ICE returns to policy of lengthy detention of asylum seekers.

Sunday, January 20th, 2013
By: Jonathan MontagJ.D.

One of the first and one of the best thing s President Obama did when he first became President was to reverse the Bush-administration policy of detaining nearly all arriving-alien asylum seekers until their cases were adjudicated in the immigration court which I discussed here. His administration instead allowed Immigration and Customs Enforcement to release asylum-seeking aliens after they successfully completed a credible fear interview. As for  arriving aliens with families or who were pregnant, the government would most often parole the aliens into the United States without any detention at all.

The rules for dealing with arriving alien asylum seekers are found at  INA § 235(b). In essence, the statute states that if an alien comes to a port of entry without proper admission documents, that is with no documents, fake documents, or with an actual intent for entry contrary to the purpose of the person’s visa, then the person is ordered removed at the port of entry and then removed in a process called “expedited removal.” The exception is if the alien expresses a desire to seek asylum or expresses fear persecution if removed. In that case, the alien has an interview with an asylum officer who conducts an interview, a credible fear interview.

Regulations forbid the release of an inadmissible arriving alien except under special circumstances:

Detention and parole of alien in expedited removal. An alien whose inadmissibility is being considered under this section or who has been ordered removed pursuant to this section shall be detained pending determination and removal, except that parole of such alien, in accordance with section 212(d)(5) of the Act, may be permitted only when the Attorney General determines, in the exercise of discretion, that parole is required to meet a medical emergency or is necessary for a legitimate law enforcement objective. 8 CFR 235.3(b)(2)(iii).

INA § 212(d)(5) allows for the parole of aliens into the United States who are inadmissible for urgent humanitarian reasons or significant public benefit. It was under this section that the Bush administration found very few arriving alien asylum seekers eligible for parole and the Obama administration found most arriving alien asylum seekers eligible for parole. The regulations also state that the alien must remain detained while awaiting the credible fear interview.

Detention pending credible fear interview. Pending the credible fear determination by an asylum officer and any review of that determination by an immigration judge, the alien shall be detained. Parole of such alien in accordance with section 212(d)(5) of the Act may be permitted only when the Attorney General determines, in the exercise of discretion, that parole is required to meet a medical emergency or is necessary for a legitimate law enforcement objective. 8 CFR 235.3(b)(1)(4)(ii).

The wriggle room of INA § 212(d)(5) still exists in this regulation, though more constrained.

Here is the problem. It is taking between three and six months for a credible fear interview at the detention center closest to the San Ysidro Port of Entry. Aliens from all over the world who have come to San Ysidro seeking escape from persecution end up detained for months of months – not to seek asylum – but merely for an interview to determine whether they can seek asylum. If they pass the interview, they can see an immigration judge to actually seek asylum. It is only after passing the interview can they request release from detention. This situation is little better than what existed before in the Bush years.

The USCIS Asylum Office is not delaying these interviews for sadistic reasons, but rather, so it is said, because of staffing shortages. However, detaining arriving alien asylum seekers for months and months  before their cases can even begin is cruel and, regrettably, not unusual. One would think resources could be re-organized so aliens would  not have to sit detained for months and months at government expense in  the highly restrictive, mind-numbingly boring, and awful-food dispensing facility near the U.S. Mexican border waiting for an interview.

One explanation for not releasing aliens and simply sending them to court without a credible fear interview was that without complying with the credible fear regulatory scheme an immigration judge lacked jurisdiction to hear the asylum case. In fact, immigration judges terminated asylum cases of arriving aliens without credible fear interviews for lack of jurisdiction based on the regulations. However, this all changed with the Board of Immigration Appeals decision in Matter of E-R-M- & L-R-M-, published on June 30, 2011. The case concluded that an immigration judge can hear the case of an arriving alien asylum seeker who has not gone through the expedited removal and credible fear process found in the regulations. The immigration court can hear the case even if an alien is simply sent to immigration court after arriving at a port of entry.

Assuming there is a huge backlog of asylum seekers at the border near San Diego filling the detention center and the Asylum Office cannot cope. The recourse is not to detain hapless people seeking relief from persecution by prolonged, expensive detention. One recourse is to bypass the credible fear system and send them to immigration court and release them. Another recourse is to free them and schedule their credible fear interviews at a later date  outside of the detained setting. The chosen recourse, lock ’em up till we get to ’em, is the least humane and least economical choice. ICE should change the policy now! Posted January 20, 2013.







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