Most of the Cuban detainees who were involved in the uprisings at the Atlanta and Oakdale, La., federal prisons were being held, says US Immigration and Naturalization Service spokesman Duke Austin, because they had demonstrated that ``they can't act as productive members of society.'' He says they were remanded back to Immigration Service custody after serving time for breaking United States laws. Now that Cuba has reinstated its agreement to accept the 2,546 detainees, reassessment of their individual situations - leading to acceptance of them as resident aliens or deportation back to Cuba - is proceeding.
According to the Immigration and Naturalization Service (INS), in addition to the Cubans who were held in the Atlanta and Oakdale, La., facilities, some 82,600 illegal aliens had been admitted as of Sept. 30, 1987.
INS officials say all could be released tomorrow if they would ``go home.'' Under current law and policy, detention is seen as a necessary measure to protect US borders. But critics of government immigration policy view detention as a mechanism for letting people enter this country legally on a selective basis.
Asylum seekers are detained automatically and may spend two or more years in detention while awaiting the outcome of asylum petitions. Most such people are caught at the point of entry without proper documents. US law requires establishment of ``well-founded fear of persecution'' before asylum is granted. Flight from ``random violence'' in war-torn countries does not meet the legal standard, say INS officials.
``Alien detention and length of detention is voluntary,'' says Mr. Austin. ``When the government says you don't have a right to be here and the alien contests that, he is detained. When he says, `Yeah, you're right,' we give him a free ride home.''
Detention was used to control immigration in the late 19th and early 20th centuries. In 1954 Ellis Island, which was used for holding and processing illegal immigrants, was closed as part of a more relaxed detention policy under which only people believed to be adverse to national security or public safety, or likely to flee, were detained. Others received conditional parole, sometimes under supervision, or were released on bond. Detention is a ``deterrent,'' says Mr. Austin. He adds that the Reagan administration determined in 1981 that the policy of ``fluid borders'' was ``just not flying anymore.''
Arthur C. Helton, who works in the asylum project of the Lawyers Committee for Human Rights, says the grounds for detaining people is a ``legal fiction.'' The category of ``excludable'' under current law says a person caught at the airport or at the border is legally not in the country. They are detained and deemed ``constitutional nonentities,'' says Mr. Helton.
He is joined by Wade Henderson of the American Civil Liberties Union in contending that the 1980 Mariel boat lift, which brought thousands of Cubans to Florida, and the influx of many Haitians over a period of years caused a departure from that relaxed policy to detention as a ``punitive measure,'' with ``an eye toward mistreatment to discourage people from coming over.''
The INS says the development of the detention policy at that point was a coincidence. But some say the debate over policy is less significant than the more pressing concern over controlling immigration. America is no longer ``the land of milk and honey,'' says Patrick Burns, assistant director at the Federation for American Immigration Reform (FAIR). ``We, too, are finite. If we can't feed, house, and clothe our own, how can we start to feed, house, and clothe everybody else.''
Mr. Burns says exclusion policies date back to the barring of Asian immigrants during the 1800s. He asserts that the United States accepts more legal immigrants for permanent resettlement than the rest of the world combined.
But critics of the tough immigration stance argue that standards are not uniformly applied. They cite a recent General Accounting Office report indicating that the relative number of Central Americans approved for asylum, as compared with those from such countries as Iran and Poland, are much lower. But since the INS generally does not document the reasons asylum requests are denied, the report said, ``whether the difference in approval rates reflects a bias in the application of asylum standards is uncertain.''
INS spokesman Austin says that the burden of proof is on aliens to establish that they would be persecuted if returned to their country of origin.