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.

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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.

Anonymous

No, sorry, it is the Constitution that decides who gets locked up without due process and the answer NO ONE. EVERYONE arrested, detained or otherwise must be given due process. And just to remind everyone, entertaining the country seeking asylum IS LEGAL. MS13 can still be locked up and deported by the immigration system via DUE PROCESS. Sorry if I come of snarky, I mean no offense. I'm not going after you, just thought I'd add on.

Anonymous

Good job Mr. Barr. Keep them lock up. Does anyone know who they are? Are they rapists,murders, sexual abuser, child abuser or sexual abuser, do they have mental health issues, medical issues,hiv/aids or std? Are really seeking asylum or just want jobs? They need to pay for their application and job application if they can pay thousand of dollars to drug cartels and human smugglers why can start paying for their medical care and everything else that they need. If they want to come to America they need to be responsible for their own bills and families instead of the American taxpayers. The American taxpayers should be responsible for the homeless veterans and citizens. American children should come first instead of illegal aliens children. People have so many excuses for illegal aliens. Illegal alien should taking start birth control so that they don’t have so many children. America needs strong people and not uneducated people with low skill and weak.

Anonymous

Now go back to sucking Fake President Donald Trump's tiny dick. And no, I don't support Hillary, either. And no, I'm neither Liberal nor Conservative, you jackass.

Anonymous

Poor poor baby did I hurt your feelings? You must be a dreamers/anchor baby/tsp or visa overstayed people Can you tell me you know anything about these people? Was your parents deported? Did they sneak in like rats at night? Did they pay drug cartels/human smugglers a lot of money and was deported? Did your parents use as pawn to stay in America but you could not save them being deported. Take a good look at your parents and ask them if they are using you to stay in America because you are blind to what they are.

Anonymous

Your parents must be uneducated/poor and unskilled. If every American citizens have to pay for their bills so should illegal aliens how about their illegal aliens children education? They should have to pay for it.

Sasha

"America needs strong people and not uneducated people with low skill and weak"

Reading (well, trying to read) your comments is a real challenge because you don't seem to know basic sentence - or even word structure. Seems YOU are the one who is uneducated with low skills and weakess

Anonymous

Yes Sasha I did not dot my I or cross my t. The messages is still the same that they are leeches, parasites, weak and uneducated. Also cowards. What can I say the truth is the truth.

Laura Davis

Of course people who seek asylum should be protected! What are we, monsters?! Apparently Trump and his GOP lackies are. We need sound reasonable immigration rules and practices, not cruelty to people only seeking help. And we need to get rid of our cruel inhuman and ridiculously stupid president post haste.

Anonymous

Laura what America needs is both democratic and Republican Party to work together on immigration laws put a stop to unlawful workers and employers. What is needed is mandatory E-verify in every state to stop the flow of illegal aliens to America. But since that not going to happen trump will win again in 2020 so you can thank the illegal aliens/open border people/liberals and democratic leaders. Both parties act like little kids fighting on the play ground. They need to grow and start doing their jobs and put America on the right track. Both parties of congress/senate and democratic and republican presidents are responsible for this mess this country is in Take a good look at what your party is doing or lack of it.because both parties are responsible for this mess.

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