SCOTUS Vacates Ninth Circuit Injunction Mandating Bond Hearings in Credible Fear Cases

An inevitable result, but plenty of bond questions are outstanding — how will Biden handle those?

By Andrew R. Arthur on January 12, 2021

The Supreme Court yesterday vacated the Ninth Circuit's March opinion in Padilla v. ICE. The circuit court had affirmed a district court order certifying a nationwide class of detained aliens (the "Bond Hearing class") who had been subject to expedited removal proceedings and found to have a credible fear of persecution, but had not been provided a bond hearing. Under the district and circuit courts' orders, immigration judges (IJs) were directed to provide bond hearings for aliens found to have a credible fear. The Supreme Court's order was inevitable in light of an opinion that it had issued in June of last year, but there are plenty of other bond orders outstanding.

Briefly, section 235(b)(1) of the Immigration and Nationality Act (INA) provides that aliens arriving in the United States who do not have proper documents to enter — including migrants who have entered illegally — are subject to expedited removal from this country. The expedited removal order is issued not by an IJ following removal proceedings, but rather by a DHS officer, usually a Border Patrol agent or a CBP officer at a port.

If the alien asserts an intention to apply for asylum or a fear of return, however, the alien is referred to an asylum officer (AO) from USCIS for a "credible fear" interview. If the alien is found to have a credible fear of persecution, his or her case is transferred to an IJ for consideration of the alien's asylum claim.

In 2005 in Matter of X-K-, the Board of Immigration Appeals (BIA) held that aliens in removal proceedings who were found to have a credible fear were eligible to request bond from the IJ.

Matter of X-K- was subsequently overruled in April 2019 in Matter of M-S-. Then-Attorney General William Barr there concluded — in accordance with section 235(b)(1)(B)(ii) of the INA — that aliens who are placed in removal proceedings after a positive credible-fear finding are ineligible for bond.

That provision states: "If the [AO] 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.)

Barr found that unless an alien receiving a positive credible fear determination was paroled into the United States by DHS under section 212(d)(5)(A) of the INA, the "alien must be detained until his asylum claim is adjudicated."

The district court's injunction was issued 11 days prior to Barr's decision in Matter of M-S-, but the court amended it in July 2019 to maintain the status quo before Barr had issued Matter of M-S-. Which brings me to the Supreme Court's June 2020 opinion referenced above, in DHS v. Thuraissigiam.

In Thuraissigiam, the Court held that statutory limitations on judicial review in cases involving aliens in expedited removal proceedings did not violate the Constitution, at least as applied in that case (involving a Sri Lankan national apprehended shortly after entering the country illegally).

The decision affirmed Congress's limitations on judicial review in expedited removal cases, and its elimination of the so-called "entry doctrine" in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.

More importantly for purposes of its Monday order, Justice Alito (writing for the majority) there reaffirmed his conclusion on the detention of aliens subject to expedited removal in the Supreme Court's February 2018 opinion in Jennings v. Rodriguez. Writing again for the majority, Justice Alito held there that aliens found to have a credible fear are not entitled to release pending adjudication of their asylum claims, unless paroled by DHS.

The district court's July 2019 order rejected the government's argument that Jennings (upon which Barr had relied in Matter of M-S-) barred aliens in removal proceedings after receiving a positive credible fear determination from seeking release on bond. The judge there concluded: "The members of the Bond Hearing Class have been found 'to have'" a credible fear, and that finding therefore removes them from the detention requirements in Jennings.

I personally believe that Jennings was clear on the issue, and argued in October 2018 that it required the BIA to vacate Matter of X-K-. In any event, Thuraissigiam was plenty clear, with Justice Alito stating, in accordance with section 235(b)(1)(B)(ii) of the INA: "Applicants who are found to have a credible fear may also be detained pending further consideration of their asylum applications."

The district court judge had also ordered that the bond hearings she directed IJs to provide be held within seven days, on the record, and with ICE bearing the burden of proof for continued detention. IJs were also required to issue written bond decisions in each.

Contrary to this mandate, and pursuant to regulation, alien respondents in immigration court bear the burden of establishing that they do not pose a danger to persons or property, and that they are not a flight risk. Bond proceedings are also (except in specific circumstances) held "off the record", meaning that they are not taped or transcribed on appeal.

And IJs usually do not issue written bond determinations. Instead, they complete a minute order, essentially checking boxes on a government form and writing in a bond amount if bond is issued. Where the bond order is appealed, the IJ issues a brief memorandum setting forth the factual reasons for bond or continued detention for the BIA's review.

The Ninth Circuit had remanded the portion of the preliminary injunction setting forth these requirements for further findings, noting that the number of aliens in expedited removal "may have increased dramatically" since the district court issued its preliminary injunction.

In this, the circuit court at least acknowledged the FY 2019 surge of aliens entering illegally or without proper documents, but even when the district court issued its order in April 2019, the numbers were pretty high. The circuit court judges were likely letting the district court judge have another swing at crafting bond requirements, but I seriously doubt that she would have done anything different, aside from giving IJs more time to hold bond hearings.

The Supreme Court ordered Padilla remanded for further consideration in light of Thuraissigiam, so the ultimate outcome is unclear. But it is hardly the only bond case out there, however.

In November 2019, a district court judge in Massachusetts issued an order finding that it was a violation of due process to require respondents in immigration court to bear the burden of showing that they were not safety or flight risks in bond proceedings, shifting that burden to DHS to show those respondents are safety and flight risks.

That order (applicable only to the Boston immigration court) also required IJs to consider alternatives to detention, as well as respondents' ability to pay in setting bond. A respondent's ability to pay is not currently a consideration in bond determinations, although a separate Ninth Circuit opinion has sustained an injunction by a judge of the U.S. District Court for the Central District of California making it a factor for consideration in that district.

During argument on the government's appeal of the Massachusetts order, according to Law360 (behind a paywall), Judge Kermit Lipez of the First Circuit stated:

I don't see why the government's interest cannot be adequately protected by bond proceedings that require the government to prove issues of dangerousness by a certain standard. ... They have an opportunity to do that, and they have the resources to do that.

Respectfully, Judge Lipez is apparently unfamiliar with immigration court. Often if not usually, ICE knows little or nothing about an alien it detains — aside from the alien's criminal and immigration history in the United States — especially one who had entered the United States illegally.

ICE also lacks the resources to do in-country investigations of every alien subject to detention. It makes perfect sense for the burden to be placed on the respondent to show that he or she is not a danger or a flight risk. After all, the respondent is the party with all of the information about his or her personal history.

How the DOJ under President-elect Joe Biden handles those cases is yet to be seen. On his campaign website, Biden vows to: "End prolonged [immigration] detention." DHS's "Fiscal Year 2020 Enforcement Lifecycle Report" (available from DHS here and to download from the CIS site here), issued on December 31 shows, however, that detention is absolutely crucial in ensuring the quick repatriation of aliens, especially those who have entered the United States illegally, as I explained in a January 7 post.

In the absence of such detention, there will be more incentives for aliens — and in particular adult aliens traveling with children — to enter the United States illegally in the expectation that they will be able to live and work here indefinitely. The journey to this country exposes those aliens to significant risks, however, and inflicts trauma on the children, but the promise of release from immigration detention is a powerful magnet — and sales tool for smugglers.