Attorney General William Barr issued a decision yesterday in Matter of M-S-, finding that aliens who are placed in removal proceedings after a positive credible-fear finding are ineligible for bond. This decision is only exceptional because the AG had to issue it at all. But he did have to, in order to reverse contrary Board of Immigration Appeals (BIA) precedent in Matter of X-K-.
Respectfully, I suggested that the BIA should have vacated that almost 14-year-old decision itself in an October 22, 2018, post captioned, well, "BIA Should Vacate Matter of X-K-". That followed an earlier October 18, 2018, post (discussing then-AG Jeff Sessions' certification of Matter of M-S- to himself for review) in which I explained how the major conclusions undergirding Matter of X-K- were wrong, and also that the Supreme Court had effectively overruled that precedent in its decision in Jennings v. Rodriguez. The BIA should have taken my advice six months ago, before the disaster at the border became even more unmanageable.
By way of background, as I explained in that October 18 post:
Section 235(b)(1)(B)(ii) of the INA would appear to mandate the detention of aliens who are found to have a credible fear of persecution after entering (or attempting to enter) the United States without inspection, who are inadmissible because of fraud or because they lack documents that would allow them to be admitted to the United States. It states, in pertinent part:
Referral of certain aliens.- If the officer determines at the time of the [credible fear] interview that an alien has a credible fear of persecution ... the alien shall be detained for further consideration of the application for asylum. [Emphasis added.]
I say that it would "appear to mandate" detention, because that is not how the BIA saw it 13 years ago. In Matter of X-K-, a May 2005 case, the BIA held that an alien who was apprehended after illegal entry and placed into expedited removal proceedings is, generally, eligible for bond after a positive credible fear finding. The BIA in that matter did not even consider section 235(b)(1)(B)(ii) of the INA (and it is unclear whether the Department of Homeland Security (DHS) referenced it in its arguments), but rather the BIA based its determination on various regulations and the legislative history of the expedited removal provision from section 302 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA).
Specifically, in Matter of X-K- [the BIA] found:
The DHS argues that notwithstanding the fact that the respondent is now in "normal non-expedited removal proceedings" under section 240 of the Act and thus cannot have an expedited removal order entered against him, even if he does not prevail on his applications for relief, it nonetheless retains exclusive custody jurisdiction over the respondent. The Act is silent, the legislative history suggests otherwise, and we are not persuaded that there is regulatory authority for the DHS's position that such aliens are not eligible for a bond hearing before an Immigration Judge. H.R. Conf. Rep. No. 104-828, at 209.
With due respect to the BIA, almost everything about this statement is wrong. First, as noted, section 235(b)(1)(B)(ii) of the INA ("the alien shall be detained for further consideration of the application for asylum") (emphasis added) is about as clear with respect to detention as it could be.
Second, the conference report for IIRIRA, that is the legislative history, states in the cited passage:
New paragraph (b)(1) provides that if an examining immigration officer determines that an arriving alien is inadmissible under section 212(a)(6)(C) (fraud or misrepresentation) or 212(a)(7) (lack of valid documents), the officer shall order the alien removed without further hearing or review, unless the alien states a fear of persecution or an intention to apply for asylum. ... The provisions also may be applied, in the sole and unreviewable discretion of the Attorney General, to an alien who has not been paroled or admitted into the United States and who cannot affirmatively show to an immigration officer that he or she has been continuously present in the United States for a period of 2 years immediately prior to the date of the officer's determination.
An alien who states a fear of persecution or an intention to apply for asylum shall be referred for interview by an asylum officer. ... If the officer finds that the alien has a credible fear of persecution, the alien shall be detained for further consideration of the application for asylum under normal non-expedited removal proceedings. [Emphasis added.]
Respectfully, no regulatory authority (or even legislative history for that matter) is necessary where the underlying legislation is as clear as section 235(b)(1)(B)(ii) of the INA.
In any event, Justice Alito, writing for the Court in Rodriguez, held that section 235(b)(1) of the INA "mandate[s] detention of aliens throughout the completion of applicable proceedings and not just until the moment those proceedings begin."
Frankly, this conclusion could not be clearer, and the attorney general in Matter of M-S- is required to overrule Matter of X-K-. As a result, all aliens referred to removal proceedings following a credible fear determination under section 235(b) of the INA will be subject to mandatory detention, without the possibility of bond redeterminations by immigration judges.
