Mandatory Detention for Aliens Transferred from Expedited Removal Post Credible Fear (Matter of M-S-)

Policy effect

Overruled Matter of X-K- (2005) and established binding nationwide precedent that aliens transferred from expedited removal proceedings to full INA § 240 removal proceedings after establishing a credible fear of persecution or torture are ineligible for release on bond by an immigration judge and must be detained pending removal proceedings unless granted parole by DHS. Phase scope: Nationwide across EOIR immigration courts and DHS enforcement

Conditions and exceptions

Validated condition or limit: Overruled Matter of X-K- (2005) and established binding nationwide precedent that aliens transferred from expedited removal proceedings to full INA § 240 removal proceedings after establishing a credible fear of persecution or torture are ineligible for release on bond by an immigration judge and must be detained pending removal proceedings unless granted parole by DHS.

Official source excerpt

Quoted verbatim from the official source below. Ellipses indicate omitted text.

Cite as 27 I&N Dec. 509 (A.G. 2019) Interim Decision #3950 Matter of M-S-, Respondent Decided by Attorney General April 16, 2019 U.S. Department of Justice Office of the Attorney General (1) Matter of X-K-, 23 I&N Dec. 731 (BIA 2005), was wrongly decided and is overruled. (2) An alien who is transferred from expedited removal proceedings to full removal proceedings after establishing a credible fear of persecution or torture is ineligible for release on bond. Such an alien must be detained until his removal proceedings conclude, unless he is granted parole. BEFORE THE ATTORNEY GENERAL The Immi … in expedited proceedings and then transferred to full proceedings after establishing a credible fear become eligible for bond upon transfer. I conclude that such aliens remain ineligible for bond, whether they are arriving at the border or are apprehended in the United States. 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, 1 … shed a credible fear, then DHS could terminate his expedited proceedings and initiate full ones, thereby rendering him eligible for bond. And for good reason: DHS’s authority under Matter of E-R-M- & L-R-M- expires once an asylum officer (or immigration judge) makes a final credible-fear determination, at which point the alien “shall be detained” either for further adjudication of his asylum claim or for removal. INA § 235(b)(1)(B)(ii), (b)(1)(B)(iii)(IV). 518 Cite as 27 I&N Dec. 509 (A.G. 2019) Interim Decision #3950 all aliens transferred from expedited to full proceedings after establishing … a credible fear are ineligible for bond. Matter of X-K- is therefore overruled. 8 III. Here, despite the respondent being bond ineligible, the second immigration judge ordered DHS to release him on a bond of $27,000. The respondent posted that bond in September 2018, and was released from custody. I reverse the order granting bond to the respondent. I order that, unless DHS paroles the respondent under section 212(d)(5)(A) of the Act, he must be detained until his removal proceedings conclude. 8 Because Matter of X-K- declared a sizable population of aliens to be eligible for bond, DHS indica … tes 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 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. I will delay the effective date of this decision for 90 days so that DHS may conduct the necessary operational planning for additional detention and parole decisions. 51 …

Review method

Two separate automated exact-claim source reviews

Other United States changes operative in 2019

• 2019-01-25Policy Guidance for Implementation of the Migrant Protection Protocols
• 2019-04-01H-1B cap selection order changes for the FY2020 season
• 2019-07-16Asylum Eligibility and Procedural Modifications for Third-Country Transits
• 2019-07-23Designating Aliens for Expedited Removal
• 2019-07-23Replacement immigrant-visa fee relief specified for qualifying adoptive families
• 2019-07-29Heightened Particular Social Group Standard for Nuclear Families in Asylum Adjudications (Matter of L-E-A-)
• 2019-10-11Adjudication Standards for USCIS Consent and Parental Reunification in Special Immigrant Juvenile Status (Matter of D-Y-S-C-)
• 2019-10-25Matter of Castillo-Perez, 27 I&N Dec. 664 (A.G. 2019)
• 2019-10-25Matter of Thomas and Thompson Attorney General Precedent on Sentence Modifications
• 2019-11-01Presidential Determination on Refugee Admissions for Fiscal Year 2020
• 2019-11-19Asylum cooperative-agreement screening and transfer procedures created