Immigrant rights activists on Friday asked a U.S. judge to block a new Trump administration policy that would keep thousands of asylum seekers locked up while they pursue their cases, instead of giving them a chance to be released on bond.
Attorney General William Barr announced the policy in April as part of the administration’s efforts to deter a surge of migrants at the Mexico border, and it is scheduled to take effect July 15.
It targets immigrants who have recently entered the U.S. without permission and have demonstrated to an immigration officer that they have a credible fear of persecution or torture if returned to their home country.
For the past 50 years, the government has given such asylum seekers bond hearings before immigration judges where they can argue that they should be released because they are not flight risks and pose no threat to the public, according to court documents filed by the ACLU, American Immigration Council and the Northwest Immigrant Rights Project.
That gives the asylum seekers an opportunity to reunite with relatives in the U.S. and to find lawyers to handle their asylum claims, making them more likely to succeed.
The new policy would end that practice, keeping between 15,000 and 40,000 immigrants in custody for six months or more without requiring the government to show that their detentions are justified, in violation of their due process rights, the groups argued. Typically, close to half of asylum seekers who are granted bond hearings are released from custody.
“Defendants’ new policy will require the imprisonment of thousands of individuals who represent no flight risk or danger to the community,” Matt Adams, legal director of the Northwest Immigrant Rights Project, told District Judge Marsha Pechman. “Every single one of them is facing drastic harm if they don’t have the opportunity to present themselves for a bond hearing.”
The plaintiffs want the judge to block the new policy from taking effect while they challenge its legality. Pechman said she intends to rule next week
President Donald Trump has said he is determined to end the “catch and release” of migrants at the border. He has also called the asylum system broken, saying that some take advantage of it with frivolous claims.
The lawsuit, a nationwide class action, began as a challenge to the separation of family members at the border under Trump’s “zero-tolerance” policy. Its legal claims have morphed as the government’s policies have shifted.
The Justice Department has focused many of its arguments on procedural issues, insisting that the class-wide protection the immigrant rights groups seek is not available under federal immigration law.
The government also says the named plaintiffs, including women from Honduras and El Salvador who were separated from their children at the border, lack standing to challenge the new policy because they were all given bond hearings and released from custody.
“None of the named plaintiffs have shown any harm here,” Justice Department attorney Lauren Bingham told the judge.
The Justice Department also argued that the new policy is a legitimate interpretation of a federal law that says if immigration officers determine immigrants have a credible fear of persecution, they “shall be detained for further consideration of the application for asylum.”
That language does not require asylum seekers to be detained for the entirety of their case, but even if it did, that would violate the Supreme Court precedent that says the government cannot detain someone without reason, the immigrant rights advocates said.
Pechman issued an injunction in April ordering the government to give migrants with bona fide asylum claims the opportunity to seek bail within seven days of a request. Barr announced the DOJ’s new policy 11 days later.
Under the policy, detained asylum seekers would still have another avenue for release: a request to an immigration officer for parole. The immigrant rights groups say such requests are rarely granted under the Trump administration and are not a substitute for bond hearings before independent fact-finders.