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.
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