The following editorial appeared recently in the Los Angeles Times:
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.
Where the system begins to unravel, though, is in reserving those decisions for immigration authorities and denying immigrants the chance to have judges hear their arguments. It would be as if accused criminals had their bail set by prosecutors rather than judges.
Moreover, the system may actually dissuade asylum-seekers from playing by the rules. Instead of applying at the border, the two-tier system encourages some to cross it illegally and apply once they're inside the country, where they more likely will be allowed to remain free while their hearings are scheduled. And the system is expensive. The average daily cost of detaining an immigrant is upward of $100, while alternatives to detention, such as electronic monitoring, are far cheaper.
The Obama administration deserves some credit. In recent years, it has allowed immigration officers greater discretion in releasing asylum-seekers. Now, it should take the next step and allow judges to review detention decisions in the interests of fairness, reason and economy.