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September 29, 2017

Judge and Jailer: Asylum Seekers Denied Parole in Wake of Trump Executive Order

On January 25, 2017, President Donald Trump issued an executive order directing the Department of Homeland Security (DHS) to allocate “all legally available resources” to construct and operate immigration detention facilities and hold immigrants there for the duration of their court proceedings. In the eight months since, Immigration and Customs Enforcement (ICE) has largely refused to release asylum seekers from detention on parole, leaving many locked up in immigration detention facilities and jails.

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An asylum seeker who requests protection at a formal U.S. port of entry—either at an airport or along the border—is blocked by regulatory language from an immigration court custody hearing to assess whether or not he or she can be released from detention. Instead, in determining whether to release the asylum seeker on parole, ICE acts as both judge and jailer.  

In the Ninth Circuit, these asylum seekers have access to immigration court custody hearings, known as bond hearings, after six months in detention due to a federal appeals court decision. That ruling is slated to be reviewed by the Supreme Court this fall in the case of Jennings v. Rodriguez. 

ICE does not promptly release statistics relating to the detention of asylum seekers and the parole of those labeled “arriving aliens” because they sought protection at a formal port of entry. However, through research and interviews conducted in late August and September with nonprofit and pro bono attorneys working with asylum seekers held at many of the largest detention facilities across the country, Human Rights First has identified several trends.