A new memo from USCIS and ICE seeks to detain all refugees who have been in the U.S. for more than a year and who have not yet received their Green Cards. This policy represents a cruel and pointless betrayal of our nation's commitment to human rights, and will cause severe harm to many thousands of vulnerable people. In other words, it's business as usual for the Trump Administration.

The legal basis for the new policy can be found at Section 209(a)(1) of the Immigration and Nationality Act. That section states, "Any alien who has been admitted to the United States" as a refugee, "who has been physically present in the United States for at least one year, and who has not acquired permanent resident status, shall, at the end of such year period, return or be returned to the custody of the Department of Homeland Security for inspection and examination for admission to the United States as" a lawful permanent resident (a Green Card holder). The Administration has seized on the words "shall... return or be returned to... custody" to support its unprecedented position that legally-admitted refugees should be arrested and held in detention if they have not received a Green Card after their first year in the United States.

It has never been the practice of the U.S. government to detain refugees under these circumstances, and in fact, it is effectively impossible for a refugee to obtain a Green Card after only one year in the United States. According to USCIS's own instructions, a refugee cannot even apply for a Green Card until they have been "physically present in the United States for at least one year after [their] admission as a refugee" (though a 2023 memo allows refugees to apply earlier). It typically take a year or two to process a refugee Green Card (or longer, given the "pause" on nationals from "banned" countries), and so even if refugees apply as soon as possible, they will not have their residency within one year of arrival and they will be subject to detention based on the new memo.

ICE's prior policy held that a refugee's failure to obtain a Green Card, by itself, was not a basis for detention. Further, if a refugee was detained, they could not be held for more than 48 hours unless the government planned to initiate removal proceedings against the person. One reason that ICE declined to detain such refugees was because "an alien's failure to adjust status [i.e., obtain a Green Card] or apply for adjustment... is not a ground of removability." Because a refugee could not be deported for failing to get a Green Card, there was no reason to detain that refugee.

Fast forward to today, where the Trump Administration has condemned refugees as criminals and fraudsters, and where the goal seems to be to detain and terrorize as many non-citizens as possible. To that end, USCIS is taking an extreme view of the immigration law. As I see it, the law distinguishes between being "detained" and being taken into "custody." The new memo interprets "custody" as synonymous with "detention." It is not. The Immigration and Nationality Act uses both words, and in general, custody refers to a custodial relationship, where one party has control or responsibility for another. For example, when a parent has custody over their child. This is not the same as "detention" (as much as we parents might sometimes want our children to be detained). I remain hopeful that courts will recognize the extreme and damaging nature of how the government is interpreting the law, and that they will block the new policy. Indeed, at least one court has already halted refugee detentions in Minnesota.

If you are a refugee, what should you do? First, refugees (and all other non-citizens) should know their rights and have a plan in case they are detained. Second, if you are eligible and have not yet filed for your Green Card (using form I-485), you should probably do so. There is some risk in applying, as ICE has detained some refugees with pending I-485 applications. However, there is also a risk in failing to apply, and in the cases I have heard about, refugees who were detained and who had pending applications were interviewed while detained, issued Green Cards, and release within days. If you are not sure whether applying makes sense, or if you have a criminal or other issue, talk to a lawyer before filing the I-485.

Refugees are among the most vulnerable members of our society. The Trump Administration's sudden and unexpected attack on this group is yet another demonstration of its unmitigated cruelty. The Administration is lying about who refugees are and mis-characterizing them as a threat to our nation. It is then using these falsehoods to justify harming people who have already been subject to terrible suffering.

Given the questionable legality of the new refugee policy, I am hopeful that courts will intervene to block its implementation. Even so, it has already done tremendous damage to a community that we welcomed to our country and promised to protect. Aside from the harm to refugees, what does that say about us?

Originally posted on the Asylumist: www.Asylumist.com