According to a 2005 order by the Board of Immigration Appeals, migrants who are deemed to have a “credible fear” of imminent danger or persecution in their home countries can request a bond hearing to be released on bail while they wait for their asylum cases to be heard. This process often takes months or even years. On April 16, however, Attorney General William Barr directed immigration judges to withhold bail from migrants until their cases have been approved for expedited removal proceedings.
Barr’s decision does not affect migrants applying for asylum at the ports of entry along the border. Rather, it affects those who are apprehended after illegally crossing the stretches of the border between the ports. The order will not go into effect for ninety days in order to grant the Department of Homeland Security time to plan for additional detention and parole decisions.
The attorney general’s order comes at a time of great strain on border facilities. Between October 2018 and March 2019, border authorities detained 268,044 migrants—nearly twice as many migrants as were detained in the same period the previous year. Historically, those seeking asylum at the border have been single men from Mexico, but these demographics have changed in the past five years. Increasing numbers of people fleeing poverty from across Central America are making the trek to the border. Many are now bringing their children, perhaps because doing so increases one’s likelihood of being released. This massive influx of migrants has placed an unprecedented strain on US Immigration and Customs Enforcement (ICE), who have taken to setting thousands of detained individuals free each week due to a lack of accommodations—a practice which President Donald Trump has coined “catch and release.” Barr’s order is meant to deter more people from approaching the border and reduce the stress placed on ICE facilities.
Crossing the border between ports happens very frequently, and increasingly so. In October 2017, 27 percent of migrants reported to legal ports of entry. That number dropped to 17 percent by 2018, and the overall number of border crossings had risen sharply. Human rights advocates surmise that illegal crossing is so popular for a number of reasons: Mexican immigration officials block asylum seekers from approaching US border posts, Customs and Border Protection officers turn away asylum seekers at ports of entry, processing slow-downs increase dangers and crossings between ports, dangers in Mexico and along the border, lack of information, an abundance of misinformation, and avoiding certain dangers.
Proponents of the order argue that it is a necessary step toward preventing individuals who would otherwise enter the country illegally and thus become ineligible for asylum. Under current laws, individuals who enter the country illegally and claim asylum upon being caught are paroled into the United States to await adjudication. White House officials, including Trump, have insisted that the practice of “catch and release” has allowed large numbers of undocumented migrants to disappear into the population and escape mandatory hearings.
Proponents of the order also claim that “catch and release” allows individuals who know they are not actually eligible for asylum to enter the United States through a legal loophole. Therefore, the order is seen as beneficial for two reasons: first, it deters further attempts to enter the border illegally through stretches in between ports of entry; second, it prevents those who do cross illegally from assimilating into the country without going through the proper procedures.
Critics of the order, such as civil rights lawyers and immigration activists, argue that the ruling could lead to the indefinite imprisonment of many immigrants who have a legitimate reason to fear harm or persecution in their home countries. Others argue that the order could exacerbate the humanitarian crisis at the border as ICE facilities have to accommodate unsustainable numbers of people. Furthermore,the issue of court no-shows, critics argue, is overblown and could be solved in a way that does not put so much stress on border facilities. According to the FY 2016 Statistics Yearbook prepared by the Office of Planning, Analysis, & Statistics, between 60 -75 percent of non-detained migrants return to attend immigration court proceedings over the subsequent five years after arrival. Studies of a small pilot called the Family Case Management Program concluded that 99 percent of participants showed up for court appearances and ICE check-ins when provided with legal advocates. Trump canceled the program, which connected released asylum-seekers with case managers, in 2017.
Some, like Michael Tan, an attorney with the American Civil Liberties Union (ACLU), are concerned about the legality of the order. "The Constitution doesn't let the government lock people up without basic due process," he said. "You can't lock people up without giving them the basic hearing before a judge. Where that judge can look at the person and determine if they need to be locked up in the first place." Tan is identifying a potential conflict between the order and the Fifth and Sixth Amendments.
Barr argues that the Immigration and Nationality Act allows the administration to detain all undocumented immigrants who were initially placed in expedited removal proceedings but then proved credible fear and were transferred to a full hearing before an immigration judge. He also pointed to a 2018 Supreme Court ruling that found that the law did not limit the length of detention.
But Barr’s directive comes shortly after a federal judge in Washington state ruled that certain asylum-seekers who request a hearing before an immigration judge must be granted that hearing within seven days or be released. It also follows a legal battle on Trump’s Migrant Protection Protocol, which requires asylum-seekers to remain in Mexico while their cases are under consideration. A federal judge last week issued an injunction against the policy, but the 9th Circuit Court of Appeals issued a stay for that order while it considers the administration's appeal. Barr’s order would have migrants remain in detention facilities at the border—neither turned back to Mexico nor released into the United States.
The most immediate issue concerning the order is the additional strain it would place on processing and holding facilities and immigration courts. As of February 2019, the court's active docket topped 855 thousand cases, an increase of more than 300,000 pending cases added to the existing backlog since the end of January 2017. Additionally, with numbers of Central American migrants soaring, Barr's ruling could lead to thousands of asylum-seekers getting stuck in detention for years until their cases can be heard.
"The humanitarian crisis created by a massive influx of family groups and unaccompanied children in recent months has forced CBP to reallocate resources away from law enforcement, trade, and travel missions to process and provide care for those in our custody," CBP Deputy Commissioner Robert E. Perez said in a statement. This suggests that the order could pull even more resources away from law enforcement, trade, and travel missions and potentially decrease the standard of care for individuals who could now be looking at years in detention facilities.
As a long-term strategy, Barr’s order may deter more immigrants from approaching the border. But the way it would do so might be unsatisfactory. Migrants might hesitate to approach the border if they expect to be met with a long detainment period and potentially overrun, under-resourced facilities. One potential issue with this approach is it paints too broad a stroke— trapping people who do have a legitimate claim to asylum in dangerous situations. Another potential issue is that the order could be pursuing its goal through unnecessarily inhumane and expensive means—if the issue is really that migrants are not returning for their court dates, methods such as giving migrants access to case managers could serve as a potential solution to the problem without placing further stress on border facilities and discouraging people who desperately need help from seeking it.
The future of the order is in jeopardy. For one, the ACLU has filed a complaint in Padilla v. ICE citing violations of the Due Process Clause, the Immigration and Nationality Act, and the Administrative Procedure Act. But the outcome of this challenge is less likely to take down the order than the sheer implausibility of upholding the order on the long term; detention facilities likely cannot maintain the requirements of the order. Seeing as the order is so blatantly unsustainable, we should expect significant action by the Trump administration in the near future.
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