Introduction: Matter of M-S-, 27 I&N Dec. 509 (A.G. 2019)

On April 16, 2019, U.S. Attorney General William Barr published an immigration precedent decision in the Matter of M-S-, 27 I&N Dec. 509 (A.G. 2019) [PDF version]. Former Attorney General Jeff Sessions had referred the matter to himself for review in October 2018 [see article].

Attorney General Barr held that an alien who is transferred from expedited removal proceedings to regular section 240 removal proceedings after establishing a credible fear of persecution or torture is ineligible for release on bond. As a result, such aliens must be detained until the conclusion of removal proceedings, unless the Department of Homeland Security (DHS) grants parole. The Attorney General overturned the contrary precedent decision of the Board of Immigration Appeals (BIA) in the Matter of X-K-, 23 I&N Dec. 731 (BIA 2005) [PDF version]. Matter of M-S- relied substantially on the Supreme Court’s recent decision addressing mandatory detention in Jennings v. Rodriguez, 138 S.Ct. 830 (2018) [PDF version]. Please see our article on Rodriguez to learn more about that detention precedent [see article].

In this article, we will examine the Attorney General’s important decision in Matter of M-S- and what it means going forward for aliens who are initially placed in expedited removal proceedings.

Overview of Expedited Removal and Credible Fear: 27 I&N Dec. at 510-512

The Attorney General began by providing an overview of the relevant statutes.

The Attorney General began: “Under section 235 of the Act, all aliens ‘arriv[ing] in the United States’ or ‘present in the United States [without having] been admitted] are considered ‘applicants for admission,’ who ‘shall be inspected by immigration officers.’” Here, the Attorney General cited to section 235(a)(1) and (3) of the Immigration and Nationality Act (INA). The Attorney General explained that the inspections provided for in section 235(a)(3) can result in one of three outcomes:

1. If the alien is “clearly and beyond a doubt entitled to be admitted,” the alien will be permitted to enter, or remain in, the United States without any further immigration proceedings. (Section 235(b)(2)(A).)
2. If the alien is not clearly admissible, he or she will be placed in regular section 240 removal proceedings.
3. If the alien is inadmissible on one or two specified grounds and meets certain additional criteria, the alien may either be placed in expedited removal proceedings under section 235 or in full removal proceedings under section 240.

The instant case concerns expedited removal. Under section 235(b)(1)(A)(i), an alien who lacks entry documentation or seeks admission through fraud or willful misrepresentation of a material fact is subject to expedited removal proceedings. In addition, section 235(b)(1)(A)(iii) of the INA allows the Secretary of Homeland Security to designate as subject to expedited removal “’any or all aliens’ who have ‘not been admitted or paroled into the United States’ and also have not ‘been physically present in the United States continuously for the 2-year period immediately prior to the date of the determination of inadmissibility.’” As of the date of the publication of Matter of M-S-, section 235(b)(1)(A)(iii) has been implemented to encompass aliens who

(i) “are physically present in the U.S. without having been admitted or paroled,”
(ii) “are encountered by an immigration officer within 100 air miles of any U.S. international land border,” and
(iii) cannot establish “that they have been physically present in the United States continuously for the 14-day period immediately prior to the date of the encounter.”

Once an alien is placed in expedited removal proceedings, the proceedings may follow one of two courses. Under section 235(b)(1)(A)(i), if the alien does not indicate that he or she intends to apply for asylum or has a fear of persecution or torture, the inspecting officer “shall order the alien removed from the United States without further hearing or review.” Conversely, if the alien indicates that he or she either intends to apply for asylum or has a fear of persecution, the inspecting officer must refer the alien for a credible fear interview interview by an asylum officer under section 235(b)(1)(A)(ii).

In the credible fear interview, the asylum officer must determine — in accordance with 8 C.F.R. 208.30(d) — whether the alien has a credible fear of persecution or torture. In effect, this means the asylum officer must evaluate whether the alien would be potentially eligible for asylum, withholding of removal, or withholding under the Convention Against Torture (CAT). If the alien fails to establish a credible fear of persecution or torture, the asylum officer “shall order the alien removed from the United States without further hearing or review” under section 235(b)(1)(B)(iii)(I) of the INA. However, if the alien does establish a credible fear, section 235(b)(1)(B)(ii) entitles the alien to “further consideration of the application for asylum.” Regulations in 8 C.F.R. 208.30(f), 1208.30(g)(2)(iv)(B), codify that this “further consideration” take the form of transferring the alien to full section 240 removal proceedings.

