Attorney General Barr Cracks Down on Catch-and-Release

By Heather Ham-Warren | April 18, 2019

Asylum loopholes have been thrust into the spotlight in the last year after several caravans—comprised of thousands of economic migrants—began forming in Central America to march to the U.S. and claim asylum upon arrival. Over time, these economic migrants have learned magic words that trigger a series of actions meant to protect the most vulnerable of our neighbors.

By simply claiming asylum, they are entitled to a “credible fear” hearing during which it is determined whether they have a legitimate fear of persecution in his/her home country on the basis of race, religion, nationality, political opinion, or membership in a particular social group. In 2009, DHS only conducted 5,000 credible fear reviews. As of February of this year, there were over 855,000 active cases; and less than ten percent of aliens who were given a hearing were eventually granted asylum.

While only a small portion of asylum claims are valid, a backlog of cases has been created by the sheer number of frivolous claims that gain a hearing. As a result, aliens are typically released into the country and given notice to appear before an immigration judge weeks, months, or years later. Unsurprisingly, many of these individuals do not appear at their scheduled hearings.

To crack down on this catch-and-release loophole, Attorney General William Barr directed immigration judges to detain asylum-seekers until their removal proceedings have concluded. The decision has been in the works since Oct. 12, 2018, when Barr’s predecessor, Jeff Sessions, directed the Board of Immigration Appeals to refer the detention of asylum-seekers for review. Sessions invited interested parties to submit briefs.

Despite the growing crisis at the border, Congress has failed to pass any meaningful immigration-related legislation. However, Barr’s decision is not without legislative merit. In fact, the Immigration and Nationality Act, actually mandates that aliens with credible fear must be detained and are ineligible for bond regardless of whether they arrive at a valid port of entry or if they were apprehended in the interior.

The Attorney General’s order is a valuable step in the right direction. However, per the Flores Settlement Agreement, this decision will not be applicable to unaccompanied alien minors or family units, which account for nearly 60 percent of individuals apprehended in recent months. Furthermore, Barr opted to delay implementation of the order for 90 days to give the Department of Homeland Security enough time to find or create new detention space and reorganize current operations.