Attorney General William Barr recently issued a decision that overturns a policy that is at least 14 years old, and which threatens to keep many asylum applicants in jail while their cases are pending for months or years.
In Matter of M-S-, issued on April 16, 2019, the Attorney General decided that for persons who enter the United States without permission and who are encountered by U.S. immigration officials shortly after their entry, and who seek asylum, these persons are not eligible for bonds to be released from detention. The only options for these persons are to remain in detention until the completion of their cases in Immigration Court (which could last for months or years), or to be released from jail on parole from U.S. immigration officials.
The Attorney General’s decision overturns a decision of the Board of Immigration Appeals from 2005.
Because the Attorney General’s decision has the potential to require the detention of so many persons, the Department of Homeland Security requested that the Attorney General delay the effective date of the decision. The Attorney General agreed, and has delayed the effective date of the decision for 90 days, so that U.S. immigration officials may acquire more facilities to detain asylum applicants. It appears that the new policy will go into effect on or around July 15, 2019.
The Attorney General’s decision appears to be yet another policy shift by the Trump Administration to try to discourage persons from applying for asylum and to make it as difficult as possible for those asylum applicants to navigate the legal system. Winning asylum in the United States is difficult even under the most favorable conditions. Those persons seeking asylum while in jail face many more obstacles. It is much more difficult to meet with attorneys and others who wish to help the persons prepare their cases. There is much less time to prepare cases, because detained persons are typically on court schedules that progress much more quickly that those who are not in jail. It is much more difficult for jailed persons to communicate with family and friends to help to prepare the case and obtain documents in their home countries to help prove their asylum claims.
The Trump Administration will also further burden U.S. taxpayers by spending more money on detaining asylum applicants for months or years at a time.
As with other new policies, the Attorney General’s decision in Matter of M-S- will very likely be appealed in court. The final outcome of the new policy is uncertain.