Attorney General Rules that Unlawful Entrants Generally Must Remain Detained While Asylum Claims Are Considered

Attorney General Rules that Unlawful Entrants Generally Must Remain Detained While Asylum Claims Are Considered

Legal Sidebari

Attorney General Rules that Unlawful
Entrants Generally Must Remain Detained
While Asylum Claims Are Considered
May 10, 2019
Non-U.S. nationals (aliens) apprehended by immigration authorities when attempting to unlawfully enter
the United States are generally subject to a streamlined, expedited removal process and must be detained
while awaiting removal. But in the event that an alien is found to have a “credible fear” of persecution if
returned to his or her home country, the alien will be placed in full-scale, “formal removal” proceedings
where that alien may seek asylum or similar relief from removal. For many years, immigration authorities
had construed governing statutes and regulations to provide that, when an alien apprehended between
ports of entry and initially screened for expedited removal was placed in formal removal proceedings
following a credible fear determination, that alien could seek bond and potentially be released from
custody during the pendency of those proceedings. On April 16, 2019 in Matter of M-S-, however,
Attorney General (AG) William Barr reversed this position, ruling instead that aliens apprehended
between ports of entry and placed in formal removal proceedings following a credible fear determination
remain ineligible for bond. (Though responsibility for administering federal immigration laws is divided
among multiple agencies, the AG’s rulings with respect to questions of law are controlling upon those
agencies.) The AG based his ruling, in part, on the Supreme Court’s 2018 decision in Jennings v.
Rodriguez, which interpreted provisions of the Immigration and Nationality Act (INA) to mandate the
detention without bond of aliens initially screened for expedited removal who are placed in formal
removal proceedings following a credible fear determination. Despite the AG’s ruling, the Department of
Homeland Security (DHS) retains the authority to release, in its discretion, such aliens on parole pending
the outcome of their formal removal proceedings.
This Sidebar explores the relevant statutes and regulations governing expedited removal and the detention
of aliens placed in formal removal proceedings, including how the AG’s ruling in Matter of M-S-
modified immigration authorities’ prior interpretation of these legal authorities. The Sidebar further
discusses the impact of the AG’s decision, and the relevance of the AG’s decision to Congress.
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Statutory and Regulatory Framework
Expedited Removal under INA § 235(b)(1)
INA § 235(b)(1) requires the expedited removal of aliens arriving in the United States at designated ports
of entry (“arriving aliens”) who lack valid entry documents or have attempted to gain their admission by
fraud or misrepresentation. The statute also authorizes the Secretary of Homeland Security to apply this
process to “certain other aliens” present in the United States who have not been admitted or paroled by
immigration authorities, and who have been in the country less than two years. Based on that authority,
DHS has designated for expedited removal aliens who are apprehended in the United States within 100
miles of the border within 14 days of entering the country, who have not been admitted or paroled. (DHS
reportedly plans to expand the use of expedited removal to aliens nationwide who have not been admitted
or paroled and who have been in the country less than two years—as INA § 235(b)(1) authorizes—but has
not yet finalized a rule implementing that expansion.)
INA § 235(b)(1) provides that an alien subject to expedited removal shall be ordered removed without a
hearing unless the alien indicates an intention to apply for asylum or a fear of persecution if removed to a
particular country, in which case the alien is referred to DHS’s U.S. Citizenship and Immigration Services
(USCIS) to determine whether the alien has a “credible fear” of persecution. The statute instructs that, if
the alien is found to have a credible fear of persecution, “the alien shall be detained for further
consideration of the application for asylum” in formal removal proceedings before an immigration judge
(IJ) within the Department of Justice’s (DOJ’s) Executive Office of Immigration Review (EOIR).
Although detention is mandatory for an alien who is found to have a credible fear of persecution, INA §
212(d)(5)(A) authorizes DHS, in its discretion, to parole the alien “for urgent humanitarian reasons or
significant public benefit.” There is no administrative or judicial review of DHS’s parole decision.
General Discretionary Detention Authority under INA § 236(a)
While INA § 235(b)(1) provides specific detention requirements for aliens screened for expedited
removal, INA § 236(a) addresses, more generally, the detention of aliens placed in other removal
proceedings. Under INA § 236(a), DHS’s Immigration and Customs Enforcement (ICE) “may” detain an
alien pending the removal proceedings, or release the alien on bond or the alien’s own recognizance. If
ICE decides to maintain custody, the alien may request review of ICE’s custody determination at a bond
hearing before an IJ.
In some cases, though, detention is mandatory for an alien placed in formal removal proceedings (e.g., in
the case of aliens convicted of specified crimes), and the alien may not be released from custody except in
limited circumstances. The alien also may not contest his detention at a bond hearing before an IJ. A DOJ
regulation enumerates certain classes of aliens who are ineligible for bond hearings because they are
subject to mandatory detention, including “[a]rriving aliens in formal removal proceedings.” The
regulation, however, is silent as to whether “certain other aliens” who are initially screened for expedited
removal after entering the United States without inspection are also ineligible for bond pending their
formal removal proceedings.
The Board of Immigration Appeals’ Decision in Matter of X-K-
As noted above, two categories of aliens are subject to expedited removal: arriving aliens and “certain
other aliens” who recently entered the United States without inspection. In 2005, EOIR’s Board of
Immigration Appeals (BIA), the highest administrative body charged with the interpretation and
application of federal immigration laws, determined whether both categories of aliens are subject to
mandatory detention under INA § 235(b)(1) upon being transferred to formal removal proceedings

