Federal judge blocks "unconstitutional" Bill Barr order to detain asylum seekers indefinitely

Seattle judge rules that Barr's proposed asylum policy violates Constitution and would cause "irreparable harm"

By Igor Derysh

Managing Editor

Published July 3, 2019 4:30PM (EDT)

U.S. Attorney General William Barr (AP/Vadim Ghirda)
U.S. Attorney General William Barr (AP/Vadim Ghirda)

A federal judge has blocked an order issued by Attorney General William Barr that would have detained some asylum seekers indefinitely, ruling on Tuesday that the policy was “unconstitutional.”

Seattle U.S. District Judge Marsha Pechman issued a ruling that vacated Barr’s April order, which would have barred asylum seekers who demonstrate a “credible fear of persecution or torture" from being released on bond. Pechman's decision held that the policy violated the Constitution and would cause “irreparable harm.” 

Barr’s April order reversed a policy that had been in place since 2005, allowing asylum-seekers who show a credible fear of persecution or danger in their home countries to be eligible for release. 

"It is the finding of this Court that it is unconstitutional to deny these class members a bond hearing while they await a final determination of their asylum request," Pechman wrote. Pechman cited a Supreme Court decision that “definitively established the immigrant detainees’ constitutionally-protected interest in freedom from unnecessary incarceration,” adding that asylum seekers are entitled to “due process, which includes a hearing before a neutral decision maker to assess the necessity of their detention and a likelihood of success on the merits of that issue.”

Pechman wrote that the policy Barr issued would cause “irreparable harm” to asylum seekers.

“All the harms attendant upon their prolonged detention cited in the original ruling on Plaintiffs’ request for injunctive relief remain applicable here — substandard physical conditions, low standards of medical care, lack of access to attorneys and evidence as Plaintiffs prepare their cases, separation from their families, and re-traumatization of a population already found to have legitimate circumstances of victimization,” her ruling said. 

Pechman also took issue with the Justice Department’s argument that it was “speculative” to believe that asylum seekers face harm if they are deported, writing that the government’s claims “lack substance.”

Along with blocking the April order, Pechman also modified a preliminary injunction she issued earlier this year. She required the government to provide bond hearings to asylum seekers within seven days after they are requested. If the terms are not met, the detained individual must be released, Pechman ruled.

Pechman’s order only applies to asylum seekers who cross the border without authorization. Those who present themselves to authorities at the border remain ineligible for bond and must ask ICE for parole, as Mother Jones reports. 

The Justice Department is expected to appeal the ruling.

The White House issued a statement criticizing the ruling without addressing any of the points in the judge’s order.

"Yesterday, a single, unelected district judge in Seattle issued an injunction that prevents the government from ensuring the detention of those aliens who cross the border unlawfully until the completion of their immigration court proceedings,” the White House said. "The district court's injunction is at war with the rule of law. The decision only incentivizes smugglers and traffickers, which will lead to the further overwhelming of our immigration system by illegal aliens. No single district judge has legitimate authority to impose his or her open borders views on the country."

The ruling drew praise from immigrant rights groups like the American Civil Liberties Union and the Northwest Immigrant Rights Project, which sued to block the policy before it was set to take effect later this month.

"The court reaffirmed what has been settled for decades: that asylum seekers who enter this country have a right to be free from arbitrary detention,” said Matt Adams, legal director of the Northwest Immigrant Rights Project.

"Try as it may,” added ACLU attorney Michael Tan, “the administration cannot circumvent the Constitution in its effort to deter and punish asylum-seekers applying for protection."

By Igor Derysh

Igor Derysh is Salon's managing editor. His work has also appeared in the Los Angeles Times, Chicago Tribune, Boston Herald and Baltimore Sun.

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