Periodic report of the united states of america to the united nations committee on the elimination of racial discrimination


II. Information by Relevant Groups of Victims or Potential Victims of Racial Discrimination



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II. Information by Relevant Groups of Victims or Potential Victims of Racial Discrimination

A. Discussion of types of persons.

156. Refugees and displaced persons. With regard to paragraph 37 of the Committee’s Concluding Observations, the Refugee Act of 1980 introduced into U.S. law a definition of “refugee” generally conforming to the definition contained in the 1951 Convention Relating to the Status of Refugees, as amended and incorporated by reference into the 1967 Protocol Relating to the Status of Refugees, to which the United States is a Party. This definition is found in section 101(a)(42) of the INA, 8 U.S.C. 1101(a)(42), and governs both the adjudication of asylum status for persons physically present in the United States and refugee status for individuals overseas seeking resettlement in the United States through the U.S. Refugee Admissions Program. See 8 U.S.C. 1157-1158.

157. In FY 2012, the United States admitted 58,238 refugees through its refugee resettlement program. For refugees resettled in the United States in FY 2012, the leading countries of nationality were Burma, Iraq, and Bhutan. The refugee admissions numbers were above those for 2011 (56,424) but below those for 2010 (73,311). In 2012, refugees were 54% male and 46% female. The United States granted asylum through “affirmative” applications to U.S. Citizenship and Immigration Services (USCIS) in almost 13,000 cases to individuals already present in the United States. The affirmative asylum numbers were above those for both 2011 (10,700) and 2010 (9,174). The United States also granted nearly 12,000 “defensive” asylum applications in FY 2012 in removal proceedings before DOJ immigration judges. For asylees in FY 2012, the leading countries of nationality for successful applicants were China, Egypt, and Ethiopia (affirmative applications) and China, Ethiopia, and Nepal (defensive applications).

158. The United States recognizes that refugees may benefit from targeted assistance that acknowledges the particular vulnerabilities they may face and helps them integrate into American society. The DOS Bureau of Population, Refugees, and Migration maintains cooperative agreements with non-profit organizations to assist refugees during the first three months after arrival by providing goods and services necessary to help them transition into their new communities. The HHS Office of Refugee Resettlement works through the states and non-profit organizations to provide longer-term cash and medical assistance, as well as language and social services. For example, the Unaccompanied Refugee Minors Program establishes legal responsibility for unaccompanied alien children, under state law, to ensure that they receive the full range of assistance, care, and services available to all foster children in the state.

159. Additionally, U.S. law provides for temporary protected status (TPS) for eligible noncitizens in the United States who are nationals of certain countries, as designated by the Secretary of Homeland Security, that are enduring an armed conflict, devastation from a natural disaster, or other extraordinary and temporary conditions. For a discussion of TPS and other protections against return, in particular those available to asylum-seekers, please refer to the discussion under Article 13 of the 2011 U.S. ICCPR Report.

160. Noncitizens. The United States has one of the most open immigration systems in the world. As noted in paragraph 7 of the Common Core Document, 13% of the U.S. population is now foreign born. The percentage of the foreign born population that has become naturalized citizens stood at 43.7% in 2010. Citizenship status is positively correlated with the number of years spent in the U.S. since arrival, as well as education. Data from 2010 show that foreign born persons from Central America and Mexico had much lower rates of naturalization than persons from Europe, Asia, and the Caribbean. See “The Foreign-Born Population in the United States: 2010,” U.S. Census Bureau, May 2012, at p. 11, http://www.census.gov/prod/2012pubs/acs-19.pdf. In 2011, the foreign born accounted for 15.9% of the U.S. labor force; their labor force participation rate was 67.0%, compared to 63.6% for the native born. Foreign born workers were more likely than native born workers to be employed in service occupations; production, transportation, and material moving occupations; and natural resources, construction, and maintenance occupations. See id.

