The attorney general has certified Matter of M-S- to himself for review. This will decide whether or not asylum seekers should have the right to a bond hearing. This case is based on the Board of Immigration Appeal’s 2005 decision in Matter of X-K-, which found that the regulations allows immigration judges to have jurisdiction in order to review the necessity of continued detention for asylum seekers who enter the U.S. without inspection.

As there is no harm in allowing judges to review whether an asylum seeker is a flight risk or danger to the community. Which would let them decide whether the person can be granted a bond to continue their case from an outside detention. The attorney general’s move appears aligned with the administration’s efforts to increase detention, deter immigrants from coming to the U.S. and crack down on asylum. 

{mosads}It is crucial to have judicial review of ICE custody determinations. Not only is judicial review an important check and balance to executive action — which can hold the agency accountable for its decision-making processes — but it’s necessary because it is usually the only meaningful review. The current ICE custody determination process has a myriad of problems.

ICE is supposed to deny release only when there is: lack of identity evidence, flight risk, danger to the community, or lack of a stable place to live upon release. However, ICE decisions are sometimes arbitrary. For example, I have seen disparate decisions in identical cases of asylum seekers from the same country with the same form of identity document. Furthermore, detained immigrants have told me that people from some countries are given preference over others.

In addition to unequal and discriminatory adjudication, ICE almost never explains why it wants to continue detaining someone. Not providing an explanation as to why a release request is denied and an individual is being deprived of their freedom is a serious violation of that individual’s due process and liberty rights. It also makes it next to impossible to submit a renewed “corrected” request (there is no independent appeal process).

ICE has refused to release forcibly separated mothers the Migrant Center represents for no good reason. It has denied release when there are urgent medical conditions, has refused to consider release where an asylum seeker speaks a rare language and has flat out refused to release long-term residents with no criminal record.

This is not to say that ICE never gets it right. Rather, the problem is that without transparency in the decision-making process, there is no way to know if ICE is doing its job well or not in a given case and without judicial review. There is no accountability or ability to challenge arbitrary government action.

The attorney general certified Matter of X-K- to himself ostensibly to say that the Supreme Court holding in Jennings v. Rodriguez should be expanded to include all asylum seekers. Jennings v. Rodriguez states that there is no statutory, regulatory right to a bond hearing after six months for those in mandatory detention or arriving alien asylum seekers but sent the case back to the 9th Circuit to determine if there is a constitutional right to a bond hearing.

Matter of X-K- similarly deals with matters of statutory, regulatory construction but with regards to asylum seekers who enter without inspection, a different class of people to those considered in Jennings v. Rodriguez and dealt with differently in our laws. Importantly Matter of X-K- also does not deal with matters of Constitutional requirements such as due process and liberty interests. In this respect Jennings v. Rodriguez is still pending and the attorney general’s actions are premature.

The holding in Jennings v. Rodriguez is therefore largely irrelevant to whether asylum seekers like the individual in Matter of X-K- have the right to a bond hearing and the statutory, regulatory interpretation by the Board of Immigration Appeals, the experts in interpreting immigration law, should be upheld.

Furthermore, the right to a bond hearing is recognized in the 5th and 14th Amendments of the U.S. Constitution, which state that no person should be deprived of liberty “without due process of law.”

As the United Nations Working Group on Arbitrary Detention stated in their July 2017 report “detention is to be a measure of last resort, necessary and proportionate and be not punitive in nature and that alternatives to detention are to be sought whenever possible.” The report goes on to state “individuals held in immigration detention shall be brought promptly before a judicial authority empowered to order their release or to vary the conditions of release.”

In a 2009 Memorandum ICE recognized that it is in the public interest to release asylum seekers after they prove to an asylum officer that they have a significant possibility of winning their cases.

While a good first step to providing meaningful review would be for ICE to start explaining its decisions. Not by simply checking a box on a standard form, but by saying why in that particular asylum seeker’s case, they are denying release; judicial review is imperative.

Since President Trump issued his Executive Order in January 2017, release requests have seen higher rates of denial. For example, litigation is currently pending on ICE’s no-parole policy, whereby asylum seekers are denied their liberty not because anything about them requires them to be kept in detention but because of the political vagaries of our times. 

Congress can clear up any alleged statutory, regulatory ambiguity now and grant judicial review for all asylum seekers who have passed credible or reasonable fear interviews, or who otherwise have been referred for proceedings before the immigration Court. Without judicial review, there are no checks and balances — a crucial cornerstone of our democracy.     

Sara Ramey is an immigration attorney and the executive director at the Migrant Center for Human Rights in San Antonio, Texas. The views in this article are not intended to reflect the official position of the organization.