Will There Be Mass and Indefinite Detention of Asylum-Seekers Entering the US?

When a person crosses into the US without a valid visa or documents with the intent of applying for protection under the asylum laws, he or she can confront border patrol and explain s/he fears returning to his/her home country.  This triggers ICE to conduct what is called a “credible fear” interview where an officer from immigration’s asylum unit interviews the potential asylee while s/he is in the detention center about why s/he is afraid; this is done to ensure the person is actually in fear and that his/her fear is credible. Once the person passes this interview and is found credible, s/he is put in immigration proceedings in front of an immigration judge.  This judge had the ability to proceed with the asylum case and grant bond so the person could continue to argue their case in a non-detained setting. However, on April 16th, Attorney General William Barr issued a decision on Matter of M-S-, a case involving Immigration Judges’ ability to issue bond in these circumstances. This decision changed everything for people seeking asylum at our borders.

What does the decision say? Essentially the decision stripped away the right to bond hearings for asylum seekers who have established that they have a credible fear of persecution or harm, as explained above. This means that all asylum seekers will be subject to mandatory and indefinite detention, when they enter the US and request asylum protection.  The decision overturned a 2005 George W. Bush era case finding in favor of a right to a bond hearing for these immigrants.

What will happen now in these cases? Instead of a judge deciding on who gets bond, DHS is responsible for deciding which asylum-seeking immigrants will be granted parole from the detention centers. That is, if they decide any at all are eligible. Should the ruling go into final effect, it will do so in 90 days from the date of the decision. Instead of bond hearings before a judge, immigrants detained and seeking asylum can only request parole from DHS. In other words, instead of a court making this determination, the people who are responsible for arresting and subsequently detaining immigrants will make this call. Typically, parole is only granted under extreme circumstances. Such circumstances include an urgent humanitarian reason or a medical emergency. There may also be cases where people are released from detention due to a lack of room and resources.  If these changes take effect, mass indefinite incarceration of asylum-seeking immigrants at our border is expected.

What challenges are expected?  The biggest challenge will likely be financial. It costs the government big bucks to detain migrants; money that may run out if mass-detention policies are implemented. Congress has only allotted a specific amount of funds to be released to DHS for their detention centers. DHS does have some liberties to move funds between agencies, such as when they moved money from FEMA to ICE, but it is supposed to ask for approval. If detention rates keep going up, they will need Congress to give them the funds in order to increase detention numbers. Otherwise, they won’t be able to keep up with the new demands of these mass detentions.

What are the potential consequences?  First, since there are no bond hearings that means that people will be detained until their hearings are complete. This makes the number of migrants being detained even larger, which complicates matters greatly. In February, a spending bill was passed by Congress to fund over 45,000 detention beds. The problem is that this isn’t enough to detain all the asylum-seekers coming across the borders. To put this into perspective, in May of 2018 it was estimated that ICE had detained upwards of 50,000. The problem is that ICE doesn’t actually have the authority to increase the capacity that they have to detain people. If they want to detain more people, than they need to get approval from Congress. However, Congress has already previously denied these requests and kept the bed cap at about 41,000.

What should we expect in the next 90 days? Lawsuits are expected to be filed as a result of this new policy. Most notably, the ACLU will be teaming up with American Immigration Counsel and the Northwest Immigration Rights Project to represent immigrants as they challenge this new ruling. This change, should it be upheld in the courts, could cause a lot of headaches especially when it comes to trying to find the funds to pay for more detention beds. This also opens the door to further changes to the asylum process, making it more difficult to ask for asylum in the United States.

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