to satisfy the statutory provisions for withholding of
removal and asylum.87 In Cardoza-Fonseca, the Court held that in order to
bring an asylum claim, applicants must show that they were harmed or
have a well-founded fear of being harmed in the future on account of their
race, religion, nationality, membership in a particular social group, or
political opinion.88 Applicants must further establish that their government,
or persons that their government was unable to control, inflicted the

Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens (June 30,
2010) [hereinafter The Memo], available at http://www.ice.gov/doclib/news/releases/2010/civilenforcement-priorities.pdf; see also READING THE MORTON MEMO, supra note 75.
78

See READING THE MORTON MEMO, supra note 75, at 45.

See id. at 78.
80 See id. at 8.
81 See The Memo, supra note 77.
82 See infra Part III.
83 See infra Part IV.
84 See REFUGEE LAW, supra note 1, at 171.
85 467 U.S. 407 (1984).
86 480 U.S. 421 (1987).
87 REFUGEE LAW, supra note 1, at 169.
88 480 U.S. at 43032.
79

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harm.89 In Stevic, the Court held that persons seeking withholding of

removal must essentially prove the same claim as an asylum seeker;
however, they are also required to show that if returned to their country of
origin, it is more likely than not that they would be persecuted for one of
the five protected grounds.90
The standard for withholding of removal is much greater than an
asylum claim.91 Furthermore, the withholding-of-removal form of relief,
which was created to uphold the non-refoulement principle, affords fewer
benefits than asylum and, on a practical level, is very difficult to obtain. 92
Under both the Stevic and Cardoza-Fonseca decisions, the Court wrongly
insisted that Convention refugees, that is people who are able to prove that
they are entitled to asylum under the Refugee Act, are not per se entitled to
the non-refoulement principle articulated in Article 33 of the Protocol.93
Despite the consensus among all other Convention signatories, the United
States stands alone in holding that not all refugees who establish a wellfounded fear of persecution are entitled to non-refoulement.94 While all
refugees may apply for a discretionary grant of asylum . . . an unlucky
sub-set with negative discretionary factors and proof short of the more
likely than not level may, according to the Supreme Court, be forcibly
returned to their persecutors.95 These decisions and their progeny
effectively unmoored U.S. law from the international norms Congress
attempted to implement by ratifying the Protocol in 1968 and enacting the
Refugee Act in 1980.96 Since that time, the United States remains an
outlierworsening the situation by imposing an arbitrary mandatory
detention policy that defiles the standards and principles of international
refugee and asylum law.97

89

In re Kasinga, 21 I. & N. Dec. 357, 365 (BIA 1996).

467 U.S. at 42930.
91 Cardoza-Fonseca, 480 U.S. at 451 & n.* (Blackmun, J., concurring).
92 See In re Salim, 18 I. & N. Dec. 311, 315 (BIA 1982); Joan Fitzpatrick, The International
Dimension of U.S. Refugee Law, 15 BERKELEY J. INTL L. 1, 78 (1997).
93 See REFUGEE LAW, supra note 1, at 169.
94 Id.
95 See Fitzpatrick, supra note 92, at 7.
96 Id. at 1, 3.
97 See REFUGEE LAW, supra note 1, at 963.
90

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ANALYSIS
III. The U.S. Mandatory Detention Policy Violates International Treaty
Obligations
A. The U.S. Detention Policy Denies Asylum Applicants a Fair Trial
The detention of asylum seekers is one of the most controversial issues
in modern-day refugee and asylum law.98 In 1999, UNHCR proclaimed that
confinement of asylum seekers should be an exception to the general rule
that prohibits Convention and/or Protocol signatories from restricting the
asylum seekers movementespecially if done in an effort to punish or
deter individuals seeking refuge from using fraudulent documents. 99
Despite these guidelines, the Morton Memo encourages, as a general and
acceptable practice, detaining asylum seekers based on their use of
fraudulent documents or complete absence of documents, which in turn
causes their illegal presence in the United States.100
Detaining asylum seekers in the United States creates an array of
problemsthe scope of which is beyond this Note. 101 However, when
considering the difficulties of representing asylum seekers detained in ICE
facilities, it becomes alarmingly clear that the Morton Memos detention
policy not only contravenes the principles of non-refoulement, but also
may violate due process.102
1.

Asylum Seekers Deserve A Fair Trial

Most non-citizens who face removal proceedings in the United States

lack legal representation.103 Unlike indigent criminal defendants who enjoy

98

Id.
See GUIDELINES, supra note 61, at 1.
100 See The Memo, supra note 77.
101 See, e.g., Dr. Carmen Lawrence MP (ALP), Federal Member for Fremantle, Speech at
House of Representatives, Canberra: Indefinite Detention, Cornelia Rau and the Denial of
Mental Illness (Mar. 22, 2005), available at http://www.safecom.org.au/lawrence01.htm (Longterm detention of asylum seekers not only violates their human rights, it is damaging to their
health.); Barbara Cochrane Alexander, Detention of Asylum-Seekers in the United States, AM.,
http://www.wcl.american.edu/hrbrief/v7i2/detention.htm (last visited Apr. 14, 2014)
(Currently, asylum-seekers in U.S. detention facilities have no protection against indefinite
detention.).
99

102 Nimrod Pitsker, Due Process for All: Applying Eldridge to Require Appointed Counsel for
Asylum Seekers, 95 CALIF. L. REV. 169, 19798 (2007).
103 Donald Kerwin, Revisiting the Need for Appointed Counsel, MIGRATION POL'Y INST.
INSIGHT, Apr. 2005, at 1, available at http://www.migrationpolicy.org/research/revisiting-need-