Overview of Detention for Aliens Subject to Expedited Removal: 27 I&N Dec. at 512-13

Section 235(b)(1)(B)(iii)(IV) provides that aliens placed in expedited removal proceedings “shall be detained pending final determination of credible fear.” An alien who is found to not have a credible fear shall be detained pending removal.

Regarding aliens who establish a credible fear of persecution or torture, section 235(b)(1)(B)(ii) provides that they “shall be detained for further consideration of the application for asylum.” The statute provides that these aliens may be paroled into the United States under section 212(d)(5) “for urgent humanitarian reasons or significant public benefit.”

Section 236 contains general provisions for immigration detention. Under section 236(a), the DHS has discretion to detain an arrested alien who is in section 240 removal proceedings, to release the alien on bond of at least $1,500, or to release the alien on “conditional parole.” This statute is implemented through regulations at 8 C.F.R. 236.1(d)(1), 1236.1(d)(1). 8 C.F.R. 1003.19 specifically excludes certain aliens from eligibility for bond. Among these classes are “arriving aliens” and aliens “attempting to come into the United States at a port-of-entry.” However, 8 C.F.R. 1003.19 does not mention aliens who have been designated for expedited removal.

BIA Decision in Matter of X-K-: 27 I&N Dec. at 513-14

In 2005, the Board held in Matter of X-K- that aliens transferred from expedited removal proceedings to full section 240 removal proceedings after passing a credible fear interview are eligible for bond. The Board concluded that “[t]he [INA] provides for … mandatory detention … ‘pending a final determination of credible fear.’” Matter of X-K-, 23 I&N Dec. at 734. The Board concluded that the INA is silent on detention for aliens who establish a credible fear after initially being placed in expedited removal proceedings. However, the Attorney General noted that the Board made no mention of section 235(b)(1)(B)(ii) of the INA, “which expressly provides that an alien found to have a credible fear ‘shall be detained for further consideration of the application for asylum.’”

The Board looked to the regulations for further guidance. It noted that rule at 8 C.F.R. 1208.30(f) requires that aliens screened from expedited removal proceedings after obtaining credible fear determinations must be placed in full removal proceedings under section 240. The Board then reasoned that once the alien was in section 240 removal proceedings, the presiding immigration judge would have the general authority to grant bond provided for at 8 C.F.R. 1236.1(c)(11), (d). The Board noted that, while 8 C.F.R. 1003.19(h)(2)(i)(B) does exclude arriving aliens from bond eligibility, it does not bar all aliens who had been designated for expedited removal. Thus, the Attorney General explained that the Board drew a “negative inference” from the regulatory silence and concluded “that arriving aliens transferred from expedited to full proceedings after establishing a credible fear are ineligible for bond, but all other aliens so transferred are eligible.” (Attorney General’s description.)

Underlying Facts of Instant Case: 27 I&N Dec. at 514-15

The respondent in the instant case was a citizen of India. The respondent “traveled to Mexico and then crossed illegally into the United States. He was apprehended within hours about 50 miles north of the border.” The respondent was placed in expedited removal proceedings after his arrest.

The respondent claimed that he feared persecution in India. The asylum officer who interviewed him determined that the respondent lacked a credible fear of persecution in India. However, the DHS reversed the asylum officer’s determination on review. Because the DHS had determined that the respondent had a credible fear of persecution, the respondent was transferred to full section 240 removal proceedings. The DHS issued the respondent a DHS Form I-862, Notice to Appear (initiating removal proceedings), and a Form I-286, Notice of Custody Determination. The Form I-286 informed the respondent that he would be detained pending the final administrative determination of his case. In other words, the DHS took the position that it would detain the respondent until the completion of his removal proceedings.

The respondent asked an immigration judge to review the DHS’s custody determination. The immigration judge held that the respondent was not subject to mandatory detention. The Attorney General noted that the immigration judge made no mention of section 235(b)(1)(B)(ii) of the INA. The immigration judge set bond at $17,500 pending the respondent’s producing his passport. The respondent appealed to the Board, asking for the bond amount to be reduced. While the respondent’s appeal was pending before the Board, he sought review from another immigration judge, stating that because he was unable to procure a replacement passport, he should not be required to produce one in order to be eligible for bond. The second immigration judge agreed, but set bond at $27,000. The respondent posted the $27,000 bond and was released. The next day, the Board affirmed the decision of the first immigration judge. The appeal of the first immigration judge’s order remains pending. Neither the respondent nor the DHS appealed the second immigration judge’s order.

Question Presented: 27 I&N Dec. at 515 & 515 n.6

The Attorney General posed the question presented as follows: “[W]hether aliens who are originally placed in expedited proceedings and then transferred to full proceedings after establishing a credible fear become eligible for bond upon transfer.”

