Judge Robert Pitman of the U.S. District Court for the Western District of Texas (W.D. Tex.) issued an order last week in Siac Guzman v. Bondi, directing DHS to release from immigration custody an alien who entered illegally 19 years ago and who was arrested at his home on Halloween. Such orders have been commonplace since DHS changed its detention policies earlier this year, but are they correct? The answer likely isn’t as clear cut as a lot of jurists seem to believe.
Section 235(b) versus Section 236(a)
Section 236(a) of the Immigration and Nationality Act (INA) permits immigration officers to arrest aliens on administrative warrants “pending a decision on whether the alien is to be removed from the United States”.
Once they are arrested, section 236(a) gives immigration officers three options: (1) to “continue to detain the arrested alien”; (2) to release the alien on a bond of not less than $1,500; or (3) to release the alien under a little-used authority known as “conditional parole”, which is different from the more commonly utilized “parole” under section 212(d)(5)(A) of the INA.
Certain aliens arrested on warrant under section 236(a) of the INA are not eligible for release, however.
Specifically, section 236(c) of the INA bars the release of any alien inadmissible on the criminal grounds of removal in section 212(a)(2) of the INA and the “security and related” grounds in section 212(a)(3) of the INA, as well as certain aliens who are deportable under the criminal grounds in section 237(a)(2) and security grounds in section 237(a)(4) of the INA.
Finally, an amendment to section 236(c) in Pub. L. 119-1, the “Laken Riley Act”, bars the release of aliens inadmissible because they are “present without admission or parole” under section 212(a)(6)(A) of the INA, because they sought admission through fraud under section 212(a)(6)(C) of the INA, or because they lack proper entry documents under section 212(a)(7) of the INA who have been “charged with”, “arrested for”, or “convicted of”, or who “admits having committed, or admits committing acts which constitute the essential elements of” certain crimes.
So far, so good.
The problem is a different section of the INA: Section 235 (which I refer to as the “inspection protocol”) mandates the detention of all “applicants for admission” to the United States and thus is seemingly at odds with the release provisions in section 236(a) of the INA.
“Admission” is defined in section 101(a)(13)(A) of the INA as “the lawful entry of [an] alien into the United States after inspection and authorization by an immigration officer”, while section 235(a)(1) of the INA” defines “applicant seeking admission” as:
An alien present in the United States who has not been admitted or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters) . . ..
More specifically (and importantly), section 235(a)(1) of the INA defines that term “for purposes of” title II, chapter 4 of the INA – which includes section 236(a).
In any event, the inspection protocol gives immigration officers two options for dealing with applicants for admission who are removable under 212(a)(6)(C) for seeking admission through fraud or who lack proper entry documents and therefore are removable under section 212(a)(7) of the INA.
Under section 235(b)(1), immigration officers can subject such aliens to “expedited removal”, which permits the immigration officers to issue a removal order to such alien provided the alien hasn’t been found to have a “credible fear” of persecution or torture.
If DHS goes that route, section 235(b)(1) of the INA mandates that the alien be detained “pending a final determination of credible fear of persecution and, if found not to have such a fear, until removed”, and also requires DHS to detain aliens who were subject to expedited removal but found to have a credible fear pending “further consideration of the application for asylum” by an immigration judge.
Alternatively, section 235(b)(2)(A) of the INA permits immigration officers to process those aliens subject to removal under sections 212(a)(6)(C) and 212(a)(7) of the INA the same way it deals with every other inadmissible “applicant for admission” by placing them into removal proceedings (under section 240 of the INA) before an immigration judge.
Again, however, section 235(b)(2)(A) of the INA mandates those aliens also be detained, as is clear from the language therein, which states in pertinent part:
in the case of an alien who is an applicant for admission, if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding under section [240 of the INA]. [Emphasis added.]
I’ll explain the highlights below, but for now just keep them in mind.
There is one more wrinkle to add to this analysis.
“Expedited removal” under section 235(b)(1) of the INA only applies to aliens encountered by CBP at the borders and the ports, and – at the executive branch’s option pursuant to section 235(b)(1)(B)(iii) of the INA – to any other alien who is removable under sections 212(a)(6)(C) or 212(a)(7) who:
has not affirmatively shown, to the satisfaction of an immigration officer, that the alien has been physically present in the United States continuously for the 2-year period immediately prior to the date of the determination of inadmissibility under this subparagraph. [Emphasis added.]
That highlight will also be explained below.