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a right to counsel provided by the government, non-citizens are not

entitled to the same right, and there are not enough charitable
organizations to serve the needs of all the indigent non-citizens in the
United States.104 The U.S. legal system values the presence of counsel in
complex proceedings, particularly those that carry significant
consequences.105 Immigration law is so complex that most non-citizens
cannot successfully represent themselves. 106 Furthermore, the consequence
of banishment imposes a significant burden on non-citizens who have
made this country their home.107 However, this burden is exacerbated in
the unique cases of asylum seekers because they are both excluded from
the United States and often sent back to the dominion of persecution from
which they have escaped.108
Due to the complexity of the law and the extreme consequences that
removal proceedings entail, pursuant to 1229a of the United States Code,
asylum seekers and other non-citizens have a statutory right to counsel, so
long as it is not at the governments expense.109 However, this qualified
right to representation means very little to individuals who cannot afford a
lawyer and are unable to find an attorney willing to represent them pro
bono.110
Studies show immense disparities in the outcomes of asylum cases
depending on whether the asylum seeker is represented by an attorney or
brings the claim pro se.111 In 2005, the United States Commission on
International Religious Freedom (USCIRF) released a report on asylum
seekers in expedited removal.112 Although it is noteworthy that USCIRFs
report only examined asylum seekers in expedited removal (and not
affirmative asylum applicants), the USCIRF found that these asylum
seekers were almost always detained.113 This report showed that
appointed-counsel.
104 Id.
105 Id.
106 Id.
107 Id.
108 8 U.S.C. 1231(b)(1)(A) (2012) ([A]n alien . . . shall be removed to the country in which
the alien boarded the vessel or aircraft on which the alien arrived in the United States.).
109

8 U.S.C. 1229a(b)(4)(A) (2012).

Margaret H. Taylor, Promoting Legal Representation for Detained Aliens: Litigation and
Administrative Reform, 29 CONN. L. REV. 1647, 1650 (1997).
111 See Pitsker, supra note 102, at 18991.
112 See generally 1 U.S. COMMN ON INTL RELIGIOUS FREEDOM, REPORT ON ASYLUM SEEKERS
IN EXPEDITED REMOVAL (2005) [hereinafter REPORT ON ASYLUM SEEKERS], available at
http://www.law.berkeley.edu/files/IHRLC/Volume_I.pdf.
110

113

Id. at 6263 (With the establishment of Expedited Removal, however, INS was

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represented asylum seekers placed into expedited removal obtained relief

25% of the time; whereas, pro se asylum seekers only obtained relief 2% of
the time.114 Another study similarly found that 18% of represented and
detained asylum seekers obtained relief, compared to the 3% of detained
asylum seekers without counsel.115 Furthermore, it is estimated that 71,000
asylum seekers are wrongfully deported each year because of the United
Statess expedited removal and mandatory detention policies.116 The
Morton Memo only contributes to these devastating statistics. 117
The statistical data overwhelmingly confirms that represented and
detained asylum seekers are far more likely to receive asylum than
detained pro se applicants. 118 Understanding the vital role that an attorney
plays in an asylum applicants claim, other Convention signatories make
counsel available to asylum seekers who would otherwise be pro se. 119 The
gross disparity in U.S. success rates can most likely be attributed to asylum
hearings being:
[F]act-intensive inquiries that center on the credibility of the
witness, who must be able to coherently present his story and
highlight the salient facts of his claim to the judge. The lack of
counsel inevitably affects the aliens ability to investigate, present
documentary and personal evidence, cross-examine witnesses,
make objections, and transcend cultural and language barriers.120

The notable gap between the success rates of represented and pro se
asylum applicants in mandatory detention is also unsurprising because the
demands of bringing a successful claim are complicated by policies that
restrict visitation and phone rights, as well as the applicants rights to the
freedom of movement and ability to receive a fair trial. 121

required to detain nearly all arriving asylum seekers.).

114 Id. at 59. By reviewing the Department of Justice Executive Office of Immigration
Review statistics from fiscal years 20002004, the USCIRF study showed that represented
asylum seekers in expedited removal were twelve times more likely to receive asylum than
those who were pro se. See id at 3738, 59.
115

Kerwin, supra note 103, at 6.

Michele R. Pistone & John J. Hoeffner, Rules Are Made to Be Broken: How the Process of
Expedited Removal Fails Asylum Seekers, 20 GEO. IMMIGR. L.J. 167, 194 (2006).
117 See supra notes 7882 and accompanying text.
118 See, e.g., REPORT ON ASYLUM SEEKERS, supra note 112, at 59; Kerwin, supra note 102, at 4
5; Pistone & Hoeffner, supra note 116, at 196 & n.3.
116

119 See Pitsker, supra note 102, at 190 (including Canada, Austria, Belgium, Denmark,
Finland, Germany, the Netherlands, Sweden, and the United Kingdom).
120 Id. at 191.
121 See Kerwin, supra note 103, at 7.

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Mandatory Detention Prevents Pro Bono Attorneys from

Providing Zealous Advocacy

While securing legal counsel as an asylum seeker is difficult, the

problem is exacerbated when the asylum seeker is detained. 122 Non-citizen
detainees are often imprisoned at remote facilities far removed from urban
pro bono organizations and face restrictive phone and visitation policies. 123
These centers are structured and operated much like standardized
correctional facilities. [I]n some instances, actual criminal justice
institutions . . . are operated as dual use facilities that simultaneously house
asylum seekers and criminal offenders, side-by-side.124 Furthermore, those
asylum seekers who could obtain representation where they were seized
because of community or family ties may nevertheless be transferred to an
isolated location.125 Although regulations require detention facilities to
provide a list of free legal services to the detainees, these lists are not
always made available or may be so outdated and imprecise that they are
of little assistance to help secure effective legal representation.126 These
policies and practices, enforced under the Morton Memo, create significant
hurdles for an asylum seeker trying to obtain an attorney.127
It has also been reported that detained non-citizens, including asylum
applicants, are pressuredand sometimes coercedby government
officials to abandon their search for a lawyer in order to be processed more
quickly through the system.128 If detained asylum seekers are fortunate
enough to secure legal counsel, they still face serious communication
challenges.129 While some detention facilities have systems in place that
allow attorneys to leave messages for clients, most do not.130 Other
detention facilities only allow detainees to make collect calls, which
becomes very expensive for the recipient attorney, especially when the

122

See, e.g., Taylor, supra note 110, at 166769.

