William Barr: Some asylum seekers can be jailed indefinitely while their cases play out in court

The ruling applies to migrants who have established "credible fear of persecution or torture" in their home country

By Shira Tarlo
April 17, 2019 4:02PM (UTC)
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Attorney General William Barr testified before a House Appropriations subcommittee regarding the fiscal year 2020 budget request for the Justice Department on Tuesday, April 9, 2019 on Capitol Hill in Washington D.C. (Jeff Malet)

Under the Trump administration's latest efforts to crack down on immigration, migrants who come to the U.S. seeking asylum can be jailed indefinitely while they wait for their claims to be processed

In a new directive, Attorney General William Barr concludes that some asylum seekers who have established "a credible fear of persecution or torture" in their home country and are subject to deportation proceedings cannot be released on bond by immigration judges while they wait for their cases to be heard.


The order, which will go into effect in 90 days, is a major reversal from a prior directive. It overturns a 2005 decision determining asylum-seekers were eligible to seek release on bond if they were able to demonstrate they had credible fear of persecution or danger if they left the U.S. According to the new standard, only the Department of Homeland Security has the authority to release migrants who cross into the U.S. illegally and claim asylum.

"I conclude that such aliens remain ineligible for bond, whether they are arriving at the border or are apprehended in the United States," Barr wrote.

It is not yet clear how DHS would carry this directive out. The ruling will not apply to migrant children traveling alone or with families. ICE is not authorized to detain children for longer to 20 days.


Barr's order marks his first immigration-related decision since he took office. His predecessor, former Attorney General Jeff Sessions, issued several immigration decisions during his tenure at the Justice Department, including an order restricting the ability of migrants to seek asylum based on domestic violence or gang violence.

The directive comes as the administration has proposed or implemented new policies aimed at deterring what officials allege is an influx of families currently flooding over the southern border and seeking asylum.

Trump has repeatedly expressed frustration with the asylum system, claiming that existing laws protecting migrants from persecution endanger Americans.


"Whether it's asylum, whether it's anything you want — it's illegal immigration — can't take you anymore. We can't take you. Our country is full. Our area's full. The sector is full — can't take you anymore. I'm sorry — can't happen, so turn around," he said during a trip to the southern border earlier this month.

The president has previously urged Congress to address U.S. asylum laws and has made numerous attempts to discourage migrants from entering the country, most notably separating migrant children from their parents at the border last year.


In November, a federal judge blocked Trump's asylum ban, which would have refused asylum for migrants who crossed the southern border illegally if they do not arrive at a point of entry. And earlier this month, a federal judge blocked the administration's migrant protection protocol, a policy which would have required migrants to stay in Mexico while awaiting court hearings in the U.S. Last week, the 9th Circuit Court of Appeals sided with the administration, allowing it to temporarily continue its policy of forcing migrants to wait in Mexico as their asylum cases play out.

Barr's latest ruling is likely to be challenged in court by immigration advocates. Omar Jadwat, director of the American Civil Liberties Union's Immigrants' Rights Project, said the organization plans to contest the decision.

"This is the Trump administration's latest assault on people fleeing persecution and seeking refuge in the United States," Jadwat said in a statement. "Our Constitution does not allow the government to lock up asylum seekers without basic due process. We'll see the administration in court."

Shira Tarlo

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