USA: Whether an individual who is apprehended near a land border without status and subsequently detained, who is subject to expedited removal, can be paroled into the United States after expressing a fear of persecution, without first undergoing a credible-fear hearing; the conditions of parole, if granted, including how the amount of the bond is established, when the bond is deposited and the consequences of leaving the United States for those who were released on a bond; whether Sri Lankans, and individuals from countries where removal is difficult, are normally released while awaiting their credible-fear hearing
|Publisher||Canada: Immigration and Refugee Board of Canada|
|Publication Date||9 February 2012|
|Citation / Document Symbol||USA103983.E|
|Related Document(s)||États-Unis : information indiquant si une personne sans statut qui est arrêtée près d'une frontière terrestre puis détenue et qui fait l'objet d'un renvoi accéléré peut être mise en liberté conditionnelle aux États-Unis après avoir exprimé une crainte de persécution, sans d'abord subir une audience visant à déterminer si la crainte est crédible; information sur les conditions de libération conditionnelle, si elle est accordée, y compris sur la façon de fixer le montant du cautionnement, le moment où il est déposé et les conséquences encourues par une personne qui quitterait les États-Unis alors qu'elle a été mise en liberté moyennant un cautionnement; information indiquant si les SriLankais et les ressortissants de pays où le renvoi est difficile sont habituellement mis en liberté pendant qu'ils attendent leur audience visant à déterminer si la crainte est crédible|
|Cite as||Canada: Immigration and Refugee Board of Canada, USA: Whether an individual who is apprehended near a land border without status and subsequently detained, who is subject to expedited removal, can be paroled into the United States after expressing a fear of persecution, without first undergoing a credible-fear hearing; the conditions of parole, if granted, including how the amount of the bond is established, when the bond is deposited and the consequences of leaving the United States for those who were released on a bond; whether Sri Lankans, and individuals from countries where removal is difficult, are normally released while awaiting their credible-fear hearing, 9 February 2012, USA103983.E, available at: http://www.refworld.org/docid/4f5f394e2.html [accessed 28 June 2017]|
1. Migrants Subject to Expedited Removal
1.1 Eligibility for Expedited Removal
Under United States (US) immigration law, immigrants and non-immigrants arriving at a US land border without the required entry or identification documents are inadmissible (US 1952, Sec. 212(a)(7)) and are subject to expedited removal (ibid., Sec.235 (b)(1)(A)(i); US 2010, Sec. 235.3(b)). "Aliens" in this process who have been ordered removed or whose admissibility is under consideration must be detained pending determination of status and removal (ibid., Sec. 1235.3(b)(2)(iii)). A report by the United States Commission on International Religious Freedom (USCIRF) indicates that within the Department of Homeland Security, Customs and Border Protection (CBP) identifies persons for the expedited removal process, and Immigration and Customs Enforcement (ICE) is responsible for detaining asylum seekers pending a determination of credible fear (US 6 Feb. 2007, 1). The Inter-American Commission on Human Rights (IACHR) of the Organization of American States (OAS), in a report on detention and due process in the US, says that both agencies may detain persons (OAS 30 Dec. 2010, para. 100). Undocumented aliens apprehended within 100 miles of a land border and within 14 days of their entry into the US are also subject to the same removal proceedings (Human Rights First Apr. 2009; OAS 30 Dec. 2010, para. 111). However, if a detained alien expresses a fear of persecution in their home country, or indicates an intention to apply for asylum in the US, expedited removal proceedings are suspended until their eligibility for asylum is determined (US 24 Jan. 2012; US 2010, Sec. 235.3(b)(4)).
1.2 Credible-Fear Determination Process and Parole
Detained aliens who indicate a fear of persecution remain in the custody of ICE while their cases are referred to the US Citizenship and Immigration Services (USCIS) (US 24 Jan. 2012). A USCIS asylum officer then conducts a "credible fear interview" to determine whether or not the alien has as credible fear of persecution and can be allowed to make an application for asylum (ibid.; Human Rights First Apr. 2009 14, 31). Sources indicate that credible-fear interviews take place in person or via videoconference (Human Rights First Apr. 2009, 60; American Gateways 27 Jan. 2012). If an alien is not found to have a credible fear of persecution, expedited removal proceedings resume (US 1952, Sec. 235(b)(1)(B)(iii)(I); OAS 30 Dec. 2010, para. 114). The determination can be reviewed by an immigration judge upon the request of the alien (US 1952, Sec. 235(b)(1)(B)(iii)(III); OAS 30 Dec. 2010, para. 114). An alien who is found to have a credible fear leaves the expedited removal process, is placed into normal deportation proceedings, and is allowed to pursue an asylum claim (ibid.; American Gateways 27 Jan. 2012).