See, e.g., id.
124 Michael Kaufman, Detention, Due Process, and the Right to Counsel in Removal Proceedings,
4 STAN. J. C.R. & C.L. 113, 129 (2008) (internal quotations removed).
123

125

See, e.g., id.

See 8 U.S.C. 1299(a)(1)(E), (b)(2) (2012); Taylor, supra note 110, at 1672. This problem
is very widespread. A statutory requirement that the list be updated not less often than
quarterly has not overcome the indifference or disdain with which some district offices and
detention facility administrators viewed this task. Id. at 1672 n.91.
126

127

See Kerwin, supra note 103, at 7.

See, e.g., Taylor, supra note 110, at 166970.
129 Detained Asylum Seekers, IMMIGR. EQUALITY, http://immigrationequality.org/issues/law
-library/lgbth-asylum-manual/detained-asylum-seekers/ (last visited July 21, 2014).
130 Id.
128

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attorney may need to develop most of the case through telephone

interviews.131 Additionally, in most cases it is impossible for detainees to
make international phone calls; therefore, attorneys are expected to
communicate with their clients friends or family in the asylum applicants
home country in order to obtain invaluable corroborating evidence. 132 Even
if the attorneys are willing and able to meet with their clients frequently,
in-person visitation is often difficult to arrange.133
Another issue that makes it difficult to represent asylum applicants is
the current administrations policy and practice of denying applicants
timely access to the notes taken during their credible-fear interview.134 For
many years, attorneys representing asylum seekers used the Freedom of
Information Act (FOIA) to obtain the interview notes in order to better
understand and prepare their clients cases.135 However, the government
has changed its positionnow refusing to release the notes, arguing that
FOIA actually permits the withholding of this material from asylum
seekers and their attorneys.136 Despite this position, government counsel
will frequently use these notes to discredit the asylum seekers claim at the
Immigration Court hearing.137 If this occurs, the notes thenand only
thenare released to the asylum applicant and counsel, but by that point it
is too late.138
This policy has placed such a high burden on pro bono attorneys that
recently the Lawyers Committee for Civil Rights of the San Francisco Bay
Area filed suit in federal court, challenging the federal governments
current practices.139 Arguing that the government is violating FOIA, the
Committee seeks a policy that allows timely access to these notes, as they
often provide the only means of understanding what transpired during the
interviews.140 Describing the asylum seekers unique plight and the
incredible amount of stress these interviews produce, one attorney
explained:

131

See id.
Id.
133 See Taylor, supra note 110, at 1672.
134 See Federal Government Sued for Withholding Documents from Asylum Seekers,
PROBONO.NET (Feb. 12, 2013), www.probono.net/asylum/news/article.464330 [hereinafter
PROBONO.NET].
132

135

Id.
Id.
137 Id.
138 Id.
139 Id.
140 See PROBONO.NET, supra note 134.
136

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It is a rare client who can remember much of what was said

during a lengthy interview, . . . [t]he notes enable us to
understand where the client did not do an adequate job
representing herself. Without them, we cant fully assess the case,
determine what additional evidence should be provided to the
Court, and give the best advice possible to the client.141

The Morton Memos detention policies make it problematic and very

costly for attorneys to provide representation.142 Pro bono attorneys are
effectively deterred from taking asylum cases because of multiple
discouraging factors, including: longer car rides, restricted communication,
costly phone bills, unexpected transfers, and outright withholding of
valuable information.143 Furthermore, once retained, the restrictive
practices mentioned above make it increasingly difficult to provide
competent and zealous advocacy. 144 In addition, many progressive
foundations, which provide a major source of funding to service agencies
generally, dislike direct service projects believing that they do not further
social change and instead represent a financial black hole. 145 Consequently,
it is not surprising that detained asylum seekers, who have credible fear,
withdraw their claims for asylum at rates two times higher than those of
non-detained asylum seekers.146
3.

Asylum Seekers Are Denied Due Process in U.S. Courts

When asylum seekers arrive at a port of entry and assert their fear of
returning to their country of origin, or alternatively appear to have false
documents or no documentation at all, the screening officer transfers them
into secondary inspection.147 During secondary inspection, the officer
determines the validity of their documentation and the asylum seekers
claims.148 At this stage, pursuant to the Morton Memo, mandatory
detention is practically inevitable.149 If the officer determines that the
applicants do not have valid immigration documents, the officer places
them into expedited removal proceedings and invokes the mandatory

141

Id.
See Kerwin, supra note 103, at 7.
143 See id.; PROBONO.NET, supra note 134; Taylor, supra note 110, at 167273.
144 Kerwin, supra note 103, at 7.
145 Id.
146 Id. at 6.
147 Amy Langenfeld, Living in Limbo: Mandatory Detention of Immigrants Under the Illegal
Immigration Reform and Responsibility Act of 1996, 31 ARIZ. ST. L.J. 1041, 104546 (1999).
142

148
149

Id. at 104647.
See 8 U.S.C. 1225(b)(1)(A) (2012); 8 C.F.R. 235.3(b)(2)(iii) (2013).

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detention policy.150 Alternatively, if the inspection officer determines

applicants may fear returning to their country, the officer detains them
until ICE can conduct credible-fear interviews.151 The time that asylum
seekers spend in detention facilities varies from several months to several
years, depending on particularities of their claims.152 Although Congress
allocated discretion to the Attorney General and the immigration courts to
grant asylum seekers parole, it is only granted in limited situations.153
Furthermore, parole is rarely granted to an asylum seeker prior to a
credible-fear finding,154 and if established, parole is granted in a highly
unpredictable manner, without adhering to formal administrative
guidelines.155
Even though the Morton Memo articulates certain classes of
individuals who are eligible for humanitarian grants of parole (such as
those suffering from mental illnesses or whose detention would not be in
the interest of society), asylum applicants are continually denied parole.156
The Morton Memo fails to set clear guidelines that would allow
humanitarian grants of parole to be regularly issued to asylum seekers;
despite the excessive costs detention imposes, this policy continues.157
Under U.S. immigration law, another significant burden limiting the
protection of detained asylum seekers is the long-standing principle that
one who fails to make an effective entry158 into the United States remains
150

See 8 U.S.C. 1225(b)(1)(A); 8 C.F.R. 235.3(b)(2)(iii).

