Taking Away Bail

Terry H. Schwadron

April 18, 2019

With a single order, Atty. Gen. William P. Barr this week wiped away bail as a reflection of American justice for migrant adults crossing the southern border.

His order was an attack on “catch and release” policies affecting asylum requesters whose appeals may not be heard for months or years. In the meantime, these people can be held without criminal charges in Customs and Border Patrol jails — indefinitely — until there is resolution of the asylum request. As such, Barr was proving the legal justification for President Trump’s frustration with border enforcement, and helping — again — to cement his reputation as a Trump water carrier for something other than the Mueller Report.

The decision will face court appeals, of course.

Bail has been a basic part of American court justice. Just dismissing it for a class of migrants seems overly strong to me. It is exactly because America has rules that migrants facing persecution in their daily lives in Honduras and Guatemala undertake the dangerous trip north. The British invention of bail was to guarantee victim repayment in damage cases, but it has been a mainstay of American justice. Now, bail actually is coming under review for the opposite reason of Barr’s reasoning — because it unfairly targets people of color.

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

The order does not apply to families with children, whose lockup time has been set by courts at 20 days. Nor does it affect migrants who apply for asylum at one of the two dozen ports of entry along the border — a recognized legal route to asylum. It is aimed at those who cross illegally along the rural areas of the border.

We are all quite familiar by now with Trump’s war on immigration rules; repeatedly he has described the asylum system as a “big fat con job” in which migrants take a single step into the country illegally, mumble a dictated line about asylum, and then are released into the United States because immigration courts are backlogged.

In non-Trump terms, for more than a decade, migrants who are deemed to have a “credible fear” of persecution in their home countries have been allowed to request a bond hearing so they can be released on bail while they wait for their asylum cases to be heard.

Notice of the order triggered a few thoughts. For openers, should this order be found legal, what happens to the threat to send the same asylum seekers to so-called sanctuary cities to punish Democrats? Perhaps we have so many anti-immigrant actions under way at the same time that they inevitably will collide with one another.

What does it cost to detain the ever-growing number of migrant crossers who will need to be housed indefinitely? Won’t that dollar amount cut into the money that otherwise might be spent on a Wall?

Wouldn’t it be more efficient, say, to expand the immigration court judgeships to speed that assessment process?

Barr’s ruling reversed the decision in a 2005 case in which an Indian man entered the United States from Mexico and requested asylum. Parole by the Department of Homeland Security will be the only way asylum seekers who crossed the border illegally can be released once the order goes into effect.

U.S. authorities are detaining 45,000 to 50,000 people a day, with 60% of apprehensions families or unaccompanied minors.

The only hint that there could be practical problems resulting from this order was a 90-day delay in the Barr document, allowing time for officials to work out the details.
Immigrant rights lawyers said that Barr’s order could set a precedent that the government could use to deny bond hearings, and bail, for an even broader number of immigrants. Immigration courts are housed under the Justice Department, not the judicial branch, so the attorney general has the authority to refer cases to himself and overturn decisions.

Last October, less than a month before he was pushed out of the administration, former Atty. Gen. Jeff Sessions asked to review the case, known as the “Matter of M- S-,” to determine whether immigrants with credible asylum claims should be able to post bond and enter the United States. Previously, Sessions had overturned another immigration appeals court ruling and made it harder for victims of domestic abuse or gang violence to seek asylum.

From the White House point of view, this is yet another step to make it more difficult to enter this country illegally. So far, the series of such steps has had little effect. Some have been supported by the courts, some have been denied.

Clearly, the answer for immigration will have to be some wider bipartisan agreement on the rules. But just as clearly, Immigration is a campaign weapon for President Trump.

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