Written by Michael D. Shear and Katie Benner
The Trump administration Tuesday took another significant step to discourage migrants from seeking asylum, issuing an order that could keep thousands of them in jail indefinitely while they wait for a resolution of their asylum requests.
In an effort to deliver on President Donald Trump’s promise to end “catch and release” at the border, Attorney General William Barr’s order directed immigration judges to no longer allow some migrants who have sought asylum to post bail.
The order will not go into effect for 90 days, and is all but certain to be challenged in federal court. Immigrant-rights lawyers said it could undermine the basic rights of people seeking safety in the United States.
“They want to send a message that you will get detained,” said Judy Rabinovitz, deputy director of the Immigrants Rights Project at the American Civil Liberties Union. “It’s really obscene. We are talking about people who are fleeing for their lives, seeking safety. And our response is just lock them up.”
For more than a decade, migrants who are deemed to have a “credible fear” of persecution in their home countries have been allowed to request a bond hearing so they can be released on bail while they wait for their asylum cases to be heard, sometimes months or years later.
A federal judge in Washington state this month affirmed the rights of individuals with a bona fide claim for asylum, saying they must be given the opportunity to seek bail within seven days of a request.
But Barr’s order came in a case involving an Indian man who crossed into the United States from Mexico and claimed asylum. Barr, exercising his authority as the top official overseeing the immigration courts, said that migrants in similar cases do not have the right to bail.
Such an immigrant, “after establishing a credible fear of persecution or torture is ineligible for release on bond,” Barr wrote in his order, which overrules a previous Board of Immigration Appeals case from 2005.
A migrant seeking asylum could still ask the Department of Homeland Security to be released under a grant of parole, but that is entirely at the discretion of the department, which under Trump has sharply cut back on such releases.
Barr’s decision does not affect migrants applying for asylum at one of the two dozen ports of entry along the border with Mexico. It affects people who are apprehended after they cross into the United States illegally in the often vast, rural stretches of the border.
Barr’s order is the latest effort by the Trump administration to reduce the number of immigrants who are able to seek protection from violence, poverty and gangs by asking for legal status in the United States.
At a recent campaign rally, Trump said that some asylum claims were a “big fat con job” and that migrants were met at the border by lawyers eager to press those claims. In warning of the coming crackdown, the president said, “I’m not playing games.”
Trump has reduced the number of refugees who can be accepted each year. He has slowed the processing of asylum requests at ports of entry. And he has ordered that some asylum-seekers be required to wait in Mexico, rather than in the United States, while their cases are heard.
Officials say the goal of the hard-line approach is to deter migrants from trying to come to the United States in the first place. But the administration’s policies — some of which have been blocked in the courts — have failed to stem the tide of arrivals in recent months.
A surge of migrants from Central America, many of whom are families traveling with small children, has overwhelmed the Border Patrol and other authorities in communities along the southwestern border. Facilities for detaining immigrants in the country illegally are well beyond capacity, forcing authorities to release some of them soon after they are apprehended.
Barr’s decision could add to the overcrowding crisis in the immigrant detention centers by requiring judges to keep asylum-seekers in jail for longer periods. In his order Tuesday, Barr appeared to concede the reality of the detention space crisis.
“I will delay the effective date of this decision for 90 days so that DHS may conduct the necessary operational planning for additional detention and parole decisions,” Barr wrote in the 11-page order, which was released publicly Tuesday evening.
Barr’s decision does not affect unaccompanied children or families who cross into the United States illegally. A long-standing settlement in a previous court case says that the government cannot detain children or families for longer than 20 days.
But immigrant rights lawyers said that Barr’s order — if it goes into effect — could set a precedent that the government could use to deny bond hearings, and bail, for an even broader number of immigrants.
“That’s what Trump’s mantra is: End catch and release,” Rabinowitz said. “What does that mean? It’s human beings. We’re not talking about a game of cat and mouse.”
Rabinowitz and other immigration lawyers said they intend to quickly challenge Barr’s order in federal court by asking the judge in the Washington state case to expand his ruling to prevent Barr’s order from going into effect.
The lawyers said they could be in court as soon as Wednesday to challenge the attorney general’s order.
The Justice Department declined to comment beyond the text of Barr’s decision.
Because immigration courts are housed under the Justice Department, not the judicial branch, the attorney general has the authority to refer cases to himself and overturn decisions. In October, less than a month before he was pushed out of the administration, Attorney General Jeff Sessions asked to review the case, known as the “Matter of M-S-,” to determine whether immigrants with credible asylum claims should be able to post bond and enter the United States.
Just months before taking on the case, Sessions had overturned another immigration appeals court ruling and made it harder for victims of domestic abuse or gang violence to seek asylum.
The decision by Barr is an indication that cracking down on immigration remains a top priority despite the departure of Sessions, who had been a fierce advocate for tougher immigration laws for more than two decades.
Barr, who was confirmed in February, decided that under the law, immigrants with pending asylum claims must be detained — a decision that overturned an immigration appeals decision in a case called the “Matter of X- K-.”