Since the release of our Immigration Principles last year, we have, from time to time, offered updates on significant immigration developments and events. On Tuesday, April 18, US Attorney General William Bar released a decision that revoked the right of certain asylum seekers to ask an immigration judge for release on bond. The ruling is set to go into effect in 90 days and will almost certainly face legal challenge in the meantime. This latest development prompted us to revisit the BBA principles, our work on immigration-related policies and practices, and larger questions about the functioning of our immigration court system – all of which you can read more about below.
Attorney General Barr’s Decision in Matter of M-S
William Barr’s decision in Matter of M-S represents the first time he has used this power to issue binding precedent on the immigration courts, following the trend started by his predecessor, Jeff Sessions, who selected the case for attorney general review last October. In Matter of M-S, Barr overrules a 2005 decision that guaranteed bond hearings for certain migrants, including some who passed a “credible fear” interview, the first step in an asylum review. Instead, he concludes that a migrant “…who is transferred from expedited removal proceedings to full removal proceedings after establishing a credible fear of persecution or torture is ineligible for release on bond.” If this ruling goes into effect, individual asylum seekers who did not enter at a designated port of entry would be able to be released from detention while waiting for their case to be heard by a judge only if Immigration and Customs Enforcement (ICE) allows for release on parole, a practice that ICE has been using less and less under the current administration.
AG Barr has delayed the effective date of the decision for 90 days, so that the Department of Homeland Security (DHS) can “conduct necessary operational planning,” noting that his decision to overrule the 2005 decision will have “an immediate and significant impact on [DHS] detention operations.” It’s anticipated that the decision could add to the existing overcrowding issues in immigrant detention centers.
As mentioned, the decision applies only to individuals that have crossed the border without authorization, and not at an official port of entry. The new rule will not apply to families or unaccompanied children, who currently make up a majority of people crossing into the US without papers. Under the terms of the Flores Settlement Agreement years ago, ICE cannot keep immigrant families in detention for prolonged periods and, Matter of M-S does not impact that settlement agreement.
When an individual crosses the border without authorization, they can be deported without a hearing, but if that individual declares that they have a fear of returning to their home country or that they wish to seek asylum, they have a right to an interview with an asylum officer to determine whether the individual has a “credible fear.” If it is determined that “credible fear” does exist, they can formally apply for asylum through a hearing before an immigration judge. The new decision would mean that, unless granted parole at the discretion of ICE, all individuals who crossed without authorization outside the ports of entry would be held for the entire scope of time between the screening interview and the full hearing.
The decision comes on the heels of two relevant federal cases related to immigration court bond hearings. In 2018, the Supreme Court held that the Immigration and Nationality Act did not give an immigrant the right to periodic hearings to determine whether they may be released on bail. Attorney General Barr cited this case as support for his decision in Matter of M-S.
Just a few weeks ago, however, a federal judge ruled that bond hearings for eligible asylum seekers must be held within seven days of passing the screening interview. If implemented, this would have resulted in an influx of new hearings in already-overcrowded immigration courts and likely a large number of releases from detention. The California ruling was delayed for 30 days for appeal, but Barr’s decision in Matter of M-S obviates the judicial ruling by barring bond hearings for all individual asylum seekers not crossing at a port of entry.
BBA Principles and Positions
As noted above, the BBA’s Immigration Principles have provided a framework through which the BBA approaches immigration-related matters since their adoption by the Council last year. The four principles read:
- Principle 1: Immigration is a defining feature of the American experience. Immigrants play a critical role in the civic, economic, and cultural life of our city, state, and country.
- Principle 2: No person’s rights or human dignity should be devalued on the basis of immigration or citizenship status.
- Principle 3: The constitutional right to due process and equal protection, guaranteed to every person regardless of immigration or citizenship status, must be protected and enforced.
- Principle 4: Every person should have the full and meaningful ability to exercise their rights and to access justice through the legal system regardless of immigration or citizenship status, level of income, or economic circumstance.
