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4437 - Border Protection, Antiterrorism, and Illegal
Immigration Control Act of 2005

An Overview of Provisions that Harm Refugees and Asylum
This bill would have a devastating effect on those who have fled from persecution and
sought refuge in this country. The asylum process has already become difficult for
many refugees. A 1996 law restricted access to asylum, creating expedited removal
and mandatory detention, and placing a new filing deadline on asylum seekers. In
recent years, a barrage of regulatory, policy and other changes have made it harder for
refugees to receive asylum, and just a few months ago, the Congress passed the
REAL ID Act – a new law that has made it harder for many genuine refugees to
establish their eligibility for asylum. Under some recent provisions, even the victims
of repression and terrorism are being denied this country’s protection.

HR 4437 is so extreme that it would bar most refugees from asylum and criminalize church groups and
others who assist them. The bill is entirely inconsistent with this country’s commitment to protect
those who flee persecution, and would put the U.S. in violation of its commitments under the Refugee
Convention and its protocol. Numerous provisions in this bill would impact asylum seekers and
refugees. Among these are provisions that would:

• Turn asylum seekers into criminals because they are “out of status.”
• Bar refugees from asylum because they are out of status or fled to the U.S. on false
• Criminalize church workers and others who assist asylum seekers.
• Deprive many asylum seekers of federal court review – an essential safeguard that ensures that
this country does not mistakenly deport refugees back into the hands of their persecutors.
• Increase the detention of asylum seekers – even though the US Commission on International
Religious Freedom has concluded that asylum seekers are jailed in inappropriate facilities.

H.R. 4437 Would Treat Asylum Seekers as Criminals and Bar Many Refugees from
Receiving Asylum

Sections 201, 203, and 204 dramatically expand the definition of “aggravated felony” to include
immigration violations such as unlawful presence and illegal entry. The combined effect of these
provisions will turn asylum seekers, battered women and others who have overstayed their visas or
illegally entered the U.S. into criminals with the stroke of a pen. As criminals, they could then be
barred from asylum and deported back to face persecution and torture.

Many legitimate asylum seekers fall out of status while they are applying for asylum or searching for
legal representation (a very difficult and often time-consuming task for those who cannot afford
counsel). Some are suffering from the effects of their torture and trauma and may not yet know they
can apply for asylum or may have no idea how they would do so.
Section 203 of the bill would subject a refugee - who fell out of status, or entered without inspection,
or was forced to flee to the United States on invalid documents - to a term of imprisonment of up to a
year and a day. Section 201 would define any offense in these categories for which the term of
imprisonment was at least one year as an “aggravated felony” under the immigration laws, so that
people with valid asylum claims could find themselves first prosecuted and jailed, and then barred
from asylum and deported to their countries of persecution, because they fell out of valid immigration
status, or were forced to enter the U.S. in an irregular manner due to the very circumstances that gave
rise to their asylum claims.

HR 4437 Would Criminalize Church Workers and Others who Assist Asylum Seekers

Section 202 would criminalize social workers, church volunteers, and others who are simply doing
their jobs assisting asylum seekers, unaccompanied children, or trafficking victims in need. Under this
provision, any individual who “assists” an individual without documentation “to reside in or remain”
in the United States, knowingly or with “reckless disregard” as to the individual’s legal status, would
be liable for criminal penalties and five years in prison. As the U.S. Conference of Catholic Bishops
has noted “[t]his could include church personnel who provide shelter or other basic needs assistance to
an undocumented individual.” Lawyers have also expressed concern that they could be prosecuted for
their work representing asylum seekers and other undocumented people, even though their work aims
to regularize the situation of people who have a valid claim to asylum or other legal status. The
Christian Legal Society has expressed concern that Section 202 “could criminalize the work that our
members do as attorneys on behalf of clients, and the charity and hospitality that our members’
churches and pastors render to the poor.”

HR 4437 Would Criminalize Refugees Who Are Forced to Flee to the U.S. on False
Documents and Deprive them of the Protection of Asylum

Sections 213 and 216-18 would subject a refugee who uses a false passport to flee to the U.S. to a jail
term of up to 15 years and would then bar her from asylum – leading her to be deported back to her
country of persecution. As the Christian Legal Society noted in expressing “grave concerns” about
this bill, the U.S. government is already able, under current law, to prosecute and punish people who
use false passports to come to the U. S. It is already a crime to enter the country with false documents.
This bill would re-classify the offense as an “aggravated felony,” which would automatically bar
people from asylum.

The United States has committed to complying with the provisions of the 1951 Refugee Convention
and its Protocol, including the provision that prohibits countries from penalizing refugees for illegal
entry. The Convention, drafted in the wake of World War II, recognizes that refugees must often
resort to false documents in order to escape harm and reach safety. In fact, Swedish diplomat Raoul
Wallenberg has long been hailed as a hero for providing false passports to help refugees escape from
Nazi persecution. Under this bill, a pro-democracy advocate who escapes from Burma and flees to the
U.S. on a false passport after being jailed and tortured by the Burmese military regime could be
prosecuted and jailed in the U.S. for up to 15 years – and then denied asylum and deported back to
Burma where her life would be in grave danger.

