12.17.09

Statement On The Release Of Parole Guidelines For Asylum Seekers

I have long questioned the policy of detaining asylum seekers who present genuine claims for protection under our laws.  Asylum seekers who express a fear of return to their country, and who can establish their identity and show that they are neither a flight risk nor a threat to the community, should be allowed to pursue a claim for relief in the United States free from custody.  Yesterday, U.S. Immigration and Customs Enforcement (ICE) announced new guidelines for release of asylum seekers that override an unduly harsh policy implemented in 2007 by the Bush administration and that are a welcome step toward compliance with our obligations under the Refugee Convention.

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.

In 1996, when our asylum laws were rewritten to restrict access to protection for many who requested protection upon arrival, I fought hard to preserve our role as a nation that welcomes refugees.  I offered an amendment to restore basic due process protections to the summary exclusion and expedited removal provisions proposed for asylum seekers.  Former Senator Michael DeWine of Ohio cosponsored the amendment, which prevailed by only one vote.  Since that time, I have worked to strengthen access to due process for asylum seekers and ensure that our government complies with its international treaty obligations under the Refugee Convention.

I commend President Obama and Secretary Napolitano for engaging in a serious review of our asylum policies and taking steps to bring us closer to full compliance with international law.  With the thirtieth anniversary of the Refugee Act of 1980 approaching, I will continue to press for both legislative and administrative changes to the law that will protect refugees and asylum seekers from harm and provide them with safety and security in America.

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Press Contact

David Carle: 202-224-3693