U.S. Attorney General Jeff Sessions signaled Wednesday he may overturn a Board of Immigration Appeals (BIA) precedent regarding bond for detained immigrants seeking asylum.
Sessions is reviewing a BIA decision in the Matter of X-K, which held that immigration judges have the power to release certain detained migrants on bond.
Another ominous #immigration move from AG Sessions, telegraphing that he's likely to overrule an earlier decision allowing bond hearings for asylum applicants who _pass_ a credible fear interview—such that now, they could remain in detention indefinitely:https://t.co/f9QioSrUvH pic.twitter.com/0POcgivSfd
— Steve Vladeck (@steve_vladeck) September 19, 2018
If overturned, even asylum applicants who have passed a credible fear interview — meaning they have proven to a court that going back to their country of origin could result in persecution, death, or torture — would face indefinite detention.
By citing a 2017 Supreme Court decision that ruled federal law does not require immigration judges to grant bond hearings, Sessions is performing some odd legal gymnastics to expand the detention of asylum seekers. Because the SCOTUS decision said immigration bond isn’t required, Sessions is considering whether immigration judges can grant bond to asylum seekers at all.
Immigration bond is often the only way out for many individuals in detention. Without bond hearings, thousands of detained immigrant families could languish for years in the custody of Immigration and Customs Enforcement (ICE).
Meanwhile, the federal government is working to rewrite the rules of detention laid out in the Flores Settlement — a lawsuit that ruled immigrant children cannot be detained for longer than 20 days. Before Flores, immigrant children were held in an old hotel fenced with concertina wire alongside unrelated adults. Many immigration attorneys fear the administration is heading back in that direction.
“I believe there is a deliberate attempt to impair these children mentally, physically, and spiritually, and part of doing that is to isolate them,” Hope Frye, an immigration attorney, told NBC News.
Immigration officials argue that detention, compared to ankle bracelets, for example, leads to more removals and dissuades immigrants from coming to the U.S.
The administration appears to not have thought through all the consequences of this requested change. There is virtually no concern among administration officials over the long-term effects indefinite detention has on children, as demonstrated by a Tuesday Senate Homeland Security hearing on family detention. During the hearing, two Trump administration immigration officials struggled to explain the consequences of indefinite detention. They hadn’t even read a letter from two physicians who act as DHS “subject-matter experts” to the Senate’s Whistleblower Protection Caucus, warning that expanding family detention “poses a high risk of harm to children and their families.”
While not an official decision, Sessions’ move Tuesday night is a clear signal that the DOJ is looking to deal a blow to immigrants fleeing dangerous circumstances in their home countries.
Sessions has targeted aslyum-seeking immigrants before.
Earlier this summer it was reported that Sessions was drafting a plan to effectively bar people from receiving asylum if they entered the country between ports of entry (where many immigrants were routinely turned away). The plan would also codify an opinion written by Sessions that sought to restrict asylum for victims of domestic and gang violence. At the time, a source told Vox the regulation would be “the most severe restrictions on asylum since at least 1965.”
Sessions has also rescinded guidance that dictated refugees and asylum seekers have the right to work in the U.S. while their case is pending and rescinded another guidance that encouraged businesses not to mandate U.S. citizenship as a job requirement.