Matter of M-G-G-, 27 I&N Dec. 469 (AG 2018): AG Considers Scope of Bond Hearings For Certain Aliens Who Establish Credible Fear

 

Update

Update (10/21/18): On October 12, 2018, Attorney General Jeff Sessions issued a published decision in Matter of M-G-G-, 27 I&N Dec. 475 (A.G. 2018) [PDF version]. In the second Matter of M-G-G- decision, he explained that the respondent had been removed to Guatemala under a final order of removal. Because the removal of the respondent mooted the question presented as applied to the instant case, the Attorney General decided to not review the Board’s determination that the respondent was eligible to be released on bond. Instead, he remanded the case to the Board for any further proceedings that may be necessary. However, the Attorney General will still review the exact question presented in the initial Matter of M-G-G- referral in a different case. To learn more, please see our short article on his referral in Matter of M-S-, 27 I&N Dec. 476 (A.G. 2018) [PDF version], published on the same day as the second Matter of M-G-G- decision [see article].

Introduction: Matter of M-G-G-, 27 I&N Dec. 469 (A.G. 2018)

On September 18, 2018, U.S. Attorney General Jeff Sessions issued a published decision in Matter of M-G-G-, 27 I&N Dec. 469 (A.G. 2018) [PDF version]. In the decision, he referred an unpublished decision of the Board of Immigration Appeals (BIA) concerning the authority to hold bond hearings for certain aliens screened from expedited removal proceedings to himself for review. This referral continues the Attorney General's policy of personally reviewing issues that implicate the administrative burden on the immigration court system. In this article, we will review the referral and discuss what it may mean going forward.

Referral

Attorney General Sessions directed the BIA to refer Matter of M-G-G- to him for review under 8 C.F.R. 1003.1(h)(1)(i). Under Matter of Haddam, A.G. Order No. 2380-2001 [PDF version reprinted here], the Board's decision in Matter of M-G-G- was stayed pending the Attorney General's decision.

Question Presented for Amicus Briefs

Attorney General Sessions requested briefing from the parties and invited interested amici (friends of the court) to submit briefs on issues relevant to his deciding the case. He specifically asked for the parties and amici to address the following question:

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' briefs must be filed on or before October 9, 2018, and may not exceed 15,000 words. Interested amici may file briefs on or before October 16, 2018, not exceeding 9,000 words. The parties may also submit reply briefs by October 16, 2018, not exceeding 6,000 words.

Understanding the Issues

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

The Attorney General's ultimate decision in M-G-G- will have a significant effect on certain aliens described by section 235(b)(1)(A)(iii) who are placed in section 240 removal proceedings after establishing a credible fear of persecution. While we will not know what the Attorney General's decision will be until it is published, the circumstances of the referral strongly suggest that Matter of X-K- will either be overruled entirely or significantly curtailed. We will publish a full article on the Attorney General's decision when it is published.

Any alien facing removal proceedings, whether under section 235 or section 240, should consult with an experienced immigration attorney immediately. This is especially important in cases where the alien is subject to immigration detention. An experienced immigration attorney may evaluate a client's case, establish whether he or she has a defense against removal or is otherwise eligible for some form of relief or protection, and then assist him or her in pursuing these options. To learn more about these issues, please see our website's growing sections on removal and deportation defense [see section], immigration detention [see section], and asylum and refugee protection [see section]. To learn more about issues related to Jennings v. Rodriguez and its aftermath, please refer to our article index [see index].