Weekly Blog for 4.19.19 by Merle Kahn, Esq.
Attorney General William Barr issued his first immigration decision this week. The legal reasoning and the writing hold together better than Sessions’s decisions, but the outcome is similarly horrific. The AG withdrew Matter of X-K-, 23 I.&N. Dec. 731 (BIA 2005) (noncitizens placed in expedited removal proceedings who establish a credible fear of persecution are eligible for a bond hearing during the pendency of the proceedings). The AG held that noncitizens who are initially placed in expedited removal proceedings and are found to have a credible fear of persecution (i.e. significant possibility that the noncitizen is eligible for asylum, withholding of removal or protection under the Convention Against Torture. 8 C.F.R. § 208.30, § 1208.30) are statutorily subject to mandatory detention during proceedings. The decision mirrors the logic of Jennings v. Rodriguez, 138 S. Ct. 830 (2018). Before you reach for the smelling salts, please remember that this decision is based on a pure statutory interpretation of the statute and the regulations. It does not address any Constitutional concerns. We can still make due process arguments and habeas/suspension clause arguments to get these cases into federal court.
In the already famous footnote 8 the AG delayed the implementation of this ruling for ninety days to enable DHS to make plans for additional detention spaces and to create a process for parole requests and guidelines for decisions. The AG writes:
“Because Matter of X-K- declared a sizable population of aliens to be eligible for bond, DHS indicates that my overruling that decision will have “an immediate and significant impact on [its] detention operations. DHS Br. 23 n. 16. DHS accordingly requests that I delay the effective date of this decision “So that DHS may conduct the necessary operational planning.” Id. Federal Circuit Courts have discretion to delay the effective dates of their decisions, see Fed. R. App. P. 41(b) and I conclude that I have similar discretion.”
Matter of M-S-, 27 I.&N. Dec. 509, at 519 & n. 8 (A.G. 2019). The hubris is breathtaking. But the good news is that this delay gives us time to seek injunctions in federal courts on constitutional grounds.
FACTS
M-S- (I don’t think that the fact that the AG titled this case M-S- is an accident) is a native and citizen of India. He traveled to Mexico and then entered the United States without inspection. DHS caught him about fifty miles north of the border and placed him into expedited removal proceedings. Mr. M-S- claimed he feared persecution in India. The asylum officer determined that he lacked a credible fear of persecution. But DHS later reconsidered and reversed its finding. DHS placed Mr. M-S- in Section 240 removal proceedings. The Immigration Judge (IJ) ordered Mr. M-S- released provided he produced a valid Indian passport and post a bond of $17,500. (A slight aside here, if an asylum seeker obtains a passport from the country of persecution, it suggests they are seeking protection from the country of persecution. It is why refugees and asylees travel internationally on refugee travel documents rather than using the passports of their home country. So why would an IJ insist on a valid passport from the country of persecution? It undermines the asylum claim. But this weird wrinkle is irrelevant to this case).
Mr. M-S- appealed the bond determination to the Board of Immigration Appeals (BIA) arguing that his bond should be reduced. While the appeal was pending, Mr. M-S- requested that an immigration judge again review the custody determination. This time Mr. M-S- argued that since the Indian consulate had denied his request for a replacement passport, he should not be required to produce one. The IJ ruled in favor of Mr. M-S- on the passport issue and increased the bond to $27,000. Mr. M-S- somehow paid the $27,000 bond and was released from detention. The BIA, unaware that Mr. M-S- was released on bond, affirmed the first IJ’s bond order. No one appealed the second IJ’s bond order and that case remained pending. The AG notes in a footnote that both bond orders and the BIA’s decision all pose the same question. Did Mr. M-S- became eligible for bond after establishing a credible fear of persecution and being transferred from expedited removal proceedings under Section 235 to full immigration proceedings under Section 240? The AG held that Mr. M-S- was ineligible for bond and his decision has the effect of reversing the second bond order. Matter of M-S-, 27 I.&N. Dec. at 515 &n. 6.
LEGAL BACKGROUND
BIA Matter of X-K-
To understand this case, we need some legal background. In 2005 the BIA (under Attorney General Alberto Gonzales) held that a noncitizen who was initially placed in expedited removal proceedings under INA § 235(b) and who passed a credible fear interview was no longer in expedited removal proceedings. If the noncitizen passed the credible fear interview, the proceeding was converted to a regular removal hearing under INA § 240. Once the asylum applicant was in regular removal proceedings they could request a bond under INA § 236(a). Matter of X-K-, 23 I.&N. Dec. 731 (BIA 2005).
Supreme Court Jennings v. Rodriguez
Then in 2018, the Supreme Court decided Jennings v. Rodriguez, 138 S. Ct. 830 (2018). In Rodriguez, the majority held, among other things, that an asylum seeker initially placed in expedited removal proceedings who has passed a credible fear interview is subject to mandatory detention during the pendency of the asylum process. The conversion of the proceeding from a Section 235 expedited removal hearing to a Section 240 regular removal hearing is irrelevant. But the Supreme Court noted that the asylum applicant may be paroled into the United States for urgent humanitarian reasons or because it would create a significant public benefit. INA § 212(d)(5). However, the parole is not regarded as an admission for immigration purposes. Once the purpose of the parole has been served, the parolee shall be returned to mandatory detention. Id. I can imagine pregnant women will be paroled into the United States give birth and then placed back in mandatory detention once the child is safely born.
It is important to remember that the Rodriguez court remanded the case to the Ninth Circuit to analyze any constitutional issues and to determine whether a class action lawsuit was the appropriate vehicle for this case.
