SEATTLE — A federal judge in Seattle on Friday will hear a challenge to a new Trump administration policy that would keep thousands of asylum seekers locked up while they pursue their cases, instead of allowing them to be released on bond.
Attorney General William Barr announced the policy in April as part of the administration’s efforts to deter a surge of migrants at the U.S.-Mexico border, and it is scheduled to take effect next month. It targets immigrants who have recently entered the U.S. without permission and have demonstrated a credible fear of persecution or torture if returned to their home country.
For the past 50 years, the government has given such asylum seekers bond hearings before immigration judges where the asylum seekers can argue they are not flight risks and pose no threat to the public, according to court documents filed by the ACLU, American Immigration Council and the Northwest Immigrant Rights Project. That gives the asylum seekers the opportunity to reunite with relatives in the U.S. and to find lawyers to handle their asylum claims, making them more likely to succeed.
The new policy would end that practice, keeping between 15,000 and 40,000 immigrants in custody without requiring the government to show that their detentions are justified, in violation of their due process rights, the groups argued.
“We’re talking about people who would be stuck in detention for at least six months, and many beyond a year,” said Matt Adams, legal director at the Northwest Immigrant Rights Project. “Under the attorney general’s decision, it doesn’t matter whether that person is a flight risk or a danger. They’re categorically going to be locked up.”
President Donald Trump has said he is determined to end the “catch and release” of migrants at the border. He has also called the asylum system broken, saying that some take advantage of it with frivolous claims.
The Justice Department argued in court papers that the new policy is a legitimate interpretation of a federal law that says if immigration officers determine immigrants have a credible fear of persecution, they “shall be detained for further consideration of the application for asylum.”
That language does not require asylum seekers to be detained for the entirety of their case, the immigrant rights groups have said. But even if it did, that would violate Supreme Court precedent that says the government cannot detain someone without reason, the groups have said.
U.S. District Judge Marsha Pechman has certified the case as a nationwide class action and issued an injunction in April ordering the government to give migrants with bona fide asylum claims the opportunity to seek bail within seven days of a request. Barr announced the new policy 11 days later.
Under the policy, detained asylum seekers would still have another avenue for release: a request to an immigration officer for parole. The immigrant rights groups say such requests are rarely granted under the Trump administration and are not a substitute for bond hearings before independent fact-finders.