In this blog I have posted many articles about the horrid policy where arriving alien asylum seekers are not released from detention until they are granted asylum or related relief. I pointed out that Australia had such a system and abandoned it just as the United States implemented a “no release” policy. I compared this policy to the Sound of Music where if this policy were in effect in Switzerland, Maria Von Trapp would have been detained upon arrival in Switzerland and subjected to months, and potentially years, of detention.
Things have finally changed for the better. We can be certain that this change came from the top. In a policy memorandum dated December 8, 2009, and effective January 4, 2010, ICE will consider releasing asylum applicants who come to the border. First, an asylum officer must determine that the asylum seeker has a “credible fear” of persecution if he or she is returned to his or her homeland. Then, if ICE officers are confident that the alien is not a danger to the community, not a flight risk, and the alien’s identity is ascertained, the alien will be released. Interesting in the memorandum is that ICE officers have an affirmative duty to interview the alien within seven days of the credible fear determination to determine eligibility for release. When release was allowed in the past, quite often the alien had to make a written request for parole. In my own experience, it could take weeks for an ICE officer to respond to the request. The memorandum requires reporting requirements by local ICE offices to Washington, DC, regarding determinations denying release. Thus, the possibilities that ICE offices who do not like this policy can “go rogue” are reduced.
This policy is terrific news. It marks a dramatic change in ICE’s treatment of the most vulnerable of the detained – asylum seekers. One might wonder why this matters so much if a bona fide asylum seeker need only win his or her asylum case and then be released. The reason is that even in the most straight forward asylum case, it is more than six months that an alien has his or her final asylum hearing in immigration court. Should the final hearing date not be enough time to conclude the hearing, the next hearing date could be months afterward. Also, not all asylum cases are straight forward. Asylum is an immensely complex subject and issues of who is eligible and deserving is not always straight forward. The alien must show past persecution – not easy to define – or a well-founded fear of future persecution, the persecution must be on account of race, religion, nationality, political opinion, or social group. Definitions of these categories, most significantly, social group, are difficult. The issue of what proof is enough proof is difficult. How does a woman prove that she was raped on account of her political opinion and not simply as a victim of crime? These many nettlesome issues can lead to appeals either by an alien who is denied asylum by the immigration court or by the government attorneys who disagree with the grant of asylum by the immigration court. These appeals can last for years with the alien detained the whole time under the old policy.
From a humanitarian perspective, this change is a substantial positive one. Those concerned about fairness and humaneness in the enforcement of immigration laws should take cognizance of this advance when appraising progress in immigration reform efforts over the past last year.