LEGAL ANALYSIS
The AG’s decision mirrors the majority’s decision in Rodriguez and is based on a pure statutory analysis. The AG never discusses Constitutional due process or habeas concerns. The AG limits the group of noncitizens subject to expedited removal proceedings to the following:
“The designated group at issue here encompasses 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 U.S. continuously for the 14-day period immediately prior to the date of encounter.” 2004 Designation, 69 Fed. Reg. at 48,880.”
Matter of M-S-, 27 I.&N. Dec. at 511 (emphasis added). That limited subsection is a sliver of good news for many of our clients. For right now, this law only applies to noncitizens who entered without inspection; who pass a credible fear interview; are found by DHS within 100 air miles of a land border; and, cannot establish that they have been physically present in the United States for fourteen days prior to the encounter with DHS.
Once the AG establishes the class of noncitizens who fall into this class, the AG holds that a person who is initially subject to expedited removal proceedings under Section 235 may not apply for or be granted a bond even after they pass a credible fear interview and are placed in regular removal proceedings under Section 240. As I said, the AG uses a straight statutory analysis. He finds that noncitizens who are originally placed in expedited removal proceedings and who are then transferred to full removal proceedings once they have established a credible fear of persecution are still subject to mandatory detention.
The AG writes:
“The text of the Act mandates that conclusion. Section 235(b)(1)(B)(ii) provides that, if an alien in expedited proceedings establishes a credible fear, he “shall be detained for further consideration of the application for asylum.” “The word ‘shall’ generally imposes a nondiscretionary duty.” SAS Inst., Inc. v. Iancu, 138 S. Ct. 1348, 1354 (2018). And the word “for” often means “with the object or purpose of” or “throughout.” 6 Oxford English Dictionary 23, 26 (2d ed. 1989). Granted, “for” can also mean “in preparation for or anticipation of.” Id. at 24. But that latter definition makes little sense in light of surrounding provisions of the Act. See, e.g., Rodriguez, 138 S. Ct. at 844-45 (recognizing that defining “for” to mean “until the start of” “makes [no] sense in the context of the statutory scheme as a whole” (emphasis in original)). If section 235(b)(1)(B)(ii) governed detention only “in preparation for” — that is, until the beginning of — full proceedings, then another provision, section 236, would govern detention during those proceedings. Section 236, however, permits detention only on an arrest warrant issued by the Secretary. INA § 236(a). 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. That simply cannot be what the Act requires. Instead, I read section 235(b)(1)(B)(ii) to mandate detention (i) for the purpose of ensuring additional review of an asylum claim, and (ii) for so long as that review is ongoing. In other words, section 235(b)(1)(B)(ii) requires detention until removal proceedings conclude.”
Matter of M-S-, 27 I.&N. Dec. at 515-516. This analysis mirrors the Supreme Court’s decision in Rodriguez.
Due Process Arguments
Before you give up all hope and imagine internment camps in Texas for asylees, remember this decision is based on a pure statutory analysis used in Rodriguez. It does not touch upon the Constitutional issues at play here; namely at what point does detention become prolonged detention and become unconstitutional? Just a few weeks ago, the District Court for the Western District of Washington held, “[i]t has long been recognized that immigration detainees have a constitutionally-protected interest in their freedom. Zadvydas v. Davis, 533 U.S. 678, 690 (2001).” Padilla, et al. v. U.S. Immigration and Customs Enforcement, et al. No. C18-928 MJP, slip op. at *6 (W.D. Wash. April 5, 2019). The Padilla Court noted that “once an individual has entered the country, he is entitled to the protections of the due process clause.” Padilla, slip op. at *7 citing United States v. Raya-Vaca, 771 F.3d 1995, 1202 (9th Cir. 2014) and Zadvydas, 553 U.S. at 793. The Padilla Court found that detained noncitizens have a right to be free from indeterminate civil detention and a right to have their bond hearings conducted in conformity with due process. I blogged about this case last week and you can read it here. There are a lot of constitutional arguments that we can make in these cases. Even Rodriguez is very clear that its interpretation of the statute is based on pure statutory construction and they do not address the constitutional issues involved. Rodriguez, 138 S. Ct. at 851.
Habeas
Second, we still have the Great Writ. We still have habeas corpus and the Suspension Clause which is the vehicle that will get our clients into the federal courts. The Ninth Circuit recently held that the Suspension Clause (habeas relief) applies to noncitizens in expedited removal proceedings. Thuraissigiam v. U.S. Dept. of Homeland Sec., No. 18-55313 (9th Cir. March 7, 2019). The Suspension Clause says, “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion, the public Safety may require it.” U.S. Const. art. I, § 9, cl. 2. The Suspension Clause prevents Congress from passing a law that suspends habeas corpus absent a rebellion or an invasion. Felker v. Turpin, 518 U.S. 651 (1996). The Ninth Circuit noted that the Suspension Clause is different from the Due Process Clause and that both apply to noncitizens. At a minimum, the Suspension Clause must allow a noncitizen “a meaningful opportunity to demonstrate that they are being held pursuant to the erroneous application or interpretation of relevant law.” Thuraissigiam, slip op. at *41. You can read my blog about Thuraissigiam here. So, we now have a vehicle to get into the federal courts to argue that the AG’s decision in Matter of M-S- was wrongly decided and unfairly denies our clients their due process rights to liberty. We have ninety days to get this case enjoined before DHS completes the construction of internment camps.
I have observed before that one of the geniuses of the American system of asylum is that we immediately absorb asylum seekers into our society. Asylum seekers are not condemned to waste away in refugee camps for years on the hope that they might one day get asylum. Instead, we give them work permits; we enroll the children in our schools; and, we give them safe-haven. Our country has been immeasurably enriched by this process. Why mess with success?