Attorney General Barr Closes Catch-and-Release Asylum Loophole

The Attorney General issued an important decision on Tuesday that closes a Bush-era catch-and-release loophole in our immigration laws. The loophole allowed thousands of illegal aliens caught entering the U.S. without papers near the Mexican border to post bond and disappear into the interior of the United States. The AG decision closely tracks a friend-of-the-court brief submitted by the Immigration Reform Law Institute (IRLI) in November 2018.

Since 1996, a federal statute has required that most aliens caught illegally entering the U.S. be detained while their removal cases are processed. Among the aliens subject to mandatory detention are those in so-called expedited removal proceedings. They can be immediately removed, with no appeal allowed.

But if those illegal aliens “express a fear of persecution,” they are diverted to the so-called “credible fear” process, where they are interviewed by an asylum officer. If the asylum officer thinks an alien’s story is “credible,” his case is transferred into the massively backlogged full removal hearing process, and the alien is no longer subject to immediate removal.

In 2005, the Board of Immigration Appeals held that an illegal alien whose case was transferred to the regular removal docket should be reclassified as part of a smaller group of illegal aliens the federal statute explicitly makes eligible for release on bond.

Thirteen years and thousands of releases later, the U.S. Supreme Court disagreed. In the 2018 Jennings v. Rodriguez case, the Supreme Court held that illegal entrants with transferred cases, along with beneficiaries of several other removal loopholes, are definitely among the illegal aliens for whom detention pending a final decision in their removal case is mandatory.

In its 2018 brief to the Attorney General, IRLI explained just how the Supreme Court ruling had closed multiple loopholes that were fueling this and other catch-and-release policies from the Bush and Obama administrations.

“We commend the Attorney General for his sensible ruling that the plain language of this statute means what it says,” commented Dale L. Wilcox, executive director and general counsel of IRLI. “This decision gives the American people hope that the long era when anti-borders zealots dominated immigration enforcement agencies may at last be passing. But our task remains a big one. Nothing less than constant legal vigilance will be needed to repair the rot in America’s immigration enforcement and the rule of law.”

The case is Matter of M-S-, 27 I. & N. Dec. 509 (Attorney General). IRLI’s amicus brief is available here.