161. As noted in the discussions related to noncitizens under Articles 1 and 5 above, as a matter of U.S. law, all persons within the territory of the United States, regardless of immigration status, enjoy substantial protections under the U.S. Constitution and domestic laws, including the right to equal treatment before tribunals and other organs administering justice. Many of these protections are shared equally with citizens, including a broad range of protections against racial and national origin discrimination in education and employment. For further discussion of issues related to employment discrimination, please see the discussion above regarding paragraph 28 of the Committee’s Concluding Observations. Protection of noncitizens, including refugees, asylum-seekers and stateless persons, from discrimination is discussed further in paragraphs 101–108 (Law with regard to Aliens) of the 2011 U.S. ICCPR Report.

162. Immigration detention. Regarding the Committee’s request for information on immigration detention in paragraph 37 of its concluding observations, immigration laws generally require certain categories of noncitizens to be detained pending removal proceedings. Among those categories are noncitizens who are subject to expedited removal proceedings after having been found inadmissible upon arrival at a port of entry (including noncitizens subject to expedited removal proceedings after having been found inadmissible for having engaged in fraud or willful misrepresentation or for lack of proper entry documents), those who have committed certain serious criminal offenses, and those subject to terrorism-related grounds of inadmissibility. For most aliens, DHS has discretion to authorize release while such proceedings are pending, and, with some exceptions, detained aliens in removal proceedings have a right to a custody redetermination hearing before an immigration judge. See 8 C.F.R. 1003.19(h)(2)(ii). Once an individual’s order of removal becomes administratively final, DHS may detain the individual for a period reasonably necessary to bring about his or her removal. See 8 U.S.C. 1231(a); 8 C.F.R. 241.13-14; see also Zadvydas v. Davis, 533 U.S. 678, 701 (2001) (six months is a presumptively reasonable period of time for removal for admitted aliens); Clark v. Martinez, 543 U.S. 371, 377-78 (2005) (same for applicants for admission). Individuals who are released from immigration detention pending removal may be released on bond, placed on other forms of supervision, or enrolled in an alternative to detention (ATD) program. These custody decisions are based on analysis of flight risk, public safety factors, and the availability of detention resources.

163. Under the INA’s expedited removal provisions, when an immigration officer determines that an arriving alien or an alien physically present in the United States for less than 14 days without being admitted or paroled and encountered within 100 air miles of any U.S. border is inadmissible because the alien engaged in fraud or misrepresentation (8 U.S.C. 1182(a)(6)(C)) or lacks proper entry documents (8 U.S.C. 1182(a)(7)), the individual may be ordered removed from the United States, subject to review and approval by a supervisor, without a hearing before an immigration judge. See 8 U.S.C. 1225(b). However, if an individual expresses a fear of persecution or torture, an intention to apply for asylum, or a fear of return to his or her country, the case is referred to a USCIS asylum officer for credible fear protection screening. Individuals in the expedited removal process who are referred to USCIS for a credible fear interview are generally subject to mandatory detention pending a determination by an asylum officer and any review of that determination by an immigration judge. See 8 U.S.C. 1225(b)(1)(B)(IV); 8 C.F.R. 235.3(b)(4)(ii). Individuals found to have a credible fear are automatically considered for parole under the 2010 policy and procedures described below, and a majority of these individuals are released on parole.

164. On January 4, 2010, ICE changed its parole policy for arriving aliens found to have a credible fear. See http://www.ice.gov.doclib/dro/pdf/11002.1-hd-parole_of_arriving_alins_found_credible_fear.pdf. Under the new policy, “Parole of Arriving Aliens Found to Have a Credible Fear of Persecution or Torture,” aliens who were subject to expedited removal but were found to have a credible fear of persecution or torture are automatically considered by ICE for parole from custody pending removal proceedings before an immigration judge, rather than having affirmatively to request parole in writing. The new policy also adds heightened quality assurance safeguards, and defines when paroling aliens is in the public interest. The USCIS Asylum Division, which conducts credible fear and reasonable fear screenings for detained aliens, has assisted ICE in implementing the policy changes, including by developing a notice to such aliens that parole from custody may be available.



165. In furtherance of its reform of detention management policies and protections, and in addition to other detention reform initiatives noted under the discussion of policy reviews and revisions under Article 2 above, ICE has accomplished the following:
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