For almost two decades, asylum seekers taken into Border Patrol custody who passed a “credible fear” interview have been eligible to seek release from detention on bond while they go through the asylum process.
But now that right is gone. On July 29, a federal district court in Washington erased a key legal victory which had kept the Trump administration from eliminating those bond hearings. The order was the inevitable result of the Supreme Court’s recent decision in Garland v. Aleman Gonzalez, which limited the power of courts to order bond hearings in class action cases.
For now, certain people who pass asylum screening interviews may be detained for months or even years without the opportunity to ask an immigration judge to release them during their asylum proceedings.
Padilla v. ICE is a class action lawsuit brought on behalf of people who enter the United States between ports of entry, are put in a fast-tracked deportation process called expedited removal, and who pass an initial screening interview about their requests for asylum.
In April 2019, the Trump administration tried to eliminate bond hearings for these asylum seekers in a decision by then-Attorney General William Barr called Matter of M-S. But in July 2019, right as the decision was to go into effect, the district court in Padilla issued a preliminary injunction ordering the government to provide class members with bond hearings as part of their constitutional right to due process.
This order remained in effect until last Friday. But its fate was sealed in the Supreme Court’s Aleman Gonzalez decision. In Aleman Gonzalez, the Supreme Court held that lower courts cannot issue class-wide injunctions to force the government to act (or not act), with respect to the implementation of certain immigration laws—including the immigration detention statutes. Since the Padilla injunction was similar to the one that the Supreme Court ruled against in Aleman Gonzalez, it too could no longer be upheld.
Thankfully, the Padilla case is not over. The district court still has to reconsider its original decision that class members have a constitutional due process right to a bond hearing, following the Supreme Court’s 2020 decision in Department of Homeland Security v. Thuraissigiam, which limited due process rights for certain recent arrivals. The district court will also need to consider whether to issue declaratory relief—a statement of what the law requires, without a specific order instructing the government to do something—or other relief on the remaining legal claims.
In the meantime, these asylum seekers are left without bond hearings. While they may try to pursue individual habeas petitions demanding a bond hearing, this still leaves many people at risk of lengthy detention.
But the government could still act. Nothing prevents the Biden administration from protecting the due process rights of asylum seekers by releasing these people—all of whom have been screened and found to have a credible fear of persecution—on parole.