Federal Judge Rules Against Indefinite Detention of Asylum-Seekers

By Susan Jones | July 3, 2018 | 6:17am EDT
(Photo: Screen capture/ICE video)

(CNSNews.com) - Amid calls on the Democrat left to abolish ICE, a federal court in Washington ruled against ICE on Monday, saying that asylum-seekers may not be detained indefinitely after U.S. authorities determine they have a credible fear of persecution.

U.S. District Court Judge James E. Boasberg, an Obama appointee, granted a preliminary injunction, directing the Department of Homeland Security and Immigration and Customs Enforcement to provide a case-by-case review of each asylum-seeker in the class-action lawsuit, all of whom are requesting humanitarian parole.

As the court ruling notes, the lead plaintiff in the case is Ansly Damus, a teacher who fled political persecution in Haiti. Damus entered the U.S.in October 2016, was found to have a credible fear of persecution, and was granted asylum twice, but the government appealed both times, leaving Damus in detention for more than a year and a half.

(ICE reportedly denied Damus because he didn't have "sufficient ties" to the U.S., according to ACLU attorney Stephen Kang.)

The other eight named plaintiffs are being held at five ICE field offices. They also have received credible-fear determinations but have been denied parole, in one case for two years.

The lawsuit, filed in March 2018, names Homeland Security Secretary Kirstjen Nielsen; Acting ICE Director Thomas Homan; Attorney General Jeff Sessions; and the directors of five ICE field offices.

The plaintiffs argue they have been denied release in violation of a 2009 ICE directive setting forth the process by which ICE must determine whether an individual who has passed a credible-fear interview -– the first step toward gaining asylum status -– will be released from detention on parole pending a full hearing.

According to the lawsuit:

Plaintiffs (and other members of the class they seek to represent) are noncitizens being held at five ICE Field Offices who have received a credible-fear determination but have been denied parole. Although, in the past, individuals deemed to have a “credible fear” of persecution and thus a significant possibility of being granted asylum were overwhelmingly released, Plaintiffs contend that there is a new reality in place.

Pointing to the fact that parole rates have plummeted from over 90% to nearly zero, as well as to testimony from detained asylum-seekers and their counsel, they assert that the Government is no longer following its own Parole Directive. Plaintiffs allege that, rather than providing individualized determinations and procedural safeguards, DHS is now engaging in systematic detention.

By ignoring the ICE directive, the plaintiffs say the U.S. government has violated the Administrative Procedure Act, the Immigration and Nationality Act, and the Due Process Clause of the Fifth Amendment.

The government, meanwhile, has moved to dismiss the case on the grounds that the federal court lacks jurisdiction and that the plaintiffs have failed to state a viable claim for relief. The government says the plaintiffs "are improperly attempting to challenge “ICE officers'discretionary weighing of the evidence.”

The plaintiffs requested a preliminary injuction requiring DHS to provide case-by-case parole determinations while the lawsuit is pending. The judge granted the preliminary injuction, finding that "the circumstances here merit...extraordinanry form of relief."

The judge said his opinion "does no more than hold the Government accountable to its own policy, which recently has been honored more in the breach than the observance. Having extended the safeguards of the Parole Directive to asylum-seekers, ICE must now ensure that such protections are realized."

The ruling stems from a challenge brought by the American Civil Liberties Union, Center for Gender and Refugee Studies, Human Rights First, and the law firm Covington & Burling.

“This ruling means the Trump administration cannot use indefinite detention as a weapon to punish and deter asylum seekers,” said Michael Tan, senior staff attorney with the ACLU’s Immigrants’ Rights Project.

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