A Look At Potential Challenges To Attorney General Barr's Asylum Decision

Apr 17, 2019
Originally published on April 17, 2019 4:49 pm
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Seeking asylum in the U.S. could get more difficult for thousands of migrants, in part, due to a policy change announced last night by Attorney General William Barr. His decision seeks to prevent certain asylum seekers from being released on bond while their cases are pending. It's the latest effort by the Trump administration to discourage immigrants from crossing the U.S. border illegally and requesting asylum. NPR's Joel Rose covers immigration. He joins us now.

Joel, first explain the attorney general's decision. What exactly was decided, and what does it mean?

JOEL ROSE, BYLINE: Well, before this decision was announced, standard policy was that asylum seekers in detention could ask for a bond hearing. And an immigration judge could decide whether to release the asylum seeker on bond until his or her court date some day in the future. What the Attorney General William Barr's decision would do is to eliminate those bond hearings. This is for migrants who have already been found to have a credible fear of persecution or torture back in their home country and who cross the border illegally before requesting asylum. President Trump said recently at a campaign rally that some asylum claims are, quote, "a big, fat con job." And this is the latest legal step by his administration to limit asylum, as you said.

CORNISH: How will this actually change things at the border?

ROSE: In the short run, it may not make an enormous difference. Attorney General Barr implicitly acknowledged in the decision itself that implementation is going to be challenging. He said he's going to delay the effective date of his decision for 90 days. That is in order to give the Department of Homeland Security time to look for additional detention space to hold more asylum seekers.

And then there are other practical limits on the impact of this decision. For example, it does not apply to people who are asking for asylum at legal ports of entry. That's a different process. And migrant families and children won't be affected by this decision - at least not for now - because there are strict limits on how long immigration authorities can detain children, in particular, under a longstanding federal court settlement.

CORNISH: All right. So that's what could happen on the ground. What about immigration courts? Where could we see this have an effect?

ROSE: Well, immigration courts are not like most other courts. They're part of the Department of Justice - the executive branch, not the judiciary. And so what the attorney general - the head of the DOJ - says is legal precedent, and immigration judges have to follow it. That said, the administration's critics believe the attorney general's decision here is wrong on the law, and they plan to challenge it in federal court.

CORNISH: Talk about that legal challenge 'cause this isn't the only immigration policy from the Trump administration that has been challenged.

ROSE: Right. This is not a new fight. In fact, there's a case about asylum seekers and bond hearings that is already in front of a federal judge in Seattle. And just two weeks ago, that judge issued a preliminary injunction that says some migrants with legitimate asylum claims do have a right to bond hearings. I talked to the lawyer who argued that case. Here's Matt Adams with the Northwest Immigrant Rights Project.

MATT ADAMS: Every single one of these people have already been determined to have a bona fide claim for asylum. The government is really unable to demonstrate why they should keep people locked up, other than to punish them, other than this effort to deter them from pursuing their claims.

ROSE: The judge in that case found that asylum seekers do have a right to a bond hearing within seven days. So we've got a federal judge's ruling on the one hand and - which is now in direct conflict with the attorney general's decision that there is no right to a bond hearing at all. And what we have is a high-stakes legal clash in the making that could play out in the next few weeks in Seattle.

CORNISH: That's NPR's Joel Rose. Joel, thanks for your reporting.

ROSE: You're welcome. Transcript provided by NPR, Copyright NPR.