8 U.S.C. 1225(b)(1)(B).
152 See Johnson, supra note 14, at 590.
153 See 8 U.S.C. 1182(d)(5) (2012); 8 C.F.R. 212.12(b)(1) (2013) (authorizing the Attorney
General to grant parole to inadmissible non-citizens only for emergent reasons or for reasons
deemed strictly in the public interest).
154 Johnson, supra note 14, at 590; see 8 U.S.C. 1182(d)(5).
155 See AMNESTY INT'L, UNITED STATES OF AMERICA: LOST IN THE LABYRINTH: DETENTION OF
ASYLUM-SEEKERS 24 (1999), available at http://www.amnesty.org/en/library/asset/AMR51/051
/1999/en/a13cba18-e277-11dd-9a65-bba353fc63d9/amr510511999en.pdf. DHS has the authority
to grant parole to defensive asylum seekers, but 8 U.S.C. 1182(b)(5)(A) authorizes parole on
a case-by-case basis and will only allow it under the vague and almost unattainable
standards of urgent humanitarian reasons or significant public benefit. 8 U.S.C.
1182(d)(5)(A).
156 See The Memo, supra note 77, at 34; Alexandra Olsen, Over-Detention: Asylum-Seekers,
International Law, and Path Dependency, 38 BROOK. J. INTL L. 451, 46062 (2012).
151

157 See READING THE MORTON MEMO, supra note 75, at 8 (Despite a relatively clear
articulation of vulnerable groups who should be released from detention whenever possible,
there remains a great likelihood that officers will struggle with those instances where an
individual falls within the Mandatory detention category but are nonetheless in one of the
humanitarian release groups.).
158

See 8 U.S.C. 1101(a)(13)(A) (2012) (defining entry in terms of admission with respect

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outside the Constitutions protection.159 The idea that excludable (or unadmitted) non-citizens have fewer constitutional rights than those of
admitted non-citizens was established in the Chinese Exclusion Case of
1889.160 This case was the first of its kind to draw the distinction between
non-citizens seeking entry to the United States and admitted non-citizens,
and it notably held that the latter enjoys the Constitutions protections
while the former does not.161
The Supreme Court began to unravel this determination in Zadvydas v.
Davis,162 which has been interpreted as eroding the principle that there is a
category of persons within the United States who do not have any
Constitutional rights.163 Because we do not believe that our Constitution
could permit persons living in the United States . . . to be subjected to any
government action without limit, we conclude that government treatment
of excludable aliens must implicate the Due Process Clause of the Fifth
Amendment.164 However, the U.S. Supreme Court declined to address this
issue as it specifically relates to asylum seekers, 165 and there remains a clear
split amongst the circuits as to the constitutional rights afforded to asylum
seekers and the procedural safeguards that such a rights implicate.166
However, through either articulation of the law and standards that apply,

to a non-alien, so that any person having failed to obtain successful inspection and
authorization by an immigration officer is deemed to have not made entry into the United
States for purposes of the Act).
159 Excludable aliens was the term used prior to the enactment of IIRIRA to describe
aliens who were ineligible for admission or entry into the United States. IIRIRA now refers
to inadmissible aliens . . . in the place of excludable aliens. Am.-Arab Anti-Discrimination
Comm. v. Ashcroft, 272 F. Supp. 2d 650, 668 n.15 (E.D. Mich. 2003) (citing 8 U.S.C. 1182(a)).
Despite the fact that there continues to be separate grounds of inadmissibility and
deportability, the distinction depends on whether a non-citizen has been admitted to the
United States, and does not consider if and when the non-citizen established physical
presence. Chi Thon Ngo v. INS, 192 F.3d 390, 394 n.4 (3d Cir.1999) (internal quotation marks
omitted). Inadmissible aliens therefore include aliens who have not entered the United
States (formerly considered excludable) and those who, like petitioners, entered illegally
(formerly deportable). Am.-Arab Anti-Discrimination Comm., 272 F. Supp. 2d at 668 n.15.
160

See generally Chae Chan Ping v. United States, 130 U.S. 581, 589, 609 (1889) (upholding
legislation that prohibited the return of Chinese laborers with valid re-entry certificates).
161 See Coffey, supra note 41, at 30708.
162 533 U.S. 678 (2001).
163 See REFUGEE LAW, supra note 1, at 945; see also Am.-Arab Anti-Discrimination Comm., 272
F. Supp. 2d at 66869.
164

Am.-Arab Anti-Discrimination Comm., 272 F. Supp. 2d at 669.

See Coffey, supra note 41, at 318320 (discussing Jean v. Nelson, 472 U.S. 846 (1985) and
its failure to resolve the constitutional protections afforded to un-admitted asylum seekers).
165

166

See id. at 32124.

