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Background: US Customs and Border Protection

Attorney General William Barr would like to remind you that fuxxoring the Mueller report isn't his only duty as AG, even if that does remain his first love. Yesterday, Barr issued an order telling immigration courts that certain classes of people seeking asylum in the USA have to be kept locked up until their asylum cases are decided, and therefore cannot apply for release on bond. Does the Executive Branch have that power? You bet your due-process-loving ass it acts like it does, because the immigration courts are run by the Department of "Justice," not the judicial branch. Whether Barr's ruling is constitutional is another matter, and the American Civil Liberties Union is gearing up to challenge the ruling in court as soon as possible.

We'll let the New York Times 'splainer how Barr's order attempts to remake a huge part of immigration law so that some asylum seekers can be jailed forever:


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, sometimes months or years later [...]

But Mr. Barr's order came in a case involving an Indian man who crossed into the United States from Mexico and claimed asylum. Mr. Barr, exercising his authority as the top official overseeing the immigration courts, said that migrants in similar cases do not have the right to bail.

Such an immigrant, "after establishing a credible fear of persecution or torture, is ineligible for release on bond," Mr. Barr wrote in his order, which overrules a previous Board of Immigration Appeals case from 2005.

The upshot is that thousands of people fleeing persecution or torture will now be treated to months or years in detention with almost no hope of being released unless they're granted parole by the Department of Homeland Security (which has sharply reduced parole under Donald Trump). Since the order is likely to add even more people to an already over-capacity system of ICE detention facilities, Barr generously delayed the order's effective date to allow DHS to find more spots in which to pack people who have committed the crime of wanting not to be killed in their home countries. Good time to buy more stock in private prisons!

The order would not apply to families with minor children or to unaccompanied minors, because despite Trump's complaints about our stupid laws and judges, children under 18 can't be held for more than 20 days. Supposedly.

Barr's ruling is based in the same quirk of immigration law former AG Jeff Sessions exploited in his attempt last June to force immigration judges to reject asylum claims from people fearing domestic abuse or gang violence in their home countries. Since immigration courts are actually part of the executive branch, not the judiciary, the AG has the power to unilaterally decide whether previous immigration cases were decided lawfully, as if the AG were a little bitty Supreme Court of Immigration.

That power isn't absolute, though, since federal courts still have ultimate jurisdiction when it comes to whether the AG's immigration decisions are lawful. In December, a federal court threw out most of the new rules Sessions imposed, ruling Sessions had ignored the intent of Congress.

In response to Barr's ruling yesterday, Omar Jadawat, the director of the ACLU's Immigrants' Rights Project, promised a lawsuit on constitutional grounds, because due process is still a thing:

This is the Trump administration's latest assault on people fleeing persecution and seeking refuge in the United States. Our Constitution does not allow the government to lock up asylum seekers without basic due process. We'll see the administration in court.

Even before Barr issued his ruling, a federal judge in Seattle ruled earlier this month that asylum seekers have a right to request release on bond. Judge Marsha Pechman ordered immigration courts to conduct bond hearings within seven days of a request, and "said it's up to the U.S. government to prove why the immigrants shouldn't be released." That ruling came in a case over the slow pace of bond hearings for asylum seekers, so it's not clear how it may bump up against Barr's attempt to restrict the right to bond altogether -- Yr Dok Zoom is not a lawyer, but we would guess federal courts might be awfully skeptical of any attempt to restrict a fairly common legal right, no?

Needless to say, if Barr's rule is eventually overturned, look for Donald Trump to tell immigration judges he'll pardon them if they deny bail anyway.

[NYT / Department of Justice / ACLU / Spokane Spokesman-Review]

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Doktor Zoom

Doktor Zoom's real name is Marty Kelley, and he lives in the wilds of Boise, Idaho. He is not a medical doctor, but does have a real PhD in Rhetoric. You should definitely donate some money to this little mommyblog where he has finally found acceptance and cat pictures. He is on maternity leave until 2033. Here is his Twitter, also. His quest to avoid prolixity is not going so great.

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