More on the US’s new asylee parole policy

My friend and colleague John Wilkinson sent me a number of links to statements from the horses mouth, as it were, re our new asylee un-detention policy. I thought two were particularly telling.

Here’s how Immigration and Customs Enforcement (ICE) describes the change:

Under the new policy, aliens who arrive in the United States at a port of entry and are found to have a credible fear of persecution or torture will automatically be considered by DRO for parole. This is a change from the prior policy, which required aliens to affirmatively request parole in writing. In addition, the new policy adds heightened quality assurance safeguards, including monthly reporting by ICE field offices and headquarters analysis of parole rates and decision-making, as well as a review of compliance rates for paroled aliens. Further, while the prior policy allowed ICE officers to grant parole based on a determination of the public interest, it did not define this concept. By contrast, the new directive explains that the public interest is served by paroling arriving aliens found to have a credible fear who establish their identities, pose neither a flight risk nor a danger to the community, and for whom no additional factors weigh against their release.

So, what is parole?

Parole is an administrative measure used by DHS to temporarily authorize the release of an alien into the United States. Parole is not a lawful admission or a determination of an alien’s admissibility, and can be conditioned upon such terms as the posting of a bond or other guarantee.

So, potential asylees will be paroled (not admitted permanently) as is consistent with the public interest, once they can show that they are who say they are, can show that they are not going to disappear if paroled, and can show they are not dangerous. For more about how these “aliens” will be treated starting January 4, see ICE’s factsheet. (Why can’t ICE talk like the rest of us? And what term are they going to use when the real aliens show up?)

Here’s another take, from Senator Patrick Leahy of Vermont. Senator Leahy has been a staunch proponent of human rights legislation, from asylee-related work to torture. I’m giving you a big piece of his statement, but bear with it. He gives us a little history lesson in addition to clarifying the changes:

Under current law, an asylum seeker who arrives at a port of entry and asks for refugee protection is given a brief interview to ascertain whether he or she has a credible fear of persecution in their home country.  If the asylum seeker passes that interview, they are detained, pending a hearing on their claim before an immigration judge.  That hearing may take place weeks or months after the asylum seeker arrives in the United States.  Unless the asylum seeker can convince the Department of Homeland Security that they should be released, that asylum seeker can spend those weeks or months in immigration detention.  This policy is an affront to our ideals as a nation that aspires to be a beacon of light to persecuted refugees.

In 1997, the Immigration and Naturalization Service developed guidelines to determine whether asylum seekers should be released from custody in “parole” status while their asylum claims were adjudicated.  To obtain parole, asylum seekers were required to establish their identity, and show that they were neither a flight risk nor a threat to the community.  These guidelines were properly calibrated to deter fraud in the asylum system and threats to our national security.  They also ensured that those who met the criteria for parole should be released.  The 1997 parole guidelines were imperfectly implemented, but the policy contained in them was reasonable and appropriate.

For reasons that were never adequately explained, under the prior administration, ICE issued new parole guidelines that raised the bar for asylum seekers.  In addition to the 1997 requirements, under the Bush policy, an asylum seeker had to demonstrate other factors, such as a serious medical condition, pregnancy, status as a minor, or that his or her release was in the “public interest.”  The term “public interest” was not defined in the 2007 guidelines and it is not clear how a detained asylum seeker could have met such a vague standard.  Members of Congress and the bipartisan U.S. Commission on International Religious Freedom questioned the need for such a restrictive policy, especially when many asylum seekers have no criminal record and pose no risk to Americans.

The new parole policy generally hews to the 1997 parole guidelines, but contains an important improvement.  Again, asylum seekers will be eligible for parole if they demonstrate a credible fear of return to their country of origin, establish identity, and show that they are neither a flight risk nor a threat to the community.  For the first time, however, the Government will conduct a parole review of each case in which the asylum seeker establishes a credible fear of return.  Under both the 1997 and 2007 policies, an asylum seeker had to request a parole determination in writing.  Many asylum seekers arrive on our shores with genuine claims for protection, but no English language skills and no legal counsel.  For these asylum seekers, navigating our complex immigration system presents an enormous hurdle.  It is a challenge for them to even comprehend that they may seek parole from detention.   Therefore, an automatic parole review will assist many bona fide refugees in winning release from custody.  Our commitment to fair and humane treatment of refugees demands no less.  This new policy will also save taxpayer dollars spent to detain immigrants, including asylum seekers who are otherwise eligible for parole, at an average of $100 per person, per day.

It seems that the “prior administration” would have paroled potential asylees if only they had asked to be paroled. Did no one ask to be released from detention? They probably just didn’t use the term parole; they probably didn’t know they were aliens either. Well, starting January 4, 2010, the new policy will make it clear to potential asylum seekers that they can ask to be released on parole… and it will save us money, too!

And now for something completely boring: the new documents ICE will be using to be sure this policy is enforced. These are the forms that Customs and Border Patrol officers will be reading to potential asylum seekers. You get a sense of  what greets potential asylees, and the tedium of immigration work.

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