A new ruling by the Department of Justice ordering thousands more asylum seekers to be detained for the duration of their application process — which can take years — is another reminder of two deplorable aspects of the Trump administration’s immigration policy: its obsessive efforts to radically reduce immigration, and its willingness to trample any notion of human decency by jailing people who arrive at the border asking for help.
Atty. Gen. William Barr’s ruling reversed a 2005 decision by the Justice Department’s Board of Immigration Appeals that allowed asylum-seekers to be released into the United States while waiting for their immigration court proceedings. Relying on the 2018 Rodriguez decision by the Supreme Court that immigration detainees do not have a right to a bond hearing, Barr held that immigration law requires some asylum-seekers who have passed the initial threshold for consideration — by persuading an asylum officer that they have a ”credible fear” of persecution in their home countries — to be jailed while their cases play out.
The mandatory detention applies only to adults apprehended between ports of entry, and not minors and families. By the time you read this, legal challenges have likely been filed, joining pending court action in the Rodriguez case over whether the statutes requiring detention are constitutional.
Putting aside the legal arguments, it is unconscionable that the U.S. government detains people indefinitely without offering a chance for a bond hearing.
Putting aside the legal arguments, it is unconscionable that the U.S. government detains people indefinitely without offering a chance for a bond hearing — especially when they are asking for our government’s help and are not accused of any crime other than the misdemeanor of crossing the border illegally. Such incarcerations run contrary to our notion that the government should not deprive people of their freedom without due cause and court oversight. They also presume, contrary to reality, that people seeking asylum are all criminals or scam artists.
The order is of a piece with such previous Trump administration actions as slashing the number of refugees allowed to resettle here, restricting asylum eligibility, requiring all asylum applications to be made at legal points of entry and some applicants to wait in Mexico for a decision, and slow-walking the applications that it does accept. Barr, at the request of the Department of Homeland Security, delayed the effective date of his new rule for 90 days “so that DHS may conduct necessary operational planning.” That’s bureaucratese for saying there’s no room in the existing detention system and the government needs time to add more internment camps.
It is true that the flow of migrants, mainly families, from Guatemala, Honduras and El Salvador has created a humanitarian problem at the U.S.-Mexico border. But it’s a problem that can be handled in better ways than saying, “We’re full,” as Trump did recently, and then ignoring people’s right to petition for asylum. Conditions in those northern triangle countries of Central America are unsettled and dangerous, with gangs controlling territory and terrorizing people within it, criminal justice systems incapable of protecting people and neighborhoods, and endemic, worsening poverty, particularly in agricultural areas wracked by drought and other byproducts of climate change. Some of those conditions may make people eligible for asylum and some may not, but they have a right to ask.
The order to detain thousands of asylum-seekers primarily to deter others from asking for help is cynical and cruel, especially when studies have found that the vast majority of asylum-seekers who are released into the United States show up for their hearings, and that in recent years the government winds up rejecting only about a third of the requests (though that share likely has increased under the Trump administration).
A recent report by a Homeland Security advisory panel, while flawed in many ways, included a reasonable idea: Create several “regional processing centers” to shelter migrants more quickly and safely while they are screened for medical problems, given credible-fear interviews where requested and evaluated for the risk they pose. That dovetails with a suggestion by the Migration Policy Institute that the same asylum officers who handle the credible-fear interviews be empowered to grant asylum to applicants who meet the legal requirements. Currently, all those who pass the interview are referred to immigration court for a final decision; reserving the court for appeals of denials would speed up the entire system.
Both ideas are worth considering. And they prove that there are better and more humane ways of dealing with asylum-seekers than treating them as an invading horde, as Trump has done, and reneging on our legal and international obligations.