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it becomes evident that asylum seekers who are detained upon arrival are
being denied a fair trial on account of their detention.167
If asylum seekers have constitutional due process rights, as the Second,
Fourth, Fifth, and D.C. Circuits suggest, then eliminating or severely
diminishing the statutory right to counsel by detaining individuals under
the Morton Memo and making representation impossible effectively denies
those rights.168 The denial of due process rights is demonstrated by the
mere 3% of unrepresented and detained asylum seekers who obtain
relief.169 Furthermore, given that the United States wrongfully deports an
estimated 71,000 asylum seekers each year because of the expedited
removal and mandatory detention policies enforced through the Morton
Memo, it becomes alarmingly clear that asylum seekers will never receive
due process unless the Morton Memos draconian detention practices and
policies comprehensively change.170
B. Denying Asylum Seekers a Fair Trial Contravenes Non-Refoulement
Asylum seekers occupy a unique position among all other non-citizens
because they have a statutory right to enter the United States without
documentation and may not be forcibly returned to their persecuting
states.171 In the asylum seekers case, the traditional admitted/non-admitted
distinction regulating the right to due process is immaterial to determining
whether the non-citizen is eligible to assert the statutory right to asylum. 172
By allowing a non-citizen who is physically present in the United States
to apply for asylum, Congress rejected the legal fiction of entry in relation
to asylum seekers.173 Instead, Congress established a category for asylum
seekers that transcended the deportable/excludable distinction.174 It
created a process that allowed all non-citizens fearing persecution on
account of one of the five protected grounds to be guaranteed certain
procedural safeguards, regardless of which side of the border they [find]

167

See Pitsker, supra note 102.

See id.; Coffey, supra note 41, at 321, 32324.
169 See Kerwin, supra note 103, at 4.
170 See, e.g., Pistone & Hoeffner, supra note 116, at 196201 (suggesting that changes should
be made to the current asylum systems enforcement culture with a focus on maximizing
legal immigration); Pitsker, supra note 102 (arguing for government appointed attorneys for
indigent asylum seekers).
168

171

See Pitsker, supra note 102, at 181.

See Coffey, supra note 41 at 32627.
173 See id. at 327(citing 8 U.S.C. 1158(a)(1) (2012)) (internal quotations omitted).
174 Elizabeth Glazer, The Right to Appointed Counsel in Asylum Proceedings, 85 COLUM. L. REV.
1157, 1169 (1985).
172

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themselves on.175
Even if asylum seekers do not have constitutional due process rights,
they are undoubtedly entitled to non-refoulement as both a statutory176 and
universal right:177 a right that the United States is bound to uphold, so long
as the applicants meet their burden of proof.178 The Refugee Act created
two ways that a victim of persecution can seek the protection of U.S. law. 179
By codifying the definition of refugee into U.S. domestic law and
formally recognizing the principle of non-refoulement by creating the
withholding of removal legal status, the Refugee Act binds the United
States to uphold certain international laws and policies. 180 However, under
the flawed reasoning of Stevic, even though withholding of removal
provides significantly less benefits, applicants must show that their life or
freedom would be threatened using a higher standard of proof.181 Thus, it
becomes even more difficult for asylum seekers to assert their international
and domestically protected rights because, more often than not, the Morton
Memos mandatory detention policy indirectly denies them access to
counsel.182
Immigration law is complicatedoften compared to a labyrinth. 183 This
is particularly true in asylum cases where there is an acute need for the
trier of fact to find the applicants claim credible.184 This is usually done by
compiling a sufficient number of documents to support the applicants
statements, verify his or her identity, and prove that he or she was actually
persecuted by a state based on one of the five protected grounds.185 If
applicants successfully persuade the trier of fact that their story is true,

175

See Pitsker, supra note 102, at 18182.

8 U.S.C. 1231(b)(3)(A) (2012).
177 See generally 1951 Convention, supra note 10; COLLOQUIUM ON THE INTERNATIONAL
PROTECTION OF REFUGEES IN CENTRAL AMERICA, MEXICO AND PANAMA, CARTAGENA
DECLARATION ON REFUGEES (Nov. 22, 1984), available at http://www.oas.org/dil/1984_
cartagena_declaration_on_refugees.pdf.
178 See Crowe, supra note 35, at 30203.
179 See 8 U.S.C. 1231(b)(3)(A), 1158; Crowe, supra note 35, at 30203.
180 See 8 U.S.C. 1231(b)(3)(A); Crowe, supra note 35, at 30203.
181 See I.N.S. v. Stevic, 467 U.S. 407, 430 (1984).
182 See supra Part III.A.
183 See Brennan, supra note 17, at 624.
184 Id. at 62425.
185 See id. (Effective representation involves careful review of documentation before
submission into the record, thorough witness preparation, and the ability to guide the
respondent through his story while addressing inconsistencies with his documents or prior
statements, of which the DHS is likely to be aware.).
176

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they can receive relief based on their testimony alone. 186 However, this is
rarely the case.187
Typically, those seeking asylum and other forms of relief are
predominantly non-English speaking, uneducated, and often from
markedly different cultures.188 These characteristics often negatively
contribute to the immigration judges (IJ) perception of the applicant and
his or her claim.189 Furthermore, in asylum cases, petitioners are often from
totalitarian and corrupt regimes where they suffered persecution at the
hands of government agents, which causes petitioners to rightfully, but
detrimentally, distrust officers of the court. 190 One IJ described applicants
as tentative when spoken to and even those represented by counsel
convey the timidity and fear of someone in a completely unfamiliar
setting.191 Such applicants, who are otherwise helpless and re-traumatized
by repeatedly telling their stories, must rely completely on their
attorneys.192
The attorneys performance in court is therefore pivotal to the outcome
of the claim.193 For instance, if the attorney fails to produce documents to
support the applicants testimony, then the applicant will most likely lose
regardless of how authentic the claim may seem or how ominous the threat
of removal may appear. 194 Furthermore, failing to procure corroborating
witnesses or other such evidence will inevitably prevent the attorney from
rehabilitating problematic testimony. 195 Even when the IJ makes a finding
of credibility, the IJ can, and often does, require the applicant to submit
corroborating evidence, and such evidence must be provided unless the
applicant does not have the evidence and cannot reasonably obtain [it].196
If the applicant fails to submit a complete record before the court, this issue

186 8 U.S.C. 1158(b)(1)(B)(ii) (2012) (The testimony of the applicant may be sufficient to
sustain the applicant's burden without corroboration, but only if the applicant satisfies the
trier of fact that the applicants testimony is credible, is persuasive, and refers to specific facts
sufficient to demonstrate that the applicant is a refugee.).
187

Brennan, supra note 17 (citing 8 U.S.C. 1158(b)(1)(B)(ii)).