Various sources have reported different waiting times for an alien to obtain a credible-fear interview (Human Rights First Apr. 2009, 37; US 2 Feb. 2012; American Gateways 27 Jan. 2012). In 2009, Human Rights First reported that, according to statistics provided by USCIS, the waiting period was 13 to 14 days (Apr. 2009, 37). According to an ICE public outreach coordinator, ICE's Enforcement Removal Operations estimates that it can take from two to four weeks for an interview to be conducted (US 2 Feb. 2012). However, in 2009, Human Rights First reported six-month delays in Massachusetts, two-to-four month delays in Texas, and "at least six month" expected waiting times in Los Angeles (Apr. 2009, 37). The General Counsel at the Texas-based American Gateways, an organization providing legal services to new immigrants (n.d.), stated in January 2012 that there was previously a three to four month delay in Texas, but the waiting period has been reduced to one month or less (27 Jan. 2012). The General Counsel added that, nationwide, wait times can vary, depending on the detention centre and the USCIS asylum office, and on the number of asylum cases received (American Gateways 27 Jan. 2012).
The US Immigration and Nationality Act (INA) states that aliens are subject to mandatory detention until a final determination of credible fear of persecution is completed (US 1952, Sec. 235(b)(1)(B)(iii)(IV)). However, according to Title 8 of the Code of Federal Regulations (8 CFR), parole prior to the credible-fear interview "may be permitted only when the Attorney General determines, in the exercise of discretion, that parole is required to meet a medical emergency or is necessary for a legitimate law enforcement objective" (US 2010, Sec. 235.3(b)(4)(ii)). The IACHR's report on immigration detention in the United States says that "[r]elease is rarely granted under these exceptions" (30 Dec. 2010, 38).
In telephone interviews with the Research Directorate, oral sources stated that detained aliens are not released on parole if a credible-fear hearing has not taken place (US 24 Jan. 2012; American Gateways 27 Jan. 2012). The American Gateways general counsel specifies, further, that this policy is applicable across the US and is enforced even if the waiting time for a credible-fear interview is long, "i.e., four months" (ibid.). However, in a telephone interview with the Research Directorate, the Senior Counsel in the Refugee Protection Program at Human Rights First, a non-profit, nonpartisan international human rights organization based in New York and Washington (n.d.), stated that while parole is "not normally granted" before a credible-fear interview, it is difficult to make an "absolute statement" about what occurs in practice, and it is possible that exceptions could be made in extraordinary circumstances (18 Jan. 2012).
2. Asylum Seekers
2.1 Granting of Parole for Arriving Aliens
Asylum seekers who have been found to have a credible fear of persecution and who are released from expedited removal proceedings into regular deportation proceedings are considered "arriving aliens" (OAS 30 Dec. 2010, para. 118; American Gateways 27 Jan. 2012) and are issued a notice to appear before an immigration judge (ibid.). Sources indicate that arriving aliens can be considered for release on parole (OAS 30 Dec. 2010, para. 133; American Gateways 27 Jan. 2012). The possibility of parole for arriving aliens is determined exclusively by ICE and the decision cannot be reviewed by an immigration judge (AI 25 Mar. 2009, 15; OAS 30 Dec. 2010, para. 120; Human Rights First Apr. 2009, 32). A policy directive issued by ICE in December 2009 provides guidelines to Detention and Removal Operations Field Office personnel to exercise their discretion in considering the parole of arriving aliens (US 8 Dec. 2009, para. 1). According to the directive, parole can be granted "on a case-by-case basis for 'urgent humanitarian reasons' or 'significant public benefit'" if the alien does not present a security risk or flight risk (ibid., para. 4.2). The directive specifies, further, that aliens may be paroled if they have a serious medical condition, are pregnant, are a minor, will serve as a witness in legal proceedings in the US, or if their "continued detention is not in the public interest" (ibid., para. 4.3). According to Amnesty International, "[i]n practice, an individual immigration officer (ICE Field Office Director) decides whether someone is released from detention and the conditions of any such release, such as the amount of bond to be posted or reporting requirements" (AI 25 Mar. 2009, 14-15).