In addition, I noted in that post that in an August 11, 2004, notice expanding expedited removal (as allowed by statute, referenced in the conference report above) to aliens apprehended within two weeks of an illegal entry, DHS had specifically stated:
Any alien who is placed in expedited removal proceedings under this designation will be detained pursuant to section 235(b) of the Act ... with certain exceptions, until removed. However, aliens determined to have a credible fear may be considered by DHS for parole in accordance with section 212(d)(5) of the Act and 8 CFR 212.5. Aliens detained pursuant to the expedited removal provisions under section 235 of the Act (including those aliens who are referred after a positive credible fear determination to an immigration judge for proceedings under section 240 of the Act) are not eligible for bond, and therefore are not eligible for a bond redetermination before an immigration judge. [Emphasis added.]
The AG in Matter of M-S- undertook an exhaustive analysis of the issue of whether those aliens are eligible for bond, finely parsing the language of the expedited-removal provisions in section 235 of the INA, reviewing the implementing regulations, and examining the decision in Rodriguez, and found that they "all lead to the same conclusion: that all aliens transferred from expedited to full proceedings after establishing a credible fear are ineligible for bond."
He did find that DHS has the authority to parole (that is, release from custody) aliens placed into removal proceedings after a positive credible-fear finding under section 212(d) of the INA. That provision states, in pertinent part:
The [Secretary of Homeland Security] may ... in his discretion parole into the United States temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the United States.
That authority is limited, however, to DHS, and does not extend to either the immigration courts or the BIA.
The AG's decision in Matter of M-S- raises two questions. The first is how the BIA more than 13 years ago managed to get this issue wrong in the first place. The statute is clear, and that should have been the end of it. I would note that at the time that the BIA issued its decision in Matter of X-K-, in 2005, only 4,712 aliens in expedited removal proceedings claimed credible fear, and the immigration courts only reviewed 114 negative findings by asylum officers of credible fear, according to the Congressional Research Service (CRS). That is to say that the population of cases at the time the BIA issued its decision was small, and therefore the deleterious effects of that decision were limited.
By FY 2013, on the other hand, according to U.S. Citizenship and Immigration Services (USCIS) statistics, the agency completed 35,660 credible-fear cases in FY 2013 (with credible fear found in 30,485), 47,870 in FY 2014 (with credible fear found in 34,958), 48,212 in FY 2015 (with credible fear found in 35,030), and 91,786 in FY 2016 (with credible fear found in 73,017). By FY 2018, USCIS was completing 97,728 credible fear cases, finding credible fear in 74,677 of those. Despite the huge increase in the number of removal cases in which aliens were eligible for bond under the erroneously decided Matter of X-K-, however, the BIA never revisited the issue.
Perhaps, if the BIA had ruled correctly in the first place, the disaster at the border that we're seeing today would never have taken place, or would have been significantly mitigated. Many aliens would not, logically, have claimed credible fear if they had known they would be detained until they were either granted asylum or removed. Hindsight is 20-20, however.
The second is why the BIA waited months for the AG to rectify its error. Rodriguez was issued on February 27, 2018, and as noted that decision effectively overruled Matter of X-K-. The BIA's failure to recognize this fact for almost 14 months (until the AG acted) is inexcusable. Even I recognized the effect of that decision in a March 1, 2018, post about the Supreme Court's decision, in which I stated:
Not only does this decision clarify the law relating to detention under the three provisions addressed, but it will also likely lead to a significant increase in the number of aliens who are detained following a "credible fear" determination following apprehension after illegal entry along the border or at the ports of entry.
Still, no action. In the interim, through January 2019, according to USCIS statistics for FY 2018 and FY 2019, 72,248 additional aliens have been found to have credible fear, most of whom likely entered illegally and were therefore eligible for bond.
In fact, the AG recognized the scope of the BIA's decision in footnote 8 in Matter of M-S-, stating:
Because Matter of X-K- declared a sizable population of aliens to be eligible for bond, DHS indicates that my overruling that decision will have "an immediate and significant impact on [its] detention operations." ... DHS accordingly requests that I delay the effective date of this decision "so that DHS may conduct necessary operational planning." ... I will delay the effective date of this decision for 90 days so that DHS may conduct the necessary operational planning for additional detention and parole decisions.
Better late than never.