The Obama administration is stubbornly defending a policy that treats immigrants who are fleeing persecution unequally, resting its decisions on where immigrants initially sought asylum rather than on the merits of their cases. It should yield to the recommendations of immigrant and human rights groups and adopt a more consistent set of rules.
About 41,000 immigrants applied to immigration courts for asylum last year, according to federal statistics. Those who sought protection at the borders or airports were immediately held until immigration officials released them or immigration judges granted asylum. And they were barred from asking the court to review their continued detention. By contrast, those who applied for asylum after they had entered the U.S. — legally or illegally — were usually allowed to remain free and permitted to seek bond hearings before immigration judges.
Federal immigration officials are required to apply strict rules under a 1996 law that limits eligibility for asylum. That law also created an expedited deportation system for those who arrive at the border. But this law and other regulations shouldn't be interpreted as a ban on judicial review of detention.
Some asylum-seekers must be locked up while they are screened. Those who seek protection often have fled their home countries with little or relied on false documents to escape, meaning that they would be difficult to find again if allowed to go free. Establishing the veracity of someone's identity can take time. In such cases, detention while awaiting a hearing is justified.