News Update - January 2, 2010

By Alan Lee, Esq.^†‡

U.S. Policy on Detention of Arriving Asylum Seekers Changing on January 4, 2010

In a change of policy on political asylum detention announced on December 16, 2009, and effective on January 4, 2010, the U.S. Immigration and Customs Enforcement (ICE) will parole instead of continuing to detain arriving asylum seekers who have a credible fear of detention or torture.  The current policy has been for the agency to detain asylum seekers upon arrival up through the time of their proceedings, which has been heavily criticized internationally and by human-rights advocates.  Generally under the new policy, asylum seekers who pass a credible fear interview will be paroled in the public interest so long as they establish identity, present neither a flight risk nor danger to the community, and there are no additional factors against their release.  In assessing identity, ICE will look to see if the individual has a valid government issued ID; if not, whether there are third-party affidavits supporting the claimed identity by individuals who are themselves able to establish their own identities and addresses; and if not or deemed insufficient, through credible statements such that there are no substantial reasons to doubt the identity.  In assessing flight risk, the agency will look at whether the individual has a residence address; whether he/she has substantial ties to the community through relatives or organizations; whether there are substantial reasons to believe that the individual will not appear as required; and if there substantial reasons to consider the individual a flight risk, whether the risk can be mitigated sufficiently by an alternative to detention program or the imposition of a bond.  In assessing danger to the community, ICE will consider if there is an actual danger to the community or U.S. national security and if danger, whether there is mitigating evidence such as proof of rehabilitation.  In assessing additional factors including any exceptional, overriding factors why parole should not be granted, the agency will look at factors such as whether serious adverse foreign policy consequences might result if the alien is released or whether there are overriding law enforcement interests. 

The change of policy is welcome to all who believe that credible asylum seekers should not be treated like criminals as they flee from persecution in their home countries.

† The author is a 26+ year practitioner of immigration law based in New York City. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Administration in the Intelligence Reform Act of 2004.

‡ This article © 2010 Alan Lee, Esq.

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