The thrust of the judge's ruling is at odds with President Donald Trump's stated policy of trying to discourage asylum claims and illegal immigration by increasing the certainty of detention for would-be migrants. | Saul Loeb/AFP/Getty Images Judge's order could undercut Trump's immigrant detention plan

An order a federal judge issued Monday requiring individualized decisions on whether some asylum-seekers can be released into the U.S. poses a new legal threat to President Donald Trump's effort to crack down on migrants crossing the border from Mexico.

U.S. District Court Judge James Boasberg said there is strong evidence that five offices of the Department of Homeland Security Immigration and Customs Enforcement were ignoring a 2009 agency directive requiring case-by-case determinations on whether asylum seekers who passed the initial "credible fear" screening could be released pending an immigration judge's decision on their claim.


Boasberg said lawyers from the American Civil Liberties Union justified the injunction by showing that releases of such immigrants by some offices dropped dramatically after Trump took office last year. Between February and September of last year, 100 percent of parole applications at three ICE offices were denied, the judge said, while two other offices released eight percent or fewer of those requesting release.

"The record indicates that, instead, they are subject to a de facto 'no-parole' reality, under which detention has become the default option," wrote Boasberg, an appointee of President Barack Obama.

Future determinations "shall not be based on categorical criteria," the judge added in an order. He suggested a policy targeting those who made "recent entry" to the U.S. would be deemed categorical and contrary to the state policy.

The thrust of the judge's ruling is at odds with Trump's stated policy of trying to discourage asylum claims and illegal immigration by increasing the certainty of detention for would-be migrants.

However, the injunction's direct impact on the administration's most controversial family separation and family detention policies could be limited. For one thing, it applies only to asylum seekers who present themselves at a port of entry and immediately claim asylum, not to immigrants who cross the border illegally.

In addition, at least for the moment, Boasberg's order applies only to individuals detained within the geographic jurisdiction of five ICE field offices: Detroit, El Paso, Los Angeles, Newark and Philadelphia.

The largest family-detention facilities, located in South Texas, are not covered by those offices. A smaller center in Berks County, Pennsylvania, does fall under the Philadelphia office but had only several dozen immigrants housed there as of last month.

It's possible ICE could try to avoid individualized decisions by holding detainees, whether families or individuals, at locations away from the five districts covered by Boasberg's order. ICE could also attempt to revoke the policy entirely.

Spokespeople for ICE and for the Justice Department declined to comment on the judge's order.

Boasberg noted that the ICE policy is not a regulation, but he said it was reaffirmed by then-Secretary of Homeland Security John Kelly last year and in a Justice Department submission to the Supreme Court.

"Defendants cannot claim that the ICE Directive remains fully in effect, and yet, at the same time, provide no explanation for the sudden shift in the day-to-day treatment of asylum-seekers under the current administration," the judge wrote.

An ACLU spokesman saw the rationale in the ruling.

“Definitely if they were categorically detaining people without giving them rights guaranteed to them under the parole directive, including case by case review, if they’re disregarding those procedures then they’d have serious problems,” said ACLU attorney Stephen Kang.

Ted Hesson contributed to this report.