In an important immigration policy shift, Attorney General William Barr announced a decision Tuesday to block some immigrants seeking asylum from being released on bond while they wait in detention for their asylum cases to be processed.
Barr’s ruling, which will take effect in 90 days, acts on President Donald Trump’s frequent calls to end what he calls the “catch and release” policy, officially known as “release on recognizance,” which allows eligible immigrants to be released from detention and live in the United States while waiting for their asylum claims to be decided.
The decision applies to immigrants who enter the country illegally, with certain exceptions.
How immigration bonds worked until now
Once immigrants who enter the country illegally are detained they can request to undergo a “credible fear” interview, with Department of Homeland Security officials, to establish if they have a legitimate claim to seek asylum in the U.S. Credible fear in the past has included claims of fleeing persecution or domestic violence. After immigration officials have established credible fear, a court date is set for their asylum case to be heard before a judge. Before Barr’s rule change, those asylum seekers were also able to apply for a bond hearing, which gave them the opportunity to be released while waiting for their cases to be heard.
Under the Obama administration, immigration judges were directed to use their discretion on whether to release immigrants with or without bond, based on their credible fear interviews, how the immigrant entered the country, and their ties to family already living in the U.S.
Under the Trump administration, attorneys and immigration advocates say there’s been a rise in immigration court judges and U.S. Immigration and Customs Enforcement officials either denying bond requests or hiking up the amounts. The minimum bond under the law is $1,500, but attorneys have reported bond amounts of more than $10,000.
What the new rule changes
By announcing the change, Barr overruled a previous decision, made by the Board of Immigration Appeals in 2005, that immigrants who cross the border illegally – between legal ports of entry — and establish a credible fear for seeking asylum are eligible for bond.
An illegal immigrant seeking asylum “after establishing a credible fear of persecution or torture is ineligible for release on bond,” Barr said in his Tuesday decision letter. The immigrant “must be detained until his removal proceedings conclude, unless he is granted parole.” Once this policy goes into effect, parole granted by the Department of Homeland Security is the only way an asylum seeker can be released.
Under Barr’s policy, the Department of Homeland Security could still release immigrants on parole, but it takes away the authority of immigration court judges to make that decision, something they’ve been allowed to do up until now. The change does not apply to unaccompanied minors or families, who cannot be detained for more than 20 days under a separate federal agreement, known as the Flores settlement, as well as migrants who ICE decides to release on parole.
Why it matters
The change is the latest move by the Trump administration to take a harder-line approach to immigration, with the goal of deterring people from coming to the United States at a time when immigration officials are dealing with a surge in migrants at the southern border with Mexico.
Trump has specifically taken issue with the country’s asylum process — calling it a ‘con job’ during a recent trip to Minnesota — and pursued policies to make it more difficult, including an order in January that ordered asylum-seekers to wait in Mexico while awaiting a hearing. The policy was later blocked by a federal judge. The policy remains in place until both the government and immigrants rights advocates can present their cases to the 9th U.S. Circuit Court of Appeals, which has set a hearing date for April 24.
As of May of 2018, the average wait time for a pending asylum case was 700 days, according to a TRAC Immigration, a Syracuse University database that tracks U.S. immigration enforcement. Under Barr’s policy, asylum seekers who would lose their ability to apply for bond would have to wait in detention.
According to the Executive Office for Immigration Review, asylum applications totalled 161,000 in the last fiscal year, and 46,000 in the first quarter of 2019 alone. U.S. Customs and Border Protection reported earlier this month that U.S. Border Patrol has seen a more than 370% increase in the number of family units apprehended at the border in comparison to last year. Sixty percent of apprehensions are family units and unaccompanied minors – two population groups that are exceptions to Barr’s policy.
Dana Leigh Marks, the president emerita of the National Association of Immigration Judges, said Barr’s policy “artificially changes the prosecutorial priorities” of the immigration courts. It’s hard to say now what immediate effects will be, but a few possibilities, according to Marks, including further overcrowding at detention facilities and detainees having a harder time getting legal counsel.
The ACLU said on Twitter: “Our Constitution does not allow the government to lock up asylum seekers without basic due process. We’ll see the administration in court. Again.”
This story has been updated to include the announcement of a hearing date in the 9th Circuit Court of Appeals.