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The Attorney General’s Latest Decision Could ‘Hugely’ Expand Immigrant Detention

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A bunk bed and desks inside a cell are seen at the Caroline Detention Facility in Bowling Green, Virginia, on August 13th, 2018. A former regional jail, the facility has been contracted by the U.S. Department of Homeland Security Immigration and Customs Enforcement to house undocumented adult immigrant detainees for violations of immigration laws.

While most of the attention directed toward Attorney General William Barr has to do with the imminent release of the Mueller report, Barr released his first major interpretation of immigration law on Tuesday. His decision blocks thousands of detained asylum seekers from requesting release on bond if they were first apprehended crossing the border. According to immigration policy experts, the new decision could vastly expand the number of immigrants subject to detention in the United States.

Because the nation’s immigration system is housed within the Department of Justice and not the judicial branch, Barr, as head of the department, can operate as what some call a “one-man Supreme Court.” Barr’s broad latitude to interpret immigration law has allowed him to decide on what’s called “Matter of M-S-,” an aspect of the law concerning people who request asylum after having already been detained by U.S. immigration authorities.

Even when authorities arrest someone crossing the border illegally, that person still has a right to request asylum in the U.S. In such a scenario, officials will conduct what’s called a “credible fear” interview to see if the person detained might indeed be fleeing for their life, at which point they’re taken out of deportation proceedings and put into asylum proceedings. Up until Barr’s decision, judges could make the decision to grant release on bond to these asylum seekers—after all, a transfer to the asylum process implies that these people are not illegal immigrants, but rather refugees seeking asylum in the U.S.

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