H.R. 4437 Would Limit Judicial Review and Access to Federal Courts

Sections 208, 801 and 805 would limit judicial review for refugees. Federal court review is an
essential safeguard that, time and time again, has been necessary to prevent victims of persecution and
oppression from being wrongly denied asylum and deported back into the hands of their persecutors.
Given the high stakes at issue in asylum cases, and the importance of ensuring that we are complying
with our international legal obligations under the Refugee Convention, this crucial safeguard should
not be limited.

Section 805 of this bill would deprive asylum seekers of federal court review of an asylum denial
unless they first make a “substantial showing” that their appeal is likely to be granted. The bill stacks
the deck again the asylum seeker: if a federal court judge does not issue a certificate allowing the
appeal within 60 days, the asylum seeker’s appeal is deemed denied. This provision would only add
to the workload and time pressure already afflicting the federal courts of appeals, and would arbitrarily
penalize asylum seekers for a court’s failure to issue a certificate of reviewability within the prescribed
time limits.

This extreme proposal is being advanced at a time when review by the federal courts of appeals is
more necessary than ever. Just last year, the U.S. Commission on International Religious Freedom
concluded that “statistically, it is highly unlikely that any asylum seeker denied by an immigration
judge will find protection by appealing to the BIA.”

The recent increase in asylum appeals does not require a legislative fix. The problem was triggered by
changes at the Board of Immigration Appeals, made by former Attorney General Ashcroft in 2002.
Following criticisms by federal judges of the Board and the immigration courts and a front-page article
in the New York Times, Attorney General Alberto Gonzales announced in January 2006 that the Justice
Department has launched a “comprehensive review” of the immigration courts and the Board. We are
hopeful that the Justice Department’s review will lead to reforms that address the real problems – and
will both improve the quality of administrative decision-making and significantly reduce the number
of cases that require appeal to the federal courts.

Section 212 seeks to eliminate judicial review of motions to reopen or reconsider BIA or Immigration
Judge decisions. These motions are, however, essential in cases where, for instance, a refugee was
denied asylum because of the incompetence of his lawyers or where an asylum seeker later becomes
eligible for asylum due to a change in the political situation in his home country.

H.R. 4437 Mandates the Expansion of Expedited Removal

Section 407 mandates the expansion of expedited removal (a summary deportation process that gives
individual immigration officers the power to issue deportation orders without a hearing) and with it,
mandatory detention for those subject to the process. In a February 2005 report, the U.S. Commission
on International Religious Freedom concluded that there are serious problems with expedited removal
that put asylum seekers at risk of improper return. The Commission found that there were significant
variations in compliance with procedures designed to protect asylum seekers in the expedited removal
process, and that immigration officers disregard some of these procedures more than half the time.

Despite these findings, section 407 mandates the use of expedited removal against any immigrant
thought to be illegally in the U.S, who is from any country other than Canada, Mexico or Cuba, and

who is encountered within 100 miles of a U.S. land border and within two weeks of the person’s entry
into the U.S.

H.R. 4437 Will Increase the Detention of Asylum Seekers

Sections 401, 402 and 407 would all increase the detention of asylum seekers. Just last year, the bi-
partisan U.S. Commission on International Religious Freedom concluded that asylum seekers are
jailed in inappropriate prison-like facilities, and its report confirmed that asylum seekers are rarely
released on parole in some parts of the country. A report issued by Physicians for Human Rights
documented that detained asylum seekers suffer from depression and post-traumatic stress disorder,
and that the longer they are detained, the more they suffer.

By expanding expedited removal, Section 407 will also increase the number of asylum seekers who
will be subject to mandatory detention. Sections 401 and 402 would also increase detention: under
these provisions an asylum seeker can be denied release from immigration jail on parole – even when
she satisfies the government’s official parole criteria – simply because there is available space in local
immigration jails. In addition, under an interim provision of section 401, an asylum seeker who
already satisfies the release criteria could be denied release from jail if she cannot afford to pay a
$5000 bond.

H.R. 4437 Creates Other Risks for Refugees and Asylum Seekers

The bill contains numerous other provisions that could put those who had fled from persecution at risk
of unfair treatment or deportation back to the countries where they were in danger. For instance:

• Section 602 allows for the possibility of indefinite detention after a final order of removal – a
particular risk for asylum seekers who are indigent and unable to obtain adequate

• Section 605 removes the ability of refugees or asylees who have been convicted of an
aggravated felony to seek a discretionary waiver of their offense in order to adjust their status
to that of a lawful permanent resident. Current law gives adjudicators discretion to grant a
waiver in compelling cases; this waiver should be maintained.

• Section 608 would render inadmissible and deportable aliens who participate in “criminal
street gangs,” expanding the bar to asylum without regard to individual responsibility for
conduct, and with no exception for minors or involuntary membership.

• Section 804 applies the “one central reason” requirement adopted for asylum claims in the
REAL ID Act to claims for withholding of removal, which raises the same concern that a
refugee will be penalized if she cannot prove with unrealistic precision what is going through
her persecutor’s mind.

• Section 808 would abolish attorneys’ fee awards to removable aliens, including virtually all
asylum seekers, under the Equal Access to Justice Act - eliminating an incentive for

competent attorneys to take on these cases, as well as an incentive for the government to
examine the positions it takes and not reflexively defend indefensible BIA decisions.

• Sections 1201, which requires that foreign embassies be informed when one of their nationals
becomes a naturalized U.S. citizen, increases the likelihood that a persecuting regime will
learn that a dissident has sought refuge in the U.S. – increasing the risk of retaliation against
the dissident’s family.