Attorney General Barr Blocks Catch and Release by Migration Judges

Migrants picked up in Sunland Park, N.M,. last month. More than 2,700 children were separated from their parents at the border under Mr. Trump’s “zero tolerance” policy.CreditCreditPaul Ratje/Agence France-Presse /Getty Images

By Neil Munro

Immigration judges cannot release migrants who are caught sneaking into the United States, even if the migrants ask for asylum, says a binding legal decision by Attorney General William Barr.

The decision will dramatically shift the migration-caused civic and housing crises from the nation’s blue-collar communities over to the Congress and the Department of Homeland Security, whose budget and detention centers only have enough resources to house about 50,000 people year-round.

“The [text of the relevant] Act provides that, if an alien in expedited proceedings establishes a credible fear, he “shall be detained for further consideration of the application for asylum,” says Barr’s April 16 decision, titled. Matter of M-S-. Because of the law, “I order that, unless DHS paroles the respondent under section 212(d)(5)(A) of the Act, he must be detained until his removal proceedings conclude.”

“This is a HUGE ruling that will harm thousands seeking protection from persecution at the US border since far more will be held in detention even after passing the threshold screening under the credible fear standard,” complained Greg Chen, director of government relations at the American Immigration Lawyers Association.

The association’s lawyers make their money by guiding migrants and corporate hiring managers through the extremely dense network of migration laws and regulations. But Barr’s decision blocks the use of a common path for migrants who are trying to get through the courts and into the U.S. jobs they need to repay the smuggling fees they owe to the cartels.

Barr directed officials to delay implementation of the law for 90 days, giving DHS managers — and congressional leaders — three months to decide which migrants should be released into the nation’s cities and towns.

The delay gives time for DHS to set up tent cities where migrants can be held until the judges decide the asylum pleas. If DHS detains most of the migrants — and so prevents them from working — the next wave of migrants may decide that any effort to get into the United would be an economic disaster for their families.

On April 15, Democratic Sen. Bernie Sanders endorsed the wider use of detention centers on the border.

Barr’s decision is part of a large legal battle of move-countermove between President Donald Trump’s deputies and the many pro-migration progressive judges in the federal courts. Massive resistance by those judges has blocked and delayed many of Trump’s policies, but Trump’s deputies are expected to win most of the decisions if and when the U.S. Supreme Court decides to rule on each dispute.

Barr’s new ruling does not apply to the many “UAC” migrant minors who are being smuggled northwards by parents living illegally in the United States. It also does not apply to migrants who walk up to the nation’s official ports of entry to ask for asylum.

But the ruling will apply to the huge number of migrants who cross the borderline away from the ports of entry.

Those migrants must now be held for many months — or even years —  unless DHS leaders formally release the migrants. The decision ensures that migration judges’ preference — and migration lawyers’ pleadings — will not allow the illegal migrants to be released on bonds which are often a tiny fraction of the economic value gained by the migrants from working illegally in the United States.

However, the decision also raises the incentives for migrants to legally apply for asylum through the formal process at the ports of entry, instead of trying to sneak past the border patrol.

The decision does not overcome the 2015 Flores decision by the Ninth Circuit Court of Appeals in California, which forces DHS to release migrants who bring children. Federal agencies, however, are drafting a regulation that may bypass that court Flores ruling.

The AG’s decision is based on the treatment of a migrant from India, who is part of a small but fast-growing stream of very cheap laborers who are being hired by the growing population of Indian legal immigrants. According to Barr:

The respondent here is a citizen of India. He traveled to Mexico and crossed illegally into the United States. He was apprehended within hours about 50 miles north of the border. DHS placed him in expedited removal proceedings.

After the respondent claimed a fear of persecution in India, DHS referred him for an asylum interview. The asylum officer determined that the respondent lacked a credible fear, but, at the respondent’s request, DHS reconsidered and reversed its determination. DHS then transferred the respondent to full proceedings. Upon his transfer, DHS issued the respondent a Notice to Appear (DHS Form I-862) and a Notice of Custody Determination (DHS Form I-286), the latter of which informed the respondent that, “pending a final administrative determination in your case, you will be . . . [d]etained by the Department of Homeland Security.” The respondent requested that an immigration judge review that custody determination. Without mentioning section 235(b)(1)(B)(ii), the immigration judge held that the respondent “is not subject to mandatory detention.” Matter of M-S-, Order on Motion for Custody Redetermination at 2 (Immig. Ct. July 18, 2018). The immigration judge ordered that the respondent be released if he could produce a valid Indian passport and post a bond of $17,500. Id. at 3. The respondent appealed to the Board, arguing that his bond should be reduced.

A different immigration judge agreed, but increased the respondent’s bond to $27,000. Matter of M-S-, Order on Motion for Custody Redetermination at 2 (Immig. Ct. Sept. 17, 2018). The respondent posted that amount and was released on September 27, 2018.

Here, despite the respondent being bond ineligible, the second immigration judge ordered DHS to release him on a bond of $27,000. The respondent posted that bond in September 2018, and was released from custody. I reverse the order granting bond to the respondent. I order that, unless DHS paroles the respondent under section 212(d)(5)(A) of the Act, he must be detained until his removal proceedings conclude.

Migration lawyers complained bitterly about the Barr decision:

Each year, roughly four million young Americans join the workforce after graduating from high school or university.

But the federal government then imports about 1.1 million legal immigrants, refreshes a resident population of roughly 1.5 million white-collar guest workers in addition to approximately 500,000 blue-collar visa workers, and also tolerates about eight million illegal workers and the inflow of hundreds of thousands of illegal migrants.

This federal policy of flooding the market with cheap white-collar graduates and blue-collar foreign labor is intended to boost economic growth for investors.

This policy works by shifting enormous wealth from young employees towards older investors and real-estate owners, even as it also widens wealth gaps, reduces high-tech investment, increases state and local tax burdens, hurts children’s schools and college education, pushes Americans away from high-tech careers, and sidelines millions of marginalized Americans, including many who are now struggling with fentanyl addictions.


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