Will Sessions use indefinite mandatory detention to reduce the demand for asylum hearings?

President Donald Trump set the course with his January 25, 2017, Executive Order on Border Security and Immigration Enforcement Improvements, which says the Secretary of Homeland Security “shall immediately take all appropriate actions to ensure the detention of aliens apprehended for violations of immigration law pending the outcome of their removal proceedings or their removal from the country to the extent permitted by law.”

Those last six words had the potential to be as troublesome as protests in the streets, as courts over the years had put clear limits on when and how long people could be detained.

But a Supreme Court decision this year would appear to permit – or even require – Trump to detain people indefinitely in expedited removal proceedings.

It’s all about process.

Previously, aliens would appear at the border, ask for asylum, and would be allowed into the country to wait for an asylum hearing – often never to be seen again. That’s why expedited proceedings were created in the 1990s.

Behind the Trump order was the notion that the prospect of mandatory detention would deter illegal crossings to seek asylum. Trump called it an end to “catch and release.”

Those who are apprehended at or near the border after making an illegal entry are placed in expedited removal proceedings, in which detention is mandatory. But there’s a caveat: If an asylum seeker can establish a credible fear of persecution, the Board of Immigration Appeals (BIA) has held that mandatory detention no longer applies. 

In that case, the asylum seeker is transferred into regular proceedings for an asylum hearing before an immigration judge, and he can be released from custody by the judge.

But the prospect is now on the horizon of asylum seekers remaining in detention regardless of being able to establish a credible fear of persecution.

Attorney General Jeff Sessions is now reviewing that BIA decision to determine whether it should be overruled in light of the Supreme Court’s ruling in Jennings v. Rodriguez.

The Ninth Circuit had held that an alien who establishes a credible fear of persecution cannot be held indefinitely under the expedited removal provisions of the Immigration and Nationality Act without bond hearings every six months at which the government has the burden of showing that further detention is necessary.

But in Jennings v. Rodriguez, the Supreme Court rejected that.

The pertinent provision states when it’s been determined that a person has a credible fear of persecution, he “shall be detained for further consideration of the application for asylum,” and the Supreme Court held that this language “mandate(s) detention of aliens throughout the completion of applicable proceedings and not just until those proceedings begin.”

In other words, mandatory detention continues to apply until they have been granted asylum, deported, or – and this is key – they choose voluntarily to leave on their own.

If aliens placed in expedited removal proceedings have to be detained until they can be deported or are granted asylum, most of them will go home rather than stay at a detention center on a military base for several years with no realistic hope of being granted asylum.

According to Adam Cox, a leading expert on immigration and constitutional law, Justice Department lawyers under both Democratic and Republican administrations have argued that undocumented aliens apprehended at the border lack due process protections, and the Supreme Court has never clearly resolved the dispute.

There was an uproar – and some backtracking – over detaining children for even relatively short periods.  How will the American public react to people – men, women, and children – being put in mandatory detention that can last for months or even years?

But this change in the law wasn’t Trump’s idea. The Supreme Court seems to be saying that it is required by the statutory provisions for expedited removal proceedings.

In any case, Sessions has to reduce the demand for asylum hearings before an immigration judge.

The immigration court couldn’t handle its caseload before. A recent wave of asylum seekers has only made it worse. 

The 351-judge immigration court had a backlog of 764,561 cases as of the end of August, which was a  41 percent increase compared to the 542,411 cases pending at the end of January 2017, when President Trump took office. The average wait for a hearing is two years.

Sessions is trying to reduce the backlog by hiring more judges and imposing quotas, and he is attempting to reduce the demand for asylum hearings on meritless persecution claims by reviewing key cases and rendering decisions that provide guidelines for the judges on how they should decide their asylum cases.

Most are fleeing crime, violence, gangs, and domestic abuse, which technically aren’t legitimate persecution grounds. Sessions is telling the judges to stop granting asylum on these grounds in the absence of special circumstances, making waiting in endless detention pointless for most of them.

His next step – with a reversal of the BIA ruling – may be to discourage aliens in expedited proceedings from applying for asylum in the first place.

We’re not talking small numbers. In the first four months of fiscal 2018, 22,355 people in expedited removal proceedings were able to establish a credible fear of persecution. At that rate, approximately 89,420 asylum cases will be added to the immigration court’s backlog in fiscal 2018. 

If indefinite detention in such proceedings reduces the demand for asylum hearings, the use of such proceedings almost certainly will be expanded.

Indefinite detention also will likely deter illegal entries and encourage voluntary departures.

If these measures are not successful in reducing the backlog to a manageable level, the population of undocumented aliens will be larger when Trump’s presidency ends that it was when it began. 

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.