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March 16, 2018

Taking The Fight for Asylum Seekers to Court

This year the Trump Administration is engaging in an unprecedented assault on asylum seekers and refugees. From the refugee ban to fear-mongering over MS-13, turning back asylum seekers at our border, and rescinding protections for Americans brought to this country as children, the administration is pursuing an agenda written by hard-line immigration extremists in the White House and in Congress.

In response, we’re taking the fight for asylum seekers to court.

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Human Rights First, along with the American Civil Liberties Union (ACLU), the Center for Gender and Refugee Studies, and Covington & Burling, has filed a class action lawsuit in support of asylum seekers who are held in jails and immigration detention facilities without individualized assessments of their eligibility for release on parole.

Background

Our lawsuit challenges the Trump Administration’s policy of illegally and unconstitutionally failing to provide detained asylum seekers a meaningful opportunity to have their eligibility for release on parole assessed. In 2010, a U.S. Immigration and Customs Enforcement (ICE) parole directive went into effect. It provides that arriving asylum seekers “whose continued detention is not in the public interest” should generally be released on parole.  Additionally, under the directive, detention is deemed to be generally not in the public interest if the asylum seeker passes a credible fear screening interview, establishes her identity, and poses no flight risk or danger to the community. Furthermore, absent unusual circumstances, a detained asylum seeker who meets these standards should be released on parole.

ICE’s blanket detention policies have faced legal challenges before. In late 2014, the ACLU challenged the government’s use of detention to deter future asylum seekers from seeking protection in the United States in R.I.L.R. v. Johnson. In response, ICE issued a new policy stating that it will not consider deterrence in deciding whether to detain asylum seeking families. Despite this policy, ICE continues to use deterrence as a factor in its parole determinations in at least five field office districts across the country, thereby holding asylum seekers in long-term and prolonged detention.

Last month, the Supreme Court held in Jennings v. Rodriguez that the Immigration and Nationality Act (INA) does not guarantee bond hearings for arriving asylum seekers held in prolonged detention. The Court remanded the case back to the Ninth Circuit to determine whether the Constitution requires those bond hearings. While the government claimed during both oral arguments and in briefings that release on parole remains an option, it is not true in practice. Instead, ICE denies parole to an average of 96 percent of arriving asylum seekers in at least five field office districts.  

Beyond the violations of U.S. law raised in the lawsuit, these detention policies and practices also violate U.S. legal obligations under the Refugee Protocol and the International Convention on Civil and Political Rights, which prohibit detention that is unnecessary, disproportionate, or otherwise arbitrary, such as where other measures can satisfy governmental objectives.

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