Trump Era Ushers in New Unofficial Policy on Asylum-Seekers

Shift appears to be in response to Trump's January immigration enforcement executive order

Recently, Immigration and Customs Enforcement has virtually stopped granting detained immigrants bond or parole. Credit: Jose Cabezas/AFP/Getty

After a drug trafficker killed her father, raped her and forced her to transport narcotics from Guatemala to her home in El Salvador, threatening to kill her six siblings if she defected, says Lilian Uriba, the 18-year-old fled for the U.S. Last month, Uriba passed the first phase of her asylum case – but she waits indefinitely in detention, since Immigration and Customs Enforcement denied her release.

"If I don't get out, I won't get the proof I need for asylum. I can't even make a call outside," says Uriba in the visitation room of T. Don Hutto Residential Center, a 512-bed immigrant detention facility in rural Texas. "I worry about my family every day. I try not to sleep, so I don't have bad dreams."

Uriba is experiencing the impact of a new unofficial national policy: ICE has virtually stopped granting detained immigrants bond or parole, keeping them incarcerated throughout their cases unless they successfully appeal to an immigration judge.

"Across the board there's been a significant drop in bond issuances by ICE. It's been pretty noticeable nationwide," says Heather Prendergast, chair of the American Immigration Lawyers' ICE Liaison Committee. "Generally speaking the sentiment is that ICE is denying all bonds."

The shift, apparent in the past several weeks, seems to be in response to President Trump's January immigration enforcement executive order, which called for the agency "to ensure the detention of aliens apprehended for violations of immigration law" and to grant parole on a "case-by-case basis."

But immigration attorneys say ICE has clamped down even more extremely than the president's order, and more so than a February Department of Homeland Security memo claiming asylum-seekers were still eligible for release.

"It seems that ICE is going even further than this memo," says Andrew Nietor, a San Diego-based immigration attorney, who works with asylum-seekers on the California-Mexico border, noting that all his clients have been refused release in recent weeks. "Even if they had no criminal history or prior immigration convictions and had family willing to take them in, ICE has said, 'No, take it to a judge.' I've spoken to deportation officers who have told me that they are almost categorically not releasing people and just punting cases to the immigration court."

The enforcement strategy – confirmed by attorneys in 11 states in different regions of the country – has hit asylum-seekers like Uriba the hardest.

Previously, asylum-seekers could leave detention after demonstrating fear of persecution in a so-called credible fear interview, the initial step of their case. ICE would offer a bond or a release on recognizance to individuals who had been apprehended by immigration agents, and it granted parole to those who had requested refugee status at an official port of entry.

But now, ICE has begun blanket rejections of those cases.

"Nobody's getting a bond. It's a very stark change from what was happening last month even ... and as far as we've seen, paroles are being denied," says immigration attorney Clarissa Bejarano, who leads weekly legal workshops at Hutto, where she met Uriba. "Before this month, we were helping women with their asylum applications. Now it's all bond-focused," she says, explaining that asylum-seekers are now so desperate to end their prolonged detention stays that they're looking to fight for bonds first. "Our workshop yesterday was very hectic. We had at least 60 people there and we didn't have time to help them all out. A lot of people were upset."

Now Bejarano is rushing to file bond requests on behalf of dozens of detainees in immigration court, but immigration attorneys cannot even file such requests for immigrants who would have received parole. That's because "arriving aliens" – immigrants who present themselves at the border – are lawfully ineligible to appeal to a judge if ICE denies them parole. Only in a handful of states – Arizona, California, Nevada, Idaho, Oregon, Washington, Montana, Alaska and Hawaii – can immigrants denied parole request bond from a judge after six months in detention, after a 2013 ruling by the 9th Circuit Court of Appeals.

In response to ICE's widespread parole denials, one group of New York City attorneys have taken legal action, filing multiple writs of habeas corpus in Manhattan's federal district court on the grounds that their clients were being held in indefinite detention without review.

"On one case, the judge ordered the government to submit a letter saying how many people were actually being released from detention, and a few days later [ICE] released the client," says Andrea Sáenz, supervising attorney at Brooklyn Defender Services, which led in the habeas corpus filings. "The next week they started granting a lot of cases. That's why we can say something different – because here we were litigating these cases, so we had a crack in the dam."

After such legal pressure, ICE is once again granting paroles in New York – but elsewhere in the country, asylum-seekers languish behind bars. Only in family detention facilities has ICE continued releasing mothers and their children, says Amy Fischer, policy director for the Refugee and Immigrant Center for Legal and Educational Services. And at California's Santa Ana jail, where ICE is ending its controversial contract to detain transgender immigrants, the agency has granted a number of paroles, says Talia Inlender, senior staff attorney for the Immigrants' Rights Project at Public Counsel in Los Angeles.

"I think the imminent closure of the facility is precipitating the releases. ... I don't think it's reflective of the national trend at all," says Inlender, noting that parole and bond denials have become the norm at other nearby facilities.

While ICE has already rejected most bond and parole requests in certain regions, especially the Southeast, the practice has recently become jarringly uniform, says North Carolina immigration attorney Jeremy McKinney.

"Our major concern is that whether someone is released or not plays a significant difference on whether that person is going to have an attorney," says McKinney. Only 14 percent of detained immigrants are able to obtain attorneys, compared to two-thirds of non-detained immigrants, and immigrants with representation are about three times more likely to win their asylum cases, according to a 2014 Stanford study.

ICE spokeswoman Sarah Rodriguez would not comment specifically on the spate of bond and parole denials, but said in a statement that the agency "focuses its enforcement resources on individuals who pose a threat to national security, public safety and border security."

"ICE makes custody determinations on a case-by-case basis considering all the merits and factors of each case while adhering to agency guidelines and legal mandates," she said. "Those who are not subject to mandatory detention and do not pose a threat to the community may be placed on some form of supervision as an alternative to detention while awaiting their immigration court hearing."

Michael Tan, staff attorney at the ACLU Immigrants' Rights Project, warns that the bond and parole denials could be the beginning of even more widespread detention, particularly if Congress allocates funds to add a proposed 20,000 beds.

"The memos make it clear the administration thinks people should be detained until they're deported," says Tan. "I don't think we've seen a full-scale crackdown on release yet – only the signals of what's to come."

But for Uriba, confined to Hutto and its prison garb – denim-colored pants and a yellow shirt swallowing her child-sized frame – the worst has already hit.

"Can you help?" she entreats. "I just want to talk to my family."