15:33, August 13 39 0 abajournal.com

2019-08-13 15:33:05
DHS should relax standards for releasing immigrants from detention, House of Delegates says

Hand and a chain link fence in front of the US flag

Image from Shutterstock.com.

The Department of Homeland Security should make it easier for immigrants to be released from detention, the ABA House of Delegates said Tuesday.

Resolution 121D calls on DHS, which runs the law enforcement arm of the immigration enforcement system, to restore a 10-year-old policy memo that permitted asylum-seekers to be released in the “public interest.” It also asks DHS to make that policy a formal regulation and says the ABA supports release from immigration detention in a variety of ways.

Middlesex County, Massachusetts, prosecutor Kevin Curtin, a delegate from the Massachusetts Bar Association, moved it in the House. He said the resolution focuses on “legitimate asylum-seekers” affected by the U.S. attorney general’s power to unilaterally change immigration law precedents. (As a prosecutor, Curtin joked, he’d be delighted to be able to refer cases to himself.) In Matter of M.S., Attorney General William Barr took away immigration judges’ authority to release asylum-seekers on bond. That leaves the parole power at issue in Resolution 121D as the only way for asylum-seekers to be released from immigration detention.

Curtin asked the House to consider that situation.

“A person comes to our borders, legitimately seeking asylum from, say, political or religious persecution. We then lock her up. We might separate her from her children. And then we prevent her from having access to counsel,” he said. “We wouldn’t do that to what my grandmother would call common criminals.”

There were no speakers in opposition, and most supporters waived their time. Mary Ryan, a partner at Nutter McClennan and Fish in Boston and liaison from the ABA Working Group on Unaccompanied Minor Immigrants to the Commission on Immigration, was the exception. She wanted the House to know that this is an area of immigration law that “exemplifies the volatility of immigration practice today.”

“The decision in M.S. that Mr. Curtin mentioned is currently under an injunction,” she said. “We don’t know what’s going to happen tomorrow. So that’s why we need this.”

When immigrants enter the U.S. without a visa or other authorization—a category that includes the large number of asylum-seekers currently reaching the borders—immigration law permits the federal government to deport those people without a trial. That “expedited removal” process is canceled for asylum-seekers found to have a credible fear of persecution in their home countries. Such a finding permits the asylum-seekers to not only pursue their cases in immigration court, but also qualify for release if they are not a flight risk or considered dangerous.

That “humanitarian parole” may be granted to vulnerable populations or people whose detention is not in the public interest. Precise standards for determining who gets humanitarian parole were set out in the 2009 memo that Resolution 121D seeks to codify.

The resolution was not controversial. It passed without audible opposition.

The House also passed five other resolutions proposed by the Commission on Immigration at the Annual Meeting. All of them were aimed at codifying as ABA policy the commission’s recent updates to its report, “Reforming the Immigration System.”

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