Id.
189 See Lindsey R. Vaala, Bias on the Bench: Raising the Bar for U.S. Immigration Judges to
Ensure Equality for Asylum Seekers, 49 WM. & MARY L. REV. 1011, 102426 (2007).
188

190

See Brennan, supra note 17, at 625.

Id.
192 Id.
193 Id.
194 Id.
195 Id. at 62425.
196 Brennan, supra note 17, at 625 (quoting 8 U.S.C. 1158(b)(1)(B)(ii) (2012)).
191

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will assuredly be waived on appeal.197

The Morton Memo, as it applies to asylum seekers, violates the rights
of refugees and contravenes the United States duty of non-refoulement
under international law.198 By restricting asylum seekers access to counsel
and enforcing policies that generally deter attorneys from taking cases pro
bono, the United States forcibly returns refugees to countries where they
have a well-founded fear of persecution.199 While each individual aspect
of the process may not, in and of itself, be contrary to international law, the
aggregate of all of these procedures creates a system that is likely to result
in the deportation of legitimate asylum seekers.200 Even though abuse of
the right to seek asylum is a reasonable concern, the ramifications of
breaching our duty of non-refoulement are so catastrophic that
safeguardsincluding the elimination of the Morton Memos mandatory
detention policymust be imposed to protect genuine refugees from being
forcibly returned to a life of persecution. 201
IV. The Morton Memos Mandatory Detention Policy as Applied to
Asylum Seekers Does Not Further the Agencys Goals
ICE is charged with enforcing our nations civil immigration
laws. This is a critical mission and one with direct significance for
our national security, public safety, and the integrity of our
border and immigration controls. . . . In light of the large number
of administrative violations the agency is charged with
addressing the limited enforcement resources the agency has
available, ICE must prioritize the use of its enforcement
personnel, detention space, and removal resources to ensure that
the removals the agency does conduct promote the agencys
highest enforcement priorities, namely national security, public
safety, and border security.202

A. The United States Spends Approximately $2 Billion on Custody

Operations Annually
DHS spends approximately $5.4 million a day to operate the U.S.
immigration detention system.203 For Fiscal-Year 2013, the House of

197

Id.
See Jaya Ramji, Legislating Away International Law: The Refugee Provisions of the Illegal
Immigration Reform and Immigrant Responsibility Act, 37 STAN. J. INTL L. 117, 13738 (2001).
198

199

See supra Part III.A.2.

Ramji, supra note 198, at 137.
201 Id. at 13741.
202 The Memo, supra note 77.
203 THE MATH, supra note 55, at 2.
200

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Representatives appropriated approximately $2 billion to DHS for

Custody Operations.204 The current cost to detain an immigrant is
approximately $164 per day, and many of these detention dollars flow to
enormous private prison corporations that stand to reap significant profits
when more and more immigrants are detained.205 Corrections Corporation
of America (CCA) is the largest privately-owned ICE detention
contractor, and it currently operates fourteen ICE-contracted facilities.206
GEO Group, Inc. (GEO) is the second largest ICE contractor and operates
seven facilities.207 In 2011, CCA reported annual revenues of $1.73 billion,
while GEO came in close behind at $1.6 billion. 208 Private prison companies
influence policies promoting immigration detention by lobbying for laws
that detain immigrants with increasing frequency and for longer
durations.209 According to the Associated Press, the three privately-owned
companies holding the largest number of ICE contracts (including GEO
and CCA) spent at least $45 million over the past ten years on donations
and lobbying efforts at both state and federal levels.210 Furthermore, in
2010, GEO purchased the rights to lucrative contracts with ICE and is now
the sole administrator of all alternatives-to-detention programs.211 This
cozy relationship between the private-prison industry and rule-makers is
best exemplified by CCAs direct role in drafting the controversial Arizona
S.B. 1070 bill through its membership in the American Legislative
Exchange Council (ALEC), a non-profit that encourages public and
private sector members to work together to develop policies that effectively
promote economic interests.212
Even though the Morton Memo provides certain criteria for

204

Id. at 23.
Id. at 1.
206 Id. at 5.
207 Id.
208 Id.
209 THE MATH, supra note 55, at 6.
210 Garance Burke & Laura Wides-Munoz, Immigrants Prove Big Business for Prison
Companies, YAHOO.COM (Aug. 2, 2012), http://news.yahoo.com/immigrants-prove-bigbusiness-prison-companies-084353195.html.
205

211

See THE MATH, supra note 55, at 56.

Id. Asked if the private companies usually get to write model bills for the legislators,
(an ALEC insider) said, Yeah, thats the way its set up. Its a public-private partnership. We
believe both sides, businesses and lawmakers should be at the same table, together. Geiza
Vargas-Vargas, The Investment Opportunity in Mass Incarceration: A Black (Corrections) or Brown
(Immigration) Play?, 48 CAL. W. L. REV. 351, 351, 360 (2012) (quoting Laura Sullivan, Prison
Economics Help Drive Ariz. Immigration Law, NATL PUB. RADIO (Oct. 28, 2010, 11:01 AM), http://
www.npr.org/2010/10/28/130833741/prison-economics-help-drive-ariz-immigration-law).
212

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determining if the recently detained individual should be released on

bond,213 asylum seekers only receive parole in limited situations. 214 The
Morton Memo expressly excludes two groups from mandatory detention:
non-citizens suffering from serious mental illness and those whose
detention is not in the publics interest.215 However, the Morton Memo
provides little guidance on how to determine who falls into these
vulnerable categories.216 Although it could be argued that the typical
asylum seeker could easily fall into either of the excludable categories,
reasonable minds could differ over how to quantify the seriousness of the
mental illness or the actual benefit releasing the individual would provide
to society.217 For these reasons, parole is rarely granted to an asylum seeker
prior to a finding of credible fear, 218 and if credible fear is established,
parole is granted in an unpredictable manner on account of the lack of
guidance.219 International standards and the United States legal obligations
under the Protocol should guide decisions about which asylum applicants
are deserving of parole and which applicants should be placed into
detention.220 Society cannot allow rule-makers to be swayed by the elite
influence of private industry while 71,000 genuine refugees are wrongfully
deported each year because of the Morton Memo and the United States
mandatory detention policies.221
B. The Morton Memo, as Applied to Asylum Seekers, Does Not Protect
National Security
Upon arrival to the United States, asylum seekers are photographed,
fingerprinted, screened for security purposes, and interviewed by
immigration officials.222 If they are found to have committed an act of

213

See The Memo, supra note 77.

