Last week, a federal judge ruled that the indefinite detainment of asylum-seeking migrants is unconstitutional in an order that Conservative Review’s Daniel Horowitz wrote “demonstrates once again that we don’t have an immigration law problem; we have a judicial supremacy problem.”
His piece that claims the order from “a random federal judge” contradicted more than a century of immigration law, but Horowitz omitted that judges have been able to order the release of undocumented immigrants on bond since at least the 1990s.
More on the ruling
This order was part of a lawsuit filed last year by three mothers whose children were separated from them as they pursued asylum in the United States. The suit, filed against U.S. Immigration and Customs Enforcement, the Department of Homeland Security and other agencies connected to the detention of undocumented immigrants, alleged that the federal government violated the migrants’ due process rights and asylum law.
As part of the lawsuit, Seattle-based U.S. District Judge Marsha Pechman ruled last week that the indefinite detainment of migrants seeking asylum is unconstitutional. She ruled that asylum-seekers have the right to a bond hearing if they’re detained for illegally entering the U.S., and they must receive a bond hearing within a week of requesting it. Immigrants who don’t receive bond hearings in seven days after requesting them are required to be released.
Pechman’s ruling blocked an April order from Attorney General William Barr that would have required asylum-seekers to be held in detention until their cases were resolved in immigration court. For many immigrants, that could be a long wait, as immigration courts face a record-breaking backlog of more than 900,000 active cases, with hearing dates scheduled into 2022 and 2023 in some courts.
Horowitz suggested that the ruling “(dictates) to the entire country that we can no longer regulate who comes into our country and who is released into our communities,” but the order doesn’t eliminate immigration regulations.
Fact or fiction: Did Pechman’s order expand a catch-and-release loophole?
“Catch and release” or catch-and-release loopholes refer to U.S. policy to release certain undocumented immigrants before their immigration hearings, rather than holding them the entire time leading up to court appearances.
These terms are the product of two misconceptions: This policy isn’t a loophole – these are the actual immigration procedures that the government’s required to follow. And it’s called “catch and release” due to the inaccurate perception that most of those who are released don’t show up for their immigration court hearings.
In fact, according to a five-year data analysis from the Department of Justice, 60 to 75 percent of migrants who were not detained appeared for their immigration court proceedings. A pilot project that ICE canceled in 2017 also found that participants, who received guidance from case workers on the immigration court system, were present for 99 percent of court proceedings and ICE check-ins.
Horowitz claimed that Pechman’s order expanded catch and release, the logic being that previously only families and unaccompanied minors were protected from indefinite detention. Release on bond, however, has been a possibility for undocumented immigrants since at least 1996.
The Bush administration began releasing immigrants on their own recognizance when the U.S. Immigration and Customs Enforcement ran out of space in its detainment facilities, and according to National Public Radio, releasing asylum-seekers on bond has been an immigration policy since 2005.
Fact or fiction: Did Pechman’s order nullify the 1996 Immigration and Nationality Act, which required detention for those seeking asylum?
Horowitz pointed out that the 1996 version of the Immigration and Nationality Act required asylum-seekers to be held in detention until it’s been determined they’re eligible for asylum because they have a “credible fear of persecution” as defined by the law.
The 1996 Immigration and Nationality Act already allowed undocumented immigrants to be released from detention on bond. And U.S. immigration policy already considered asylum-seekers eligible for release from custody before Pechman’s ruling.
This Univision investigation from last year includes examples of judges setting bond for undocumented immigrants who are fleeing violence in their home countries. Univision analyzed 8,000 bonds issued by immigration courts from January 2016 to March 2017 and found that individual judges and courts were the biggest factors when it comes to who is selected to be released on bond.
Fact or fiction: Does the order require immigration judges to provide bond hearings to all migrants in custody within seven days?
No, the order only applies to those seeking asylum, and they must request a bond hearing in order to receive one.
Fact or fiction: Does allowing bond mean thousands of undocumented immigrants are “irrevocably released into our communities”?
No. Immigrants released on bond can still be arrested and placed in detention facilities for immigrants, and if they appear in immigration court, they may be ordered to leave the country.
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