Detained asylum seekers in the United States who have shown they have a credible fear of returning to their country will no longer be able to ask a judge to grant them release using bond, according to a ruling by US Attorney General William Barr, who overturned decades-old policy on Tuesday.

Barr struck down a decision that had allowed some asylum seekers to ask for bond in front of an immigration judge, in a ruling that expands indefinite detention for some migrants who must wait months or years for their cases to be heard.

The first immigration court ruling from President Donald Trump‘s newly appointed attorney general is in keeping with the administration’s moves to clamp down on the asylum process as tens of thousands of mostly Central Americans cross into the United States asking for refuge. US immigration courts are overseen by the Justice Department and the attorney general can rule in cases to set a legal precedent.

Barr’s ruling is the latest instance of the Trump administration taking a hard line on immigration. This year the administration implemented a policy to return some asylum seekers to Mexico while their cases work their way through backlogged courts, a policy which has been challenged with a lawsuit.

Several top officials at the Department of Homeland Security (DHS) were forced out this month over Trump’s frustrations with an influx of migrants and asylum seekers at the US southern border.

Barr’s decision applies to migrants who crossed between official ports of entry into the US.

Typically, those migrants are placed in “expedited removal” proceedings – a faster form of deportation reserved for people who irregularly entered the country within the last two weeks and are detained within 100 miles (160km) of a land border. Migrants who present themselves at ports of entry and ask for asylum are not eligible for bond. But before Barr’s ruling, those who had crossed the border between official entry points and asked for asylum were eligible for bond, once they had proven to asylum officers they had a credible fear of persecution.

190415171857650

“I conclude that such aliens remain ineligible for bond, whether they are arriving at the border or are apprehended in the United States,” Barr wrote.

Barr said such people can be held in immigration detention until their cases conclude, or if DHS decides to release them by granting them “parole”. DHS has the discretion to parole people who are not eligible for bond and frequently does so due to insufficient detention space or other humanitarian reasons.

The decision doesn’t affect asylum-seeking families because they generally can’t be held for longer than 20 days. It also doesn’t apply to unaccompanied minors.

Barr said he was delaying the effective date by 90 days “so that DHS may conduct the necessary operational planning for additional detention and parole decisions”.

‘Another way to criminalise migration’

Michael Tan, from the American Civil Liberties Union (ACLU), said the rights group intended to sue the Trump administration over the decision, and immigrant advocates decried the decision.

“We’ll see the administration in court. Again,” the ACLU tweeted.”Our Constitution does not allow the government to lock up asylum seekers without basic due process”.

Angelo Guisado, a lawyer at the Center for Constitutional Rights, tweeted, “Mandating detention for what amounts to seeking asylum at the southern border is another instantiation of criminalizing migration. I find it perverse that we mandate detention (f***ing jail!) for what is at best a civil offense and is more aptly a place-of-birth violation.”

We detain over 440,000 noncitizens each year. FY 2018, Congress approved 40,520 detention beds, though the daily average is closer to 45,000. As of March, ICE had 50,049 people in custody. Trump aims to make it to 60,000, and this abomination of a decision will help get him there https://t.co/jW6Bjc5Hfd — Angelo Guisado (@VoltaireLaFlare) April 16, 2019

The decision’s full impact is not yet clear, because it will in large part depend on the ability of DHS to expand detention, said Steve Vladeck, a law professor at the University of Texas.

“The number of asylum seekers who will remain in potentially indefinite detention pending disposition of their cases will be almost entirely a question of DHS’s detention capacity, and not whether the individual circumstances of individual cases warrant release or detention,” Vladeck said.

DHS officials did not immediately respond to a request for comment on the decision. The agency had written in a brief in the case arguing that eliminating bond hearings for the asylum seekers would have “an immediate and significant impact on … detention operations.”

190410171735165

In early March, Immigration and Customs Enforcement (ICE), the DHS agency responsible for detaining and deporting immigrants in the country irregularly, said the average daily population of immigrants in detention topped 46,000 for the 2019 fiscal year, the highest level since the agency was created in 2003. Last year, Reuters news agency reported that ICE had modified a tool officers have been using since 2013 when deciding whether an immigrant should be detained or released on bond, making the process more restrictive.

Barr’s decision came after former Attorney General Jeff Sessions decided to review the case in October. Sessions resigned from his position in November, leaving the case to Barr to decide.