Issues Faced by Detained Applicants Applying for Asylum

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Even if you are coming to the U.S. to escape persecution in another country, you can be placed in an immigration detention center if:

  1. you were stopped while trying to enter the U.S. illegally, or
  2. you got arrested within the United States.

In either case, you will most likely be placed in removal proceedings. That is, the U.S. government will try to deport you from the U.S., and you might be able to ask for asylum as a defense to removal.

People who are in detention while applying for asylum face unique challenges. Detention itself if a difficult experience. For details, see "Living Conditions in Immigration Detention Centers" . Depending on the scheduling of your case and whether you obtain parole (see below), you might be at a detention center for several months or even up to a year. It is hard to predict how long you will be there. There is no legal limit on how long you can be detained while your asylum proceedings are pending. However, expedited removal schedule reduces the time it takes for your asylum case to be resolved. See “Timing of Applying for Asylum in Removal Proceedings.” . Once you are granted asylum, you will be released within a few hours or a few days.

Nevertheless, your basic eligibility for asylum while in a detention center is based on the same factors as if you were filing for asylum “affirmatively.” (See “Chances of Winning a Grant of Asylum.”) Therefore, you must focus on preparing your asylum application as best as you can. Make sure to be honest, detailed, complete (to the best of your recollections), and consistent (with all your other statements, and with any other evidence in your case). For tips on completing your asylum application, see “How to Prepare an Asylum Application in Removal Proceedings.”

Regardless of why you were detained, you must apply for asylum within one year of having entered the United States. Also, you should always apply for two additional forms of relief: (1) withholding of removal, and (2) protection under the UN Convention Against Torture.

Representing Yourself -- Without a Lawyer -- While Detained

Almost all detention centers are visited periodically by outside nonprofit, religious, and legal-aid groups. They conduct legal orientation presentations to inform detainees about the asylum process. Some legal-aid groups also interview new detainees to refer those with potential asylum claims to volunteer (“pro bono”) attorneys. Make sure to attend such meetings when they are scheduled.

Your ability to gather evidence and contact witnesses for your case will be difficult in a detention center. Conducting legal research is also hard. Detention centers typically have law libraries for detainees to use, but the information might not be up to date, and you might have limited time each day to use it. Access to printers or copy machines can also be limited. You will probably not have Internet access.

Working With An Attorney While Detained

You have a right to have an attorney represent you in your asylum case. Your attorney can be (1) paid by you or (2) pro bono (a free volunteer, arranged by legal-aid or charitable groups that visit detention centers). Note that many pro bono attorneys are as good as, and in some cases better than, paid attorneys.

Many detention centers are typically located far from cities, and are inconvenient for attorneys to access. Also, each center limits the hours during which your attorney can visit you (which are much more convenient than the visiting hours for family and friends).

Depending on your detention facility, your attorney might be able to leave you messages.

While meeting with an attorney, you will typically use a separate room. Your attorney can give you documents, and will bring an interpreter to your meetings if needed. (Detention facilities do not provide translators.) Delays are common in meeting with attorneys, like with any visitors – for example, you might have to wait for a room to be available or for an officer to take you there.

Release on Parole

If you are stopped at the border and then pass your “credible fear” interview before being placed in a detention center, you will be able to apply for “parole.” That is, you can be temporarily released from the detention facility, awaiting resolution of your asylum claim. You will have to report to all your hearings. This is NOT a lawful admission to the U.S., and is separate from your asylum application.

When first detained, you will be provided information about applying for parole. Parole rates vary greatly between different detention centers, from 3% to 90%. U.S. Immigration and Customs Enforcement (“ICE”), in its discretion, determines whether you can be paroled. (ICE is the same government agency that is responsible for running the detention centers.)

You can be granted parole if you (1) do not present a “flight risk” (ICE does not think that you will disappear), and (2) do not present a “security risk” (to the safety of U.S. society). You must prove your identity in order to be eligible for parole. Having ties to someone in the U.S. (family, friend, or a church member, for example) can improve your chances.

Each parole decision is based on the detainee’s unique facts, and can be very subjective. Currently, you might be able to obtain parole if you:

  • have a serious medical condition; or
  • are pregnant; or
  • are a juvenile (under the age of 18); or
  • will be a witness in a case (unrelated to your immigration proceedings) in theU.S.; or
  • are being detained in contravention of the public interest.

ICE might require that you post a bond (pay money, to be returned to you when you appear at your immigration court hearings) to obtain parole. There is no independent review of parole decisions.

If you are not granted parole, the processing of your case will continue as before. A denial of your parole release request is separate from the merits of your asylum case, and will not affect your chances of being granted asylum.

 

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