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.
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Unchecked detention also undermines meritorious claims. Detention facilities are often located in remote areas far removed from counsel and courts. Only 16 percent of detained immigrants secure counsel and many have their hearings conducted by video. Immigration judges, in turn, are nearly three times more likely to grant asylum to applicants represented by counsel, and two times more likely to grant asylum to those appearing in person rather than video.Skip to next paragraph
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Detention sometimes causes applicants to abandon worthy claims as well. Many victims of persecution suffer from anxiety and post-traumatic stress disorder, and require medical treatment. Prolonged detention exacerbates these conditions, pushing applicants to choose deportation over months or even years in detention.
Releasing asylum applicants who have strong claims is also cost-effective. At an estimated price in excess of $100 per day , detention is considerably more expensive than alternative release programs. These community based programs, include in-person reporting and home visits, and have proven effective in ensuring that applicants appear for their hearings.
The administration defends its policy by citing a 1996 law that provides for the hasty deportation – so called, expedited removal – of undocumented immigrants apprehended at a port of entry. It also references a long line of Supreme Court cases distinguishing between aliens seeking admission at borders and airports and those who have entered the United States.
Judicial review, however, won’t threaten the 1996 law. It will simply require that applicants be permitted to challenge their detention in immigration court. There, they can prove their identity, and establish that they neither pose a flight risk nor a danger to the community. This way the final decision to detain a refugee will rest with a judge, not an immigration official.
Differentiating between aliens seeking admission and those who have settled down, meanwhile, may be constitutionally permissible but it is not always advisable. In the case of asylum law, it creates an arbitrary hierarchy that jeopardizes viable claims.
Prolonged detention of asylum seekers without adequate safeguards compromises America’s longstanding reputation as a refuge for the persecuted. It also violates America’s international commitments, which protect against arbitrary detention. It is high time the Department of Justice changed its thinking. Fairness demands it.
Arjun Sethi is an attorney in Washington, DC.