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AG’s Ruling in Matter of M-S- Further Consolidates the President’s Power over Migrants’ Fates in the United States

WASHINGTON, D.C. – Attorney General William Barr’s decision to deny bond and indefinitely detain asylum seekers who enter the United States outside ports of entry betrays American values of liberty and due process. The decision in Matter of M-S-  will result in the unnecessary and unlawful prolonged jailing of asylum seekers, and strip immigration judges of their authority to consider individuals for release on a case-by-case basis.

Many asylum seekers are unable to reach one of the official ports of entry to present their claims for asylum. The Trump administration has, in fact, turned people away from ports of entry and made them wait in dangerous conditions in Mexico for weeks or months, forcing many to find other routes to safety in the United States. When an asylum seeker is detained by the Department of Homeland Security (DHS), a bond hearing often is their only opportunity to have a judge from outside DHS review their case and determine whether they should be allowed to pursue asylum protection from outside a jail cell.

“By eliminating the right to a bond hearing, the attorney general has made DHS the judge, jury, and jailer for those who come to our border seeking safety and freedom,” said National Immigrant Justice Center (NIJC) Executive Director Mary Meg McCarthy. “The decision also is the latest attack on the judicial branch by an administration that has repeatedly attempted to weaken the authority of immigration judges. As this administration continues to consolidate the power of an anti-immigrant president, this unilateral ruling should alarm all Americans.”

The attorney general notes in a footnote that DHS will use this ruling to justify further expansion of its immigration detention system, which already has grown by 25 percent in the past year and currently locks up about 50,000 migrants each day. The attorney general also notes that his ruling, which ensures asylum seekers will be indefinitely detained while their legal cases are pending, fails to address the constitutionality of that prolonged detention.

Barr’s decision does not limit DHS’s continued authority to release asylum seekers during their proceedings using a mechanism known as “parole.” But under the Trump administration, parole has seldom been granted to asylum seekers. Nonetheless, there is no persuasive legal or evidence-based policy justification for prolonged detention of asylum seekers.

NIJC calls on Congress to engage in meaningful and pointed oversight of DHS’s arbitrary release determinations, which, as long as Barr’s ruling stands, will now be the last hope for asylum seekers hoping to pursue their claims for protection outside of detention.

Read a Q&A by NIJC, American Immigration Lawyers Association, Human Rights First, National Immigrant Justice Center and the Women’s Refugee Commission providing further analysis of the Matter of M-S- decision.