IT WAS, as a judge dryly noted last week, “no great judicial leap” for him to order that federal immigration officials grant asylum seekers the minimum guarantees provided by the government’s own rules — namely, a case-by-case review of their suitability for release while their cases are adjudicated. Yet in requiring the Department of Homeland Security to abide by long-standing procedures, U.S. District Judge James E. Boasberg tore up the Trump administration’s nativist playbook, which relies on making life so miserable for immigrants, legal and illegal, that they’ll be deterred from coming to the United States in the first place.
In the case of asylum seekers overseen by five major field offices of U.S. Customs and Immigration Enforcement — Detroit, El Paso, Los Angeles, Newark and Philadelphia — the administration’s approach amounted to tossing asylum seekers in jail and throwing away the key. So much for decades of U.S. respect for international and national laws protecting migrants fleeing violence and persecution at home.
Those ICE field offices, which together handle roughly a quarter of all asylum seekers’ cases, detained about 1,000 of them during the Trump administration’s first eight months, in 2017. Ninety-six percent of those who sought release while their cases were under review were refused and left for months behind bars. Keep in mind: In most cases, these are people who have been convicted of no crimes.
Under a 2009 directive that remains in effect, ICE detained relatively few asylum seekers in recent years — in 2013, for instance, just 10 percent or so. Those who were detained were judged a danger or a flight risk, sometimes because of doubts about their identity. Absent those factors, the government’s own rule was — and remains — that “continued detention is not in the public interest.”
In defending itself against a lawsuit brought by the American Civil Liberties Union, the Justice Department presented no statistics to contradict those presented in court showing that detention has become a reflexive and nearly uniform policy in the five ICE field offices in question. Nor could the government substantiate its contention that cases were reviewed on anything resembling a bona fide individual basis, as required by ICE’s own policy. Risibly, one ICE official, Diane Witte, deputy director of the agency’s El Paso field office, said that one particular asylum seeker had been denied release on grounds that she was “a recent entrant and thus presented a flight risk.” As the judge noted, nearly all asylum seekers are recent entrants.
The Trump administration may imagine that it can sustain a policy based on the proposition that the United States may deter migrants by presenting them with prospects even crueler and less humane than the ones they fled in their home countries. Yet given the force of America’s tradition, law and sense of justice, that’s not a likely winning strategy. In a country of immigrants, the specter of a war on immigrants amounts to a crusade against this nation’s deeply ingrained values. The Trump administration’s effort to deter asylum seekers by means of blanket detention was one front in that war; it appears unlikely to prevail.