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Barr to withhold bail from asylum seekers in latest asylum crackdown

U.S. Attorney General William Barr. 1 / 2
Migrants are shown lined up outside the wall in El Paso, Texas, on March 7. Attorney General William Barr ruled on Tuesday, April 16 that asylum seekers will not have a right to bond hearings. 2 / 2

The nation's top prosecutor broadened the Trump administration's authority to detain asylum seekers who cross the border illegally by unilaterally declaring Tuesday, April 16, that they are not entitled to bond hearings.

Attorney General William Barr's ruling, in a case initially taken up by his predecessor, Jeff Sessions, reverses a 2005 Board of Immigration Appeals court decision that said asylum seekers should have a right to bond hearings once they set foot on U.S. soil. Barr said the ruling "was wrongly decided."

Barr's decision sets up another legal battle as the administration contends with a flood of asylum seekers at the southern border with Mexico. Illegal crossings are at a 12-year high, and most asylum seekers are families that are flooding rustic border facilities with children as young as toddlers and babies. Most are quickly released, frustrating President Trump.

Barr's decision will not take effect for 90 days to give the Department of Homeland Security time to gear up to potentially detain immigrants.

The American Civil Liberties Union and other groups said they had expected the ruling - which comes days after a federal judge in Washington state ordered the administration to give detained asylum seekers bond hearings - and would swiftly challenge it in court.

"We saw this coming. It's part and parcel of what Trump has been getting at from the beginning," said Judy Rabinovitz, deputy director of the American Civil Liberties Union's Immigrants' Rights Project. "It's clearly part of his assault on the asylum system. From the beginning it's been, 'Lock them up.'"

The ruling raises the specter of detention for months or years, particularly for adults crossing the border illegally, even if, as Barr said in his ruling, an asylum officer finds that they might have a "credible fear of persecution or torture."

The impact on families is murkier because because of limited detention bed space and legal restrictions on how long officials can detain children - restrictions that Trump is trying to persuade Congress to lift.

But lawyers said Barr's decision could also open the door to "binary choice," an idea that some Trump administration officials have floated to detain parents with their children and then, after 20 days, give parents the choice to remain in jail together or release their children to a sponsor.

In his decision, Barr made clear that Homeland Security can still exercise its broad discretion to "parole" immigrants into the United States - which is likely to continue given the large numbers of families surrendering at the border. But lawyers said that hands the bond authority to the jailers - not the judges. Immigration arrest and court records are not public, so such decisions would not be subject to independent review.

The Trump administration has argued that immigrants are "gaming the system" and seeking asylum with their children because they know they will be released in the United States. Officials cannot detain them all because of a lack of family detention beds, legal limits on how long they can hold children, and an 850,000-case backlog in the immigration courts, where cases can take months or years to be adjudicated.

U.S. officials argue that the Barr ruling streamlines federal law, which presents a paradox on bond for asylum seekers. Immigrants who request asylum at a legal port of entry are not entitled to an immigration bond hearing. But courts have ruled that illegal immigrants who cross the border are entitled to due process and bond hearings once they cross into the United States.

"Such aliens remain ineligible for bond, whether they are arriving at the border or whether they are apprehended shortly after crossing between ports of entry," a Justice Department official said Tuesday.

The official said Barr's decision states that immigrants subject to expedited removal - those caught sneaking across the border - are not eligible for a bond hearing under the Immigration and Nationality Act, even if they passed an initial asylum screening.

Bond hearings are not automatic in the immigration system, in stark contrast to the criminal justice system in which even accused murderers are promptly brought before a federal judge.

Instead, immigrants must request bond hearings before an immigration judge, though they can also file habeas petitions under certain circumstances in the federal courts.

Earlier this month, U.S. District Judge Marsha J. Peckman in Seattle ordered the Trump administration to provide bond hearings within a week of their request to certain detained asylum seekers in a nationwide class-action lawsuit known as Padilla v. ICE.

Advocates say that lawsuit was a defeat for the Trump administration and that it also put the burden of proof on Homeland Security, not the immigrants, to justify why they should be released or detained.

Trump has implored Congress to loosen federal laws to give border and immigration officials more flexibility to detain immigrants, including families, and he has tested the boundaries of his authority in the past, notably last spring when his administration separated children from their parents at the border. These policies have outraged Democrats.

"From separating families to attacking asylum seekers, this administration's bottomless cruelty has failed time and time again," said Julián Castro, a Democratic presidential candidate. "We need compassion, not cruelty, in our immigration system."

In November, a federal judge blocked Trump's asylum ban, which would have prevented asylum for migrants if they crossed into the United States illegally. And earlier this month, a judge shut down a proposed experimental policy known as Migrant Protection Protocols, which would have required migrants to stay in Mexico while awaiting their hearings.

The judge ordered the program suspended and granted entry to the plaintiffs, a ruling that Trump dubbed a "disgrace," adding: "We have the worst laws of any country in the world."

Last week, the U.S. Court of Appeals for the 9th Circuit temporarily allowed the administration to resume its "remain-in-Mexico" policy while it considers the case.

This article was written by Maria Sacchetti, Reis Thebault and Michael Brice-Saddler, reporters for The Washington Post.