Attorney General William Barr overturned a Bush-era policy by finding that asylum-seekers who enter the United States illegally are no longer eligible for release while their claims are processed.
The move is part of the Trump administration’s effort to reform the nation’s dysfunctional immigration law enforcement system. The new policy, announced April 16 but stayed for 90 days, will almost certainly be challenged in court by left-wingers, like more or less everything President Donald Trump does. The American Civil Liberties Union is already chomping at the bit to fight the policy in the courts.
America’s asylum system is routinely abused by illegal aliens, economic migrants, and people who don’t like living in what the president aptly termed sh*thole countries. In recent years only about one-fifth of asylum applications have been granted.
The system is currently under siege as the U.S. is being swamped by would-be immigrants from El Salvador, Guatemala, and Honduras. Over 1.4 million individuals have been apprehended at the southern border after entering the U.S. illegally. About a half a million of those have been caught in the past year and a half.
“We are currently experiencing a system-wide emergency in our processing and holding facilities,” U.S. Customs and Border Protection Deputy Commissioner Robert E. Perez said last month.
“The humanitarian crisis created by a massive influx of family groups and unaccompanied children in recent months has forced CBP to reallocate resources away from law enforcement, trade and travel missions to process and provide care for those in our custody,” he said.
Even some Democrat office-holders are beginning to acknowledge there is an immigration crisis.
“We do have a problem at the southern border,” presidential candidate and Sen. Cory Booker (D-N.J.) said the day Barr’s policy was announced.
“Democrats should not deny that we [do]. Nations should have borders; borders should be respected."
It’s about time.
Immigration courts are overwhelmed. Their active caseload exceeded 855,000 in February, up more than 300,000 since President Trump was inaugurated.
Before Barr’s decision April 16 some asylum-seekers had been allowed to seek bail before an immigration judge. Under the new policy, indefinite detention will be allowed for those who enter the U.S. unlawfully and then make an asylum claim
“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 in the directive, Interim Decision #3950, in which he overruled a 2005 case, known as Matter of X-K-, that he found was wrongly decided by the Board of Immigration Appeals. Instead, asylum-seekers “must be detained until [their] removal proceedings conclude."
The government will still have the option to release claimants on parole “for urgent humanitarian reasons or significant public benefit.” The ruling does not affect the so-called Flores settlement under which families and unaccompanied minors cannot usually be detained more than 20 days.
Predictably, the Left is outraged.
Bea Bischoff of Slate called Barr’s directive a “startling” legal opinion.
“It’s an extension of the Jeff Sessions campaign to further strip the immigration courts and immigration judges of their authority,” said David Leopold, counsel to DHS Watch and former president of the American Immigration Lawyers Association.
Leopold called the opinion a “senseless decision” given the already “overburdened system.”
“The Constitution doesn’t let the government lock people up without basic due process," Michael Tan, a lawyer with the ACLU Immigrants’ Rights Project, told NPR. “You can't lock people up without giving them the basic hearing before a judge. Where that judge can look at the person and determine if they need to be locked up in the first place.”
“We know that the asylum-seekers coming from Central America right now have real asylum claims, often based on gang violence, gender-based violence and other forms of persecution that they’re highly motivated to pursue in court. They’re not trying to run away,” Tan said.
Barr’s ruling came days after President Donald Trump proposed shipping immigration detainees to so-called sanctuary cities, a plan that also elicited howls from left-wingers.
The president’s plan only gives sanctuary cities more of what they claim to want.
“We’ll bring them to sanctuary city areas and let that particular area take care of it,” Trump said April 12. “They say, ‘we have open arms,’ they’re always saying they have open arms, let’s see if they have open arms.”
Much of the president’s immigration program is meeting with institutional resistance.
An Obama-appointed San Francisco judge, U.S. District Judge William H. Orrick III, issued a permanent nationwide injunction against President Trump’s Executive Order 13768, which would have withheld federal funding from sanctuary jurisdictions that refuse to cooperate with ICE. That injunction remains in force.
Congressional Republicans have serially betrayed conservatives and handed Democrats victories over President Trump by refusing to cut off funding for sanctuary cities.
Congress refused to give President Trump all the money he requested to build a border wall. Trump responded by making a declaration under the National Emergencies Act to free up some funding for the border barrier. Lawmakers have vowed to overturn the declaration but have failed to do so.
On April 8, San Francisco-based U.S. District Judge Richard Seeborg, an Obama appointee, temporarily blocked the Department of Homeland Security (DHS) policies known as the “Migrant Protection Protocols,” which forced asylum-seekers at the southern border to wait in Mexico while their claims are processed. The policy is aimed, among other things, at slowing the flow of Central American caravans and the migrants who accompany them into the U.S. The Ninth Circuit Court of Appeals stayed Seeborg’s ruling and scheduled a hearing for April 24 in San Francisco over whether the ruling should go into effect while the case works its way through the appellate process.
Will Attorney General Barr’s new policy suffer the same fate at the hands of unelected politicians in black robes?
We’ll see soon enough.