The American Civil Liberties Union (“ACLU”) recently won a court order requiring the Immigration and Customs Enforcement (“ICE”) to follow their published guidelines regarding the release of asylum seekers from custody. The case (Damus v. Nielsen) specifically applies to asylum seekers who have passed their credible fear interviews. It gives new hope to asylum seekers who have recently arrived in the U.S. at a port of entry and who can show they are not a danger to the community and that they are likely to appear for future court proceedings.
The U.S. District Court found that under the Trump administration, ICE has significantly changed its processing of parole requests for foreign national who arrive in the U.S. and are able to demonstrate a credible fear of persecution in their home country. For example, the Los Angeles Field Office denied 92% of these requests in 2017. However, in prior years, more than 90% of such requests were approved.
This drastic swing convinced the court that ICE was no longer following its own established policy. Rather, it was arbitrarily denying parole to nearly every applicant. Therefore, in the class-action lawsuit, the court issued an emergency order requiring ICE to review all parole denials to members of the Damus class. In addition, pursuant to the Damus order, ICE must make a decision on most new applications for parole within two weeks of the credible fear determination.
This case is important because being held in ICE custody has many negative effects. The detained person is separated from family and friends, work or school, and prevented from getting on with any kind of normal life. Visiting hours are limited, and most detention facilities are located in remote areas which make it inconvenient for family, friends, and attorneys to keep in regular contact with detainees. Many medical studies have shown that, especially for asylum seekers who are often already traumatized by the circumstances they fled in their home countries, prolonged detention exacerbates psychological symptoms. Likewise, family and friends on the outside may be struggling with extra financial strains or childcare responsibilities caused by the absence of the detained person, as well as with their own anxieties about their loved one’s fate.
In addition, an immigrant is also at a significant disadvantage with regards to their court case when they are in ICE custody. The court’s detained docket moves very quickly, which makes it difficult to retain a good attorney and collect all the evidence needed to present a strong case. If expert testimony is required, it becomes more challenging for then expert to properly evaluate the case and effectively present their opinions to the court. Plus, the person who has most at stake in the case and who knows most about it – the one who is at risk for being deported from the United States – is often unable to offer much assistance while locked away in ICE detention. He or she cannot personally search for documents, obtain official records, or contact employers or other references. Thus, the burden falls upon family members and friends on the outside, who are often less informed about the details of the case and may not know what to do. And of course, many asylum seekers have no friends or relatives in the United States.
If an asylum applicant is detained, the attorney’s first priority will be to determine whether release is possible. The Damus order now gives thousands of detained asylum-seekers new hope for release. Under Damus, most asylum-seekers who have received a positive credible fear determination should be released from ICE detention so long as they can reasonably prove their identity, they are not a danger to the community, and that they do not present a flight risk. A knowledgeable immigration attorney will be able to assist families in meeting all these requirements while their loved ones are detained. They will thereafter be able to present the best possible case for asylum and long-term safety in the United States.
It is better for everyone when asylum seekers are allowed to fully assist in their own court cases. This allows for the best possible opportunity to remain safely in the United States while also allowing for immigrants to remain with family and friends throughout the duration of their case.
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REEVES IMMIGRATION LAW GROUP is one of the oldest, largest and most experienced immigration fi rms in the United States with offi ces in Los Angeles, San Francisco, Las Vegas, Manila and China.
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The analysis and suggestions offered in this column do not create a lawyer-client relationship and are not a substitute for the personalized representation that is essential to every case.