The Attorney General noted that both of the bond orders and the Board’s decision on appeal of the first bond order “pose the same threshold, legal question: whether the respondent became eligible for bond after establishing a credible fear and being transferred to full proceedings.” The Attorney General certified the case for review to answer that question [see article]. Because the Attorney General would — for reasons we will examine — conclude that aliens originally placed in expedited proceedings and then transferred to full proceedings after establishing credible fear are ineligible for bond — he stated that his “decision therefore has the effect of reversing the second bond order.”

Attorney General’s Analysis and Conclusions: 27 I&N Dec. at 515-516

The Attorney General held that the text of the INA mandates the conclusion that an alien initially placed in expedited removal proceedings who is then transferred to full removal proceedings after establishing a credible fear of persecution is ineligible for bond pending the completion of the removal proceedings.

The Attorney General’s conclusion rested on section 235(b)(1)(B)(ii) of the INA — which was not discussed by the Board in Matter of X-K- or by the immigration judges or the Board in the instant case. Section 235(b)(1)(B)(ii) provides that if an alien in expedited proceedings establishes a credible fear of persecution or torture, he or she “shall be detained for further consideration of the application for asylum.”

The Attorney General observed that the Supreme Court noted in SAS Inst., Inc. v. Iancu, 138 S.Ct. 1348, 1354 (2018) [PDF version], that “[t]he word ‘shall generally imposes a nondiscretionary duty.” Citing to dictionary definitions, the Attorney General noted that the word “for” may mean “with the object or purpose of” or “throughout.” Alternatively, it can mean “in preparation for or anticipation of.” For the Attorney General, the proper reading of section 235(b)(1)(B)(ii) hinged on the word “for.” He concluded that the latter meaning — “in preparation for or anticipation of,” made little sense in the context of the INA as a whole. The Supreme Court reached the same result regarding section 235(b) in Jennings v. Rodriguez, 138 S.Ct. 830, 844-45 (2018) [see article], wherein it held that reading “for” as meaning “until the start of” removal proceedings “makes no sense in the context of the statutory scheme as a whole.”

The Attorney General explained that if section 235(b)(1)(B)(ii) only governed detention until section 240 removal proceedings commenced, detention during those proceedings would instead be governed by the general detention provision found at section 236(a). Under section 236(a), an alien may be detained on an arrest warrant issued by the DHS. The Attorney General explained what this would mean for practical purposes: “The result would be that, if an alien were placed in expedited proceedings, DHS could detain him without a warrant, but, if the alien were then transferred to full proceedings, DHS would need to issue an arrest warrant to continue detention.” The Attorney General concluded “[t]hat simply cannot be what the [INA] requires.” Thus, the Attorney General read section 235(b)(1)(B)(ii) as mandating detention first for the purpose of ensuring additional review of the alien’s asylum claim and second for as long as such review was ongoing. Because the asylum claim in this context is reviewed in full removal proceedings under section 240, the Attorney General concluded that “section 235(b)(1)(B)(ii) requires detention until removal proceedings conclude.”

236(a) Does Not Authorize Bond For Aliens Originally Placed in Expedited Proceedings: 27 I&N Dec. at 516

Several amicus briefs took the position that section 236(a) makes detention discretionary for an alien transferred from expedited removal proceedings to section 240 removal proceedings. Section 236(a) is limiting in that it is a discretionary detention provision whereas section 235(b)(1)(B)(ii) is a mandatory detention provision. The Attorney General concluded, however, that section 235 mandatory detention and section 236(a) discretionary detention can only be reconciled so long as they apply to different classes of aliens. Here, the Attorney General found “that section 236(a) provides an independent ground for detention that does not limit DHS’s separate authority to detain aliens originally placed in expedited removal, who, after the credible-fear stage, ‘shall be detained’ either for further adjudication of their asylum claims or for removal.” For this reason, the Attorney General concluded that section 236(a) does not authorize bond for aliens originally placed in expedited removal proceedings, “even if they are later transferred to full proceedings after establishing a credible fear.”

Reading the Statute In Light of Jennings v. Rodriguez: 27 I&N Dec. at 516-518

An alien subject to mandatory detention under section 235 may still be granted parole under section 212(d)(5)(A) of the INA. Section 212(d)(5) authorizes parole for applicants for admission “for urgent humanitarian reasons or significant public benefit.” Parole expires “when the purposes of such parole … have been served.” At that time, the alien must “return or be returned to … custody.”

