Human Rights First released a new report detailing the increase in asylum seekers held in U.S. immigration detention facilities and the failure of the Obama Administration, specifically the Departments of Homeland Security (DHS) and Justice (DOJ), to effectively implement existing parole guidance for asylum seekers and reasonable bond levels for indigent individuals held in immigration detention. The report, which analyzes new data on the increase and provides examples of asylum seekers denied release and unnecessarily held in detention for long periods of time, offers recommendations to the administration and Congress for how to abide by and improve existing policies and ensure compliance with U.S. international human rights and refugee protection commitments. The report, “Lifeline on Lockdown: Increased U.S. Detention of Asylum Seekers,” is based on months of in-depth research on detention practices and policies relating to adult asylum seekers. It shows that some Immigration and Customs Enforcement (ICE) officers and field offices disregard the 2009 asylum parole directive, which was issued by the Obama Administration. As detailed in the report, some local ICE offices have taken the position that asylum seekers are a top enforcement priority under DHS Secretary Jeh Johnson’s November 2014 memorandum, extending detention for many months even when asylum seekers meet the relevant parole or release criteria. Moreover, immigration judges, who often review ICE custody decisions and have the authority to release asylum seekers on conditional parole or bond, often fail to consider an individual’s ability to pay by setting prohibitively high bonds. Congress has also set a quota for the number of individuals who must be placed in detention, which is inconsistent with U.S. international legal obligations that prohibit unnecessary detention. “By holding asylum seekers in U.S. immigration detention facilities unnecessarily, and failing to effectively implement existing parole policies and reasonable bond practices, the United States is setting a poor example for other countries and violating its own human rights and refugee protection obligations,” said Human Rights First’s Olga Byrne. “The increase in U.S. detention of asylum seekers comes when the world faces the largest refugee crisis since World War II. The United States should be leading by example in demonstrating its commitment to refugees and asylum seekers, rather than responding with detention and deterrence.” The new data analyzed in today’s report shows that the number of asylum seekers held in detention has increased nearly threefold from 2010 to 2014, and parole grants for arriving asylum seekers have decreased from 80 percent to 47 percent from 2012 to 2015. In some cases, ICE has refused to release asylum seekers who sought protection at a U.S. border or port of entry by claiming that they are considered enforcement priorities, and those asylum seekers who are sent to detention after requesting protection at U.S. airports or other formal ports of entry are not provided access to prompt immigration court custody hearings. “Lifeline on Lockdown” also finds that when asylum seekers meet the criteria for release, they often languish in detention for months due to an inability to pay the required bond. ICE and immigration courts have set bond rates—which range from $1,500 to $40,000 and above—that indigent individuals and families cannot afford. Some individuals resort to commercial bondsman and surety companies, which sometimes charge exorbitant rates or place their own GPS monitors on asylum seekers. Human Rights First recommends a number of steps the Obama Administration and Congress should take to reduce the number of individuals held in detention, including:
- DHS should direct all ICE field offices to comply with the 2009 asylum parole directive, and should clarify that the 2014 enforcement priorities do not call for the classification of asylum seekers as a “category 1” enforcement priority;
- DHS and the Department of Justice (DOJ) should codify the core requirements of the asylum parole directive into regulations, and revise regulations in order to provide access to prompt immigration court custody hearings for “arriving” asylum seekers as is available for other detained asylum seekers in removal proceedings;
- DHS and DOJ should provide automatic immigration court custody hearings to all immigrants—not only those detained in the Second or Ninth Circuits—in cases of prolonged detention;
- DHS and the Executive Office for Immigration Review (EOIR) should direct ICE officers and immigration judges to consider ability to pay in cases where bond is required, and a policy favoring release on “conditional parole” or recognizance without payment of bond should be implemented;
- Congress and DHS should eliminate the bed quota, and DHS should increase its use of community-based case management programs, rather than relying on detention; and,
- Civil rights offices in DHS and DOJ should investigate possible disparities in detention decisions based on nationality, religion, race, and other indicators of potential discrimination.