A federal appeals panel appeared to take issue on Tuesday with a decision by the Trump administration that could subject immigrants to indefinite detention.
The challenge is to a ruling announced by Attorney General William Barr earlier this year that some asylum seekers who have established fears of returning to their origin countries and are subject to deportation cannot be released on bond by immigration judges.
Just minutes into oral arguments before the 9th US Circuit Court of Appeals on Tuesday, Judge Michael Daly Hawkins asked Justice Department attorney Lauren Bingham: “Can we begin by your telling us if the government’s position is that individuals in this class can be detained indefinitely with no process of a bond hearing? Yes or no?”
“I don’t think that’s the issue in this case,” Bingham said.
“I don’t care what you think. I would like a yes or no answer to the question,” Hawkins said.
The length of time asylum seekers could be held in detention became a point of contention as a three-judge panel grappled to understand how long migrants could be detained without the option of a bond hearing. Bingham pushed back, arguing that the end point is when immigration proceedings come to a close.
In July, a federal judge in Seattle blocked the Trump administration policy denying bond hearings to asylum seekers.
US District Judge Marsha Pechman ruled that people who are detained after entering the US to seek protection are entitled to bond hearings and the chance to be released from custody under the Constitution.
The American Civil Liberties Union, Northwest Immigrant Rights Project and American Immigration Council brought the suit in May against Immigration and Customs Enforcement, Customs and Border Protection and their parent department, Homeland Security.
The ACLU called the decision “pointlessly cruel and irrational.”
While advocates have argued that bonds set for detained asylum seekers were often prohibitively high, a number of crowdfunding efforts have aimed to help immigrants get money to pay bonds and get out of detention.
Barr’s ruling affects migrants who are apprehended after illegally crossing the border. Asylum seekers who presented themselves at legal ports of entry were already unable to be released on bond by immigration courts.
Last month, former immigration judges and members of the Board of Immigration Appeals filed an amicus brief in the case. In it, they argued, in part, that “detained noncitizens cannot adequately prepare their cases because it is difficult for them to obtain and confer with counsel, as well as to collect evidence relevant to their cases.”
The Trump administration has rolled out a series of policy changes aimed at dramatically limiting who’s eligible for asylum in the United States. While some have been allowed to proceed for the time being, others have been blocked by the courts.