That’s one way to end catch-and-release — in theory. In practice, William Barr’s decision to end bail for asylum seekers might turn the crisis at the border into a catastrophe. Or at least into a powerful disincentive:
Migrants who come to the United States seeking asylum may instead wind up jailed indefinitely while they wait for their claims to be processed, the Trump administration ruled Tuesday in its latest crackdown at the border.
Attorney General William P. Barr’s written decision, a policy reversal, applies to migrants who have already established “a credible fear of persecution or torture” in their home country.
Barr ordered immigration judges to stop allowing some asylum seekers to post bail while they wait the months or years for their cases to be heard — a system that President Trump has derided as “catch and release.”
But advocates criticized the policy change and said it would lock up people who are simply looking for safety.
In his letter to immigration judges, Barr argues that he’s only following the law as written. The consequences of the law are not within his purview:
Matter of X-K- was wrongly decided. The Act provides that, if an alien
in expedited proceedings establishes a credible fear, he “shall be detained for further consideration of the application for asylum.” INA § 235(b)(1)(B)(ii). The Act further provides that such an alien may be “parole[d] into the United States . . . for urgent humanitarian reasons or significant public benefit.” Id. § 212(d)(5)(A), 8 U.S.C. § 1182(d)(5)(A). There is no way to apply those provisions except as they were written—unless paroled, an alien must be detained until his asylum claim is adjudicated. The Supreme Court recently held exactly that, concluding that section 235(b)(1) “mandate[s] detention throughout the completion of [removal] proceedings” unless the alien is paroled. Jennings v. Rodriguez, 138 S. Ct. 830, 844–45 (2018). The Act’s implementing regulations support that interpretation.
The respondent here was transferred from expedited to full proceedings
after establishing a credible fear, and an immigration judge ordered his
release on bond. Because the respondent is ineligible for bond under the Act, I reverse the immigration judge’s decision. I order that, unless DHS paroles the respondent under section 212(d)(5)(A) of the Act, he must be detained until his removal proceedings conclude. …
In conclusion, the statutory text, the implementing regulations, and the
Supreme Court’s decision in Rodriguez all lead to the same conclusion: that all aliens transferred from expedited to full proceedings after establishing a credible fear are ineligible for bond. Matter of X-K- is therefore overruled.
In other words, the choice for parole has been taken out of the judges’ hands. That decision has to be made by DHS. It’s safe to say in the Trump administration that very few such paroles will be granted. There is some justification for that approach too, as very few of those who seek asylum (as opposed to economic opportunity) actually prevail on those claims, with percentages reported as low as single digits. Releasing asylum seekers on bond with those odds, Donald Trump has often argued, amounts to tacit approval of illegal entry into the country.
With detention facilities already strained to the breaking point, however, ordering the enforcement of this policy raises questions about how DHS can possibly cope with the problem. Trump has claimed that the border already constitutes a national emergency, which is also supported by reality, but denying bond will make that worse, at least in the short run. Perhaps it might disincentivize bogus asylum seekers from trying it in the first place, but that’s a mighty big if for later on. Right now, it will force DHS to house even more people.
The ACLU plans to file suit against Barr over his ruling:
“This is the Trump administration’s latest assault on people fleeing persecution and seeking refuge in the United States. Our Constitution does not allow the government to lock up asylum seekers without basic due process. We’ll see the administration in court,” Omar Jadwat, director of the ACLU’s Immigrants’ Rights Project, said in a statement. …
Under previous policy, those who seek asylum were granted a bail hearing if they claimed “credible fear” threats or threats of persecution in their home country while waiting for their cases to be heard.
Immigration advocates expressed shock at Barr’s action and promised to challenge it immediately in court. The decision, which doesn’t go into effect for 90 days, orders immigration judges to deny some asylum seekers from posting bail.
Barr’s order doesn’t deprive asylum seekers of due process. It only deprives them of bail, which is not a due-process issue especially for those crossing the border illegally. It might be an efficiency issue, it might even be a humanitarian issue, but it’s not a due process issue. If Barr is correctly interpreting the statutes and Supreme Court precedent, he might be facing a rule-of-law issue himself, one which would require Congress to address.
Coincidentally or not, that’s exactly what Trump urged this morning on Twitter:
This looks like part of hardball strategy from the Trump administration more than an unfortunate consequence of statutes and judicial precedents. It’s also curious that the White House took this step so soon after the departure of Kirstjen Nielsen and Claire Grady. Were they opposed to the policy? Or perhaps prepared to be too lenient with paroles?