A Very Complicated Legal Explanation about ICE and Immigrants and Parole

This is a very complicated legal explanation that I have created as a teaching tool to people who are volunteering in the immigration prison that just sprung up near my home in the desert of NM. It described the problems that asylum seekers are facing with parole denials. It is important. It is complicated.

The Very Complicated Legal Explanation

Here you are going to have to hang in there with how complicated immigration law is, especially where political asylum and detention are concerned. If you don’t believe me, check out the brilliantly puzzling flow chart my friend made about asylum seekers and the law:

Since that chart is incredibly scary, I will try and explain this in the clearest terms possible.

When someone comes to the United States seeking political asylum he will likely be detained one of two ways: 1) he turns himself in at a Port of Entry and tells Customs and Border Protection (CBP) agents he is seeking asylum or; 2) he is arrested inside of the country having recently crossed the border without permission (or EWI as the pros say). Normally a person who either turns themselves in or is arrested near or on the border would be subject to a rule called Expedited Removal and he will not get a court hearing and will be quickly removed from the country. Yet, in theory, if he informs CBP that he is afraid for his life, he can slow that process down. He is sent through various processing stations like the infamous hieleras and perreras and eventually, imprisoned in a more permanent detention facility run by ICE. But at this point, provided that the government accepts his claim that his life is in danger, he will be given a Credible Fear Interview (CFI) to determine if he meets a standard of fear and if he passes that interview he is allowed to open a case for political asylum. Got it? Now this is where it gets tricky:

When someone is detained, Immigration and Customs Enforcement (ICE or La Migra) makes his first custody determination. It looks a little something like this:

In this case, as with most cases these days, ICE has said “NO BOND” meaning that the initial custody determination is that they are holding him without a bond. There is a possibility that it could say “$1,500” (the minimum bond allowable by law) or “10,000” or any other imaginable amount. Also, one possibility is “release on your own recognizance” which is pretty ideal. Needless to say, under the Trump administration, we are seeing a lot of “NO BOND” scrawled on those initial custody determinations.

Now is when how someone entered the country becomes important. A detainee will soon receive a document called a Notice to Appear or the NTA. Check it out:

The important boxes on that NTA are 1. You are an arriving alien and 2. You are an alien present in the United States who has not been admitted or paroled. If someone turned himself in at the port of entry he is box #1, an arriving alien. If he was arrested after entering the country without permission he is box #2. After ICE makes an initial custody determination of “NO BOND”, a person who crossed the border, the box #2 person, eventually has a chance to ask an Immigration Judge to redetermine his custody and the judge can set a bond and get him the heck out of prison so he can prepare his asylum case non-detained living with friends and relatives and working. This is optimal. Access to counsel is critical to prepare an asylum case. Immigrants with access to counsel are 10 times more likely to succeed in an asylum case. It is very hard to find a good lawyer while detained. Furthermore, it is hard to gather evidence to prove a claim. Also, prison is traumatic, demoralizing, depressing, and often dangerous, especially to people who are already fleeing violent and traumatic events in their home countries. Bond from an Immigration Judge is incredibly important. The trick is that arriving aliens, the box #1 people on the NTA, cannot ask a judge for a bond. The Immigration Court simply does not have jurisdiction over the cases. The judge cannot give them a bond. Full stop. Nobody misses the paradox presented by this policy: people who ostensibly broke the law by crossing the border are allowed to leave on bond from a Judge and those who surrendered themselves in full compliance with the law cannot.

When an arriving alien cannot get a bond from a judge and he has passed a Credible Fear Interview, they can ask ICE for parole. Parole is sort of like asking for a bond re-determination but ICE, not the Immigration Judge makes the decision. During the Obama administration there was an internal memo in place since 2010 that directed ICE to consider parole for for any arriving alien with a positive Credible Fear Interview. This memo explicitly states that if the arriving alien is not a flight risk or a danger to the community, absent additional factors, the alien should be paroled because it is in the public interest not to detain him. This means that if the asylum seeker did not have any negative factors suggesting he was dangerous or that he would skip his hearings, it was ICE policy to release him to fight his asylum case. It was humane.

After Trump’s February Executive Order about immigration, Secretary Kelley of the Department of Homeland of Security issued a memo on the implementation of the orders that sort of kept this guidance in place. Kelley states that only in certain case by case situations will release from detention be considered by ICE. One of those case by case situations is when an arriving alien with a positive CFI does not pose a flight risk or a danger to the community. Whatever that memo states, we are seeing something very different on the ground. All appearances suggest that ICE is systematically, categorically, and arbitrarily denying parole requests for political asylum seekers. Our ability to understand, track, and challenge these denials has become one of the most critical detention issues of the Trump Era.