The ACLU says the mass imprisonment of people seeking refuge while awaiting immigration court hearings stems from policy promoted by Trump and Attorney General Jeff Sessions that amounts to a de factor deterrent to using the asylum provision. The policy, the ACLU argues, unlawfully denies asylum seekers as a class on the basis of only one of the factors used to assess the danger an individual poses: how long they have been in the U.S.
“You’ll admit to me these are pretty bad statistics,” Boasberg said to Justice Department attorney Genevieve Kelly, noting that by definition almost all asylum seekers are new arrivals. “That’s almost like denying someone by saying, ‘You’re not a United States citizen.’”
The lawsuit was filed in behalf of nine detained asylum seekers from Haiti, Venezuela and other countries who were initially determined to have credible stories and have been jailed for months awaiting a hearing before an immigration judge, lawyers said.
The court action names the Department of Homeland Security and its sub-agency, Immigration and Customs Enforcement, which detains immigrants, and the Justice Department, which runs the immigration courts where immigrants can seek bond hearings.
Boasberg cited a 2009 Department of Homeland Security directive still in full force that asylum seekers who have not been individually determined to be a flight risk or danger to society be “paroled” or released from detention once they have shown a “credible fear” of persecution in their home country.
Boasberg directed the Justice Department by Tuesday to state why he should not grant provisional class status to asylum seekers and issue an injunction while the lawsuit continues that would bar ICE from denying release to applicants who haven’t had a personalized review and specific, written explanations on why they need to be held.
“How can I believe there are actually individual determination that are made, when it is simply checking the box?” Boasberg said.
The Justice Department urged Boasberg to dismiss the case, saying asylum detention decisions are the sole discretion of agencies and must be “completely insulated from judicial review,” to prevent applicants from flooding the courts with lawsuits.
Kelly said the government has asked ICE to explain the reason for the field office detention rates, but said the ACLU had provided no evidence an administration deterrence policy exists.
Kelly also argued against requiring ICE to explain the grounds for denials, saying details could enable new applicants to game the system and fraudulently evade screening.
ACLU attorney Michael Tan said he hoped for a ruling soon. “The judge got to the heart of the matter. The government has a policy, and the government is not following it.”
Asylum is a provision in federal law that allows foreign nationals to seek permanent residency and eventually, citizenship, if they have a fear of persecution based on their race, religion, nationality, political opinion or “membership in a particular social group,” a broad category that has included people fleeing gang activity, domestic violence or other circumstances.
The five ICE field offices cited in the lawsuit are Detroit, El Paso, Los Angeles, Newark and Philadelphia, which handle about one-fourth of the nationwide caseload.
Boasberg in 2015 blocked a major Obama administration initiative of detaining most women and children caught crossing the border illegally whether they had applied for asylum in the United States, saying invocations of national security or deterrence must give way to individualized determinations
“Incantation of the magic words ‘national security’ without further substantiation is simply not enough to justify significant deprivations of liberty,” Boasberg wrote then, adding, “it cannot be justified by mere lip service.”
Maria Sacchetti contributed to this report