Immigration Law

AG Barr orders detention of some asylum-seekers who pass credible fear interviews pending case resolution

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Photo by Benedek Alpar/

Updated: On Tuesday, U.S. Attorney General William Barr ordered the detention of some asylum-seekers pending resolution of their cases, even though they were able to show a credible fear of persecution or torture in their home countries.

Barr’s order, a reversal of current policy, would take effect in 90 days and is likely to be challenged in court, report the Wall Street Journal, the Washington Post and the New York Times.

“We will see the administration in court on this latest unlawful & inhuman attempt to deter and punish asylum-seekers,” tweeted Omar Jadwat, director of the American Civil Liberties Union’s Immigrants’ Rights Project.

President Donald Trump has asserted that immigrants coming into the country are coached by lawyers on how to request asylum. Trump claimed that some asylum claims are a “big fat con job.”

The order applies to immigrants who cross the border without authorization and does not affect immigrants who apply for asylum at a port of entry, according to the New York Times. The administration requires those who apply for asylum at ports of entry to remain in Mexico.

A federal judge blocked the wait-in-Mexico policy, but the 9th U.S. Circuit Court of Appeals at San Francisco allowed the administration to temporarily keep the policy in place as it considers arguments this week, the New York Times reported.

Under Barr’s new policy, immigrants could still seek release on parole rather than bail, but the Department of Homeland Security has the discretion to deny it, the New York Times explains.

Barr made his policy by referring an immigration court case to himself, an obscure power of attorneys general that gives them substantial control over immigration law. In this case, as Politico notes, Barr referred himself a case that relied on precedent decided 14 years ago and overturned that 2005 case’s ruling that asylum-seekers who pass their credible fear interviews should be eligible to ask for bond.

As the ABA Journal reported in April, Barr referred himself no cases at all during his prior stint as attorney general under George H.W. Bush, although Trump’s first attorney, Jeff Sessions, used the power more often than any other attorney general dating back to Barr. A Reuters story makes the same comparison but examines attorneys general dating back to Richard Nixon’s presidency and finds under Trump “an unprecedented effort by the Justice Department to quietly advance policy goals and transform immigration law from the top down.” Immigration Judge A. Ashley Tabaddor, president of the National Association of Immigration Judges, told the Hill on April 23 that Barr was inappropriately using the courts as a political tool.

One federal judge already has ruled in favor of bail protections. U.S. District Judge Marsha Pechman of Seattle ruled April 5 that immigration courts should conduct bond hearings within seven days of a request by an immigrant who has shown a credible fear of persecution. Pechman’s ruling shifted the burden to the government to justify detention, according to a press release and the Associated Press.

Another obstacle is court rulings that bar the administration from holding children in immigration detention for more than 20 days. The Trump administration previously transferred children to licensed facilities or guardians while adults were detained, but rescinded the family separation policy last year.

The administration is seeking legislation to change the 20-day cap, according to the Wall Street Journal. The government is also considering whether to give parents a choice between family separation or waiver of their children’s rights.

See also: “Immigrant and refugee rights should be protected, ABA House urges”

ABA Commission on Immigration 2019 Update Report: “Reforming the Immigration System” “ABA president urges Barr to reconsider detention of some asylum-seekers”

Updated April 25 at 1:23 p.m. to include the story link to ABA President Bob Carlson’s letter and additional paragraphs about Attorney General William Barr’s immigration policy.

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