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following a positive credible fear determination. In Matter of X-K-, the BIA observed that, while “arriving
aliens” fall within the specific classes of aliens enumerated by DOJ regulations to be ineligible for bond
hearings, that list does not include “certain other aliens” who are placed in formal removal proceedings
after being initially screened for expedited removal. In addition, the BIA observed, although DOJ
regulations state that “arriving aliens” who are placed in formal removal proceedings “shall be detained”
during those proceedings, there is no “parallel provision” for “certain other aliens” who are initially
subject to expedited removal and later transferred to formal removal proceedings. Thus, the BIA
concluded that “certain other aliens” who are initially subject to expedited removal after unlawfully
entering the United States, and subsequently placed in formal removal proceedings after establishing a
credible fear of persecution, are eligible for bond under INA § 236(a).
The Supreme Court’s Decision in Jennings v. Rodriguez
In 2018, the Supreme Court in Jennings v. Rodriguez reviewed a decision by the U.S. Court of Appeals
for the Ninth Circuit (Ninth Circuit) that had construed various INA detention provisions, including INA
§ 235(b)(1), as containing implicit six-month time limitations on the duration of detention, after which an
alien would be entitled to a bond hearing and possible release from custody (the decision is discussed in
greater detail in this Sidebar). The Supreme Court rejected as “implausible” the Ninth Circuit’s
construction of INA § 235(b)(1), declaring that the statute “unequivocally” requires the detention of
covered aliens until the conclusion of removal proceedings. Further, the Court noted, INA § 212(d)(5)(A)
only authorizes the release of aliens detained under INA § 235(b)(1) if they are granted parole by DHS,
“impl[ying] that there are no other circumstances under which aliens detained under [§ 235(b)] may be
released” (emphasis in original). The Court thus concluded that INA § 235(b)(1) mandates the detention,
without bond, of aliens initially screened for expedited removal who are transferred to formal removal
proceedings after being found to have a credible fear of persecution (the Court, however, did not decide
whether the indefinite detention of aliens pending removal proceedings would be unconstitutional).
The Attorney General’s Decision in Matter of M-S-
Under DOJ regulations, the AG has the “unfettered” authority to direct the BIA to refer a case to him for
review. In Matter of M-S-, AG Barr reviewed a BIA decision upholding an IJ’s order to release an alien on
bond pending his formal removal proceedings. The alien, an Indian national initially screened for
expedited removal after entering the United States without inspection, had been placed in formal removal
proceedings after demonstrating a credible fear of persecution. The AG exercised his appellate authority
in order to address whether the BIA’s decision in Matter of X-K- should be overturned in light of the
Supreme Court’s decision in Jennings v. Rodriguez.
The AG ruled that aliens subject to expedited removal who are placed in formal removal proceedings after
a positive credible fear determination “remain ineligible for bond, whether they are arriving at the border
or are apprehended in the United States.” The AG reasoned that INA § 235(b)(1) clearly mandates that an
alien who establishes a credible fear “shall be detained for further consideration of an application for
asylum.” The AG read the language of the statute to require detention until the conclusion of the formal
removal proceedings. The AG also determined that, even though INA § 236(a) generally authorizes the
release of detained aliens on bond, that provision serves as “an independent ground for detention” that
does not undercut DHS’s “separate authority” to detain aliens initially screened for expedited removal
who are placed in formal removal proceedings. In short, the AG concluded, INA §§ 235(b)(1) and 236(a)
“apply to different classes of aliens.”
The AG noted, moreover, that to the extent aliens seeking admission (which would include those screened
for expedited removal) are released from custody, INA § 212(d)(5)(A) provides that they can only be
released on parole. The AG reasoned that, “[i]n light of that express exception to mandatory detention”

