The Ninth Circuit Court of Appeal Seal
The Ninth Circuit Court of Appeal Seal


A federal judge in Seattle ruled Tuesday that asylum-seeking immigrants detained for being in the United States illegally have the right to a bond hearing in immigration court rather than being held until their cases are complete. This ruling was issued despite the knowledge that approximately 90% of asylum-seekers who are not detained skip their immigration court hearings.

U.S. District Judge Marsha Pechman said it is unconstitutional to indefinitely detain immigrants who illegally enter the United States seeking asylum protections. The decision reverses an April directive from Attorney General William Barr ordering immigration judges not to release migrants on bail after an application successfully established "a credible fear of persecution or torture" in the home country - a policy that has been in place since 2005, as reported by NPR. The credible fear test is also under recent scrutiny, even earning the title of loop-hole according to the White House, as nearly 90% of asylum-seekers pass their initial credible fear test, but upon further review just over two-thirds are found not to have true credible fear of returning to their home country.

According to the court document:

The court finds that plaintiffs have established a constitutionally-protected interest in their liberty, a right to due process, which includes a hearing before a neutral decision maker to assess the necessity of their detention and a likelihood of success on the merits of that issue.

In response to the ruling, the office of the White House press secretary said in a stinging statement this morning:

Yesterday, a single, unelected district judge in Seattle issued an injunction that prevents the government from ensuring the detention of those aliens who cross the border unlawfully until the completion of their immigration court proceedings. The district court's injunction is at war with the rule of law. The decision only incentivizes smugglers and traffickers, which will lead to the further overwhelming of our immigration system by illegal aliens. No single district judge has legitimate authority to impose his or her open borders views on the country.

This ruling comes during a widespread shortage of immigration judges that has caused massive delays in processing hearings. The most recent data available from The Transactional Records Access Clearinghouse show a total of 424 judges nationwide face a backlog of 892,517 cases on the courts' active dockets as of the end of April, as reported by NPR.

TRAC reports:

The three largest immigration courts were so under-resourced that hearing dates were being scheduled as far out as August 2023 in New York City, October 2022 in Los Angeles, and April 2022 in San Francisco.

Judge Pechman also modified a preliminary injunction issued earlier this year. The new injunction requires the government to ensure bond hearings are held within seven days after eligible asylum-seekers request them. If the government exceeds that limit, the undocumented immigrant must be released, as reported by NPR. The Department of Justice is expected to quickly appeal the ruling.

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Updated: Wed, Jul 17th 2019 @ 12:10pm EDT