Decided April 16, 2019
Arriving aliens – i.e., people who turn themselves in at a port of entry seeking asylum – and others apprehended after attempting unlawful entry into the United States at or near the border are subject to expedited removal.
They are promptly removed if they do not indicate a fear of returning to their home country which triggers referral to an asylum officer who must determine whether that person has a “credible fear of persecution or torture.”
In the past, it was common to obtain a bond for such individuals who were transferred to full immigration court proceedings (called 240 proceedings) after a positive determination of the asylum officer – at least in the case of immigrants other than arriving aliens. This case changes that practice.
The question presented is whether 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. I conclude that such aliens remain ineligible for bond, whether they are arriving at the border or are apprehended in the United States.
This is a huge decision that will frustrate the will of many people seeking safety in the United States. The decision was made by the Attorney General – William Barr – and is part of the Trump administration’s war on immigration. While the Department of Homeland Security retains the discretionary authority to parole individuals – or let them out of prison – while their case is pending in the immigration courts, many will wait for months if not years to receive a trial without the possibility of bond.
