Matter of M-S-, 27 I&N Dec. 476 (A.G. 2018): AG Considers Scope of Bond Hearings For Certain Aliens Who Establish Credible Fear

Introduction: Matter of M-S-, 27 I&N Dec. 476 (A.G. 2018)

On October 12, 2018, the Attorney General issued a published decision in Matter of M-S-, 27 I&N Dec. 476 (A.G. 2018) [PDF version]. In Matter of M-S-, the Attorney General referred an unpublished decision of the BIA to himself for review concerning the authority of immigration judges to hold bond hearings for certain aliens screened from expedited removal under section 235(b)(1) of the Immigration and Nationality Act (INA).

The Attorney General had referred the same issue to himself for review in a different case, Matter of M-G-G-, 27 I&N Dec. 469 (A.G. 2018) [PDF version]. However, also on October 12, 2018, the Attorney General decided to not review that case because the respondent had been removed to Guatemala [PDF version]. Thus, the Attorney General referred Matter of M-S- to himself in order that he could review the issue in a case in which it was still live. You may see our article covering both Matter of M-G-G- decisions [see article].

Referral

The Attorney General referred Matter of M-S- to himself for review under 8 C.F.R. 1003.1(h)(1)(i). The Board's decision in Matter of M-S- is thus stayed pending the Attorney General's issuance of a decision in the case or otherwise lifting the stay, in accordance with Matter of Haddam, A.G. Order No. 2380-2001 [PDF version reprinted here].

Question Presented for Parties and Amici

The Attorney General requested briefing in Matter of M-S- from both the parties and amici. The question presented for briefing in Matter of M-S- is identical to the question which was initially presented in Matter of M-G-G-. However, because Matter of M-S- is a new referral, it will have its own briefing schedule. Briefing in Matter of M-G-G- had been slated to end on October 16, 2018.

The following is the referral issue in Matter of M-S-:

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 …, into removal proceedings under section 240 …, should be overruled in light of Jennings v. Rodriguez, 138 S.Ct. 830 (2018).

The parties shall submit briefs not exceeding 15,000 words by November 2, 2018. Interested amici are invited to submit briefs not exceeding 9,000 words on or before November 9, 2018. The parties may submit reply briefs not exceeding 6,000 words on or before November 9, 2018.

Understanding the Issues

We discussed the issues presented in detail in our original article on the Matter of M-G-G- referral. For your convenience, we will repost the explanation from the Matter of M-G-G- article here. You may see the identical section in our Matter of M-G-G- article as well [see article].

The Attorney General's referral does not tell us much about Matter of M-G-G- itself. However, it does provide clarity on the issues at play.

The main point is whether the Attorney General should overrule the BIA precedent decision in Matter of X-K-, 23 I&N Dec. 731 (BIA 2005) [PDF version]. In Matter of X-K-, the Board considered whether certain aliens initially screened from expedited removal are eligible for bond hearings.

The specific question concerned aliens who are initially screened from expedited removal under section 235(b)(1)(A) of the INA as members of the class of aliens designated by the Secretary of Homeland Security under section 235(b)(1)(A)(iii). Briefly, section 235(b)(1)(A) of the INA designates two classes of aliens as being subject to expedited removal: (1) arriving aliens; and (2) certain other aliens as designated by the Secretary of Homeland Security. The “certain other aliens” class, which was the issue in Matter of X-K-, generally consists of aliens who:

1. Are inadmissible under section 212(a)(6)(C) or (7) of the INA;
2. Are physically present in the United States without having been admitted or paroled following inspection by an immigration officer at a designated port-of-entry;
3. Are encountered by an immigration officer within 100 air miles of any U.S. international land border; and
4. Have not established to the satisfaction of an immigration officer that they have been physically present in the United States continuously for the 14-day period immediately prior to the date of the encounter.

You can read the full rule on “certain other aliens” covered by section 235(b)(1)(A)(iii) here: [PDF version 69 FR 48,877, 48,878 (Aug. 11, 2004)]. Although the Department of Homeland Security (DHS) may be reviewing whether to expand the scope of section 235(b)(1)(A)(iii), as directed by President Donald Trump in a January 2017 executive order [see article], the scope of the provision under review by the Attorney General has remain unchanged since 2004.

An alien meeting the description in section 235(b)(1)(A)(iii) will be placed in regular section 240 removal proceedings, rather than expedited removal proceedings, if he or she establishes a credible fear of persecution, whereby he or she may seek asylum and/or withholding of removal. The Board considered whether such an alien is eligible for bond hearings before an immigration judge in those section 240 removal proceedings. This issue is significant because aliens subject to expedited removal face mandatory detention.

The Board in Matter of X-K- concluded that such aliens are eligible for bond hearings “unless [they are] a member of any of the listed classes of aliens who are specifically excluded from the custody jurisdiction of [i]mmigration [j]udges [under 8 C.F.R. 1003.19(h)(2)(i).”

However, since Matter of X-K- was published, the Supreme Court of the United States handed down an important decision in Jennings v. Rodriguez, 138 S.Ct. 830 (2018) [PDF version]. Please see our full article on the Opinion of the Court in Rodriguez [see article] and our index on the subject and related issues, including the instant referral [see index]. In Rodriguez, the Court held, among other things, that aliens subject to mandatory detention under section 235(b) of the INA are not entitled to individualized bond hearings under the statute, while leaving open for further litigation the question of whether they are entitled to such hearings under the Constitution. Interestingly, in the dissenting opinion in Rodriguez, Justice Stephen Breyer, also writing for three of his colleagues, cited to Matter of X-K- in explaining that, as a result of the majority Court's decision, aliens apprehended at the border would not be eligible for bond hearings whereas aliens covered by Matter of X-K- would be [see section].

The Attorney General will consider whether he should overrule Matter of X-K- in light of the Supreme Court 's decision in Rodriguez.

Conclusion

Due to the removal of the respondent in Matter of M-G-G-, the Attorney General referred a second case to himself for review presenting the exact same issue. Both the initial referral and the Matter of M-S- referral suggest that he has a strong interest in the issue. Although we do not know what the Attorney General will decide, the wording of the referral and the nature of the issue presented suggests that he will likely either overrule Matter of X-K- or significantly curtail it in light of the Supreme Court decision in Rodriguez.

An alien facing removal under any provision should consult with an experienced immigration attorney immediately. This is all the more important for aliens facing mandatory immigration detention. An experienced immigration attorney will be able to evaluate any individual case and determine which avenues may be available for the alien regarding the threat of removal and/or his or her detention.

To learn more about the Rodriguez decision and its aftermath, please see our article index on the subject [see article]. To learn about other related issues, please see our growing website categories on removal and deportation defense [see category], immigration detention [see category], and asylum and refugee protection [see category].

We will update the site with more information if and when the Attorney General decides the case.