The Massive Downside of Matter of M-S-

The employment authorization loophole the president is taking steps to address

By Andrew R. Arthur on April 30, 2019

In an April 19, 2019, blog captioned "Aliens in Expedited Removal Not Eligible for Bond: AG reads statute, reverses BIA", I explained the rationale and law behind Attorney General (AG) William Barr's decision in Matter of M-S-. To say that the response to that decision has been a bit overblown would be an understatement. That said, this decision could come with significant downsides for the rule of law that will likely encourage more aliens to seek to enter the United States illegally.

First, the overblown part. For example, the Florence Immigrant & Refugee Rights Project (FIRRS) asserts:

On April 16, 2019, Attorney General William Barr stripped away the right to bond hearings for asylum seekers who have established that they have a credible fear of persecution or harm. With this decision, this administration has made clear that if it cannot slam the door on all asylum seekers, it will do everything in its power to lock them up indefinitely. This is yet another step in the systematic dismantling of the asylum process and of the human rights of those who seek refuge on our shores. Effectively, this decision means that all asylum seekers will be subject to mandatory and indefinite detention, a clear and egregious violation of fundamental human rights. The decision, Matter of M-S-, overturned a 2005 George W. Bush era case finding in favor of a right to a bond hearing.

"This decision is another devastating, unnecessary, and indefensible attack on asylum seekers," says Laura St. John, Florence Project Legal Director. [Emphasis added.]

Contrary to FIRRS's assertions, Matter of M-S- is simply an administrative action whereby the AG reversed an inexplicably erroneous precedent, as I explained in my post:

The AG in Matter of M-S- undertook an exhaustive analysis of the issue of whether aliens [in expedited removal who been found to have credible fear] 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 [Supreme Court's] decision in [Jennings v.] 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."

I continued:

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.

Thus, the AG did not "strip[] away the right to bond hearings for asylum seekers who have established that they have a credible fear of persecution or harm," FIRRS's contentions notwithstanding. Rather, Congress did that back in 1996. It simply took more than 13 years (and an intervening Supreme Court decision) for anyone at the Department of Justice (DOJ) to recognize that fact. And he noted that asylum seekers do have an alternative avenue to gain release.

Therein, indirectly, lies the problem.

Why? First, it is important to focus on the April 16, 2019, "Final Emergency Interim Report" from the Homeland Security Advisory Council's CBP Families and Children Care Panel. That report states, among other alarming conclusions that I have previously discussed:

Over 53,000 [family units (FMU), that is, alien units consisting of at least one parent with at least one child] were apprehended last month alone by the Border Patrol, and at the current trajectory, that number of FMU apprehensions is likely to exceed 500,000 in Fiscal Year (FY) 2019.

After being held for several days at inadequate and overcrowded holding areas at USBP stations, most of the adults — provided they have a child with them and have stated that they fear returning to their country of origin — are issued Notices to Appear (NTA) at a later time before an immigration judge somewhere in the U.S. and then dropped at a local bus station or delivered to already overwhelmed non-profit shelters. The NTA, combined with long delays in the adjudication of asylum claims, means that these migrants are guaranteed several years of living (and in most cases working) in the U.S. Even if the asylum hearing and appeals ultimately go against the migrant, he or she still has the practical option of simply remaining in the U.S. illegally, where the odds of being caught and removed remain very low. A consequence of this broken system, driven by grossly inadequate detention space for family units and a shortage of transportation resources, is a massive increase in illegal crossings of our borders, almost entirely driven by the increase in FMU migration from Central America. [Emphasis added.]

As the panel explains:

More recently, with the expanding crisis, CBP directed that FMUs be released with a NTA within a few days after their surrender to the USBP and preliminary processing. None of these migrants released with a NTA have been given a credible fear interview prior to their release, because there are no USCIS credible fear examiners at USBP stations.

