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The Trump Administration's Decision To Withhold Bail From Asylum-Seekers Is Being Challenged In Court

"No matter what they say, the goal is to send the message to immigrants that they should not come to the US and apply for asylum," an ACLU attorney said.

Posted on May 2, 2019, at 8:08 p.m. ET

Immigrants from Central America seeking asylum board a bus in downtown San Antonio.
Eric Gay / AP

Immigrants from Central America seeking asylum board a bus in downtown San Antonio.

The American Civil Liberties Union challenged in federal court Thursday a recent decision by Attorney General William Barr to deny bond hearings to certain asylum-seekers crossing the border without authorization, the latest standoff between immigration advocates and the Trump administration.

Over the last year, the administration has implemented numerous changes to dissuade asylum-seekers from crossing the border. Some of these moves, including a ban on asylum for those who cross the border illegally, have been blocked in federal court while others remain undecided.

In this latest battle, the ACLU, along with the American Immigration Council and the Northwest Immigrant Rights Project, filed a proposed amended complaint in an ongoing lawsuit in Seattle last year on behalf of detained asylum-seekers.

The case spurred US federal judge Marsha Pechman in early April to rule that bond hearings in immigration court for detained asylum-seekers should be held promptly.

Nearly two weeks later, Barr decided in his capacity overseeing the immigration courts that asylum-seekers who had crossed the border illegally and who had passed a screening at the border finding they had credible fear of persecution abroad could only be released by Immigration and Customs Enforcement officials.

Previously, migrants could request and be granted release by an immigration judge in a bond hearing. The ruling, the first made by Barr in his new role, will not take effect for more than two months.

In the meantime, the ACLU, along with the other groups, are amending their original complaint in an attempt to challenge Barr’s decision in court, citing due process violations.

“This decision is unprecedented,” said Michael Tan, a senior attorney at the ACLU Immigrants' Rights Project. “No matter what they say, the goal is to send the message to immigrants that they should not come to the US and apply for asylum or else you are going to be punished with detention without review.”

Families hoping to seek asylum in the US wait on the bridge connecting Reynosa, Mexico, and Hidalgo, Texas.
Eric Gay / AP

Families hoping to seek asylum in the US wait on the bridge connecting Reynosa, Mexico, and Hidalgo, Texas.

Pechman’s ruling on prompt bond hearings was later stayed for 30 days as the parties reviewed and brief on Barr’s decision.

“Through Attorney General Barr’s unilateral decision to eliminate bond hearings, the administration is once again breaking the law in its crusade to deter and prevent asylum-seekers from requesting protection in the United States,” said Trina Realmuto, directing attorney of the American Immigration Council. “We will continue fighting the administration’s use of mass incarceration as a weapon to punish migrants.”

Barr’s decision will likely not have much of an impact on the record number of families crossing the border, as families cannot be held in government custody for longer than a few weeks. As a result, border agents have been releasing families directly, instead of transferring them to ICE custody and telling them to show up for their immigration court hearings.

ICE itself has been dealing with capacity issues. As of Tuesday, it held more than 49,000 detainees in its custody. The agency is funded to hold an average of just over 45,000 migrants, though it has pushed to get more money to increase bed space.

Barr’s ruling, however, will impact other asylum-seekers that cross the border, mainly single adults. Advocates believe that the decision will cause many single adults seeking refuge to remain in detention for long periods of time without proper recourse.

“We know what they want to do is build up the detention system even further, deny them bond hearings, have them go to ICE under a sham parole process, and the result,” Tan said, “is that they are locked up indefinitely."


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