In a telephone interview with the Research Directorate, the American Gateways general counsel said that aliens may be required, as a condition of parole, to have a "security" paid to ICE by another person who is a US citizen; this security serves the same function as a bond but is not legally known as such (27 Jan. 2012). However, in correspondence with the Research Directorate, a supervising attorney at Americans for Immigrant Justice, a Florida-based not-for-profit immigrant legal assistance organization (n.d.), stated that arriving aliens in South Florida who have passed the credible-fear interview are paroled without a bond (9 Feb. 2012).
2.2 Release on Bond for Aliens Present Without Admission
Undocumented aliens, including asylum seekers, who have been apprehended but who do not meet the conditions for expedited removal (i.e., who were not apprehended at or near a border within 14 days of entry), are placed in regular removal proceedings under the INA (Human Rights First 18 Jan. 2012; American Gateways 27 Jan. 2012). According to the General Counsel at American Gateways, these aliens are known as "aliens present without admission" and are eligible for bond (ibid.). They are subject to an initial custody determination by ICE, which can be reviewed upon request by a USCIS immigration judge (Human Rights First 18 Jan. 2012; American Gateways 27 Jan. 2012; AI 25 Mar. 2009, 16). Following the custody determination, they can be held without release, released on their own recognizance, or released on payment of a bond (Human Rights First 18 Jan. 2012; American Gateways 27 Jan. 2012). Sources indicate that detained aliens who are not "arriving aliens" can request an immigration judge to review the amount of the bond set by ICE as a condition of release (Human Rights First Apr. 2009, 37; OAS 30 Dec. 2010, para. 227).
In a telephone interview with the Research Directorate, an ICE official in Enforcement and Removal Operations explained that the determination process for the amount of the bond or security amount is the same for both arriving aliens and aliens present without admission (US 1 Feb. 2012). The official also stated that, in all cases, the bond must be paid by another party, who acts as a point of contact between ICE and the paroled migrant and who must sign a document acknowledging their responsibility to assist the migrant in complying with their parole conditions (ibid.). According to the ICE public outreach coordinator, the bond amounts are determined "on the merits of an individual case once the individual sufficiently establishes they are not a danger to the community" (US 2 Feb. 2012). The same source stated that Enforcement and Removal Operations officials consider many factors in reaching a decision, including but not limited to establishment of identity, family ties in the US, ties to the community, criminal history, whether they are a minimal flight risk, and the size of bond necessary to ensure compliance with the conditions of release (ibid.).
The minimum bond amount is US$1,500 (Human Rights First 18 Jan. 2012; American Gateways 27 Jan. 2012; AI 25 Mar. 2009, 15, US 2 Feb. 2012). However, bond amounts are reported to vary significantly (Human Rights First 18 Jan. 2012; AI 25 Mar. 2009, 17; OAS 30 Dec. 2010, para. 227). Sources report that bonds are sometimes set so high that detainees cannot pay them (Human Rights First Apr. 2009, 38; AI 25 Mar. 2009, 17). The Senior Counsel at Human Rights First stated that bonds as high as US$15,000 have been reported (18 Jan. 2012), and according to a 2009 publication by the same organization, bonds were averaging US$9,000 in New York and New Jersey (Human Rights First Apr. 2009, 38). Statistics provided to the Research Directorate by the ICE Public Outreach Coordinator indicate that the average bond for the 2011 fiscal year was US$6,239 and that the largest was US$340,000 (US 2 Feb. 2012).
