Why Holding Asylum Seekers Without Parole is Unlawful

Alexi, an 18-year-old man from Honduras, has been locked behind bars in an orange jumpsuit in York County Prison in Pennsylvania since November. Why? Because he sought protection at our southern border after assailants in Honduras beat him and held him at gunpoint for being gay. He’s not alone. Across the country, Immigration and Customs Enforcement (ICE) has locked up thousands of asylum seekers like Alexi in jails and other detention facilities for lawfully seeking refuge at an official port of entry (officially, these individuals are classified as “arriving asylum seekers”). Many are then held for months, or even years, pending final outcomes in their asylum cases. This treatment does not reflect the ideals and values upon which the United States was built. This is not who we are.

In response to the Trump Administration’s attack on asylum seekers, today Human Rights First—and our co-counsel, the ACLU, Covington & Burling, and the Center for Gender and Refugee Studies—filed a class action lawsuit in the U.S. District Court for the District of Columbia to challenge the widespread denial of parole that is keeping thousands of asylum seekers locked up.

A recent Supreme Court decision is directly relevant to our case. On Feb. 27, the Supreme Court held in Jennings v. Rodriguez that the Immigration and Nationality Act (INA) does not guarantee custody hearings for arriving asylum seekers in prolonged detention. Release on parole, however, is still supposed to be an option. In defending its stance in Jennings, the government claimed in oral argument that the Department of Homeland Security (DHS) paroles arriving asylum seekers who demonstrate a credible fear of persecution and establish their identities and lack of both flight risk and danger to the community. The deputy solicitor general even stated, “Unless there’s some countervailing consideration, the policy of DHS is to parole those individuals into the country.”

The government was right about ICE’s written parole policy. ICE’s 2010 Directive No. 11002.1, known as the “Parole Directive,” provides for parole for arriving asylum seekers who meet identity, flight risk, and dangerousness criteria.

In practice, however, ICE has blatantly ignored its written policy since early 2017, instead denying parole to an average of 96 percent of arriving asylum seekers in at least five ICE districts nationwide. Many of those for whom ICE has denied parole clearly demonstrated in their applications that they met the criteria the government itself established.

We’re filing suit because by denying parole to individuals like Alexi, without considering their individualized circumstances, ICE is violating both the Administrative Procedures Act (APA), the INA, and the U.S. Constitution. ICE’s failure to follow the law undermines the fundamental fairness our legal system owes to the most vulnerable amongst us.

ICE Violated the APA by Failing to Abide by the Parole Directive

Congress conceived of the APA in the 1940s, in part, to protect individual rights by insulating federal agency actions from presidential overreach. Democrats sought to protect agencies from the political whims of a Republican presidency to preserve New Deal programs, while Republicans believed judicial review would protect individual rights from executive overreach. The resulting compromise, the APA, empowered the judiciary to “compel agency action unlawfully withheld or unreasonably delayed” and “hold unlawful and set aside” arbitrary and capricious or unconstitutional agency action.

Our lawsuit is asking the courts to do just that: Hold ICE’s actions unlawful because they violate the individual rights Congress sought to protect with this law. The Trump administration has made clear its desire to punish immigrants and deter future immigration on many fronts, from restricting refugee admissions to suing sanctuary cities. In this case, the Trump administration has exerted undue influence on agency action to punish arriving asylum seekers, decrease the likelihood of winning an asylum claim, and deter future asylum seekers from coming to the United States to seek refuge.

President Donald Trump began this attack on the rights of asylum seekers in January 2017, when he issued an executive order calling for parole only when there are “urgent humanitarian reasons or a significant public benefit.” The following month, then-Secretary of Homeland Security John Kelly issued a memorandum to implement the president’s executive order, stating that while the parole directive remains “in full force and effect,” parole authority should be exercised “sparingly.” Soon after, parole grant rates sharply declined. While the parole directive allowed for discretion, it clearly set forth criteria for deportation officers to apply.

Instead of a process of individualized determinations, anti-immigrant animus has seemingly resulted in a near blanket denial policy, violating the rights of thousands of asylum seekers seeking protection at our border.

