Attorney General to Review Bond Eligibility for Border Aliens

By Andrew R. Arthur on September 25, 2018

On September 18, 2018, the attorney general directed the Board of Immigration Appeals (BIA) to refer Matter of M-G-G- to him for his review. At issue is whether aliens screened from expedited removal proceedings under section 235(b)(1) of the Immigration and Nationality Act (INA) after illegal entry can seek bond from the immigration court in removal proceedings under section 240 of the INA.

This is an issue raised by the Supreme Court's recent decision in Jennings v. Rodriguez, a case that I discussed in a March 2018 post captioned "SCOTUS Returns Order to Bond Determinations for Aliens". As I stated therein:

In a 5-3 decision, the Supreme Court ruled that U.S. Immigration and Customs Enforcement (ICE) can detain certain aliens indefinitely. This decision was a victory for a plain reading of the Immigration and Nationality Act (INA) and common sense.


At issue were three separate provisions in the INA. Pertinent for purposes of Matter of M-G-G- is section 235(b)(1)(B)(ii) of the INA, which mandates 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, through fraud, or without documents. It states, in pertinent part:

Referral of certain aliens.- If the officer determines at the time of the 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.]

Writing for the court, Justice Alito explained that the Court of Appeals for the Ninth Circuit had construed these three provisions "to limit the permissible length of an alien's detention without a bond hearing," and concluded that "without such a construction ... the 'prolonged detention without adequate procedural protections' authorized by the[se] provisions 'would raise serious constitutional concerns.'" The Supreme Court rejected the concerns raised by the Ninth Circuit.

In 2005, well before the Ninth Circuit issued its decision in Rodriguez, the BIA held in Matter of X-K- that aliens who were screened for credible fear and subsequently placed into removal proceedings under section 240 of the INA are eligible for bond redetermination before an immigration judge if they are not "arriving aliens" as defined in 8 C.F.R. § 1001.1(q). That regulation states, in pertinent part:

The term arriving alien means an applicant for admission coming or attempting to come into the United States at a port-of-entry, or an alien seeking transit through the United States at a port-of-entry, or an alien interdicted in international or United States waters and brought into the United States by any means, whether or not to a designated port-of-entry, and regardless of the means of transport. An arriving alien remains an arriving alien even if paroled pursuant to section 212(d)(5) of the Act, and even after any such parole is terminated or revoked.

Thus, under that decision, aliens who were apprehended after entering illegally between the ports of entry were eligible for bond.

The Department of Homeland Security (DHS) had argued there:

[N]otwithstanding 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 BIA rejected this argument, however in holding that aliens in removal proceedings to apply for asylum following a positive credible fear finding after entering the United States illegally may receive a bond redetermination from the immigration court.

As I stated in my March 2018 post about Rodriguez:

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.

Specifically, the Court held that: "In sum, [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."

Given this finding, Matter of X-M- would appear to have been overruled by the Supreme Court in Rodriguez. Simply put, Congress has divested immigration courts of the authority to grant bond for aliens who are in removal proceedings following a positive credible fear determination to apply for asylum until that asylum application can be considered. If the immigration court were to deny asylum, and the alien were to appeal that denial to the BIA, the bar on bond in section 235(b)(1)(B)(ii) of the INA would continue to apply pending that appeal.

Thus, it was appropriate for the attorney general to use his review authority to consider this question in Matter of M-G-G-.

It should be noted that if the attorney general determines that those aliens are subject to mandatory detention, that rule could apply to potentially tens of thousands of aliens. Through January 2018, U.S. Citizenship and Immigration Services (USCIS) found a credible fear of persecution had been established in more than 22,000 cases in just the first four months of FY 2018 alone. This means that, potentially, more than 60,000 aliens a year could be subject to detention pending a decision on their asylum applications after a credible-fear screening.