At the time, public outrage had reached a fever pitch after thousands of parents had been separated from their children at the southern border under President Donald Trump’s “zero-tolerance” policy, which sought to criminally prosecute anyone who crosses the border without documentation. In response to the backlash, the administration eventually reunited some parents with their children. Here in Washington, Padilla was the first.
Now, she and several other mothers who were detained in Washington are at the center of a national fight that could decide the fate of thousands of immigrants seeking asylum, while also pitting the Trump administration against a federal court in Washington state.
Padilla’s case stems from the experiences that followed her illegal entry into the U.S. After crossing the border last May, Padilla was detained and separated from her son. Six weeks later, she was interviewed by an asylum officer and found to have a credible fear of returning back to her native Honduras. She was granted a bond hearing only after she filed a lawsuit against the administration. After paying an $8,000 bond, she was released from the Northwest Detention Center in Tacoma. In mid-July, she was reunited with her son. She currently lives in the Pacific Northwest as she awaits for her immigration case to proceed.
The current lawsuit, brought forward by the Northwest Immigrant Rights Project, initially challenged the legality of Trump’s zero-tolerance policy and family separation. It now questions the federal government’s practice of prolonging an asylum seeker’s detention by failing to promptly provide credible-fear interviews and bond hearings.
At the beginning of April, Padilla and her fellow plaintiffs scored a victory. Judge Marsha J. Pechman handed down a decision in the case in U.S. District Court for the Western District of Washington, saying that it is up to the Department of Homeland Security to present a reason that an asylum seeker should be denied bond — such as concerns that the migrant poses a danger to the community or is a flight risk.
In her ruling, Pechman noted that many asylum seekers have “been found to have a credible fear of injury or death” and should not be forced to choose between giving up their asylum claim for fear of a prolonged detention or allowing themselves to be deported.
“The Constitution does not require these plaintiffs to endure such a no-win scenario,” Pechman wrote.
Pechman ruled that asylum seekers should be given credible-fear interviews within 10 days and bond hearings within seven days of requesting them. She gave the government 30 days to implement her order.
But before that 30 days were up, U.S. Attorney General William Barr directed immigration judges to deny migrants seeking asylum the opportunity to a bond hearing. According to the Transactional Records Access Clearinghouse (TRAC), about half of bond motions are granted. Under Barr’s order, undocumented immigrants seeking asylum would be held indefinitely — throughout their immigration proceedings. Barr gave the Department of Homeland Security 90 days to implement his new procedure.
Now lawyers for the Northwest Immigrant Rights Project are asking Judge Pechman to make sense of the conflict between Barr’s order and the court decision.
Immigration advocates fear that, under Barr’s ruling, detention bed space will grow even scarcer because individuals seeking asylum will be held for months or even years as they wait for their immigration cases to play out. Approximately 50,233 migrants are currently in detention, about 5,000 more than the congressionally mandated limit. The Department of Homeland Security can grant detainees parole, but has increasingly held back from doing so.
Because immigration courts fall under the Justice Department, the attorney general has the authority to refer cases to himself and overturn decisions. In his order, Barr unilaterally reversed a 2005 Board of Immigration Appeals ruling that indicated asylum seekers have a right to a bond hearing unless they present themselves at a port of entry. Asylum seekers who present themselves at ports of entry are not entitled to the same due process protections because they are not considered to have entered the country.
The origins of the order extend to Barr’s predecessor, Jeff Sessions. Last year, the then-attorney general had asked to review a case known as the “Matter of M-S-,” which involved an Indian man who crossed into the United States from Mexico and claimed asylum. Following his appointment in February, Barr reviewed the case and came to the decision that asylum seekers like M-S- shouldn’t have access to bond or bail hearings.
Barr cited a 2018 Supreme Court case, Jennings v. Rodriguez, in which the court found that the 1952 Immigration and Nationality Act didn’t give certain undocumented immigrants in deportation proceedings the right to a bond hearing, even if they were held for more than six months.They included those with a criminal background. The Supreme Court case did not specifically address asylum seekers.
The federal government has since been limited in how long it can hold families, the result of a 1997 federal court decision known as the Flores settlement, which requires the release of children after 20 days.
Meanwhile, Pechman’s ruling is on hold. Matt Adams, the Northwest Immigrant Rights Project’s legal director, explained that the group has asked the judge to move quickly on the matter and find a resolution. But experts say the disagreement between the court and the attorney general points to a conflict of interest because immigration courts operate under the Justice Department and the attorney general.
Judge A. Ashley Tabaddor of the National Association of Immigration Judges said the clash between Pechman and Barr is a prime example of the attorney general inserting “himself into judicial decision making and rewriting the rules.”
“People can have their opinions on whether this is good or bad,” Tabaddor said of Barr’s decision. But the attorney general’s power to review cases “removes immigration judges as a check.”
“The potential ramification is basically designed to put the decision to detain people within the sole authority of the Department of Homeland Security,” Tabaddor said.
In a statement, the American Immigration Lawyers Association said: “With full control over the immigration court system, the attorney general is not only rewriting asylum and detention law but also stripping judges of the most basic operational authorities and judicial independence.”
“The immigration courts must be allowed to operate as courts, not puppets of the attorney general,” said Jeremy McKinney of the American Immigration Lawyers Association, while calling for an immigration court system separate from the Department of Justice.
The Department of Justice did not respond to Crosscut's request for comment.
On Tuesday, Congresswoman Pramila Jayapal, Congressman Adam Smith (D-WA), and U.S. Senator Cory Booker (D-NJ) reintroduced a bill, called the Dignity for Detained Immigrants Act, which would directly combat Barr's order. The bill would also target what sponsors of it referred to as the "inhumane conditions" of detention centers. It would also aim to end the use of county jails for detention.
If and when implemented, Barr's decision would also allow immigration officials to detain immigrants like Padilla, even though they’ve been previously released, since asylum seekers would suddenly become ineligible for bond, Adams said.
