Judges in San Francisco to Weigh in on Asylum-Seekers' Right to Bond Hearings

A federal appeals court in San Francisco is considering whether thousands of asylum-seekers can be locked up for months or years, or whether they have a constitutional right to ask a judge for their release on bond.

A three-judge panel of the 9th U.S. Circuit Court of Appeals heard arguments Tuesday in a lawsuit challenging a Trump administration order that aims to detain asylum-seekers who enter the country without proper inspection until their cases are decided, a process that can take up to several years.

Just moments after Justice Department attorney Lauren Bingham began addressing the court, Judge Michael Hawkins cut her off with what would become a recurring question throughout the hearing.

“Are the people in the plaintiffs class subject to indefinite detention with no promise of a bond hearing? Yes or no?” asked Hawkins, a Clinton appointee.

Detention would not be indefinite, Bingham responded, because it would last only until an immigration judge decides if the government can deport that individual.

Bingham said immigrants who entered the country illegally — and passed initial interviews establishing a “credible fear” of persecution or torture — are entitled only to rights expressly given to them by Congress.

“There is a sliding scale of due process,” she said. “And the Supreme Court has said on multiple occasions that due process is a flexible concept that takes into account all of the different varying circumstances.”

Last year, the U.S. Supreme Court ruled that immigration laws do not give detained immigrants the right to periodic bond hearings. But the justices also instructed lower courts to examine whether the U.S. Constitution requires such hearings.

In April, U.S. Attorney General William Barr, whose purview includes immigration courts, issued the order saying asylum-seekers who entered unlawfully are no longer eligible for release on bond, despite the fact that the practice has been around for decades.

The change is one of several efforts by the Trump administration to dramatically restrict humanitarian protections, arguing that migrants are abusing the U.S. asylum system.

Under Barr’s order, U.S. Immigration and Customs Enforcement can still decide to release asylum applicants. But plaintiff attorneys argue that if the policy takes effect, detainees would not have a fair shot at freedom because ICE is biased toward detaining people.

In criminal cases, defendants generally have the right to ask a judge to set them free while their cases are decided.

In July, a federal judge in Seattle issued a nationwide halt to Barr’s order. U.S. District Judge Marsha J. Pechman also said the government must provide bond hearings within seven days.

Pechman’s ruling provides critical protections that allow migrants seeking refuge in the U.S. to have a “genuine opportunity” to make their case for asylum, plaintiffs’ attorney Matt Adams told the 9th circuit panel.

“We have thousands of our class members who will not only have been deprived of their liberty for months and perhaps years,” said Adams, legal director at the Northwest Immigrant Rights Project. “But many will then have been deprived of the opportunity to obtain legal representation, to gather the evidence necessary to marshal their case, to present their case before the court.”

Only one out of 10 asylum-seekers win their case without legal representation, according to researchers at Syracuse University.

Government attorney Bingham cautioned the judges against requiring hearings within seven days.

“By requiring the bond hearings to happen so quickly with the government bearing the burden of proof, it incentivizes aliens to enter the United States illegally because they would then be entitled to greater process than if they properly reported to a port of entry,” said Bingham, referring to official border crossings.

Trump and other top administration officials argue that many asylum-seekers skip court hearings and disappear into the country after they are released from detention. But that’s not supported by several studies, including a recent analysis that found that close to 98% of families applying for asylum in San Francisco’s immigration court showed up to every hearing.

About half of asylum-seekers who go before a judge and request release are granted bond while their case is decided, Adams told the panel of judges.

In the face of growing numbers of people claiming asylum, the Trump administration has moved aggressively to eliminate what officials call “loopholes” they say attract migrants from Central America.

Immigration advocates have challenged many of those policies — including one that denies asylum to people who fail to seek protection in a country they cross en route to the U.S., and another that forces asylum-seekers to remain in Mexico while an immigration judge decides their case.

“We've seen from this administration an assault on asylum,” said Michael Tan, a senior staff attorney with the ACLU Immigrants' Rights Project. “The sad reality — that this administration is all too aware of — is that a lot of people just give up, they'd rather risk their life and safety than stay locked up.”

The three-judge panel is expected to issue its ruling soon.