2.4 Consequences for Leaving and Returning to the US
Sources state that aliens who do not comply with the notice to appear in court are ordered deported in absentia (American Gateways 27 Jan. 2012; US 1 Feb. 2012). The General Counsel at American Gateways added that, if the alien has left the country, the deportation order is considered to have been executed, as they have effectively deported themselves, and the security or bond cannot be recovered (27 Jan. 2012). If a migrant is not ordered to be deported and leaves the US of their own accord ["voluntary departure" (US n.d.)], the bond that has been deposited can be recovered by the guarantor (American Gateways 3 Feb. 2012; US 1 Feb. 2012).
If an alien who has been previously ordered deported returns to the US, the deportation order is immediately reinstated (American Gateways 27 Jan. 2012; US 1 Feb. 2012). However, an alien who is subject to reinstatement of a removal order and who indicates a continued fear of persecution in their home country is granted a "reasonable fear" interview (US 26 Sept. 2008a; American Gateways 3 Feb. 2012). According to the General Counsel at American Gateways, the reasonable-fear interview has a higher standard of proof than the credible-fear hearing granted to arriving aliens (ibid.). The alien must demonstrate that it is "more likely than not" that they will suffer persecution or torture in their home country if they return (US 26 Sept. 2008b; American Gateways 3 Feb. 2012). If found to have a reasonable fear of persecution, they are eligible to apply for a withholding of removal under the INA or the Convention Against Torture, which will prevent them from being returned to their home country but not from being removed to another country (ibid.; US 26 Sept. 2008b).
3. Sri Lankans
Information on the treatment of migrants from specific countries, including Sri Lanka, could not be found among the sources consulted by the Research Directorate.
This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of sources consulted in researching this Information Request.
Americans for Immigrant Justice. 9 February 2012. Correspondence from a supervising attorney.
_____. N.d. "Mission and History."
Amnesty International. 25 March 2009. Jailed Without Justice: Immigration Detention in the USA.
American Gateways. 3 February 2012. Interview with General Counsel.
_____. 27 January 2012. Interview with General Counsel.
_____. N.d. "The American Gateways Story."
Human Rights First. 18 January 2012. Interview with Senior Counsel, Refugee Protection Program.
_____. April 2009. U.S. Detention of Asylum Seekers: Seeking Protection, Finding Prison.
_____. N.d. "About Us."
Organization of American States (OAS). 30 December 2010. Inter-American Commission on Human Rights (IACHR). Report on Immigration in the United States: Detention and Due Process.
United States (US). 2 February 2012. Immigration and Customs Enforcement (ICE). Correspondence from an outreach coordinator, Office of State, Local and Tribal Coordination.
______. 1 February 2012. Immigration and Customs Enforcement (ICE). Interview with an official, Enforcement Removal Operations.
______. 24 January 2012. Immigration and Customs Enforcement (ICE). Interview with an official, Enforcement Removal Operations.
_____. 2010 (consolidated as of February 2010). Code of Federal Regulations, Title 8 - Immigration and Nationality Regulations (8 CFR).
_____. 8 December 2009. Parole of Arriving Aliens Found to Have a Credible Fear of Persecution or Torture.
_____. 26 September 2008a. Citizenship and Immigration Services (USCIS). "Q: Under What Circumstances Do Asylum Officers Conduct Reasonable Fear Interviews?"
_____. 26 September 2008b. Citizenship and Immigration Services."Q: What Will Happen Before the Immigration Judge?"
_____. 6 February 2007. United States Commission on International Religious Freedom (USCIRF). Expedited Removal Study Report Card: 2 Years Later.
_____. 1952 (amended 2010). Immigration and Nationality Act.
_____. N.d. Citizenship and Immigration Services (USCIS). "Voluntary Departure."
Additional Sources Consulted
Oral sources: A professor at Stanford University, an attorney at the National Immigration Law Center, a representative of the US Committee for Refugees and Immigrants, and representatives of the United States Immigration and Customs Enforcement field offices were unable to provide information for this Response. A representative of the CAIR Coalition and officials of the United States embassy in Ottawa and the Department of Homeland Security were unable to provide information within the time constraints of this Reponse. Attempts to contact representatives of the Refugee and Immigrant Center for Education and Legal Services and Detention Watch Network were unsuccessful.
Internet sites, including: American Immigration Council; Columbia Law Review; Detention Watch Network; Human Rights Watch; Migration Information Source; National Immigration Law Center; Women's Refugee Commission.