The Long Road to Asylum
Immigration and Customs Enforcement officials in El Paso stand accused of violating the confidentiality of dozens of Sikh asylum seekers detained in their facility.
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A few moments after Harshdeep Grewal was led into a small, dimly lit room at the El Paso Processing Center on the morning of July 31, a switch was flipped and his image was beamed eight miles across town to a screen in a courtroom on the seventh floor of the Richard C. White Federal Building. Grewal, wearing an orange turban and blue jumpsuit, stared blankly at the videoconferenced proceedings, tilting his head to hear as the Punjabi translator, who had flown in from Dallas for the hearing, related the details of his case before Judge Teofilo Chapa, an immigration judge sent from Miami to assist with the overflowing docket of cases in El Paso.
Eleven months before, on September 1, 2013, Grewal, then 21 years old, had crossed a bridge from Juarez to El Paso on foot. Once on the American side, he appealed to a U.S. border guard for asylum. Grewal, the son of farmers in the northwest Indian state of Punjab, had left his home that March, fleeing alleged violence from the local police, who were angry that he was active in a small splinter party that advocates for an independent state for adherents of the Sikh religion. Ever since arriving in the U.S., he had been detained in the drab, jail-like Immigration and Customs Enforcement facility near the El Paso airport.
Being held in immigration detention for such a long period is unusual—the average time spent in one of these facilities is 31 days—and ICE, which has full discretion to release detainees on parole, has been mum on the reasons Grewal and dozens of other Sikhs in his same situation have been held for so long. (I wrote about their prolonged detention in El Paso in the August issue of Texas Monthly.)
This hearing was Grewal’s first day in court since April 9 when he received a continuance, and his circumstances had changed greatly since then, explained his lawyer, John Lawit, to Judge Chapa. On April 12 or 13, while 41 Sikhs at the El Paso Processing Center were engaged in a mass hunger strike, ICE officials had allowed a representative from the Indian consulate in Houston to come and speak with them, effectively outing the detainees to their own government. The man from the consulate, a fellow Sikh named N. P. S. Saini, had pressured them to drop their asylum claims and return to India. “An Indian diplomat came to El Paso at ICE’s request, as far as I can tell, to berate the detainees and tell them they aren’t the ideal immigrants,” Lawit told the court. “He demanded they sign papers to accept immediate deportation.”
The federal government has a duty to protect the confidentiality of asylum applicants’ claims under 8 CFR 208.6, Lawit said, and that duty was breached in this case. “We’re about to file complaints that could lead to the firing of the ICE officers that did this. I just don’t think that my client is safe in [that facility] anymore,” Lawit told the court. Judge Chapa agreed that the diplomat’s visit had altered the situation, and he granted Grewal a change of venue to Seattle, where his uncle lives. “There are very unusual circumstances here. I think the facts and circumstances are compelling reasons to allow a change of venue,” Chapa said, over the protests of ICE’s attorney. Grewal’s reaction to the news was difficult to glean at the hearing as the video screen had frozen, leaving his image fixed in place. But within two weeks he was whisked to a private detention center in Tacoma, Washington, where his chances of being released on parole before his next hearing are higher than they would have been in El Paso, which tends to parole a smaller percentage of detainees than most other jurisdictions in the country.
A week after Grewal’s hearing, Lawit, as promised, filed a 38-page complaint with the Department of Homeland Security’s Office for Civil Rights and Civil Liberties detailing the specifics of the alleged violation. In his complaint, Lawit cites the Fifth Circuit’s opinion in Dayo v. Holder, in which the court found that a Nigerian man was entitled to file a new asylum claim after a DHS officer shared his asylum application with the Nigerian Consulate. “Because some countries persecute persons who sought asylum after repatriation, an asylum-seeker whose confidentiality was violated needs to be able to seek relief if the country to which he is returning will so persecute him,” read the decision of the three-judge panel. “Therefore . . . the applicant must be permitted to use the breach for a new claim for asylum.” Citing that decision, Lawit will be filing change of venue requests and new asylum claims for his fourteen other clients as well. (A DHS spokesperson did not return a call for comment about Lawit’s complaint.)
One of those clients is 26-year-old Gurbinder Singh, who had his hearing a few minutes before Grewal’s that July morning. Singh, who arrived at the U.S. border four months before Grewal, did not have a pending change of venue request at the time of his hearing, so Judge Chapa was unable to rule on that matter. (Lawit has now filed that request, and Singh’s next hearing is scheduled for October 6.) Instead, Chapa granted a continuance in Singh’s case, allowing Lawit more time to file a more detailed asylum claim on his behalf. Lawit attributed this to the fact that the only translator he had been able to find in the general area was an Albuquerque-based cab driver who has only conversational Punjabi skills and couldn’t communicate at the level that Lawit needed to fill out his clients’ asylum claims in detail. The translator issue, Lawit pointed out, would also likely be resolved in a different jurisdiction with more immigrants from the Punjab.
Protecting the anonymity of asylum seekers like Grewal and Singh is paramount, Lawit later told reporters. “In the world of asylum law, there is no greater sin than turning someone in to a foreign government.”