CBP must release those aliens without placing them in expedited removal because there is no space to hold those aliens for a sufficient period to give U.S. Citizenship and Immigration Services (USCIS) asylum officers the opportunity to perform credible fear interviews. First, the expedited removal statute explicitly provides that an alien who is eligible for a credible fear interview "may consult with a person or persons of the alien's choosing prior to the interview or any review thereof" pursuant to regulation. That statute goes on to state that this consultation "shall not unreasonably delay the process", but as a practical matter, giving an alien a right and then setting an unspecified timeframe for the exercise of that right just opens the door to litigation. This, of course, slows the process and puts the adjudicator (asylum officer or immigration judge) on the horns of a dilemma: Do the interview quickly under unspecified time limits and run the risk of being accused of denying "due process", with all of the attendant consequences of such a finding, or accede to the alien's request for more time to find a lawyer. The latter result will win almost every time.

Further, pursuant to policy, every credible fear claimant is given "[a]t least 48 hours after ... arrival" before that interview with the asylum officer occurs, although the claimant may waive that delay. But there is no space (for reasons explained below) to detain FMUs anywhere near that period of time in a place where such interviews could occur.

Since those aliens are not placed in expedited removal (and therefore not given credible fear interviews), they can be released on their own recognizance, which is separate from release on parole.

With respect to space, in March 2019, according to U.S. Customs and Border Protection (CBP) statistics, 75,622 FMUs were apprehended by Border Patrol entering illegally and an additional 29,375 were deemed inadmissible by CBP officers. Let's assume that only 20 percent of those FMUs request credible fear (an extremely conservative estimate), meaning that about 21,000 of those FMUs would do so.

U.S. Immigration and Customs Enforcement (ICE) only has detention space for 2,500 FMUs, according to the panel, however. Under the decision in Matter of M-S-, if those 21,000 FMUs were placed in expedited removal proceedings, and 70 percent (a conservative estimate based on USCIS historical data, which suggests that even the low-end number is higher than 76 percent) were found to have credible fear, most of those roughly 14,700 aliens therefore would still be released for lack of space, but could only be released on parole.

Here is the problem: The regulation governing employment eligibility, 8 C.F.R. §274A.12(c)(11), states that aliens who have been paroled into the United States are eligible to apply for employment authorization immediately.

This is actually a better position than the alien would be in if the alien were released by an immigration judge on bond, because there is no corresponding regulatory paragraph that authorizes employment eligibility for such individuals. The only employment eligibility that could apply to such an alien would be 8 C.F.R. § 274a.12(c)(8), which states:

An alien who has filed a complete application for asylum or withholding of deportation or removal pursuant to 8 CFR part 208, whose application:

(i) Has not been decided, and who is eligible to apply for employment authorization under § 208.7 of this chapter because the 150-day period set forth in that section has expired. Employment authorization may be granted according to the provisions of § 208.7 of this chapter in increments to be determined by the Commissioner and shall expire on a specified date. [Emphasis added.]

The referenced regulation, 8 C.F.R. § 208.7(a)(1), states than an applicant for asylum may apply for employment authorization 150 days after that alien has submitted a completed asylum application, if no decision has been made on that application. Then, if no decision is made on the asylum application within 30 days after the filing of the request for employment authorization, the asylum applicant may be granted the employment authorization, in accordance with section 208(d)(2) of the Immigration and Nationality Act (INA).

To recap, ICE currently lacks the detention space for the vast majority of FMUs apprehended by CBP to enable USCIS to perform credible fear interviews, so aliens entering illegally or seeking admission without valid entry documents are being given NTAs and released on their own recognizance. If ICE was able to provide sufficient space for those aliens to be placed in expedited removal and given credible fear interviews, however, unless there was a significant expansion in the detention space for FMUs, most of those aliens found to have credible fear would be released on parole and would be immediately eligible to apply for employment authorization.

This explains why the president, on April 29, 2019, issued a "Memorandum on Additional Measures to Enhance Border Security and Restore Integrity to Our Immigration System", which (among other things) calls for regulatory changes to ensure that "aliens who have entered or attempted to enter the United States unlawfully [are barred] from receiving employment authorization before any applicable application for relief or protection from removal has been granted."

There is no good reason why aliens who have been released on parole should receive employment authorization — they are already receiving a benefit from the U.S. government (release); employment authorization would simply encourage aliens without valid claims to game the system.

Otherwise, the disaster gets worse.