BIA Should Vacate Matter of X-K-

Especially important in light of the migrant caravan

By Andrew R. Arthur on October 22, 2018

In an October 18, 2018, post captioned "AG Still Reviewing Bond Eligibility for Border Aliens", I explained the reasons why the attorney general directed the Board of Immigration Appeals (BIA) to refer Matter of M-S- to him for his review. Pending that review, the BIA should issue a decision vacating Matter of X-K-, the 13-year-old case at issue in that review.

The attorney general's order in Matter of M-S- directs the parties to brief the following issue:

Whether Matter of X-K-, 23 I&N Dec. 731 (BIA 2005), which held that immigration judges may hold bond hearings for certain aliens screened from expedited removal proceedings under section 235(b)(1) of the Immigration and Nationality Act [INA], 8 U.S.C. § 1225(b)(1), into removal proceedings under section 240, 8 U.S.C. § 1229a, should be overruled in light of Jennings v. Rodriguez, 138 S. Ct. 830 (2018).

As I explained in my post, the major conclusions undergirding Matter of X-K- are wrong. That fact alone is not sufficient to prompt me to state that the BIA should vacate that decision. The Supreme Court's decision in Rodriguez, however, effectively overrules Matter of X-K-, as I explain therein. Specifically, as I stated:

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."

Given this fact, the ultimate conclusion in Matter of X-K-, that immigration judges can hold bond hearings for aliens who (1) entered illegally; and (2) were found to have a credible fear following expedited removal proceedings; and (3) were thereafter placed into removal proceedings under section 240 of the INA, is no longer good law.

It is not clear why the attorney general had to take any case on review in order to settle this issue. Rodriguez essentially vacates Matter of X-K-, and the BIA has the authority to issue a decision that clarifies this issue. Assume, for example, that the Supreme Court were to hold the possession of marijuana is no longer a removable offense. The attorney general would not have to direct the BIA to refer a case to him for review to implement that decision. Rather, the BIA could simply issue a decision in any case in which possession of marijuana is a ground of removal, and reverse its prior precedents to the contrary.

Perhaps the issue is that U.S. Immigration and Customs Enforcement (ICE) has not made this argument to the BIA. If it has not, it should, and seek a stay of any decision that would be covered by Rodriguez in which bond has been granted. The BIA, however, can take administrative notice of intervening case law in any case before it without relying on ICE arguments.

Here, it should do so.

Alternatively, the attorney general should use his regulatory authority under 8 C.F.R. § 1003.6(d) to stay any custody determination that would result from his vacation of Matter of X-K- in Matter of M-S-. That regulation states, in pertinent part: "The Attorney General may order a discretionary stay pending the disposition of any custody case by the Attorney General or by the Board." That authority would plainly cover any case that would be affected by Matter of M-S-.

The worst that could happen is that an affected alien would seek a habeas from a district court seeking release. The Department of Justice (DOJ) would oppose such action, and seek a stay if a habeas were granted. If that stay were denied, DOJ could seek a stay from the court of appeals, and ultimately the Supreme Court. The resulting decision would settle the question once and for all.

This is a particularly salient point given the caravan of migrants from Central America, some of whom are currently making their way to the United States. If they knew that they would not be released upon arrival in this country and passing credible fear, they would be less likely to come. Only those aliens with truly meritorious claims would go through the process, and thus their claims would be resolved more quickly.