The APA’s role in protecting individual rights is of particular importance for detained asylum seekers given lack of access to counsel in detention. The generally remote location of detention facilities, complicated procedures for gaining physical access to clients, insufficient pro bono counsel, and limited ability to pay for private attorneys all limit access to counsel. As a result, only 14 percent of detained individuals nationwide are represented by legal counsel, as compared with two-thirds of non-detained immigrants. Release from detention on parole, therefore, greatly increases the likelihood of securing counsel, and thus provides greater protections to ensure that the deck is not wholly stacked against them. This would simply require the government to follow its own directive.

ICE Violated the Constitution by Failing to Conduct Individualized Evaluations

What constitutional rights, if any, do asylum seekers detained in U.S. custody have? The government itself conceded in Jennings that arriving asylum seekers in U.S. custody have some constitutional rights—to be free from things like torture and hard labor—but argued that they do not have a constitutional right to a hearing before a neutral decision-maker because they are not “admitted” to the United States.

While prior Supreme Court cases extend Fifth Amendment protections to “all persons within the United States,” the government uses a type of “entry fiction” to deny these due process rights to asylum seekers. In this context, this fiction posits that an asylum seeker, because of his apprehension at the U.S. border, never truly entered the country despite being detained in a facility inside the U.S.

In his dissent in Jennings, Justice Stephen Breyer questioned the logic and constitutionality of this fiction, stating, “Would the Constitution leave the government free to starve, beat, or lash those held within our boundaries? If not, then, whatever the fiction, how can the Constitution authorize the Government to imprison arbitrarily those who, whatever we might pretend, are in reality right here in the United States?” By denying asylum seekers these due process rights, we deny them the guarantee of freedom from arbitrary detention, which is, as Breyer wrote, “as ancient and important a right as any found within the Constitution’s boundaries.”

Breyer argued that Fifth Amendment Due Process rights prohibit ICE from subjecting an asylum seeker to long-term detention without an individualized determination that he poses a flight risk or danger to the community. The Court ultimately ruled that while the INA does not require a bond hearing, the Ninth Circuit should consider whether the Constitution does. Short of six months, however, ICE should, at minimum, provide some modicum of due process by making individualized parole determinations. The government, after all, argued that the jailer, ICE, should make the individualized determination, not that ICE deny parole altogether.

Data obtained through a Freedom of Information Act request, as well as statements from immigration attorneys routinely filing for parole for their clients, prove that these individualized determinations all too often do not occur. Instead, ICE denies parole in boilerplate letters without even considering the often-extensive evidence of community ties, identity, and lack of danger.

This failure to conduct individual review was most evident in the case of “Jaime,” another asylum seeker detained in York County Prison whose attorney filed a parole redetermination request on his behalf. Despite the extensive evidence of his lack of flight risk and danger to the community, ICE denied his request in a one-line fax. Attached to the fax was a boilerplate letter—dated two months prior to the redetermination request—which provided no individualized reason for denying parole.

Despite these administrative and constitutional violations, the government continues to detain thousands of asylum seekers every day. Unless the government adheres to its Parole Directive, arriving asylum seekers will continue to endure the harsh realities of immigration detention for months or years without the protection that the U.S. legal system should provide.

Our country has long embraced the bedrock principle of providing refuge to those persecuted beyond our shores. This is who we are. This commitment has not wavered even as presidential administrations of all political stripes have come and gone. Now, it seems under the Trump administration, that we seek to abandon those principles, codified in policy, because of reasons antithetical to our core. This lawsuit seeks to right that wrong, to remind us of the principles of fairness and certainty that are integral to our national identity. The government should do what it said it would do—the Constitution, the people of this country, and those seeking asylum deserve that fidelity. After all, that is who we are.

 

Image: A Honduran mother stands with her family at the U.S.-Mexico border fence on February 22, 2018 near Penitas, Texas. They had turned themselves in to Border Patrol agents, seeking political asylum in the U.S. Photo by John Moore/Getty Images

 

About the Author(s)

Eleni Bakst

Equal Justice Works Fellow at Human Rights First Follow her on Twitter (@elenibakst).

Laura Gault

Harvard Law School’s Sumner M. Redstone Fellow at Human Rights First Follow her on Twitter (@LauraDGault).