A federal judge in Seattle on July 2 blocked a Trump administration policy that says that certain asylum seekers who entered the country illegally are not eligible for a bond hearing, and should be detained until their application for asylum is reviewed.
U.S. District Judge Marsha Pechman said on July 2 that under the Constitution, such migrants should be entitled to be released from custody while they wait for their asylum claims to be heard.
On April 16, Attorney General William Barr had issued a ruling (pdf) that applied to people who illegally enter the United States who claim asylum and show a “credible fear of persecution or torture.” A 2005 Board of Immigration Appeals ruling had stated that most such people are eligible for bond and that only those who present at the U.S. port of entry must be detained.
Barr overturned that and said that the administration is permitted to detain all undocumented immigrants who were initially put in “expedited” proceedings conducted by front-line immigration enforcement officers of the Department of Homeland Security (DHS), but were then transferred to “full” removal proceedings, conducted by immigration judges, after they had passed the “credible fear” claim.
Barr’s ruling states that such people would not be eligible to be released from detention until they have their asylum applications heard, or they were granted an exception.
“I conclude that such aliens remain ineligible for bond, whether they are arriving at the border or are apprehended in the United States,” he wrote.
Barr did say the Department of Justice (DOJ) can offer exceptions on a case by case basis. His ruling also doesn’t affect the Homeland Security Department’s option to release the migrants on parole “for urgent humanitarian reasons or significant public benefit.”
Normally, undocumented migrants caught at the border would normally be placed in an expedited removal proceeding and quickly deported.
Yet recently, they have found a loophole: they usually surrender to authorities and request asylum claiming they are afraid to return to their countries. After months, or even years, of proceedings in immigration courts, most of their asylum claims fail, but by then they’ve already established their lives in the United States and face a much lower chance of deportation, since Immigration and Customs Enforcement (ICE) only has the resources to deport a few hundred thousand illegal immigrants a year. The immigration court system, meanwhile, is faltering with a backlog of more than 850,000 cases.
In May, border patrol agents detained more than 132,000 people crossing from Mexico—the highest level over more than a decade. Moreover, during the first seven months of the 2019 fiscal year, 531,711 illegal immigrants crossed the border into the United States, according to CBP data.
‘Unconstitutional’ to Indefinitely Detain Illegal Immigrants
Barr’s policy was due to take effect on July 15 before Pechman blocked it.
“It is the finding of this Court that it is unconstitutional to deny these class members a bond hearing while they await a final determination of their asylum request,” Pechman wrote.
Pechman said that the illegal immigrants are entitled to the United States’s Fifth Amendment’s due-process protections, including “a longstanding prohibition against indefinite civil detention with no opportunity to test its necessity.”
“The Court finds that Plaintiffs have established a constitutionally-protected interest in their liberty, a right to due process which includes a hearing before a neutral decisionmaker to assess the necessity of their detention, and a likelihood of success on the merits of that issue,” she wrote.
Pechman, who heard arguments last Friday, June 28, said the government must provide a bond hearing within seven days of a request by any immigrant who has demonstrated that they have a credible fear of persecution or torture if returned to their home country. The asylum-seekers must be released if not granted a hearing within that time frame, she said.
Pechman also said the burden must be on the government at such hearings to show that keeping asylum-seekers in custody is necessary because they pose a flight risk or a danger to the public.
Pechman noted in her order that the government was expected to quickly appeal the decision.
The Associated Press contributed to this report.