Attorney General Barr Says ICE Has Power to Lock Up Asylum Seekers Without Hearings

Today the ACLU, the ACLU of Washington, the American Immigration Council, and Northwest Immigrant Rights Project launched a legal challenge to the Trump administration’s latest assault on people who have come to the United States to seek refuge from persecution: jailing asylum seekers without even allowing a judge to decide if there’s any reason to lock them up. Attorney General William Barr’s recent decision in Matter of M-S- seeks to eliminate this basic form of due process and puts thousands of asylum seekers at risk of being wrongfully imprisoned. 

M-S- specifically applies to individuals who enter the United States without documents and are apprehended by the authorities soon after they cross the border. Under the immigration laws, those individuals can be deported immediately—unless an asylum officer finds, after an interview, that they have a “credible fear” of persecution or torture, meaning there is a “significant possibility” that they legally qualify for asylum. Asylum seekers who pass this screening will then move on to a hearing on their asylum claims in immigration court.

ICE has the authority to detain asylum seekers while these immigration court proceedings move forward. But the asylum seekers addressed in M-S- have, until now, had the right to a bond hearing where an immigration judge would decide if he or she posed a flight risk or danger to the community and should be locked up, or should instead be released from custody.

M-S- eviscerates that basic form of due process. If the decision is allowed to go into effect, asylum seekers will now be locked up without any hearing before a judge. Instead, they will be left only with the option of asking ICE for release through what’s known as the “parole process”—a process that courts have found to be a sham. If not stopped, M-S- could result in the detention of thousands of men and women who shouldn’t be behind bars.

The decision also puts asylum seekers who have already been released on bond in jeopardy. Our lead plaintiff, Yolany Padilla, is seeking asylum from violence and persecution in Honduras, with her 6-year-old son. An immigration judge ordered her release on an $8,000 bond. Under the Attorney General’s decision, Yolany now faces the risk of being redetained—and separated from her child—even though a judge found she poses no flight risk and no threat to anyone.

For more than a century, the Supreme Court has held that all persons who have entered the United States have due process rights, and the Court has emphasized that “[f]reedom from imprisonment . . . lies at the heart of the liberty” protected by the Due Process Clause of the Constitution. The bedrock form of due process against unlawful detention is a hearing, before a neutral adjudicator, to decide if the person should be locked up. M-S- violates that basic right.

The decision is also pointlessly cruel and irrational. It makes no sense to lock people up without even having a judge consider whether they should be detained—it simply guarantees that we will imprison people who don’t need to be imprisoned. That is especially true when it comes to asylum seekers. Studies confirm that asylum seekers pose no threat to public safety and are highly motivated to fight their cases and show up for court. And nothing about a hearing prevents detention in the rare case where someone does pose a risk: the judge can just deny release. 

But ultimately this isn't about rational immigration policy or protecting public safety. The Trump administration always has made its real motives clear: it wants to deter immigrants from seeking refuge in the United States and punish people who apply for protection under our laws. But our Constitution does not allow the government to put people behind bars without due process of law.

View comments (49)
Read the Terms of Use

Anonymous

Does the AG's decision apply to Asylum Seekers currently awaiting to be notified for their Master Calendar hearings (have being waiting for months and have entered the US legally, although applied after expiration of status)? Will these seekers have to be detained when they attend the hearing? Thanks for challenging this decision.

Anonymous

If these people have a credible fear they should do things lawfully, apply for asylum in their own county at the embassy, and wait for approval, then come to America, we welcome you! But when you choose to make that long journey with your small children only to break our laws of immigration, you should be jailed and by your own doings, separated from your children. If I break the law I go to jail and am separated from my family! That's how it works! Stop trying to fast track your way here, migrate legally, use the process like millions have, make sure you have a plan for your own survival instead of expecting our taxpayers to support you, we have our own needy and starving people that we dont take care of as it is. Our President as well as our people welcome legal migration and encourage it! STOP making it out like these are all poor innocent people who need our help, they are largely ones who created the fear they face by their own wrongdoing in their country! They are creating their own calamity and we the people are tired of paying the price for it!

Anonymous

Seeking asylum IS LEGAL. Whether crossing at a port of entry or not. And the reason for not applying in country and waiting is because they are in fear of what YOU point out as"credible fear". Would you wait months in an area in a situation with YOUR CHILD if you thought they would be raped or killed? Again, ENTERTAINING THE COUNTRY SEEKING ASYLUM IS LEGAL!!!

Anonymous

You’re ignorant of the law and the procedures for seeking asylum.

Anonymous

ARE YOU SERIOUS?!! ARE YOU KIDDING ME. Even if they broke the law and not all immigrants break the law If that's what you think. 10.7 MILLION people are in the U.S without help that's less than 4% of the American population. WE NEED TO HELP THEM. They're as much of an American as you are, so treat them like one.

Anonymous

You’re a fucking idiot.

Anonymous

Yes seeking asylum legal for race, politics and religion but not for gangs, abuse and not for jobs

Anonymous

I guess it alright for a illegal alien to kill 11 or more older female in Texas. We as American citizens don’t know who is coming across the border.

Anonymous

THE AMERICAN TAXPAYERS HAS TO PAY FOR ILLEGAL ALIENS PLANE FARE TO BE SENT TO OTHER CITIES WHAT A F—KEN JOKE. WE HAVE AMERICAN CITIZENS/CHILDREN HAVE NEVER BEEN ON A PLANE OR LEAVE THEIR CITIES. WE HAVE TO PAY FOR LEECHES, COWARDS AND PARASITES TO FLY.

Ms. Gloria Anasyrma

Ultimately it is the tax payer who should decide who gets locked up or not, since it is the tax payer who has to pay for the persons upkeep while the person is in detention. For better or for worst, the tax payers in the U.S. of A. elected Donald Trump as president on the mandate that he gives Muslims and migrants a hard time entering this country. What's all the talk about MS? I hope you don't mean MS-13. They need to rephrase that proposition.

Pages

Stay Informed