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Top of the Ninth:  Mandatory Detention

Top of the Ninth: Mandatory Detention

This week after a very busy week at work, and I was quite pleasantly surprised that no immigration cases had come down from the Ninth Circuit, the BIA or the AG’s office. It was Friday night and I was tired. I was lying on my couch, watching Crazy Ex-Girlfriend and was amazed by how they addressed the racial and systemic biases and disparities of the criminal justice decision in a song and dance routine; when I started scrolling through my emails. There to my horror and surprise were two new decisions from the Attorney General. Don’t these people ever take a break from trying to deport people? It was Friday night!!!! On the West Coast!!!!! Anyhow, the Attorney General had withdrawn one case because ICE had already removed the noncitizen from the United States and substituted another case on the same issue; but changed the due dates on the briefing schedule. In other words, the U.S. government had removed the respondent who had applied for asylum and was placed in mandatory detention in the United States; so Sessions referred a new case with the exact same issues to himself.

Attorney General

May an Immigration Judge Hold Bond Hearings for Asylum Applicants Who Have Passed a Credible Fear Interview

After the first named respondent was removed to Guatemala, the Attorney General (AG) decided he would not review that decision and he remanded it to the BIA for any administrative action on the case that the BIA deemed necessary. Matter of M-G-G-, 27 I.&N. Dec. 475 (A.G. 2018). But don’t worry, because the AG simultaneously referred to himself another case to determine whether Immigration Judges may hold bond hearings for asylum applicants who have passed a credible fear interview. Here is the exact language (in all honesty, I just lifted the remainder of the blog from my previous blog post about this issue):

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, 8 U.S.C. § 1225(b)(1), into removal proceedings under section 240 8 U.S.C. § 1992a, should be overruled in light of Jennings v. Rodriguez, 138 S. Ct. 830 (2018).

Matter of M-S-, 27 I.&N. Dec. 476 (A.G. 2018). The Supreme Court in Jennings v. Rodriguez had held that there is no implicit six-month limitation on mandatory detention. The Ninth Circuit had previously held that after six months; detention becomes prolonged and is unconstitutional. The Supreme Court rejected this argument and held that for noncitizens who are subject to expedited removal proceedings and who are applying for asylum, there is no clear limit on detention. The Court held:

Read most naturally, §§ 1225(b)(1) and (b)(2) [INA § 235(b)(1) and (b)(2)] thus mandate detention of applicants for admission until certain proceedings have concluded. Section 1225(b)(1) aliens are detained for “further consideration of the application for asylum,” and § 1225(b)(2) aliens are detained for “[removal] proceeding[s].” Once those proceedings end, detention under § 1225(b) must end as well. Until that point, however, nothing in the statutory text imposes any limit on the length of detention. And neither § 1225(b)(1) nor § 1225(b)(2) says anything whatsoever about bond hearings.

Despite the clear language of §§ 1225(b)(1)( and (b)(2), respondents argue – and the Court of Appeals held – that those provisions nevertheless can be construed to contain implicit limitations on the length of detention. But neither of the two limiting interpretations offered by respondents is plausible.

Jennings v. Rodriguez, 138 S. Ct. 830, 842. As I said before, I fear that noncitizens who have passed a credible fear interview are going to be subject to indefinite mandatory detention under Sessions and under the new composition of the U.S. Supreme Court. If you can write an amicus brief it is now due on or before November 9, 2018 and cannot exceed 9000 words. The parties have been instructed to file their briefs on or before November 2, 2018. If you are interested in reading the case, please click on the link below.

Matter of M-S-, 27 I.&N. Dec. 476 (A.G. 2018).

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