Jurisprudence

A Startling New Legal Opinion From William Barr Could Doom Thousands of Asylum-Seekers

Protesters march and carry signs decrying the Trump administration's family separation policy.
People demonstrate in D.C. on June 28, 2018, demanding an end to the separation of migrant children from their parents.
Nicholas Kamm/AFP/Getty Images

On Wednesday, Attorney General William Barr issued a startling decision in the case of an Indian asylum-seeker who asked for a review of a high bond amount initially set by an immigration judge. In his ruling, Barr held that not only was the asylum-seeker not entitled to a lower bond amount, but he wasn’t entitled to bond at all. The decision, which could result in countless asylum-seekers being denied bond, will effectively require most of these asylum-seekers to be held in detention for the entirety of their cases. The Trump administration’s latest approach to asylum is not only inefficient and cruel, but seems designed to ensure even higher denial rates by keeping asylum-seekers in front of the harshest judges and away from accessible immigration counsel.

In practice, Barr’s decision means that both asylum-seekers who present themselves at official ports of entry as well as those who enter without inspection and are then apprehended and put into removal proceedings will be forced to fight their asylum cases from one of a vast network of squalid, inaccessible immigration detention centers spread throughout the United States.

For now, only those who enter as a “family unit” will be spared from the mandatory detention, as the Flores Settlement Agreement currently prevents the government from detaining children for more than 20 days during removal proceedings. But even this small reprieve for families seems unlikely to last as the administration is reportedly considering an effort to modify the settlement to allow for a so-called “binary choice” in which parents would be forced to decide between indefinite detention with their children while their case is resolved or consent to be separated from their children with the parent detained and the child released.

This means that thousands more asylum-seekers could be subjected to rotting food, inadequate medical care, sexual assault, overcrowding, and forced labor while they attempt to fight for their right to remain in the United States. Conditions in the facilities are so horrifying that it is common for asylum-seekers to give up and request deportation to escape the abuse they face while locked up in the United States. This is undoubtedly considered a benefit by the Trump administration, which is doing everything in its power to prevent asylum-seekers from coming to the United States.

One other less obvious benefit for the Trump administration is that keeping most asylum-seekers detained will force many to appear in front of some of the harshest immigration judges in the country, many who have less than a 4 percent grant rate when it comes to asylum cases. In general, only 34 percent of decisions in 2018 resulted in a grant of asylum. Denials are at an all-time high. But these numbers obscure the reality for asylum-seekers who are forced to fight their cases from detention, where lack of access to counsel combined with some of the harshest immigration judges in the country lead to denial rates above 90 percent.

Take, for example, Lumpkin, Georgia. Lumpkin is home to Stewart Detention Center, a privately run jail with the capacity to hold more than a thousand people. Located more than 150 miles from Atlanta, Lumpkin has almost no legal infrastructure to serve detained asylum-seekers. Most asylum-seekers detained in Lumpkin have no chance of finding a lawyer to help them fight their cases.

In fact, the location of many detention centers makes finding representation exceedingly tricky. A detention facility in Gadsden, Alabama, is more than 400 miles from the closest legal aid services, which are in Louisiana. The West Texas Detention Center in Sierra Blanca, Texas, is more than 80 miles from legal service providers in El Paso. The San Luis Regional Detention Center in San Luis, Arizona, is almost 300 miles from the closest legal aid providers. The largest family detention center, the South Texas Family Residential Center, is more than 70 miles from San Antonio.

And having a lawyer makes a difference: Detained immigrants with attorneys are more than twice as likely as those without representation to succeed in their cases. While almost two-thirds of nondetained immigrants in removal proceedings are able to find and retain a lawyer, only 14 percent of detained immigrants are represented by an attorney. This leaves most to attempt to represent themselves from behind bars, often without adequate access to the relevant legal materials, and sometimes even without access to asylum applications in their own language.

Pro se representation is risky in the best of circumstances, and it can become almost entirely futile for detained asylum-seekers whose cases are heard by some of the harshest judges in the country. In Lumpkin, for example, the three immigration judges serving the Stewart Detention Center had an average 93.5 percent denial rate for asylum cases. Judges presiding over cases at the El Paso Immigration Court deny cases 92.6 percent of the time. At the Adelanto Immigration Court, which is two hours away from Los Angeles, asylum cases are denied 86.1 percent of the time. Most of these cases were presented pro se, without the help of a lawyer.

Meanwhile, a nondetained asylum-seeker in Chicago has almost a 50 percent chance of winning her case and is much more likely to be able to secure representation.

For many, asylum denials have devastating consequences. Deportation leads to permanent family separation, as deportees leave behind U.S. citizen children, spouses, and extended family. People deported from the United States are also frequently at a heightened risk for violence and extortion. In the worst cases, deportation is a literal death sentence.

Barr’s decision to detain all asylum-seekers isn’t just about a plain reading of statutory language, as he asserts in his opinion. It is only one more way this administration is attempting to sharply limit the number of asylum-seekers allowed to stay in the United States by any means necessary, no matter how expensive, dangerous, or cruel.