The Working Group’s accompanying report further expounds on each of these four principles. For example, under Principle 2, the report specifically explains that “we join the American Bar Association and others in recognizing that even people who enter the country without authorization should be treated fairly and humanely. For that reason, undocumented immigrants should not be detained while their legal claims to remain in the United States are resolved—at least absent extraordinary circumstances, such as if, for example, the individual in question presents a threat to public safety or a serious flight risk.”
And under Principle 4, the Report gets even more specific, noting, among other things, that “access to a fair immigration process with independent judges” is key to ensuring access to justice and the rights of all those within our borders. This section explains the barriers to justice routinely faced by immigrants and the role and importance of independent immigration courts and judges.
With these principles in mind, we’ve responded to a number of recent proposals and policies. For example, when the administration proposed a policy that would not allow those crossing the border between official ports of entry to claim asylum, we issued a statement expressing concern and reiterating our commitment “to standing up for the rights of immigrants, advocating for the fair and humane treatment of all people present in our country, and upholding the bedrock principles of access to justice and due process for all.” You can read the full statement here.
A few days before responding to the new asylum policy, we had submitted comments in opposition to a proposed federal regulation that would have significantly altered the current policies in place under the Flores Settlement Agreement, which established protections for unaccompanied immigrant children. Those comments specifically note that “the BBA has spoken against the use of prolonged and unnecessary detention in immigration settings for years, calling for detention to be used only in extraordinary circumstances, such as when an individual presents a substantial flight risk or a threat to national security or public safety.” The comments also note that “[i]n those instances when detention must occur, the BBA supports detention in the least restrictive setting possible and has long maintained that there must be policies in place to ensure that detention conditions are humane and that mechanisms exist to ensure proper oversight and accountability.” You can read the full comments here.
You can read more about other recent BBA immigration-related policies and responses here and here.
The Need for Immigration Court Reform
With our principles and these past actions in mind, it’s worth focusing in on one particular aspect of the Attorney General’s decision in Matter of M-S, which highlights an unusual, and perhaps oft-forgotten, feature of the current immigration system: immigration courts are under the purview of the Executive Branch via the Department of Justice and immigration judges are career attorneys appointed by the Attorney General. This explains why AG Barr has the authority to issue a decision to bar the use of bail for asylum-seekers that is binding on all immigration court judges.
Interestingly, at the same time that the Council adopted the Immigration Principles, it also determined that it was appropriate to immediately endorse a policy proposal to restructure the immigration courts under Article 1, similar to existing federal Bankruptcy and Tax Courts. This position builds off years of the BBA speaking about the importance of judicial independence and the dangerous consequences when political pressure is applied to those serving on the bench. It also aligns with our constant support for adequate funding for the judiciary, because we understand that a well-functioning and fully independent judiciary is critical to the fair administration of justice.
The BBA is far from alone in calling for a restructuring of the immigration court system: the National Association of Immigration Judges (NAIJ), the American Immigration Lawyers Association (AILA), the Federal Bar Association, and the American Bar Association (ABA), to name a few, all also endorse moving immigration courts under Article 1 to better ensure proper independence and oversight. The ABA’s full report on the issue explains in detail why such a change makes sense.
An immigration court system that is overseen by the Attorney General is inherently political and doesn’t feature the safeguards guaranteed to other courts. Recent developments have highlighted the shortcomings of this structure. For example, last year the NAIJ filed a grievance asking the Justice Department’s Executive Office for Immigration Review to acknowledge in writing that it will not interfere with the “decisional authority” of judges in the assignment or reassignment of cases. NAIJ President Judge A. Ashley Tabaddor wrote, “The decisional independence of immigration judges is under siege.” And the AILA also recently issued a statement in response to another decision that limits the ability of judges to grant continuances, noting that “until Congress acts, the Attorney General will continue to encroach upon the independence of the courts, forcing judges to order people removed without a fair process.”
Matter of M-S seems also to highlight the value of a restructuring of our immigration courts so that judges are able to make decisions based on the laws in place, without pressure to conform to the priorities and decisions of whoever is in power at the Executive level. We’ll keep you posted as to how you can join us in supporting an immigration court system that is effective, efficient, and independent.
Legislative and Public Policy Manager
Boston Bar Association