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Opinion

Don't penalize asylum-seekers at US ports

It's not fair: Refugees who seek asylum at US ports can be detained indefinitely, while those who apply once they are already in the country are generally allowed to remain free. The Justice Department must change its position and allow judicial review of asylum seekers at ports of entry.

By Arjun Sethi / June 5, 2012

Angela Garcia, in background, with two of her sons, in Holly Springs, N.C., in January 2011. The Honduran, who began her life in the US in an immigration detention center for families, was granted asylum to protect her from domestic violence. Op-ed contributor Arjun Sethi says 'prolonged detention of asylum seekers without adequate safeguards compromises America’s longstanding reputation as a refuge for the persecuted.'

Alfredo Sosa / The Christian Science Monitor /file

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Washington

Refugees fleeing persecution who arrive at US borders and airports can be indefinitely detained without judicial review. This is the position of the Department of Justice as outlined in a recent letter to immigrant and human rights groups calling for reform.

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The Obama administration should reconsider. Otherwise, local immigration officials will continue to serve as both judge and jailer absent meaningful oversight.

An estimated 74,000 immigrants applied for asylum last year. Many sought protection upon arriving at a port of entry; others applied after settling inside the country. In the world of asylum law, this happenstance can make all the difference.

Those with credible claims who apply at borders and airports are detained until either an immigration official grants parole or an immigration judge awards asylum.

Those applying later, including those who enter without papers, are generally permitted to remain free. If they’re detained, they can ask an immigration judge to order their release. As it stands, the current system is unfair. It rewards individuals who apply for asylum from inside the country, and penalizes those who are forthcoming at borders and airports.

The Obama administration contends that immigration officials can be trusted to make fair parole determinations, and that judicial review of detention would increase illegal immigration because applicants who are temporarily released would abscond. But judicial review is a necessary safeguard against overreaching immigration officials. Studies have repeatedly shown that officials make inconsistent and arbitrary decisions throughout the asylum process.

The United States Commission on International Religious Freedom found gaping variations in parole rates across the country, noting that in some areas applicants were routinely released while in other areas the parole rate was less than 5 percent.

Another study found widespread disparities in final asylum determinations. Chinese nationals, for example, had a 15 percent chance of success in one asylum office compared to 72 percent in another. And in one office, the grant rate for Indian nationals ranged between 3 percent and 88 percent depending on the officer.

Judicial review as a check against executive authority is a hallmark of the American legal system. Yet immigration officials function more like prosecutors than judges – and in America, it is judges who set bail, not prosecutors. Likewise, it is judges who determine whether probable cause exists to support a warrant, not police officers. Here, too, judges should determine the necessity of detention rather than immigration officials.

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