See 8 U.S.C. 1182(d)(5) (2012) (authorizing the Attorney General discretion to grant
parole to inadmissible non-citizens for only emergent reasons or for reasons deemed strictly in
the public interest).
214

215

See The Memo, supra note 77.

See READING THE MORTON MEMO, supra note 75, at 8.
217 See id.
218 See 8 U.S.C. 1182(d)(5); Johnson, supra note 14, at 590.
219 See Johnson, supra note 14, at 59799. DHS has the authority to grant parole to defensive
asylum seekers, but determines parole on a case-by-case basis and will only allow release
under the vague and almost unattainable standards of urgent humanitarian reasons or
significant public benefit. 8 U.S.C. 1182(b)(5)(A).
216

220

See AMNESTY INT'L, supra note 155, at 86.

See Pistone & Hoeffner, supra note 116117; Vargas-Vargas, supra note 212, at 36667.
222 See Austin T. Fragomen, Jr., et al., Immigration Procedures Handbook 9:33 (2012).
221

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terror, they cannot receive asylum.223 Many remain in detention pending

the outcome of their applications.224 Even if some applicants are fortunate
enough to receive parole, they must endure ongoing ICE surveillance until
their claim is finally adjudicated.225 While this process is arguably
necessary for national security, a would-be terrorist is not likely to seek
entry through a route requiring fingerprinting and the possibility of
detention.226 In fact, many asylum seekers are accurately characterized as
victims of terror, not perpetrators of it.227 In 2011, the top four applicant
nationalities were Chinese, Ethiopian, Eritrean, and Nepalese228all
countries where political unrest, religious persecution, and/or welldocumented human-rights abuses took place.229
For too many years, certain members of Congress and antiimmigration groups have tried to demonize those fleeing persecution,
characterizing them as untrustworthy and undesirable. 230 Some individuals
accuse asylum seekers of attempting to circumvent U.S. immigration laws
to exploit economic opportunities and, more recently, of using asylum as a
pretext to gain access into the United States in an effort to harm Americans
and carry out covert terrorist initiatives. 231 This hostility towards our most
vulnerable immigrants not only contradicts our obligations under
international law, it also contradicts the principles upon which the United

223

See 8 C.F.R. 208.13(c)(2)(i)(C), 1208.13(c)(2)(i)(C) (2012).

See READING THE MORTON MEMO, supra note 75, at 8.
225 See THE MATH, supra note 55, at 79 (detailing common alternatives to detention that
require GPS monitoring).
226 SARAH SOYEI, ET AL., A SAFE PLACE: COMBATTING RACIST MYTHS AGAINST ASYLUM
SEEKERS 19, available at http://www.srtrc.org/uploaded/A%20SAFE%20PLACE%20ED%20
PACK%20FINAL%20PDF.pdf.
227 See id. at 1920.
228 EXEC. OFFICE FOR IMMIGR. REV., FY 2011 STATISTICAL YEARBOOK, at J1 (Feb. 2012),
available at http://www.justice.gov/eoir/statspub/fy11syb.pdf.
229 See, e.g., China: Dark Times for Lawyers as Repression Intensifies, AMNESTY INTL (June 30,
2011), http://www.amnesty.org/en/news-and-updates/china-dark-times-lawyers-repressionintensifies-2011-06-30; Elizabeth Kendal, Ethiopia: Persecution Escalates in Muslim Areas,
PERSECUTION.ORG (Feb. 9, 2011), http://www.persecution.org/2011/02/11/ethiopia-persecutionescalates-in-muslim-areas/; AMNESTY INTL, ANNUAL REPORT: ERITREA 2011 (2011), available at
http://www.amnestyusa.org/research/reports/annual-report-eritrea-2011; AMNESTY INTL,
ANNUAL REPORT 2011: NEPAL (2011), available at http://www.amnesty.org/en/region/nepal/
report-2011.
230 Victoria Neilson & Aaron Morris, The Gay Bar: The Effect of the One-Year Filing Deadline
on Lesbian, Gay, Bisexual, Transgender, and HIV-Positive Foreign Nationals Seeking Asylum or
Withholding of Removal, 8 N.Y. CITY L. REV. 233, 279 (2005).
224

231

Id.

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States was founded.232 If national security truly is the primary goal of our
immigration enforcement agencies as articulated in the Morton Memo, it is
most effective when improving the procedures in place for identifying
actual terroristsnot through creating costly and unjustified detention
policies that seek to blindly treat all foreign nationals as potential
terrorists.233 Although detaining asylum seekers who are not in possession
of valid immigration documents may, in exceptional circumstances,
prevent potential threats to national security, increased use of biometrics,
security background checks, and thorough screening processes can
eliminate the need for detention while still protecting national interests. 234
C. Alternative-to-Detention Methods Further the Morton Memos
Resource-Saving Goal
The United States wastes an exorbitant amount of money each year on
the detention of tens of thousands of immigrants pursuant to the Morton
Memo.235 Many of these immigrants do not pose a threat to national
security.236 Yet, the government could save billions of dollars if it were
willing to use less wasteful and equally effective alternative-to-detention
methods ranging in costs from as low as 30 cents to $14 a day. 237 Even if the
government used the most expensive alternative programs to monitor
individuals who pose little to no threat to the publics safety, ICE could still
save as much as $1.2 billion, according to one study. 238 That is an 82%
reduction in cost that still prioritizes the effort of upholding national
security.239
Asylum applicants occupy a unique position within this system as they
often suffer from mental and physical illnesses and require additional,
more costly care.240 They are also protected by international standards and
have unique rights that are violated by the over-restrictive and arbitrary
detention policies re-enforced through the Morton Memo.241 Although the

232

Id.
See Johnson, supra note 14, at 594.
234 Id.
235 THE MATH, supra note 55, at 79.
236 See id. at 9 (reporting that in 2009 only 11% of non-citizen detainees committed a violent
crime and the majority of detainees posed no threat to the general public).
233

237

Id. at 79.
See id.
239 See Jessica Mayo, Court-Mandated Story Time: The Victim Narrative In U.S. Asylum Law, 89
WASH. U. L. REV. 1485, 151516 (2012).
238

240
241

See supra Part IV.AB.

