Custody Determinations for Arriving Alien Asylum Seekers

Several immigrants’ rights organizations have challenged the disparate treatment that asylum seekers face, depending on where they are apprehended. Although the general policy is that people who are fleeing persecution should not be detained without a good reason, many asylum seekers still find themselves in custody. Some of those detained individuals can have an immigration judge review whether their detention is lawful, while others do not.

Let’s suppose two people, Solomon and Ahmed, flee their home countries in search of protection in the United States. Solomon turned himself in at a port-of-entry (an official United States border crossing) and immediately requests asylum. He’s transported to a detention facility and he waits weeks before he’s scheduled for a credible fear interview with an Asylum Officer. But Ahmed manages to enter the United States and drives fifteen miles past the port-of-entry before he’s apprehended by border patrol officials. Ahmed is transported to a detention center and he then expresses a fear of returning to his home country. After weeks of detention, Ahmed and Solomon both have a credible fear interview and establish they would suffer persecution or torture if returned to their home country. Despite seeking the same form of relief, they face different paths based upon where they were apprehended: a port of entry or within the United States. Solomon can be paroled by a Department of Homeland Security official if he establishes he is not a flight risk or danger to the community, but his custody determination is not subject to any review. That is, if a government official decides to deny him parole, he cannot ask an immigration judge to review that determination and must remain detained. On the other hand, if an official decides not to parole Ahmed, he can obtain a custody hearing before an immigration judge to review the official’s decision.

The National Immigration Justice Center and 30 organizations filed a petition with the Department of Justice and asserted that “[t]his type of disparate treatment is inconsistent with due process and equal protections provisions.” The petition proposed a rule that would grant immigration judges the authority to conduct hearings and review custody decisions involving individuals like Solomon (called “arriving aliens”). The petition also calls for a regulatory presumption that it is in the public’s interest to release arriving asylum seekers after a credible fear determination and a presumption that the individual is not a flight risk if identity is established.

In their petition, the NIJC and other organizations express their concern with the prolonged and unnecessary detention of people who have already been subject to torture, persecution, and/or incarceration in their home countries, and who have passed the credible fear screening. They argue immigration judges should be allowed to review custody decisions and grant release of these individuals in order to afford arriving asylum seekers the protection they need. The petitioners add that prolonged detention is often detrimental to the already vulnerable physical and mental health of asylum seekers, which the detention centers are not adequately equipped to treat. Furthermore, faced by the challenges of detention, some asylum seekers have preferred to abandon meritorious claims and be deported to the countries they are fleeing from than to continue to be detained.

The petitioners also question the constitutionality of the distinction the current regulatory scheme makes between arriving asylum seekers (those who seek asylum at a port of entry) and designated asylum seekers (i.e., individuals apprehended within U.S. borders) as well as its conformity with international law. Some benefits foreseen and mentioned by the petitioners are that arriving asylum seekers would have better access to information and legal resources to better prepare their cases and that government resources would not be wasted on the detention of the released asylum seekers.

The Department of Justice denied the petition and in its response, addressed the issues mentioned by the petitioners. The government argues that DHS’s 2010 Parole Guidelines already provide adequate safeguards for arriving asylum seekers and an adequate process that allows them to obtain parole when merited. The response points out that nothing indicates that the current system is not functioning and emphasized that release rates are higher than granting rates of relief from removal. In fact, the government claims that those who are detained have already been found be flight risk or have provided other reasons for not deserving release. The Department of Justice continues by claiming that the proposed regulation would increase the risk and rates of individuals who do not attend their court hearings and who fail to leave the United States when they are ordered removed.

In response to the constitutionality concerns with due process and equal protection that arise from the distinction between arriving and designated asylum seekers, the Department of Justice explains that under current law, “arriving aliens” lack constitutional rights. Since they do not enjoy constitutional rights under U.S. law, arriving aliens cannot challenge detention on due process grounds. The response emphasizes the language of the due process clause and clearly states that it applies to all persons within the United States, regardless of their legal status. In short, an arriving alien is not considered to be “within the United States” and therefore not entitled to constitutional rights. In regard to the equal protection claims, the government explains that the distinction is based on the fact that asylum seekers who are apprehended in the United States have already developed connections with the country and therefore receive certain constitutional protection. The Department of Justice addresses the DHS’s 2010 Parole Guidelines’ conformity with international law by noting that international law does not create legally enforceable or binding rights and that the current guidelines provide the necessary safeguards. In regard to the reallocation of funds, the government points out that funds not used in detention expenses would still have to be used to monitor and locate asylum seekers who are released or do not comply with their order of removal. It further states that it is simply rational to save resources by having DHS officers in charge of custody determinations instead of having to hold custody hearings.

Ultimately, the Department of Justice states that policy considerations are not enough to warrant changes in the current regulatory scheme and that the current process for the release on parole of arriving asylum seekers is functional and effective.

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