The Biden administration is reportedly considering accepting mandatory detention of asylum seekers, one of the demands of Republican Party lawmakers to “secure the border” in exchange for passing the administration’s supplemental aid bill for Ukraine, Israel, and US border enforcement.
The US Immigration and Nationality Act already makes detention mandatory for asylum seekers in expedited removal who are awaiting credible fear of persecution interviews. Detention already continues even after an asylum officer has determined the person has a credible fear – unless the Department of Homeland Security exercises discretion.
Stripping that last shred of discretion would predictably increase the likelihood of harm because immigration detention can:
- Result in abusive conditions, inadequate medical care, and ill-treatment, including assaults, sexual abuse, and discriminatory treatment.
- Cause depression and post-traumatic stress disorder, especially harmful for asylum seekers who have experienced violence and abuse.
- Result in the separation of families.
- Isolate and make legal representation more difficult.
In the vast majority of cases, detention is unnecessary. Alternatives to detention have been shown to be less expensive, less harmful, and just as effective in ensuring asylum seekers and migrants show up for their immigration proceedings.
The impact of mandatory detention on asylum seekers will be even greater if the White House and Senate Democrats accept another reported Republican demand: the nationwide expansion of expedited removal for the first two years after arrival, which is currently limited to recent arrivals at or near the border. Expedited removal puts new arrivals apprehended at or near the border on a fast-track for deportation if they are not able to show a “credible fear” of being persecuted in their home countries.
International standards show that immigration detention should be considered an exceptional measure. The Global Compact on Safe, Regular and Orderly Migration, adopted by the United Nations General Assembly in 2018, called upon all governments to “use migration detention only as a measure of last resort.” The UN High Commissioner for Refugees detention guidelines caution that the detention of people seeking asylum is “inherently undesirable” and “in many instances, contrary to the norms and principles of international law.”
The US government is facing important foreign policy questions. It should not be resolving them by depriving particular groups of fundamental human rights protections.
