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New Decision by Attorney General Barr Means More Asylum Seekers Are Ineligible for Bond

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Last week, Attorney General William Barr issued a decision in Matter of M-S-, substantially increasing the number of asylum seekers who are not eligible for release on bond while waiting for their asylum cases to be decided in immigration court.

When an asylum seeker presents at a port of entry or crosses the border between ports of entry, they are usually processed for expedited removal. If they are determined to have a credible fear of persecution or torture, their case is transferred to immigration court where they can apply for asylum.

Previously, asylum seekers who crossed the border between ports of entry and were found to have a credible fear could ask an immigration judge for bond. This allowed the asylum seeker to be released from detention while they waited for their asylum application to be decided. Asylum seekers who presented themselves at ports of entry, however, were not allowed to ask for bond and could only be released from detention if Immigration and Customs Enforcement (ICE) granted them parole.

Attorney General Barr’s new decision changes this. He determined, based on his reading of the law and department regulations, that asylum seekers crossing between ports of entry are also not allowed to ask an immigration judge for bond. These asylum seekers must be detained unless ICE released them on parole. Understanding the massive change in procedures this decision will have, Attorney General Barr delayed the implementation of the decision for 90 days, to give the Department of Homeland Security time to prepare.

This decision means that thousands more asylum seekers will be subject to indefinite mandatory detention while they wait for an immigration judge to decide where they should be granted asylum in the U.S. The decision is not expected to affect unaccompanied children or families with children under 18, since existing court decisions have put limits on how long minors can be in detention.