On April 16, 2019, U.S. Attorney General (AG) William Barr, in a case certified to his office, drastically altered the legal landscape for asylum seekers entering the U.S. without inspection by (or attempting to do so) deciding that those applicants originally placed in expedited removal proceedings and then transferred to full proceedings after establishing a credible fear are no long eligible for bond upon transfer and thus and remain ineligible for release whether arriving at the border or apprehended in the U.S. A prior precedent decision, Matter of X-K, 23 I&N Dec 731 (BIA 2005), had held that only some respondents transferred after establishing a credible fear – “arriving aliens”,such as those attempting to enter the U.S. at a port of entry (POE) – must be detained, but that all others are eligible for bond. The instant respondent had been transferred from expedited to full removal proceedings after establishing a credible fear; an Immigration Judge (IJ) ordered his release on bond.
However, AG Barr concluded that INA§235(b)(1)(B)(ii) states that if one in expedited proceedings proves a credible fear, he or she “shall be detained for further consideration of the application for asylum.” Further, he found that INA §212(d)(5)(A) holds that such an applicant may be “parole[d] into the United States…for urgent humanitarian reasons or significant public benefit.” Because these sections must be applied as written, the AG concluded that “unless paroled, [one]…must be detained until his asylum claim is adjudicated,” finding further support for this holding in a recent U.S. Supreme Court case, Jennings v. Rodriguez 138 S. Ct. 830 (2018). (INA§235(B)(1) mandates detention throughout the completion of removal proceedings unless the respondent is paroled), as well as in the statute’s implementing regulations.
In the instant case, the IJ had ordered respondent released if he could produce a valid passport and post a $17,500.00 bond; respondent appealed to the Board of Immigration Appeals (BIA or Board) contending the bond amount was too high. While the appeal was pending, the applicant again requested IJ review of his custody, arguing that because the consulate had denied his request for a passport, he should not be required to produce one. A new IJ agreed, but increased the bond amount to $27,000.00. Respondent posted that amount and was released. The BIA, according to AG Barr unaware of respondent’s release, decided the appeal the next day, affirming the first IJ’s bond order. Neither the applicant nor the government appealed the second IJ’s order and the case remains pending.
AG Barr, in initiating his analysis, stated that his finding that applicants transferred from expedited to full proceedings after establishing a credible fear of persecution or torture are, and remain, ineligible for bond unless paroled-whether arriving at the border or apprehended in the interior – is mandated by the text of the Immigration and Nationality Act (INA or Act). First, he reads INA§235(b)(1)(B)(ii) as requiring detention “(i) for the purpose of ensuring additional review of an asylum claim, and (ii) for so long as that review is ongoing”, i.e., “until removal proceedings conclude.” Next, he reads INA§236(a) as providing “an independent ground for detention” that does not constrain the government’s “separate authority” to detain those originally placed in expedited removal who, after the credible fear stage, “shall be detained” for further adjudication of the case or for removal. Thus, held the AG, “I do not read section 236(a) to authorize granting bond to [those] originally placed in expected proceedings, even if they are later transferred to full proceedings after establishing a credible fear.”
Barr then noted that §235 does not require detention of every transferred respondent “from the moment of apprehension until the completion of removal proceedings,” because §212(d)(5)(A) separately states that anyone applying for admission into the U.S. may be paroled into the country “for urgent humanitarian reasons or significant public benefit.” The AG listed as an example those with “serious medical conditions,” citing the pertinent regulation but noting that when the purpose of the parole has been served, the term expires and the respondent must return to custody.
After parsing Jennings v. Rodriquez and how the Supreme Court, in considering §212(d)(5)(A), had held that the express exception to detention implies that these are no other circumstances under which one detained may be released, AG Barr found that Matter of X-K- had failed to discuss §235’s detention requirement at all “and therefore overlooked the implications that provision has upon the appropriate interpretation of section 236.” As such, the text, the regulations, and the Rodriguez decision all “led to the same conclusion”: all transferred from expected to full removal proceedings after proving a credible fear are ineligible for bond and Matter of X-K- is therefore overruled. The order granting bond to respondent was reversed and the AG ordered that, unless paroled, the respondent must be detained until proceedings conclude. Matter of M-S-, 27 I&N Dec. 509 (A.G. 2019).