Written by: Taher Kameli, Esq.
The Attorney General has the power to “certify” (review) and overturn prior rulings by immigration courts. Former Attorney General Jeff Sessions used this authority with respect to a number of immigration court decisions, and apparently, new Attorney General William Barr will be doing the same. On April 16, Attorney General Barr announced that a 2005 immigration court decision (Matter of X-K-) “was wrongly decided” and issued a ruling that will result in more asylum seekers being detained without bond while waiting for their cases to be heard.
It had been US immigration policy for more than a decade that migrants who are considered to have a “credible fear” of persecution in their home countries have been permitted to request a bond hearing so they could be released on bail while waiting for their asylum cases to be heard (which could be months or even years later).
Attorney General Barr’s ruling (Matter of M-S-) changes this policy, as he stated, “The question presented is whether aliens who are originally placed in expedited proceedings and then transferred to full proceedings after establishing a credible fear become eligible for bond upon transfer. I conclude that such aliens remain ineligible for bond, whether they are arriving at the border or are apprehended in the United States”.
As of May, 2018 (and all indications are that wait times are even longer now), according to TRAC Immigration, a Syracuse University database that tracks U.S. immigration enforcement, the average wait time for a pending asylum case was 700 days – 700 days that an immigrant subject to Attorney General Barr’s ruling will now spend in detention without the ability to apply for bond.
There are limitations on Attorney General Barr’s ruling. First, Attorney General Barr expressly limited his decision “unless DHS paroles the respondent under section 212(d)(5)(a) of the Act”. Parole into the United States can be granted in the government’s discretion “for urgent humanitarian reasons or significant public benefit” (although honestly one cannot predict the “anti-immigration” Trump administration to use its discretion to authorize wide use of parole).
Second, the ruling should not apply to unaccompanied children or families; under the longstanding settlement in the Flores case, the government cannot detain children or families for longer than 20 days. Third, there is the practical limitation of where asylum seekers covered by this ruling will be detained, as immigration detention centers are already overcrowded.
Attorney General Barr appeared to recognize this issue, stating, “I will delay the effective date of this decision for 90 days so that DHS may conduct the necessary operational planning for additional detention and parole decisions”.
Notwithstanding these limitations, Attorney General Barr’s ruling will affect thousands of asylum seekers, and it is expected to be challenged in Federal court. The American Civil Liberties Union said on Twitter, “Our Constitution does not allow the government to lock up asylum seekers without basic due process. We’ll see the administration in court. Again”.
The famous words associated with the Statue of Liberty – “Give me your tired, your poor, your huddled masses yearning to breathe free” – seem hollow in the face of the continuing actions by the Trump administration to discourage immigrants from coming to the United States. In these difficult times for immigrants, reliance on the immigration law expertise and experience of Kameli Law can be especially helpful. If you have any immigration issue, please contact the Kameli Law, at firstname.lastname@example.org or 312-233-1000, for counsel.