Former Deputy Assistant Attorney General Weighs In On Barr's Asylum Decision

AILSA CHANG, HOST:

All right, for more on this story, we're joined now by Leon Fresco. During the Obama administration, he was the deputy assistant attorney general and oversaw all civil immigration litigation on the part of the U.S. government. Now he's a member of the nonpartisan DHS Advisory Council. Welcome.

LEON FRESCO: Thank you.

CHANG: So do you agree with the attorney general's reasoning here that there is a legal basis for doing this?

FRESCO: This is a very complicated case. As a legal issue, this is a 50-50 issue, and here's why. There are two clearly established principles of law that are in tension here. The first is if you are outside the United States waiting at a port of entry to get in, that is undisputed that those individuals do not have due process rights that would allow them to ask for a bond if they are detained while we're making a decision whether to let them in or not.

Then, there is also a similar understanding that even if you commit the most heinous crime in the world and you're inside the United States, you get a chance to show that you're entitled to bond. That doesn't mean you get bond, but you get a chance. You have to show that you're not dangerous and that you're not a flight risk.

And so the question is, what do you do with individuals who've been in the United States five minutes? Are they like the people who are waiting at the port, but instead of actually waiting at the port, like one would normally intend, actually evaded the port and entered for five minutes, or are they like someone who's lived here and is in a criminal case and is entitled to bond? Because this is immigration, it's not even a criminal case.

CHANG: Right.

FRESCO: It's civil detention. And so this is a debate that the Supreme Court has intentionally avoided resolving for the last 30 or 40 years but is finally coming to a head with Attorney General Barr's decision. And so as a policy matter, I don't support it. But as a legal matter, it really is a 50-50 matter.

CHANG: OK. So given the perspective that this is, legally speaking, 50-50, are you saying that the challengers to Barr's decision here don't really have a very strong case?

FRESCO: Well, no, I think they have a very strong case. I think the problem is I think it is, I would say, 99 percent likely they will get an injunction at a district court level and at the Court of Appeals. But the question is, I can guarantee you there will be four Supreme Court justices who will say this Barr memo is unconstitutional and four who will say it's just fine. And it'll be up to Justice Roberts to be the deciding vote on this case.

CHANG: OK. Let's put the legal issues aside and talk about policy. I mean, one big practical problem here is that detention centers on the border are already overcrowded. So from a pragmatic standpoint, what are the chances that this policy can actually be implemented?

FRESCO: Correct. But writ large, this is not going to have the sort of change that the authors of the memo anticipate it will have because mandatory detention ability is useless without beds. All of the detention beds are already full. And the only way there would be new beds is if the Congress authorized new beds, and that was a massive fight in the last appropriations bill. There's no reason to think that that massive fight will move any further in this appropriations bill.

CHANG: Right. Now, you're a member of an advisory council for the Department of Homeland Security that issues recommendations to the department on various issues. Last night, your group issued a set of emergency actions that DHS should take immediately to address the flow of migrants at the border. And this was one of the concerns you flagged - that there aren't enough asylum officers, judges or even buildings to process all the migrants.

FRESCO: Correct. That's exactly right. I think if you have two alternatives, one - on one side is a border wall of 2,000 miles and a massive deprivation of rights, which is sort of one way of solving this, and another extreme on the other end, which is do nothing and continue to allow the situation that's happening now to increase in numbers.

A compromise in the middle would be do not diminish the rights people have but expedite the consideration of what we're ultimately trying to consider. And I think that is right down the middle. You know, zero to a hundred, that's right there at 50 of what, maybe, can be a bipartisan compromise.

CHANG: Right. Leon Fresco is a former deputy assistant attorney general in charge of immigration. He now advises the DHS on immigration issues. Thanks very much.

FRESCO: Thank you.

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