The Attorney General concluded that the parole exception to mandatory detention means that section 235(b)(1)(B)(ii) “cannot be read to contain an implicit exception for bond.” Here, the Attorney General applied the “negative implication canon” of statutory interpretation. He stated that the fact that parole exists but bond goes unmentioned “suggests that those aliens may not be released on bond.” The Attorney General found that his reading of the statutes was supported by section 236(a), the separate provision which “expressly provides that aliens … covered by section 236(a) are eligible for both ‘bond of at least $1,500’ and ‘conditional parole.’”

The Attorney General then discussed Jennings v. Rodriguez, wherein the Supreme Court read section 235(b) in the same way. The Court concluded that section 235(b) detention is mandatory in rejecting a challenge to prolonged detention under that statute and other provisions. The Court concluded that section 235(b) mandates detention pending the completion of proceedings, not until the start of proceedings. As part of its reasoning, the Court examined the section 212(d)(5)(A) parole exception to detention under section 235(b) and concluded that it “implies that there are no other circumstances under which alien’s detained under [section 235(b)] may be released.” Rodriguez at 844.

Regulations Also Support Attorney General’s Position: 27 I&N Dec. at 518-19

The Attorney General acknowledged that Rodriguez did not address the implementing regulations for section 235(b). However, he held that the text of the regulations supported his conclusion.

Under 8 C.F.R. 208.30(f), an alien who is subject to expedited removal proceedings and who establishes a credible fear must be transferred to full removal proceedings under section 240. The same regulatory provision provides that a stowaway who establishes a credible fear must be transferred to proceedings under 8 C.F.R. 208.2(c). 8 C.F.R. 208.30(f) provides that in both cases, the alien may be paroled only in accordance with section 212(d)(5) of the INA. 8 C.F.R. 208.30(f) makes no mention of bond.

The Board in Matter of X-K- “drew a negative inference based upon 8 C.F.R. 1003.19’s expressly rendering ‘arriving aliens’ ineligible for bond but not addressing other categories of aliens who are subject to expedited removal.” The Attorney General reiterated that the Board neglected to analyze section 235’s detention mandate in its analysis, “overlook[ing] the implications that provision has upon the appropriate interpretation of section 236.” The Attorney General explained that 8 C.F.R. 1003.19(h)(2)(i) “thus does not provide an exhaustive catalogue of the classes of aliens who are ineligible for bond.” In designating certain aliens who are arrested near the land borders of the United States and who cannot establish presence in the United States beyond 14 days for expedited removal, the DHS Secretary noted that immigration judge review is permitted only for custody determinations under section 236 of the INA. 69 FR 48,877, 48,879 (Aug. 11, 2004). The Attorney General noted that the Secretary stated, without adding the newly designated aliens to 8 C.F.R. 1003.19, that they “are not eligible for bond [or] for a bond redetermination hearing before an immigration judge.” Id.

The Attorney General thus concluded that even after an alien screened in expedited removal is transferred to full removal proceedings under section 240, the alien is still subject to detention under section 235 rather than section 236. 8 C.F.R. 1003.19(h)(2)(i) addresses aliens who are ineligible for bond under section 236, not section 235. It was on this basis that the Attorney General concluded the Board had misapplied the regulations in concluding that non-arriving aliens initially screened from expedited removal are eligible for bond.

Order: 27 I&N Dec. at 519

The Attorney General explained that despite the fact that the respondent in the instant case was ineligible for bond, the second immigration judge ordered the DHS to release the respondent on a bond of $27,000. The Attorney General reversed the second immigration judge’s order granting bond. He held that unless the DHS granted parole to the respondent, the respondent must be detained until the conclusion of his removal proceedings.

Conclusion

The Attorney General’s decision in Matter of M-S- is significant for aliens initially placed in expedited removal proceedings. Under the new precedent, an alien who is transferred from expedited proceedings to full proceedings after establishing a credible fear of persecution or torture is ineligible for bond until the completion of the removal proceedings. Thus, the only exception to mandatory detention for such aliens is parole. This decision, like the Supreme Court’s recent decision in Jennings v. Rodriguez, is highly unfavorable to aliens affected by a mandatory detention provision.

Any alien facing removal proceedings should consult with an experienced immigration attorney immediately. This is especially important in critical cases where an alien is detained, facing expedited removal, or seeking asylum, withholding of removal, or protection under the convention against torture. In limited cases, an immigration attorney may be able to make a case for parole on behalf of an alien detained under section 235(b) of the INA.

To learn more about related issues, please see our website’s growing sections on immigration detention [see category], asylum and refugee protection [see category], and removal and deportation defense [see category]. You can find our selection of immigration precedent decisions in our growing article index [see index].