Yesterday the American Civil Liberties Union announced it was filing a lawsuit challenging the Attorney General’s order from a few weeks ago.
Remember the order? William Barr instructed immigration judges to reverse years of precedent in which they allow border crossers who request asylum in the U.S. to be released on bond while they await their court hearing. If this order is implemented, thousands more immigrants will be incarcerated indefinitely.
This is an absurd decision to make at a time when DHS spokespeople say that immigration detention centers are already filled to capacity and they need to construct new tent cities to house everyone they’re arresting. A logical leader would be looking for ways to decrease the number of people in detention, not increase it.
More to the point, the order is an affront to human rights: it deprives immigrants of due process.
I’m so glad we have organizations like the ACLU that fight abusive policies and defend people’s rights and liberties. Here’s an excerpt from their press release on the latest turn of events, which not only explains the basic legal arguments in question but describes what they (and I) believe to be the true motivation behind Barr’s otherwise counterproductive move: treating immigrants inhumanely as a way to deter future immigration.
Attorney General Barr Says ICE Has Power to Lock Up Asylum Seekers Without Hearings
By Michael Tan, Senior Staff Attorney
ACLU Immigrants’ Rights Project
MAY 2, 2019 | 7:30 PM
https://www.aclu.org/blog/immigrants-rights/immigrants-rights-and-detention/attorney-general-barr-says-ice-has-power-lock
Today the ACLU, the ACLU of Washington, the American Immigration Council, and Northwest Immigrant Rights Project launched a legal challenge to the Trump administration’s latest assault on people who have come to the United States to seek refuge from persecution: jailing asylum seekers without even allowing a judge to decide if there’s any reason to lock them up. Attorney General William Barr’s recent decision in Matter of M-S- seeks to eliminate this basic form of due process and puts thousands of asylum seekers at risk of being wrongfully imprisoned. […]
For more than a century, the Supreme Court has held that all persons who have entered the United States have due process rights, and the Court has emphasized that “[f]reedom from imprisonment . . . lies at the heart of the liberty” protected by the Due Process Clause of the Constitution. The bedrock form of due process against unlawful detention is a hearing, before a neutral adjudicator, to decide if the person should be locked up. M-S- violates that basic right.
The decision is also pointlessly cruel and irrational. It makes no sense to lock people up without even having a judge consider whether they should be detained—it simply guarantees that we will imprison people who don’t need to be imprisoned. That is especially true when it comes to asylum seekers. Studies confirm that asylum seekers pose no threat to public safety and are highly motivated to fight their cases and show up for court. And nothing about a hearingprevents detention in the rare case where someone does pose a risk: the judge can just deny release.
But ultimately this isn't about rational immigration policy or protecting public safety. The Trump administration always has made its real motives clear: it wants to deter immigrants from seeking refuge in the United States and punish people who apply for protection under our laws. But our Constitution does not allow the government to put people behind bars without due process of law.