Immigrants who seek asylum in the U.S. must be giving individual consideration to whether they represent a flight risk or danger to the community before they can be detained if they have proven a credible fear of persecution at home, a federal judge has rules.
U.S. District Judge James Boasberg in the District of Columbia issued a preliminary injunction Monday blocking the Department of Homeland Security from arbitrarily detaining asylum seekers.
Boasberg pointed out the rates of release on parole of asylum seekers has plummeted from over 90 percent to near zero under the Trump administration’s zero-tolerance policy on detaining migrants.
The judge said he has done “no more than hold the government accountable to its own policy,” a 2009 directive by the Immigration and Customs Enforcement (ICE), which created a process requiring ICE to determine whether an individual who has passed a credible-fear interview will be released from detention pending a full hearing.
The ICE directive says the agency may release detained people into the US temporarily if they are found to be neither a security risk or flight risk and should be released for “urgent humanitarian” or “significant public benefit.”
The ICE directive calls for those who are found to have a credible fear of persecution if deported to have an asylum interview within seven days.
The lead plaintiff in the class action, Ansly Damus, a former ethics teacher in Haiti, is seeking asylum from political persecution in Haiti. Damus entered the US in October 2016, was found to have a credible fear of persecution and granted asylum twice, but the government appealed both rulings in 2017 and 2018. Damus has been detained for one-and-one-half years.
The judge found DHS’s “current failure to follow the ICE Directive is likely unlawful, and that the parole practices in place at the five field offices cause irreparable harm to those seeking asylum.”
“To mandate that ICE provide these baseline procedures to those entering our country – individuals who have often fled violence and persecution to seek safety on our shores – is no great judicial leap,” Boasberg wrote. Rather, it is to hold the US accountable for its own governing policies.
Damus v. Nielsen, No. 18-578
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