The on again, off again world of bond hearings for asylum seekers

This is the world many of our clients live in.

Asylum seekers with a credible fear of persecution cannot get a bond hearing
On April 16, 2019, the Attorney General issued a decision in Matter of M-S-, 27 I&N Dec. 509 (A.G. 2019), in which he overruled the Board of Immigration Appeals decision in Matter of X-K-, 23 I&N Dec. 731 (BIA 2005), and concluded that all aliens subject to expedited removal (including those encountered between the ports-of-entry and in the interior of the United States), who are referred for full removal proceedings under section 240 of the Immigration and Nationality Act (INA) after being found to have a credible fear are ineligible for release on bond.

Asylum seekers with a credible fear of persecution can get a bond hearing
On July 2, 2019, the U.S. District Court for the Western District of Washington issued a nationwide preliminary injunction in Padilla v. ICE, No. 18-928, 2019 WL 2766720 (W.D. Wash. July 2, 2019), ordering the Department of Justice’s Executive Office of Immigration Review (EOIR) to conduct bond hearings within seven (7) days of a bond hearing request by a class member, and to release such aliens if a bond hearing is not conducted within seven (7) days. The class of aliens to whom the preliminary injunction applies includes: “All detained asylum seekers who entered the United States without inspection, were initially subject to expedited removal proceedings under [INA § 235(b)], were determined to have a credible fear of persecution, but are not provided a bond hearing with a verbatim transcript or recording of the hearing within seven days of requesting a bond hearing.”

Asylum seekers with a credible fear of persecution cannot get a bond hearing
On Friday, July 12, 2019, the U.S. Court of Appeals for the Ninth Circuit granted a temporary stay of the district court’s preliminary injunction.

Asylum seekers with a credible fear of persecution can get a bond hearing
On July 22 a federal appeals court ruled that asylum-seekers must continue to receive bond hearings while the court considers the Trump administration’s appeal to deny bond hearings with procedural protections to asylum seekers.

The Ninth Circuit Court of Appeals rejected the Trump administration’s bid to arbitrarily jail asylum-seekers without a bond hearing while it considers whether to keep in place a court decision by a federal district judge in Seattle. The decision held that the policy of denying bond hearings violated due process. The district judge also previously held that the government is required to provide basic procedural protections during the hearings, but the appeals court declined to require the government to put those protections in place while the appeal is pending.

As the administration does all it can to harm asylum seekers, the Northwest Immigrant Rights Project, American Immigration Council, and the American Civil Liberties Union fight to protect their rights. We thank them.