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 (52)
Read the Terms of Use

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 up 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.

Anonymous

Companies are responsible for this mess they hire illegal aliens at low wages or pay them under the table so that they don’t pay taxes/ social security. Their is illegal alien that hire illegal aliens to work for them. Then American citizens that work for lower wages which they have to pay for their medical bills and other services in America. So the rich people and companies are also responsible for these mess and American citizens who keep voting for the same people in congress and senate. So you can thank them for trump.

allen

The AG has the lawful authority to do this. Why is it that the ACLU is so hell bent on destroying the laws of this nation? Is it that the Democrats cannot win elections with out the voter fraud these illegals will engage in? Is the ACLU anti-American? It sure seems that way.

Anonymous

It’s a BIA case that the AG certified to himself. The circuits will ultimately decide whether this case is good law. The AG most certainly can not do whatever he wants. I can tell you are not an attorney.

Anonymous

no wall

Anonymous

Why are you not fighting for the rights of Americans right here in the USA , targeted individuals are being hurt , spied on in there homes ,killed , & asset striped each day .

rich

so glad we have the aclu: keep going after his abuses of power!

Anonymous

Our Country, the USA, is already overpopulated. We are way beyond the natural "carrying capacity" and therefore we cannot allow the INVASIONS to continue unabated! The INVASION must be halted at the borders before the hordes are released into an already overstressed situation!

Anonymous

Illegals have NO rights! Dumbasses!

Anonymous

The ACLU should be defending our President and his 1st amendment rights against the unlawful congressional intrusions into his privacy and his personal tax returns instead of working with the five anti-American media conglomerates and the democratic party, which now hate this country, to weaken our country and open our borders.

Pages

Stay Informed