Opinion: Federal courts block yet another Trump effort to make life miserable for asylum seekers

James Trenary, of Overland Park, Kan., holds a sign protesting the treatment of asylum seekers held
A protester in Kansas reacting to the government’s immigration detention policies.
(Charlie Riedel / Associated Press)

A federal judge in Seattle has stymied yet another effort by the Trump administration to make it as difficult as possible for people from other countries to seek asylum in the U.S.

In this case, the judge blocked an order from Atty. Gen. William Barr to detain indefinitely some people the government acknowledges have a credible fear that they will be persecuted if they return home.

Barr issued his order in April in response to President Trump’s desire to end what he refers to as “catch and release” policies under which asylum seekers are allowed to go free while awaiting the government’s decision on whether they will be permitted to remain in the U.S. The policy applied to adults who enter the U.S. between ports of entry.

Enter the Fray: First takes on the news of the minute »


The government has struggled to handle the thousands of migrants who arrive at the border to surrender to agents and request asylum, often resorting to objectively inhumane measures such as separating children from their parents to dissuade others from heading north.

Other efforts include the so-called remain in Mexico policy forcing migrants to wait in Mexico while their asylum requests are considered by U.S. courts, which also seems to conflict with basic American asylum laws.

Immigrant rights activists properly perceived the detentions as a message to asylum seekers that if they ask for protection in the U.S., they will be incarcerated in federal facilities, local jails or private prisons under contract with the Department of Homeland Security while the process plays out, which can take years.

And as a new Office of the Inspector General report shows, some of those detention centers are overcrowded hellholes.


District Court Judge Marsha J. Pechman had earlier issued a temporary injunction ordering the government to provide a bond hearing within seven days to any person who had cleared the credible-fear threshold after being detained for entering the U.S. without permission. She also told the government that it bore the responsibility to show that detaining an asylum seeker was necessary for public safety.

The policy applied to adults who entered the U.S. between ports of entry.

“They want to send a message that you will get detained,” Judy Rabinovitz, deputy director of the American Civil Liberties Union’s Immigrants Rights’ Project, said at the time. “We are talking about people who are fleeing for their lives, seeking safety. And our response is just lock them up.”

As the Times editorial board noted in April:

“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.”

Tuesday’s court decision, which centered on the due process aspect, found that the detained asylum seekers “have established a constitutionally protected interest in their liberty, a right to due process which includes a hearing before a neutral decision maker to assess the necessity of their detention, and a likelihood of success on the merits of that issue.”

Of course, rather than recognizing the fundamental inhumanity and unfairness of the policy, expect the Trump administration to appeal.

Get our weekly Opinion newsletter