Showdown: Barr Halts Bail For Asylum Seekers

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Migrants who come to the United States seeking asylum may instead wind up jailed indefinitely while they wait for their claims to be processed, the Trump administration ruled Tuesday in its latest crackdown at the border.

Attorney General William P. Barr’s written decision, a policy reversal, applies to migrants who have already established “a credible fear of persecution or torture” in their home country.

Barr ordered immigration judges to stop allowing some asylum seekers to post bail while they wait the months or years for their cases to be heard — a system that President Trump has derided as “catch and release.”

But advocates criticized the policy change and said it would lock up people who are simply looking for safety.

In his letter to immigration judges, Barr argues that he’s only following the law as written. The consequences of the law are not within his purview:

Matter of X-K- was wrongly decided. The Act provides that, if an alien in expedited proceedings establishes a credible fear, he “shall be detained for further consideration of the application for asylum.” INA § 235(b)(1)(B)(ii). The Act further provides that such an alien may be “parole[d] into the United States . . . for urgent humanitarian reasons or significant public benefit.” Id. § 212(d)(5)(A), 8 U.S.C. § 1182(d)(5)(A). There is no way to apply those provisions except as they were written—unless paroled, an alien must be detained until his asylum claim is adjudicated. The Supreme Court recently held exactly that, concluding that section 235(b)(1) “mandate[s] detention throughout the completion of [removal] proceedings” unless the alien is paroled. Jennings v. Rodriguez, 138 S. Ct. 830, 844–45 (2018). The Act’s implementing regulations support that interpretation.

The respondent here was transferred from expedited to full proceedings
after establishing a credible fear, and an immigration judge ordered his
release on bond. Because the respondent is ineligible for bond under the Act, I reverse the immigration judge’s decision. I order that, unless DHS paroles the respondent under section 212(d)(5)(A) of the Act, he must be detained until his removal proceedings conclude. …

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