Attorney General William Barr has proven himself to be a crucial ally of President Donald Trump when it comes to implementing his hardline immigration policies. Now, Barr has unilaterally ruled that asylum seekers who have proven they face credible fear in their countries of origin will not be eligible for bond, the latest evidence that Trump’s administration is giving its attorneys general unprecedented authority in immigration cases.
Barr’s Tuesday ruling, in the case referred to as Matter of M-S, would effectively force some asylum seekers to be detained indefinitely while their cases play out in the immigration courts, which could take years. The ruling becomes effective in 90 days.
Omar Jadwat, director of the ACLU’s Immigrants’ Rights Project, in a statement called the attorney general’s decision an “assault on people fleeing persecution and seeking refuge in the United States.”
Under this decision, anyone who is arriving at the southern border without papers can be deported either through expedited removal proceedings or they can be detained throughout the duration of their immigration proceedings. In many ways, the decision is exactly what the Trump administration has been clamoring for: effectively constructing a legal wall along the border.
This decision does not apply to unaccompanied minors or families, two groups who together represent the large majority of migrants coming into the United States, due to Flores agreement limiting the detention of immigrant children. According to Sarah Pierce, policy analyst at Migration Policy Institute, unaccompanied minors and families make up 60 percent of recent apprehensions.
Regardless, the decision will lead to a surge in detention. For fiscal year 2018, Congress approved 40,520 detention beds, though Immigration and Customs Enforcement (ICE) detains a daily average of about 45,000 people. As of March, ICE had 50,049 non-citizens in custody. If the United States is about to begin indefinitely detaining individuals seeking asylum for the entirety of their cases, that means more federal funding and more opportunities for private prison companies like GEO Group and CoreCivic to profit off of immigrant detention.
Immigration experts are similarly concerned that attorneys general are weaponizing their control over the immigration courts in order to do Trump’s bidding.
Hidden in a footnote in Barr’s Tuesday ruling, the attorney general compared his authority to that of a federal court, writing, “federal circuit courts have the discretion to delay the effective dates of their decisions […] and I conclude that I have similar discretion.”
This the first immigration case Barr has referred to himself, a once rare action that has become the norm under Trump. Trump’s attorneys general have referred 10 cases to themselves to decide, compared to just nine cases during all of President George W. Bush’s administration and four during President Barack Obama’s time in office. Of the 10, six are related to the issue of asylum. Former Attorney General Jeff Sessions, for example, reversed a decision in Matter of A-B, opening the door for immigration judges to deny asylum to victims of gang and/or domestic violence. Sessions also ended asylum seekers’ right to full evidentiary hearings.
Sessions’ successor, Acting Attorney General Matthew Whittaker, referred Matter of L-E-A to himself for review — a decision which reaffirmed the longstanding belief among federal courts that persecution based on family ties is grounds for asylum. Reversing this decision would have an impact on asylum cases like Victorina Morales, the undocumented housekeeper who once worked at the Trump National Golf Club in Bedminster, New Jersey. According to The New York Times, Morales’ pending asylum application is based off of an incident she and her son witnessed in Guatemala, when a group of men invaded her father-in-law’s home and slashed him with a machete in order to extort him for cash he received from family members in the United States.
Before the Bush administration, self-referring cases was a practically non-existent practice. This is because in a pre-9/11 America, immigration was entirely within the Department of Justice.
“During that time, [attorneys general] still had this referral and review power,” Pierce told ThinkProgress in an interview. “But it was used as an adjudicatory tool, meaning either the Board of Immigration Appeals (BIA) or the Immigration and Naturalization Service — the predecessor to United States Citizenship and Immigration Services (USCIS) — would appeal cases to the attorney general and have him or her decide those cases. Then after we re-organized the government, suddenly it was never viewed that way anymore. The BIA and USCIS never appealed these cases to the attorney general, instead it’s now the Attorney General just entirely self-referring the cases.”
“[Self-referring] cases has now become more of a political tool to influence the immigration system rather than a more sincere, adjudicatory mechanism,” she added.
The Department of Justice, meanwhile, is considering expanding the attorney general’s referral power. Right now, the attorney general can self-refer cases that the BIA has already decided, but the DOJ is planning regulation that would expand that and allow the attorney general to refer cases to him or herself that the BIA is just considering as well as any cases decided by immigration judges, which is one step below the BIA, expanding the Attorney General’s power by 600%, according to Pierce.
Because of the immigration court’s position within the Department of Justice, that facet of the immigration system is inherently politicized. The attorney general sets court precedent and caseloads for immigration judges, which have ballooned under the Trump administration. Ashley Tabaddor, president of the National Association of Immigration Judges, has routinely called for an independent immigration court as a key part of immigration reform. Only one 2020 Democratic presidential candidate, former Secretary of Housing and Urban Development Julián Castro, has addressed this issue in a comprehensive immigration policy proposal.