As part of the Trump administration's effort to slow migrants from crossing the southern border, Attorney General William Barr has ordered that some of those claiming asylum should be denied bail, meaning they could be stuck behind bars for years, rather than days.
Under previous policy, those who seek asylum were granted a bail hearing if they claimed "credible fear" threats or threats of persecution in their home country while waiting for their cases to be heard.
Barr's instruction to immigration judges, whom the attorney general oversees and are not part of the judicial branch, comes out of a case involving an Indian man who was picked up "50 miles" away from the southern border in Mexico and claimed asylum. Barr says in similar cases bail can be withheld.
"The question here is whether, under [immigration law], aliens transferred after establishing a credible fear are eligible for release on bond," he continued.
"I reverse the order granting bond to the respondent," Barr wrote in his decision, stating that unless the Department of Homeland Security grants parole under a special exception, under the applicable legal provisions "he must be detained until his removal proceedings conclude."
According to Barr's opinion, the person seeking asylum could ask for bond, but it is entirely up to DHS. The order doesn't affect unaccompanied minors along the southern border, ether.
"There is no way to apply those provisions except as they were written—unless paroled, an alien must be detained until his asylum claim is adjudicated," Barr wrote.
In Washington state earlier month, a federal judge agreed with the policy that those with "bona fide" asylum claims to have a bail hearing within seven days to determine if they can be released on bond while they wait for their court proceedings.
The adjudication of asylum claims could take months or years - given the backlog of cases and lack of immigration judges. In its latest budget request, the Justice Department has requested funds to hire more judges.
The ACLU said it will sue.
"This is the Trump administration’s latest assault on people fleeing persecution and seeking refuge in the United States. Our Constitution does not allow the government to lock up asylum seekers without basic due process. We'll see the administration in court," Omar Jadwat, director of the ACLU’s Immigrants’ Rights Project, said in a statement.
"Catch and Release is an obsolete term. It is now Catch and Detain. Illegal Immigrants trying to come into the U.S.A., often proudly flying the flag of their nation as they ask for U.S. Asylum, will be detained or turned away," the president tweeted in November 2018.
This is just the latest step that the Trump administration has taken to combat what Trump calls a crisis on the southern border.
In May 2018, then-Attorney General Jeff Sessions enacted a zero-tolerance policy which lead to the separation of families along the border.
Sessions at the time, said that the policy was a "deterrent" for those who attempt to cross the southern border.
The president ended the policy months later in the face of widespread criticism.