A federal district court judge appeared likely Thursday to block the Trump administration from detaining undocumented immigrants who come to the U.S. seeking asylum without considering on an individual basis whether they represent a flight risk or a danger to their community.
The American Civil Liberties Union (ACLU) argued the Department of Homeland Security has created an arbitrary blanket policy of detaining asylum seekers at five Immigration and Customs Enforcement (ICE) field offices. The ACLU argues the policy is meant to deter other undocumented immigrants from seeking refuge in the country.
Judge James Boasberg, an appointee of President Obama on the U.S. District Court for the District of Columbia, seemed likely to grant the ACLU’s request for a temporary injunction, based on his comments and questions to attorneys. This would prevent the policy’s implementation while the court battle continues.
The ACLU, which has filed a class action lawsuit on behalf of asylum seekers who have been denied parole, argues DHS has violated its own parole directive and immigration law in creating the blanket policy.
“What’s the problem with me ordering you to do what you're supposed to be doing?” Boasberg repeatedly asked Genevieve Kelly, a trial attorney with the Department of Justice.
Michael Tan, a senior staff attorney at the ACLU's Immigrants' Rights Project, noted during arguments in court on Thursday morning that the five field offices denied 96 percent of requests for parole from February to September in 2017, a stark shift from the 90 percent of requests for parole DHS approved from 2011 to 2013.
Kelly said the administration hasn’t conceded those numbers, but said if the allegations are true then those five ICE field offices are outliers.
Boasberg then said the statistics look pretty bad for the first eight months of the administration.
As part of the injunction, the ACLU has asked the court to order DHS to give asylum seekers a letter explaining the rationale if they are being denied parole. Kelly argued against doing so, saying it would allow people to work the system.
While Boasberg said he understood why the Justice Department would want to prevent asylum seekers from figuring out a way to circumvent the process, he asked how he’s to know DHS is making individual determinations about whether to detain someone.
Kelly argued the court is venturing too close to reviewing what is a discretionary agency determination to grant or deny parole, which it does not have jurisdiction under immigration law to review.
After the proceeding, Tan told reporters there has been an obvious policy change under the Trump administration.
“All of our plaintiffs have been detained at this point from five months to as high as two years while fighting their asylum cases from behind bars and it doesn’t make any sense. None of these people need to be locked up. They shouldn’t be,” he said.
“We’re hopeful the court will issue a favorable ruling soon so our clients are able to win their freedom and fight their asylum claims from within the community.”