Matter of M-S- (A.G. 2019)

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.

East Bay Sanctuary Covenant v. TRUMP

Decided November 19, 2018

This case struck a blow to the Trump administration’s attempt to thwart the illegal entry of immigrants along the southern boarder to seek asylum.   The Department of Justice (“DOJ”) and Department of Homeland Security (“DHS”) published a joint interim final rule, entitled “Aliens Subject to a Bar on Entry Under Certain Presidential Proclamations; Procedures for Protection Claims” (the “Rule”). 83 Fed. Reg. 55,934 (Nov. 9, 2018) (to be codified at 8 C.F.R. pts. 208, 1003, 1208). Under the rule, an immigrant would be ineligible for asylum if the President by proclamation limited entry of immigrants across the southern border with Mexico after the effective date of the proclamation.  Of course the president did make a proclamation: “Presidential Proclamation Addressing Mass Migration Through the Southern Border of the United States.” The joint effect of the rule and proclamation would be to prevent individuals who entered the United States without permission, at other than a port of entry, from being granted asylum.  Such individuals would be summarily denied asylum through the “credible fear” process, and then only eligible for Withholding of Removal or relief under the Convention Against Torture; the latter forms of relief much less appealing and much more difficult to obtain.

The Northern District of California temporarily blocked the implementation of the rule, noting that the plaintiffs were likely to succeed on the merits.  And indeed that appears the case.  There seems no good reason to provide Chevron deference to this rule when clearly contrary to the express will of Congress as provided in statute.  According to the Northern District of California:

separately from the question of admissibility, Congress has clearly commanded that immigrants be eligible for asylum regardless of where they enter. Prior to IIRIRA, asylum was potentially available to “an alien physically present in the United States or at a land border or port of entry, irrespective of such alien’s status.” 8 U.S.C. §1158(a) (1980). In IIRIRA, Congress amended §1158(a) to provide that “[a]ny alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum in accordance” with §1158 and §1225(b). 8 U.S.C. § 1158(a) (emphasis added).

Also, as the Northern District of California pointed out, not only does the rule flout the explicit language of the statute, it also represents an “extreme departure from prior practice” and is contrary to the 1967 United Nations Protocol to which the United States acceded in 1968.