WASHINGTON (CN) — Refugees from around the world who presented themselves at the border and passed their initial “credible fear” interviews sued Immigration and Customs Enforcement this week for putting them into prisons, where they have languished for as long as 20 months.
The five plaintiffs say they have been imprisoned without due process because of de facto policies meant to deter victims of persecution from seeking political asylum in the United States.
The five plaintiffs, whose average age is 28, come from Guatemala, Honduras, Ghana, Sierra Leone and Guinea. All are imprisoned in Texas, three at the Port Isabel Detention Center, one in Laredo and one in Pearsall. The oldest, Sadat Ibrahim, 31, of Ghana, has been imprisoned for 20 months.
As a signatory on the U.N. Convention on the Status of Refugees, the United States adopted laws, codified in the Refugee Act of 1980, to provide a safe haven for people fleeing imminent threats in their homelands. People fleeing persecution may apply for asylum at a port of entry, and are to be immediately referred to an asylum officer for a preliminary credible fear interview. All five plaintiffs say they were found to have credible fear of persecution, but were imprisoned anyway.
Aracely Rodriguez fled Guatemala in 2016 with her 8-year-old daughter. The vehicle heading north overturned in northern Mexico, killing her child seriously injuring Rodriguez. When was released from hospital, in pain and using a walker, she crossed the international bridge connecting Reynosa, Mexico and Hidalgo, Texas.
She requested asylum at the border, but officials refused to process her and told her to leave, according to the Sept. 26 complaint. She was immediately kidnapped when she reached the Mexican side of the bridge.
In February this year, she made her way across the international bridge again, accompanied by human rights monitors and attorneys. This time, she was promptly processed when she requested asylum, and officials promised she would be interviewed to determine whether she was eligible for parole.
Instead, her request for parole was denied without any interview. She has no criminal history and she entered the country legally, yet has imprisoned at Port Isabel for seven months.
Represented by attorneys with Texas Rio Grande Legal Aid, the plaintiffs say “defendants intend for their actions to serve as a deterrent to asylum seekers by forcing them to either endure prolonged detention or risk the grave perils involved in unlawful entries.”
“This miscarriage of justice occurs despite official agency policy favoring the grant of parole to [U.S. Port of Entry] asylum seekers who do not pose a flight risk or danger to the community. The release of such persons is deemed to be in the public interest,” the complaint states.
Immigration and Customs Enforcement was known as the Immigration and Naturalization Service until the reorganization under President George W. Bush that created the lead defendant in this case, the Department of Homeland Security. The INS and ICE have used wildly varying policies of enforcement, often simultaneously in different areas of the border and inland United States.
In 2009, ICE issued a directive instructing its officers to grant parole to any asylum seeker who established his or her identity and did not present a flight risk or danger to the community.
After an immigration surge along the Mexican border in 2014, due in part to increasing violence and repression in Mexico and Central America, ICE rapidly expanded its jail capacity and imprisoned more people, particularly mothers with children and unaccompanied children. The purpose was to deter others from coming, according to the complaint.
According to the nonprofit Human Rights First, 80 percent of asylum seekers who passed their credible fear interviews were released on parole in 2012. In 2015, the number had been reduced to 47 percent.
The organization reported in July that many asylum seekers are being prosecuted for illegal entry, under President Donald Trump’s January executive order, though federal law allows refuge-seekers to present themselves at the border.
Arbitrary arrests and denial of parole and bond have skyrocketed since Trump took office, according to border watchers.
In May, the nonprofit Community Initiatives for Visiting Immigrants in Confinement sent a letter to ICE urging it to stop the practice of arbitrary detention of asylum seekers. More than 200 human rights organizations and advocates signed the letter.
“Denying parole or bond to families and individuals who are simply exercising their right to seek protection under international law and who in many cases have urgent humanitarian needs, including their right to family unity, is a gross injustice,” the letter states. “The practice tears apart families and communities, and it has devastating impacts on an already traumatized population.”
Due to prison crowding and the remote locations of many immigration prisons, it is more difficult for asylum seekers and their attorneys to prepare for the trial on the merits of their asylum claim.
Sadat Ibrahim is detained in Pearsall, midway between Laredo and San Antonio. He has been in immigration prisons for 20 months. According to the complaint, guards at the immigration prison seized important evidence his family sent him on a CD, because prisoners are not allowed to have CDs.
Ibrahim fled Ghana after his house was burned down and he was beaten because he is gay. Homosexuality is illegal in Ghana, and gay men are routinely attacked.
Immigration prisoners cannot use the internet or email, which limits their ability to find an attorney and prepare their cases.
The complaint describes the in the Port Isabel Detention Center, which it says are typical. Detainees must remain in dormitories unless accompanied elsewhere by guards, and cannot mingle with other detainees. They’re allowed outside in a small recreational area for two hours a day, and wear prison scrubs.
“Many guards presume the ICE detainees are dangerous criminals and treat them as such,” according to the complaint.
The asylum seekers seek declaratory judgment that ICE violated their rights to due process, and that the policy of arbitrary, prolonged detention was instituted in violation of the Administrative Procedure Act. They say the policy of arbitrary, prolonged detention chills their rights under the First and Fifth Amendments, and was specifically designed “to so burden the plaintiff’s right to petition for asylum that plaintiffs will simply relinquish their rights and return to their homelands. This constitutes constructive removal and de facto refoulement, without the full and fair process of law.”
Refoulement is the forcible return of refugees to the place where they fear persecution; it is illegal under international law and United Nations conventions, to which the United States is a signatory.
The plaintiffs also seek an injunction against ICE’s de facto policy of declining parole to asylum seekers as a means to deter others, and prohibiting ICE from “further violating the United States Constitution” by prolonged and unjustified detention.
ICE spokeswoman Sarah Rodriguez said the agency does not comment on pending litigation.
“However, lack of comment should not be construed as agreement with or stipulation to any of the allegations,” Rodriguez said in an email. “As part of the Department of Homeland Security’s homeland security mission, our trained law enforcement professionals adhere to the department’s mission and values, and uphold our laws while continuing to provide the nation with safety and security.”
The plaintiffs’ lead counsel is Jennifer Harbury, with Texas Rio Grande Legal Aid’s office in Mercedes, assisted by TRLA attorney Catherine Norris, in San Antonio.