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.
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.
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.
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.