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Attorney General Barr just handed ICE more power to keep asylum seekers in detention

Barr’s unilateral ruling won’t affect families seeking asylum, but could make it much harder for adults to get released.

Thousands of adult asylum seekers may be held in detention facilities like this one after Attorney General William Barr revoked the right to bond hearings for asylum seekers who entered the US illegally and passed screening interviews.
Karen Ducey/Getty Images

Attorney General William Barr has unilaterally revoked the right of asylum seekers who enter the US illegally to ask an immigration judge for release on bond.

The decision, released Tuesday night, is the first time Barr has used the attorney general’s power to issue binding precedent on the immigration courts that determine whether immigrants can be deported from the US — a power that has been used aggressively by President Donald Trump’s attorneys general. (Former Attorney General Jeff Sessions is partly responsible for Barr’s Tuesday night ruling, since he selected the case, Matter of M-S-, for attorney general review in October 2018.)

If Barr’s ruling is allowed to go into effect, which it is set to do in 90 days, the only way for an asylum seeker to be released from detention during the weeks or months it takes for her case to be heard by a judge would be for Immigration and Customs Enforcement (ICE) to allow her to be released on parole. The ACLU has vowed to sue to block the ruling.

The ruling won’t address the heart of the current border crisis. Families make up a majority of people crossing into the US without papers (for the first time ever, as far as anyone can tell), and ICE can’t keep immigrant families in detention for more than a few weeks under the terms of the Flores settlement, which governs the care of children in immigration custody. Barr’s ruling doesn’t change that.

For single adults seeking asylum, however, ICE’s only consideration about holding them indefinitely if the ruling goes into effect will be whether it has the space to do so.

That raises the stakes of a forthcoming battle that was already brewing between ICE, which has consistently spent beyond its budget on detention, and the Democratic House of Representatives, which is less willing to bail ICE out than its Republican predecessors.

Asylum seekers who crossed illegally had two options for release. Barr is taking one of them away.

Someone who comes to the US without papers — whether they present themselves at a port of entry (official border crossing), or enter between ports (committing the misdemeanor of illegal entry) and are apprehended by a border patrol agent — can be deported without a hearing.

But if that migrant declares a fear of return to her home country or a desire to seek asylum, she has a right to a screening interview with an asylum officer. If the asylum officer determines she has a “credible fear” (a deliberately generous standard), she is allowed to formally apply for asylum before an immigration judge, in the same kind of hearing that immigrants apprehended while living in the US are entitled to.

This ruling is about what happens between passing the screening interview and the full hearing. That can be a years-long wait when an immigrant isn’t detained, but is generally a matter of weeks (or sometimes months) when an immigrant is held in detention.

US law says that people who come without papers “shall be detained” after passing their screening interviews, unless the federal government decides to allow them out on parole.

Federal regulations, however, say that there’s a second way for people to get released from detention: most immigrants who are on an immigration judge’s docket have the right to periodic “redetermination” of whether they have to stay in custody or not — in other words, to bond hearings — before their case is heard on the merits.

People who come without papers to ports of entry are explicitly excluded from that regulation. People who arrive between ports of entry, crossing illegally, are not. So the question is whether asylum seekers who arrive illegally but pass their screening interviews are eligible for a bond hearing as well as parole, or just for parole at the discretion of ICE officials.

In 2005, the Board of Immigration Appeals, part of the immigration court system within the Department of Justice — ruled that asylum seekers had a right to both bond and parole. That’s the ruling Barr reversed Tuesday night, citing a 2018 Supreme Court decision (which found that the Immigration and Nationality Act didn’t give an immigrant the right to a bond hearing if the law said they “shall be detained”).

Had Barr not issued his ruling, there would have been a massive change in the other direction. Earlier this month, a federal judge ruled in a class-action lawsuit brought by a group of asylum seekers that bond hearings for eligible asylum seekers had to be held within seven days of them passing the screening interview, an aggressive interpretation of “periodic redetermination” that almost certainly would have resulted in a lot of new hearings in overloaded immigration courts and a lot more releases from detention.

