Thursday, October 5, 2017
Guest Post by Immprof Denise Gilman: The (Un)Likelihood of Parole from Immigration Detention and the Supreme Court’s Deliberations in Jennings
At the Supreme Court hearing this week in Jennings v. Rodriguez, the government argued that the Constitution does not mandate any review of ICE decisions to detain “arriving aliens,” even though these men and women may be deprived of their liberty in prison-like facilities for lengthy periods as they seek asylum or invoke other defenses against deportation. To make this unpalatable position more attractive, the government emphasized that ICE may release such detained immigrants on parole. When pressed by Justice Kennedy for information about the rate at which ICE grants parole, the government claimed not to know and not to have the data.
Information does exist about the use of parole, however, and it does not favor the government’s position. In my experience representing detained asylum seekers in Texas, ICE’s use of parole has become increasingly rare since 2014 and has been almost entirely nonexistent at certain facilities for years. This is true even where asylum seekers have passed screening interviews and otherwise meet the criteria for release under the government’s own 2009 guidance on parole. In the period following President Trump’s inauguration, release through parole essentially disappeared as an option, as promised in the executive orders issued in January of this year.
My experiences with vanishing parole have been confirmed by two recent studies. In Judge and Jailer, Human Rights First reported findings from a broad investigation into detention and release policies, concluding that: “Parole grants to asylum seekers appear to have plummeted in the wake of President Trump’s January 25 executive order at many detention facilities and jails—including in Illinois, Michigan, New York, the San Francisco Bay Area, Louisiana, and South Texas—with ICE now rarely, if ever, granting parole at these facilities.” The study found that there had been no change in other facilities where ICE had long-standing practices of denying release on parole.
In its study Prison for Survivors, the Women’s Refugee Commission looked specifically at the experiences of women asylum seekers and found that parole from detention was elusive. The report noted: “What were erratic and challenging release policies appear to have become even stricter or nonexistent under the Trump administration. . . . Asylum-seeking women are often subjected to prolonged detention despite posing no flight or safety risk. The need to fill beds for political or financial reasons often seems to supersede any actual concern over public safety risks.”
It is no surprise that parole practices are arbitrary and altogether insufficient to guarantee a presumption of liberty as required by the Constitution. Without review of ICE decision-making, there is a lack of accountability and obvious potential for ill-informed decision-making and abuse.
At argument, the justices rightly doubted whether there is any other context where critical agency decisions are shielded from independent review in the way that the government urges for “arriving aliens.” Immigration detention is civil and, under long-standing constitutional standards, must therefore be rigorously scrutinized to ensure that deprivation of liberty is exceptional. Yet, the government’s position urges far fewer protections than in the criminal context. If the government’s position regarding immigration detention were transposed into the criminal justice arena, one would have to envision a proceeding in which the police order continued detention of arrestees without any review by any court and without limit on the length of detention. Such a position would never be accepted.
The government could only summon up social security benefits proceedings as an example of similarly limited review for protection against agency misstep. Yet, as important as social security benefits may be, they do not present anything like the liberty interest at issue here and so provide no comparison at all.
Jennings v. Rodriguez has the potential to reaffirm long-standing constitutional principles establishing that the right to physical liberty is at the core of the rights protected in our Constitution. In upholding these principles, illusory possibilities for release on parole cannot substitute for independent review of detention decisions.
-KitJ on behalf of Denise Gilman