In a week where many of us are debating buying Crazy Glue to put our “Mueller Time” mugs back together after smashing them three weeks ago, there has been a curious development in immigration law – the detention of asylum seekers. Yes, Virginia, America routinely detains asylum seekers in jail facilities when coming to the border to seek asylum. (Imagine how much longer the Sound of Music would have been if the von Trapps were detained and spread out around facilities throughout Switzerland while awaiting asylum hearings after slipping into Switzerland. You can almost hear a catchy Rodgers and Hammerstein ditty of Liesl singing of longing for freedom after being locked in a cage).
On April 5, 2019, District Court Judge Marsha J. Pechman of the Western District of Washington (State) ordered Immigration and Customs Enforcement to either release certain asylum applicants or provide them with a bond hearing with seven days of a request for one.
These certain asylum applicants are applicants found inside the United States, either after entering illegally or not, who apply for asylum. Immigration law has built into it a great dichotomy – between non-citizens inside the United States and non-citizens outside of the borders of the country trying to enter. Those seeking to enter or obtaining visas to enter, either at airports, land and sea borders, at pre-inspection locations at certain foreign airports, or at United States consulates abroad have fewer rights when it comes to receiving permission to enter the United States and overcoming findings of inadmissibility. A Supreme Court case from 2014, Kerry v. Din, reaffirmed the extremely limited rights of people seeking visas to the United States at United States consulates.
The Board of Immigration Appeals respected that dichotomy, first established in 1850 in a Supreme Court case, Yick Wo v. Hopkins, dealing with a Chinese man treated unfairly by the City of San Francisco in issuing permits to run laundries. The Supreme Court held that the 14th Amendment’s equal protection clause protected Chinese non-citizens as well as United States citizens. From then on, protections under the 14th amendment’s due process clause (the right to a process before rights such as to life, liberty, and property are taken) were also found to adhere to non-citizens.
In the case before Judge Pechman, Padilla v. ICE, she found that due process rights of asylum seekers found inside the United States and being detained were violated by delays in scheduling custody hearings for them. In the judge’s order, she noted that the government accepts that aliens found inside the United States have the right to custody hearings, citing to a BIA case from 2005, Matter of X-K.
Then, eleven days later, on April 16, 2019, the Attorney General, William Barr, overturned Matter of X-K-, in Matter of M-S-. Interestingly, the Attorney General has the authority to unilaterally dictate the meaning of immigration laws, as he is done in this case dictating the meaning of statutes and regulations concerning detention and bond issues. Of course, he cannot interpret the statutes and regulations wrongly (he cannot say white is black, but does have great leeway in interpreting the grays), and he cannot violate the Constitution.
In Matter of M-S-, Attorney General Barr concluded that aliens caught near the border and processed for expedited removal (a process where non-citizens caught within 100 miles of the border can be ordered removed without seeing an immigration judge) after successfully entering the United States have no right to bond hearings.
The decision of Mr. Barr will obviously be appealed. His reading of the statutes and regulations will certainly be reviewed. So too will be his overruling the long-standing constitutionally-based dichotomy between applicants for admission and those found inside the United States. Mr. Barr likely will argue that making a distinction between people coming to the border, presenting themselves, and seeking asylum and being detained and people who cross the border and detained shortly thereafter and seeking asylum is a meritless distinction. It also rewards those that entered illegally with the right to a bond hearing that those arrested at the border do not have. On the other hand, opponents of Mr. Barr’s decision will likely point out that changing the present bright line that the border is the bright line and re-setting the line 100 miles from the border (the zone where expedited removals can occur) is suspect because it has been estimated that 65.3 percent of the entire U.S. population and around 75 percent of the U.S. Hispanic population live within 100 miles of the border. Thus, the removal of the distinction that those inside the U.S. have constitutional rights that those outside do not does not affect a small group of people in the United States, but rather the majority of people in the United States. Assuming the Constitution is the supreme law of the land, the stripping of constitutional due process rights to the majority of people could very well be found to be constitutionally invalid even if the statutory and regulatory interpretation of Mr. Barr is right. It will be the Supreme Court that will likely decide this. Posted April 21, 2019.