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Are Asylum Seekers Allowed Bail? The Trump Administration's New Move Is Changing Things

The Trump administration seems to be doing any and everything it can to deter asylum seekers from coming to the United States, and its latest move is really something. United States Attorney General William Barr issued an on April 16 could change the way migrants are detained. While previously, migrants who crossed the border to seek asylum were frequently released on bail, it looks the administration is moving to end that practice and hold migrants indefinitely.

Barr issued the order, which would instruct immigration judges to deny "some" migrants the opportunity to post bail and be released, on Tuesday, April 16, per The New York Times. Barr's decision came out of a case that involved an unnamed Indian man who crossed into the United States from Mexico to claim asylum. In such cases, Barr wrote, an asylum seeker, “after establishing a credible fear of persecution or torture, is ineligible for release on bond.” His order reportedly overrules a 2005 case from the Board of Immigration Appeals. Elite Daily reached out to the Department of Justice (DOJ) for additional details comment on the policy change, but did not hear back by the time of publication. The policy will go into effect in 90 days, barring legal challenge.

As it currently stands, those who have proven they have a "credible fear" of returning to their country are allowed to request a bond hearing so they can be released on bail while waiting for their asylum cases to be heard. Many of the migrants flowing into the country are fleeing violence and poverty in Central America, but under the new ruling, they would have to stay in detention until their cases are settled, meaning asylum-seekers could be trapped behind bars for years. (It's worth pointing out that it does not affect unaccompanied minors or families who cross into the United States without proper documentation.)

But it seems more than likely that the policy change will be challenged. Michael Tan, a lawyer for the American Civil Liberties Union (ACLU), told NBC News that the organization plans on taking legal action against the Trump administration. “The attorney general's decision is the latest attempt by this administration to punish asylum seekers for seeking refuge in the United States by locking them up in immigration prisons,” Tan told the outlet. “But the Constitution does not allow the government to incarcerate asylum seekers without basic due process. We'll see the administration in court.”

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This move comes on the heels of reports claiming that the president has been considering sending migrants to sanctuary cities, which are municipalities that place limits on whether and how local law enforcement can aid in federal deportation efforts. An April 11 report from The Washington Post said that Trump tried sending migrants to the cities in part to get back at his rivals. He reportedly proposed the idea back in November of 2018, as a caravan of migrants who were fleeing violence in Central America approached the United States, and again in February of 2019, when he was caught up in a back-and-forth with Democrats over funding for his long-promised border wall with Mexico. However, Immigration and Customs Enforcement (ICE) reportedly raised some concerns, noting that there were safety liability issues, budget issues, and the possibility of some seriously bad PR due to the the political nature of the move.

Trump appeared to confirm the reports with tweets on April 12, which read,

Due to the fact that Democrats are unwilling to change our very dangerous immigration laws, we are indeed, as reported, giving strong considerations to placing Illegal Immigrants in Sanctuary Cities only ... The Radical Left always seems to have an Open Borders, Open Arms policy – so this should make them very happy!

Le sigh. We'll just have to see how these efforts pan out in court.