On April 16th, Attorney General William Barr issued a decision in Matter of M-S-, 27 I&N Dec. 509 (A.G. 2019), overturning a Board of Immigration Appeals (BIA) decision that had been the governing law for the last fifteen years.  Previously, some noncitizens who were transferred to “full” removal proceedings from “expedited” removal proceedings, based on a finding that they had a credible fear of persecution or torture, were eligible to be released from detention on bond.  Only some aliens so transferred, and those who remained in expedited proceedings, faced mandatory detention until their case was fully resolved.  Specifically, the BIA had ruled that “arriving” noncitizens, such as those coming into the U.S. at a port of entry, must be detained, but all other transferred noncitizens were eligible for bond.

The Attorney General’s new decision reversed the BIA’s ruling.  Now, unless paroled under INA §212(d)(5)(A), all noncitizens transferred from expedited to full removal proceedings based on a credible fear finding face mandatory detention until their asylum claim is decided; a process that can last months, or even years.

Notably, Matter of M-S- does not apply to unaccompanied minors nor families with children.  Under a 1997 decision, Flores v. Reno, often called the “Flores Agreement,” unaccompanied minors and families with children cannot be held beyond 20 days if they clear the credible fear screening.

Pending litigation on the constitutionality of holding noncitizens in mandatory detention beyond six months could prevent the change from going into effect, but barring an injunction, Barr’s decision will go into effect in July.  If the change goes into effect, it would tax an already heavily burdened court system and put new pressures on Immigration and Customs Enforcement (ICE) detention centers.  The Washington Post reports that detention centers run by ICE are holding a record 50,000 migrants, more than Congress has authorized, and some 400 immigration judges face a backlog of over  800,000 cases, which means that new cases are regularly scheduled for 2021 and beyond.

This latest development has added to the number of people calling for an independent court system outside of the Justice Department.  As the current immigration courts are part of the Justice Department, the Attorney General can unilaterally overrule cases that have been decided by the BIA.

 

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