Can A Person Be Detained If Their Asylum Claim Is Pending?

Asylum seekers in the United States may face detention while their asylum claim is being processed. Whether or not a person seeking asylum is detained depends on several factors, including their immigration history, whether they pose a flight risk, and if they meet the criteria for detention. However, there are also legal protections and possible alternatives that may allow an asylum seeker to avoid detention during their pending claim.

Can A Person Be Detained If Their Asylum Claim Is Pending?

Asylum Seekers and Detention:

Initial Screening:

When someone arrives in the U.S. and expresses fear of returning to their home country, they may apply for asylum. After they submit their application, an immigration officer conducts a credible fear interview to determine whether the individual has a valid claim for asylum. If the officer finds that the asylum seeker has a credible fear of persecution, the person may be allowed to stay in the U.S. while their asylum claim is pending. However, if the person does not meet the credible fear standard, they may be detained and deported.

Detention During the Asylum Process:

While many asylum seekers are allowed to remain in the U.S. while their claim is being processed, detention is still possible. Certain factors determine whether an asylum seeker may be detained, including:

• Flight Risk: If immigration authorities believe the asylum seeker is likely to flee or avoid immigration proceedings.
• Criminal History: If the asylum seeker has a criminal record or poses a public safety risk.
• Previous Immigration Violations: If the person has previously violated immigration laws, they may be detained while their claim is processed.

Alternatives to Detention:

Release on Bond:

Asylum seekers who are detained may be eligible for release on bond. A bond hearing can be requested before an immigration judge, where the judge will decide whether the individual is eligible for release. Factors considered include the asylum seeker’s family ties, employment history, and whether they are likely to attend future immigration hearings.

Bond Amount:

If granted bond, the asylum seeker must pay the set amount, which could range from a few hundred dollars to several thousand. If they are unable to pay, they may remain detained.

Alternatives to Detention Programs:

Some asylum seekers may qualify for Alternatives to Detention (ATD) programs. These programs allow asylum seekers to stay in the community while their case is pending, typically under supervision or with regular check-ins with immigration authorities.

ATD Options Include:

• Electronic monitoring (e.g., ankle bracelet tracking)
• Regular phone check-ins
• Reporting to a local immigration office

Factors That May Lead to Detention:

No Legal Status or Documentation:

Asylum seekers who are apprehended at the border without legal documentation or those who cross the border illegally may be detained while their claim is processed. If the asylum seeker is subject to expedited removal, they may be detained until they are granted asylum or ordered removed.

Public Safety Risk:

Asylum seekers with criminal convictions or who are considered a threat to national security may be detained as part of the immigration enforcement process. In such cases, their asylum claim will still be processed, but detention may be prolonged.

Failure to Attend Immigration Hearings:

If an asylum seeker has previously missed immigration court hearings or failed to comply with immigration authorities, they may be detained during the asylum process to ensure they attend future hearings.

Detention During Removal Proceedings:

Asylum seekers who are in removal proceedings may be detained while their case is decided by an immigration judge. In some cases, the judge may grant bail, allowing the person to remain free while their case is pending. If the asylum seeker’s claim is denied, they may face deportation, but if their claim is approved, they may be granted asylum and allowed to stay in the U.S.

Legal Rights and Protections:

Right to a Hearing:

Asylum seekers who are detained have the right to a bond hearing before an immigration judge to argue for their release. If the judge rules in their favor, they may be released from detention.

Right to Legal Representation:

Detained asylum seekers have the right to legal representation, although it is not provided at government expense. They may seek assistance from nonprofit legal organizations or immigration attorneys to navigate the asylum process.

Example:

Ana, a woman from Honduras, sought asylum after fleeing violence in her home country. Upon arrival in the U.S., she was detained at the border and informed that her asylum claim would be processed. Ana was granted a bond hearing, where she demonstrated strong family ties in the U.S. and a lack of criminal history. The judge approved her bond, and Ana was released while her asylum claim was pending.

Conclusion:

While it is possible for a person seeking asylum to be detained while their asylum claim is pending, it depends on factors such as flight risk, criminal history, and previous immigration violations. Detained asylum seekers may seek alternatives to detention, including bond or enrollment in alternatives to detention programs. Legal assistance is recommended to navigate the complexities of asylum claims and detention.