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for parole, “the [INA] cannot be read to contain an implicit exception for bond.” The AG also cited the
Supreme Court’s decision in Jennings v. Rodriguez, which had interpreted the INA “in the exact same
way” and concluded that aliens detained under INA § 235(b)(1) are ineligible for bond and may only be
considered for parole. Further, the AG observed, DHS regulations concerning the transfer of aliens from
expedited to formal removal proceedings mention the availability of parole, not bond.
Finally, the AG determined, although 8 C.F.R. § 1003.19(h)(2)(i) expressly bars “arriving aliens” from
bond during formal removal proceedings, but does not address other categories of aliens subject to
expedited removal, the BIA in Matter of X-K- had failed to consider INA § 235(b)(1)’s overall mandatory
detention scheme and its interplay with INA § 236(a). The AG thus concluded that the DOJ regulation
“does not provide an exhaustive catalogue of the classes of aliens who are ineligible for bond.”
Accordingly, the AG ruled that “all aliens transferred from expedited to full proceedings after establishing
a credible fear are ineligible for bond,” and overturned the BIA’s decision in Matter of X-K-. However,
because the AG’s ruling would likely have “an immediate and significant” impact on DHS’s detention
operations, the AG delayed the effective date of his decision for 90 days (i.e., until July 15, 2019).
Considerations for Congress
The AG’s ruling in Matter of M-S- modifies existing policies so that all aliens initially screened for
expedited removal who are placed in formal removal proceedings after establishing a credible fear of
persecution are ineligible for release on bond. The AG’s decision has implications for “a sizable
population of aliens” who have entered the United States without inspection, and who previously could
secure their release on bond pending consideration of their asylum applications. In light of the AG’s
ruling, these aliens can no longer obtain administrative review of their custody status and—like aliens
screened for expedited removal who had arrived at ports of entry—may only be released under DHS’s
parole authority.
Reportedly, the AG’s decision is part of a broader effort to deter aliens from unlawfully entering the
United States and to end the “catch and release” of asylum seekers. Critics of the AG’s decision contend
that it may lead to thousands of aliens being detained indefinitely pending their removal proceedings, and
that there is no reason to detain aliens who have demonstrated a credible fear of persecution, and who,
they contend, usually appear at their hearings (DOJ statistics indicate that between approximately 60% to
70% of released aliens appeared at their hearings from FY2013 to FY2017). In addition, some
commentators argue that the AG’s ruling will be “severely limited” because ICE lacks sufficient detention
space. Consequently, the AG has delayed the effective date of his ruling for until July 15, 2019, so that
DHS may “conduct necessary operation planning.”
Several advocacy groups have recently challenged the AG’s decision, arguing that INA § 235(b)(1)’s
mandatory detention scheme applies only to arriving aliens, and not to those who entered the United
States without inspection and who are placed in formal removal proceedings following a positive credible
fear determination. The lawsuit also contends that denying bond hearings to aliens who entered the United
States without inspection, and who are transferred to formal removal proceedings, violates their
constitutional right to due process.
The legal challenge may face hurdles to the extent that it turns upon matters of statutory authorization,
particularly in light of the Supreme Court’s ruling in Jennings. INA § 235(b)(1) plainly states that an alien
initially screened for expedited removal who shows a credible fear of persecution “shall be detained”
pending consideration of the asylum application. Furthermore, the Jennings Court held last year that DHS
has the statutory authority to detain aliens potentially indefinitely pending their removal proceedings, and
construed INA § 235(b)(1) as mandating the detention of covered aliens without bond. The Court,
however, has not yet decided whether such indefinite detention may, at some point, raise constitutional
concerns (though the Court recognized nearly two decades ago that such concerns exist with respect to

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admitted aliens who are indefinitely detained after being ordered removed, it has not addressed whether
constitutional considerations apply to non-admitted aliens being held during removal proceedings). After
Jennings, some lower courts have ruled that the prolonged detention of aliens pending their removal
proceedings violates due process. Notably, some courts applied these constitutional constraints to the
detention of aliens seeking admission into the United States, even though such aliens typically have more
limited constitutional protections than aliens within the country.
In any case, despite the AG’s ruling in Matter of M-S-, DHS retains the authority to parole aliens initially
screened for expedited removal who are placed in standard removal proceedings. DHS regulations list
certain classes of aliens who would be eligible for parole, including those “whose continued detention is
not in the public interest” because they present neither a security nor flight risk. Unlike bond
determinations, DHS has sole discretion whether to grant parole, and that decision is generally not subject
to review. (Some courts, though, have ruled that DHS must adhere to its parole procedures and may not
use generalized deterrence considerations as a factor in denying parole.)
In addition, DHS’s ability to detain families remains constrained in light of the “Flores Settlement,”
which generally requires the release of alien minors to a qualifying adult or a non-secure, licensed facility.
Thus, the AG’s ruling likely will have little impact on existing detention policies relating to arriving
families.
Therefore, while the AG’s ruling widens the scope of asylum seekers who are subject to
mandatory detention pending consideration of their applications, the decision does not foreclose
the possibility of release in some circumstances. Ultimately, Congress has the power to clarify
whether aliens who establish a credible fear of persecution may be released on bond pending
consideration of their claims, or whether they should remain in custody throughout their formal
removal proceedings. For instance, the Dignity for Detained Immigrants Act of 2019 would
repeal INA § 235(b)(1)’s mandatory detention scheme, require DHS to make custody
determinations for aliens who establish a credible fear, and permit such aliens to promptly
challenge their detention at bond hearings. The Protect Kids and Parents Act of 2018, on the
other hand, would have overridden the Flores Settlement to effectively extend § 235(b)(1)’s
mandatory detention scheme to family units.

Author Information

Hillel R. Smith

Legislative Attorney

Congressional Research Service

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