See supra Parts III, IV.AB.

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United States has a legitimate interest in weeding out fraudulent asylum

applications, mandatory detention is an impractical and volatile way to
further such interest.242 Less costly and more effective deterrents to asylum
fraud were used in the past, including: a 180-day waiting period for
acquiring work authorization, joined by a process that required applicants
to achieve recommended approval or be placed in removal proceedings
within sixty days after filing their applications.243 These reforms addressed
fraud within the asylum-application system in the past and should be
considered as viable alternatives to detention moving forward.244
Due to continuing budgetary challenges it is clear that ICE cannot
continue to enforce the Morton Memo.245 The recent sequestration alone
caused ICE to release thousands of non-citizen detainees who did not
present a significant threat to national security.246 Yet, this recent release
invites the question: if the Morton Memo specifically states that persons
not presenting a threat to national security are not considered a detention
priority, then why were these individuals detained at all? 247 It could be
argued that ICEs decision to release the low-threat non-citizens is not only
consistent with fiscal concerns, but also finally brought the agency up to
date with the Morton Memos policies.248 However, if this policy was
already in place for almost two years, why were these particular people
still in detention and why did ICE recently construct a $32 million
detention facility designed specifically for individuals who pose little to no
threat to national security?249 Despite the recent media attention ICEs

242

See Neilson & Morris, supra note 230, at 27980.

Id.
244 Id.
245 See Daniel Gonzales, More Than 2,220 Detainees Released, Officials Say, USA TODAY (Mar.
14, 2013, 10:52 PM), http://www.usatoday.com/story/news/nation/2013/03/14/more-than-2200detainees-released/1989553/; Elise Foley, Immigration and Customs Enforcement Frees Detainees
as Sequestration Looms, HUFFINGTON POST (Feb. 25, 2013, 7:33 PM), http://www.huffingtonpost.
243

com/2013/02/25/immigration-and-customs-enforcement-sequester_n_2761941.html.
246 See Gonzales, supra note 245.
247 See The Memo, supra note 77.
248 Id.; see also supra Part II.C.
249 A high-profile private immigration detention facility, constructed for low priority
detainees opened in March of 2012 in Karnes, Texas. See THE MATH, supra note 55, at 6. GEO
constructed the facility according to ICEs specifications, and it is considered to be the first
civil detention center intended to house low-risk, adult males. Id. The facility cost GEO $32
million to build, but they plan to receive an estimated $15 million in annual revenue from ICE,
recouping their cost within approximately 2 years. See id. at 67. A fundamental question
raised by the Karnes facility is whether it is appropriate and economically wise to incarcerate
the kind of low-risk detainees housed there. Id. at 8.

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detention policies received, the asylum seekers plight continues to go

unnoticed.250 Perhaps if the agency began to interpret the Morton Memos
parole guidelines more expansively the agency could employ alternativeto-detention methods that not only save U.S. taxpayer dollars, but also
attempt to bring the United States into conformity with non-refoulement
and its other obligations under international law.251

CONCLUSION
U.S. law statutorily protects the principle of non-refoulement under the
Refugee Act of 1980. Yet, subsequent interpretation of the Refugee Act, in
conjunction with the Morton Memos mandatory detention policies, has led
to the deterioration of U.S. asylum seekers entitled protections mandated
under both international and domestic law. The Morton Memo, as applied
to asylum seekers, frustrates applicants rights to counsel inevitably
reducing their chances of success, regardless of their claims authenticity.
This results in the repatriation of tens of thousands of genuine refugees
each year, in direct violation of an international corner-stone of human
rights.252 Viable alternative methods to detentionthat cost a fraction of the
pricecould lessen the burden placed on pro bono attorneys. However,
ICEs current enforcement of the Morton Memo and its parole guidelines
continue to violate international law. Furthermore, by allowing private
industry to influence detention policies, DHS and ICE continue to diminish
the once highly-regarded governmental interest of protecting national
security. This recently has become embarrassingly clear, as demonstrated
by ICEs about-face determination that thousands of its detainees should be
released in the face of sequestration, as they pose little to no actual threat to
national security. If the Morton Memo continues to be implemented as the
agencys detention policy, further consideration should be given to our
international obligations, an applicants right to counsel, and the guidelines
for humanitarian grants of parole so that asylum seekers have a fair chance
of overcoming their unique and unfortunate condition, in hopes of making
better lives for themselves.
250 See, e.g., Foley, supra note 245 (failing to address whether or not asylum applicants were
included in the detainees released in reaction to the sequestration); Gonzales, supra note 245
(highlighting that 600 of the 2,228 detainees released were convicted criminals but failing to
address if any of the other detainees released were asylum seekers).
251 See supra Parts III, IV.AB.
252 See Crowe, supra note 35 (quoting COLLOQUIUM ON THE INTERNATIONAL PROTECTION OF
REFUGEES IN CENTRAL AMERICA, MEXICO AND PANAMA, CARTAGENA DECLARATION ON
REFUGEES (Nov. 22, 1984), available at http://www.oas.org/dil/1984_cartagena_declaration_on

_refugees.pdf).

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