DHS Changes Its Detention Interpretation, and EOIR Follows Suit
The inspection protocol in section 235 was added to the INA by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), and for 29 years thereafter various administrations offered differing opinions on how the detention mandates therein were to be applied.
In its 2005 opinion in Matter of X-K-, for example, the BIA held that aliens subject to expedited removal who were placed into section 240 removal proceedings before an immigration judge following a credible fear finding were eligible for release on bond.
That was plainly at odds with the language of section 235(b)(1), but it wasn’t until more than a year after the Supreme Court concluded in its 2018 opinion in Jennings v. Rodriguez that aliens detained under sections 235(b)(1)(B)(ii) and 235(b)(2)(A) of the INA aren’t entitled to EOIR bond redeterminations that then-AG William Barr issued his own opinion (Matter of M-S-) overruling Matter of X-K-.
One constant interpretation throughout that period, however, was that aliens who entered illegally, evaded apprehension, and were arrested in the interior were eligible for bond under section 236(a) of the INA.
That changed, however, in July when acting ICE Director Todd Lyons issued a memo (as yet unpublished) “declar[ing] that immigrants who arrived in the United States illegally are no longer eligible for a bond hearing as they fight deportation proceedings in court”.
Thereafter, in September, the BIA issued an opinion in Matter of Yajure-Hurtado concluding that illegal entrants remain “applicants for admission” up to the point they’re either admitted or removed and therefore remain subject to mandatory detention under section 235(b) of the INA – essentially blessing Lyons’s interpretation.
Siac Guzman v. Bondi
That brings me to Judge Pitman’s recent order in Siac Guzman, which largely focuses on the tension between discretionary release in section 236(a) of the INA and mandatory detention under 235(b)(2)(A) of the INA.
The court concedes that the term “applicant for admission” in section 235(a)(1) of the INA “would be a broad enough category to include an individual like” Siac Guzman, “who was not admitted to the United States, regardless of how long” he has “resided in the United States”.
In other words, the judge found that Siac Guzman is subject to the inspection protocol.
But Judge Pitman concluded the alien is not subject to mandatory detention under section 235(b)(2)(A) of the INA even though he’s an applicant for admission.
That’s because, the court found, Siac Guzman is not also “seeking admission”, a "requirement” Judge Pitman reads “to mean a noncitizen [sic] present in the United States without admission who has recently arrived and is actively seeking admission, not a noncitizen [sic] who has been residing in the country for years”. (Emphasis in the original.)
Judge Pitman is not alone in reaching that conclusion, and in fact cites to a series of recent district court decisions issued post-Matter of Yajure-Hurtado that make the same finding, all premised on the conclusion that the phrase “seeking admission” in section 235(b)(2)(A) must mean something.
IIRIRA and the “Entry Doctrine”
Respectfully, however, that interpretation of section 235(b)(2)(A) ignores the history of that provision, and in particular what Congress was attempting to accomplish when it created the inspection protocol.
I’ve explained that history in-depth elsewhere, but briefly, IIRIRA was intended to eliminate a convoluted sorting process then in existence known as the “entry doctrine”.
Pursuant to that doctrine, if an alien like Siac Guzman had entered illegally “free from official restraint”, he’d be placed into deportation proceedings and would receive a broad range of procedural rights.
If an alien crossed illegally while actively pursued by an immigration officer and was apprehended, however, the alien would be placed into exclusion proceedings, with few constitutional protections.
The entry doctrine invited a lot of unnecessary litigation (check out the BIA’s opinion in Matter of G-, and you’ll understand), and so Congress in IIRIRA replaced “deportation” and “exclusion” proceedings with one unified process – “removal proceedings” under section 240 of the INA – and treated every alien who hasn’t been “admitted” as an “applicant for admission”.
“Seeking Admission”
In so doing, Congress created a legal fiction under which even illegal entrants were “applicants for admission” even though – by evading inspection at the ports – applying for “admission” as defined in section 101(a)(13)(A) of the INA was the last thing they intended.
Given that, no illegal entrant could be found to be “actively seeking admission”, and Judge Pitman’s logic would, expedited removal aside, scuttle the inspection protocol entirely, and frustrate Congress’s intentions in amending section 235 in IIRIRA.
Moreover, there is no limiting principle to the W.D. Tex.’s logic. At what point does “recently arrived” end, and where? Does it expire in a day, a week, a month? If an alien crosses illegally at Juarez and immediately hops a flight to Maine at El Paso, could the alien be stopped four hours later at the arrival airport and detained?
Such fine parsing is why IIRIRA ended the entry doctrine, but if Congress had the intention Judge Pitman ascribes to it, it would have defined the term “alien seeking admission” as it did with “admission” and “applicant seeking admission”.