The California ruling was delayed for 30 days for appeal. Instead, Barr swooped in and issued the ruling in the case the AG’s office had had since October, obviating the judicial ruling. But Barr is giving DOJ and DHS 90 days to figure out how to implement his ruling, creating an opening for advocates to file another lawsuit, and get (they hope) yet another injunction against a Trump immigration policy, in the meantime.

ICE has no choice but to release families. The question is whether it will try to stay within budget, or detain more single adults.

We don’t know exactly how many migrants are affected by Barr’s ruling. Asylum officers are currently doing nearly 10,000 screening interviews a month, and nearly 90 percent of those asylum seekers pass. But we don’t know how many of those screenings are of single adults, and how many are of families coming together.

Families (and unaccompanied children, who are subject to a different legal process) have made up 60 percent of all migrants apprehended at the border over the past few months — and the specific needs and legal protections for those populations are at the heart of the current border crisis that is overwhelming border agents and local communities.

And families are not affected by Barr’s new ruling.

Under a 2015 revision to the 1997 Flores settlement, families can’t be held in immigration detention indefinitely; the rule of thumb is that families are supposed to be released after about 20 days.

The Trump administration desperately wants Congress to override that ruling to allow family detention until cases are completed, and is working on a regulation that would supersede it. But in the meantime, ICE is obligated to release families itself, on parole, if necessary to comply.

In theory, ICE is supposed to consider parole in most cases — not just when obligated to by a lawsuit — and make its decisions based on who it most needs to be holding in immigration detention.

The funding deal Congress passed in February gives ICE funding to keep an average of 45,274 migrants in custody through the end of September — but ICE was supposed to use that money to gradually reduce the 49,000-plus people it had in detention at the time to the 40,520 that Congress had actually authorized (and ICE had violated) in prior years.

It doesn’t appear that ICE is making any more of an effort to live within its means; a few weeks after Congress passed its bill, immigration detention shot above 50,000 for the first time ever. That indicates that Barr’s ruling will have an impact on single adults seeking asylum — since ICE may not be inclined to release them if it doesn’t have to, and a judge can no longer compel that release.

If ICE spends its detention budget even faster now, though, it just accelerates a coming confrontation with Congress when the money runs out.

House Democrats aren’t as likely to pass “supplemental” funding bills for ICE to replenish an exhausted detention budget as their Republican peers were. And while DHS has some power to move funds from one agency to another — a power it used to send some money from FEMA to ICE last year, for example — it is supposed to notify Congress when that happens, and, in theory, to ask for Congress’s approval.

Democrats have all but said that if ICE doesn’t reduce its detention population as instructed, they’ll try to block those transfers of funds. (They may not be able to — they weren’t able to block the transfer of $1 billion by the Pentagon to help pay for additional border barriers, for example.)

Barr is following in Sessions’s footsteps in using his power to reshape immigration law

Barr’s ruling shouldn’t be seen as a response to Trump’s most recent temper tantrum over the border, which has led him to threats to close the border entirely and a (possibly ongoing) purge of top leadership at the Department of Homeland Security.

It was in the works before Sessions resigned, and it’s the latest example of something Sessions pioneered during his two years as Attorney General: using the power the AG has over the immigration court system to reshape immigration law in a more hawkish direction.

So far, Trump’s attorneys general have opened the door to the reopening of hundreds of thousands of closed deportation cases; ruled that judges can’t delay a hearing to wait for, say, an immigrant’s application for a visa to get approved; and severely narrowed the grounds on which survivors of domestic and gang violence can qualify for asylum. (The last of these has been partly put on hold by a federal judge.)

And a case that former acting Attorney General Whittaker referred to himself, that Barr hasn’t yet released a ruling on, could change asylum grounds even more radically — by preventing someone from qualifying for asylum by arguing that his family is persecuted in his home country.

Trump has focused his attention and frustration at the Department of Homeland Security. But DHS is constrained both by limited resources, and by some hard limits in immigration law.

DOJ’s restrictions, when it comes to self-referral, aren’t nearly as hard and fast. Barr might have more power than whoever Trump nominates to replace purged Homeland Security Secretary Kirstjen Nielsen. And his Tuesday ruling indicates he intends to use it.