Many Asylum Seekers Can Be Held Without Bond Under New Decision by AG Barr

Recent decision by Attorney General means that many more asylum seekers will not be eligible for release on bond while their cases are pending.

** LEGAL UPDATE **

Under an April 2019 decision issued by Attorney General William Barr, many more asylum seekers than before will not be eligible for release on bond while their asylum cases are pending in the United States. In Matter of M-S-, Barr stated that asylum seekers who are first put into what are known as “expedited removal” proceedings will not be eligible for release on bond while their cases await a decision in immigration court.

Under existing law, a noncitizen can be put into expedited removal proceedings if he or she lied about a material fact in obtaining documents or entry to the U.S., or entered or sought to enter (at a port of entry) the U.S. without a valid entry document. People who enter without a valid entry document can be put into expedited removal proceedings unless they can show that they have been present in the U.S. for at least two years. The U.S. government does not put everyone who fits this description into expedited removal proceedings.

Once a noncitizen is put into expedited removal proceedings, he or she can be removed from the United States without a hearing in front of an immigration judge, which is a quick process.

There are, however, some exceptions to when the government can remove someone without a hearing under expedited removal provisions.

People who express a fear of returning to their home countries are given what is known as a “credible fear interview” with an asylum officer. Anyone who passes this interview must be taken out of expedited removal and given a full hearing in front of an immigration judge, in order to apply for asylum and other humanitarian protections. Previously, these individuals would also have been eligible for release on bond, if they could demonstrate to an immigration judge that they were not a danger to the community or a flight risk.

Under the new decision in Matter of M-S-, which will go into effect 90 days after it was issued on April 16, 2019, asylum seekers who were originally put into expedited removal and then passed a credible fear interview will be able to have a hearing in front of an immigration judge, but will not be able to be released on bond.

This decision will make it difficult for many asylum seekers to present effective cases in immigration court. People who are held in detention facilities have difficulty with basic tasks like finding an attorney to represent them, gathering evidence, and arranging for witnesses to testify in court to support their claims. In short, they are more likely to be denied the asylum protections they seek.

The Matter of M-S- decision will not go into effect until July 2019. It still remains to be seen whether the Department of Homeland Security (DHS) has the capacity to detain all the asylum seekers who will be affected by this decision, which could be in the thousands.

Effective Date: July 15, 2019