Congress didn’t, and therefore the only way that term can logically be read in section 235(b)(2)(A) is in the context of the phrase as a whole, “an alien seeking admission” who “is not clearly and beyond a doubt entitled to be admitted”, and in the context of section 240(c)(2)(A) of the INA, which places the burden on an “applicant for admission” to prove “the alien is clearly and beyond doubt entitled to be admitted and is not inadmissible under section” 212 of the INA.
Simply put, if “aliens seeking admission” have shown they are not inadmissible during the inspection process, Congress in section 235(b)(2)(A) is saying that they are to be admitted, not detained. It’s only when they fail to do so that the detention mandate kicks in.
That’s the most logical interpretation, and the only one that doesn’t actively subvert Congress’s intentions in the rest of section 235.
The Section 236 Conundrum
That still leaves the issue of sections 236(a) and (c), the former permitting the discretionary release of certain aliens and the latter barring the release of certain (criminal and security-risk) aliens who are removable under section 212 of the INA.
One could argue that only aliens who haven’t been admitted, and who are therefore “applicants for admission” under section 235(a)(1) can be subject to inadmissibility under section 212, and that Congress thus didn’t intend the detention mandate in section 235(b)(2)(A) to apply to every applicant for admission.
There are two flaws in that logic, however.
First, aliens who have been paroled under section 212(d)(5)(A) of the INA are not subject to detention under section 235(b)(2)(A) of the INA but could still be – or become – removable under the section 212 grounds of inadmissibility listed in section 236(c) (with one exception I’ll discuss below).
Given that, by my estimate, nearly 2.9 million “applicants for admission” were paroled under the Biden administration, a provision mandating their detention in specific instances would be logical.
The sole reference in section 236(c) that would undermine that conclusion is to aliens inadmissible under section 212(a)(6)(A) – because they have neither been “admitted” nor “paroled” – who committed certain criminal offenses.
As noted above, that reference was added (on January 29) by the Laken Riley Act – an important point for two reasons: (1) that act was intended to force DHS to detain aliens, not release them; and (2) at that point, neither DHS nor EOIR read section 235(b)(2)(A) as mandating the detention of every illegal entrant encountered in the interior.
Congress is presumed to know how a law has been interpreted when it is amended, and therefore it’s logical to conclude the drafters of the Laken Riley Act specifically mandated the detention of alien criminals who hadn’t been admitted or paroled to ensure they would be detained.
The second flaw is that redundant detention provisions aren’t uncommon in the INA. Notably, section 241(a)(2)(A) of the INA mandates the detention of all aliens under final orders of removal and then states that “[u]nder no circumstance” shall an alien ordered removed on criminal grounds be released.
Doubling down on the detention of an alien who is an “applicant for admission” (section 235(b)(2)(A) of the INA) who has committed certain criminal acts (section 236(c)(1)(E) of the INA) would be consistent with Congress’s double-detention mandate for criminals in section 241(a)(2)(A).
“Inconsistency with Prior Pronouncements”
Finally, Judge Pitman argues that the BIA’s “inconsistency” in Matter of Yajure-Hurtado “with prior pronouncements reduces even its ‘power to persuade’”.
With due respect to both the W.D. Tex. and EOIR, the BIA has a spotty record in interpreting the detention mandates in section 235 of the INA.
As noted above, the BIA misapplied the detention mandates in section 235(b)(1) of the INA in Matter of X-K- for 14 years before AG Barr issued Matter of M-S-, even though Matter of X-K- was wildly at odds with the language of the statute – a fact even I realized when I was an immigration judge, but was powerless to correct.
In fact, it wasn’t until the Supreme Court read the language of the statute plainly in Jennings that AG Barr corrected the Board’s erroneous interpretation.
“An Error Does Not Become Truth by Reason of Multiplied Propagation”
To quote Judge Dolly Gee’s 2015 order in Flores v. Lynch (quoting Gandhi): “An error does not become truth by reason of multiplied propagation, nor does truth become error because nobody sees it.”
If that’s true with respect to the release of tens of thousands of alien families (at issue in Flores), it must also be true when applied to the detention of illegal entrant “applicants for admission” as well.
None of this is to call out Judge Pitman; his is one of at least a hundred district court orders rejecting Trump II’s interpretation of the detention mandate for illegal entrant “applicants for admission” in section 235(b)(2)(A) of the INA. I’m only suggesting the issues surrounding the detention and release of illegal entrants are not as clear-cut as all those jurists believe.