U.S. District Judge Marsha Pechman on Tuesday blocked an administration policy, due to take effect July 15, saying asylum seekers would no longer get bond hearings but must remain in custody as they pursue their claims. It's unconstitutional for the government to detain people without demonstrating it's necessary, she said.
Though the decision was similar to one issued by a Washington, D.C., judge in 2015 against the Obama administration, White House press secretary Stephanie Grisham called it "at war with the rule of law."
President Donald Trump frequently criticizes judges who rule against him. "The decision only incentivizes smugglers and traffickers, which will lead to the further overwhelming of our immigration system by illegal aliens," Grisham said in statement. "No single district judge has legitimate authority to impose his or her open borders views on the country."
Michael Tan, an American Civil Liberties Union attorney, said Grisham was wrong. "The Constitution is clear that you can't lock somebody up without the basic due process of a hearing," he said. "Yesterday's decision upholds the law against this administration's ongoing attempts to violate it."
For the past 50 years, the government has given asylum seekers bond hearings before immigration judges so they can argue for release by saying they will return to court and pose no threat to the public. That gives asylum seekers an opportunity to reunite with relatives in the U.S. and find lawyers to handle their asylum claims, making them more likely to succeed, immigrant rights groups say.
In April, as part of the administration's efforts to deter a surge of Central American migrants at the U.S.-Mexico border, Attorney General William Barr announced that the government would no longer offer the hearings. He cited a law that says if immigration officers determine asylum seekers have a credible fear of persecution or torture in their home country, they "shall be detained for further consideration of the application for asylum."
The new policy would keep 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.
Pechman, who was appointed by President Bill Clinton in 1999, rejected the Justice Department's arguments that the plaintiffs did not have standing to bring the class-action case. She also said the law cited by Barr was unconstitutional to the extent it allowed for the detention of asylum seekers without due process.
In 2015, U.S. District Judge James Boasberg in Washington, D.C., similarly blocked government efforts to detain entire asylum-seeking families in 2015. The Obama administration granted the families bond hearings but asked immigration judges to consider whether detaining them would help deter mass migration. The result was a huge spike in family detentions.
The government could consider the characteristics of asylum seekers — such as whether they might disappear into the U.S. or be a danger if released — but detaining them to send a message to other migrants was likely unconstitutional, Boasberg said. The Obama administration did not appeal and agreed to end the practice.
"It's unconstitutional to lock someone up just because you want to send a message to immigrants that they're not welcome in the U.S.," Tan said.