The next time you zoom past the Batavia exit on the Thruway, on your way to Buffalo, look left. There is the Palm Island Indoor Water Park. The average stay is 1.5 hours, full of fun and frolic.
Then look right. There sits the Buffalo Federal Detention Facility, supervised by ICE. It houses approximately 360 persons. The average stay is months long, and none of that time is fun and frolic.
The length of the stay at the facility may be decreasing as a result of a decision rendered before Thanksgiving by Judge Elizabeth A. Wolford of our federal district court. The case involves persons detained at the facility who are seeking asylum, a minority of the total. She ordered ICE to comply with its policy concerning parole for asylum-seekers and to provide an individualized bond hearing for any asylum-seeker held more than six months. Abdi v. Duke, 17-cv-0721 (W.D.N.Y. Nov. 17, 2017).
To appreciate the significance of the decision, you must know how the early asylum process works, at least on paper.
If a person arrives at the border seeking asylum, fearing persecution or torture from whence he came, ICE takes him into custody. It then interviews him to determine whether “there is a significant possibility,” taking into account the alien’s statements and other known facts, “that the alien (can) establish eligibility for asylum.” If the alien passes this credible fear interview, his asylum request goes to an immigration judge for a hearing. In the meantime he “shall be detained.” 8 U.S.C. § 1225(b).
The Attorney General and the Secretary of Homeland Security have the “discretion” to parole “into the United States temporarily” a detainee awaiting a hearing. The decision not to parole a detainee cannot be reviewed by a court.
DHS has issued a regulation stating that the Secretary “may invoke” his authority if, among other factors, “continued detention is not in the public interest.” In 2009 ICE explained what public interest meant in a “Directive.”
Each application for parole will be “based on the facts of the individual alien’s case.” If the alien proves his identity and “presents neither a flight risk nor a danger to the community,” ICE “should … parole the alien.”
The Directive also requires ICE to notify an asylum-seeker of the parole process in a language he understands, to conduct a parole interview within seven days of a credible fear finding, to notify in writing an asylum-seeker of the parole decision, and to provide a “brief explanation of the reasons for any decision to deny parole.”
The previous administration was slow in deciding the parole applications of asylum-seekers detained at the Batavia facility. Then in January the new administration effectively stopped granting parole to all applicants. One official bluntly told a detainee that he had a “one-in-a-million” chance of getting paroled. In addition, the facility began to ignore the terms of the Directive.
In July of this year the NYCLU and a refugee assistance group intervened. The organizations brought suit on behalf of two asylum-seekers who had passed their credible fear interviews more than nine months earlier. ICE regularly denied their requests for parole without explanation and without a hearing. The plaintiffs identified at least 23 persons at the facility similarly situated to them.
The plaintiffs did not challenge the decisions to deny them parole. Instead, they contended ICE violated and continued to violate their statutory and constitutional rights by not complying with the Directive. Since ICE had detained them more than six months, the same rights entitled them to a bond hearing.
ICE fought back with several procedural and substantive arguments. Among the latter it claimed it was not bound by the Directive, because the Directive was not a statute or a formal regulation.
The court acknowledged the Directive was a policy statement but, relying on Supreme Court and Second Circuit precedent, ruled the Directive did bind ICE, because the statement “affects the rights of individuals.” “(I)t sets forth procedural rights for asylum-seekers in connection with the parole process, such as being informed in writing as to the reason parole was denied.”
In February 2017 the government represented to the Supreme Court in a brief the Directive “remains in full force and effect.” Seven months later it could not contend the Directive does not affect the rights of individuals.
The Directive does not call for a bond hearing after six months of detention. The plaintiffs argued the Due Process Clause limits the length of detention of an asylum-seeker absent a hearing. The issue is presently before the Supreme Court and has been argued twice, most recently Oct. 3, 2017.
The majority of the lower courts which have ruled on the issue have read into the relevant statute a limitation on detention to avoid the constitutional question. See, e.g., Jennings v. Rodriguez, 804 F.3d 1060 (9th Cir. 2015) (hearing after six months of detention).
That is what Judge Wolford did, holding ICE must conduct an individualized bond hearing for any asylum-seeker detained at the Batavia facility more than six months. At the hearing ICE must “establish by clear and convincing evidence that an asylum-seeker is a flight risk or a danger to the community to justify continued detention.” She also ordered ICE to follow the procedural safeguards of the Directive “immediately.”
The decision is a real win, for asylum-seekers detained at Batavia and the rule of law. Asylum-seekers deserve, and now will get, the chance to be with their loved ones while awaiting their asylum hearings. And the president has sustained another rebuke in his campaign against immigrants.
Scott Forsyth is a partner at Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU, but the views expressed herein are his own. He can be contacted at (585) 262-3400 or [email protected]