Judge blocks Trump policy keeping asylum seekers in custody pending cases

Reporting from SEATTLE —  A federal judge in Seattle on Tuesday blocked a Trump administration policy that would keep thousands of asylum seekers locked up while they pursue their cases, saying the Constitution demands that such migrants have a chance to be released from custody.

U.S. District Judge Marsha Pechman ruled Tuesday that people who are detained after entering the country illegally to seek protection are entitled to bond hearings. Atty. Gen. William Barr announced in April that the government would no longer offer such hearings, but instead keep the people in custody. It was part of the administration’s efforts to deter a surge of migrants at the U.S.-Mexico border.

Pechman said that people who have entered the U.S. are entitled to the 5th Amendment’s due-process protections, including “a longstanding prohibition against indefinite civil detention with no opportunity to test its necessity.”

Immigrant rights advocates including the American Civil Liberties Union and the Northwest Immigrant Rights Project sued to block the policy, which was due to take effect July 15.

“The court reaffirmed what has been settled for decades: that asylum seekers who enter this country have a right to be free from arbitrary detention,” Matt Adams, legal director of the Northwest Immigrant Rights Project, said in a written statement. “Thousands of asylum seekers will continue to be able to seek release on bond, as they seek protection from persecution and torture.”

The Justice Department did not immediately return an email seeking comment, but the government was expected to quickly appeal the decision, as Pechman noted in her order.

For the past 50 years, the government has given asylum seekers bond hearings before immigration judges where they can argue that they should be released because they are not flight risks and pose no threat to the public, the immigrant-rights groups told the court. That gives the asylum seekers an opportunity to reunite with relatives in the U.S. and to find lawyers to handle their asylum claims, making them more likely to succeed.

The new policy would end that practice, keeping between 15,000 and 40,000 immigrants in custody for six months or more without requiring the government to show that their detentions are justified, the groups argued. Typically, close to half of asylum seekers who are granted bond hearings are released from custody.

“The court finds that plaintiffs have established a constitutionally-protected interest in their liberty, a right to due process which includes a hearing before a neutral decision maker to assess the necessity of their detention, and a likelihood of success on the merits of that issue,” the judge wrote.

Pechman, who heard arguments Friday, said the government must provide a bond hearing within seven days of a request by any immigrant who has demonstrated that they have a credible fear of persecution or torture if returned to their home country. The asylum seekers must be released if not granted a hearing within that time frame, she said.

Pechman also said the burden must be on the government at such hearings to show that keeping asylum seekers in custody is necessary because they pose a flight risk or a danger to the public.

President Trump has said he is determined to end the “catch and release” of migrants at the border. He has also called the asylum system broken, saying that some take advantage of it with frivolous claims.

The lawsuit, a nationwide class action, began as a challenge to the separation of family members at the border under Trump’s “zero-tolerance” policy. Its legal claims have morphed as the government’s policies have shifted.

Pechman first issued an order in April saying that the government must give the asylum seekers hearings within a week, saying delays in holding such hearings violated their rights. Eleven days later, the attorney general issued a decision finding that they weren’t entitled to bond hearings at all.

The Justice Department argued that the policy is a legitimate interpretation of a federal law that says if immigration officers determine immigrants have a credible fear of persecution, they “shall be detained for further consideration of the application for asylum.”

The government also argued that even without bond hearings, detained asylum seekers would still have another avenue for release: a request to an immigration officer for parole. Such requests are rarely granted under the Trump administration, however, and the immigrant rights groups said they are not a substitute for bond hearings before independent fact-finders.