Nolan writes in The Hill:
. . . .
But the prospect is now on the horizon of asylum seekers remaining in detention regardless of being able to establish a credible fear of persecution.
Attorney General Jeff Sessions is now reviewing that BIA decision to determine whether it should be overruled in light of the Supreme Court’s ruling in Jennings v. Rodriguez.
The Ninth Circuit had held that an alien who establishes a credible fear of persecution cannot be held indefinitely under the expedited removal provisions of the Immigration and Nationality Act without bond hearings every six months at which the government has the burden of showing that further detention is necessary.
But in Jennings v. Rodriguez, the Supreme Court rejected that.
The pertinent provision states when it’s been determined that a person has a credible fear of persecution, he “shall be detained for further consideration of the application for asylum,” and the Supreme Court held that this language “mandate(s) detention of aliens throughout the completion of applicable proceedings and not just until those proceedings begin.”
In other words, mandatory detention continues to apply until they have been granted asylum, deported, or – and this is key – they choose voluntarily to leave on their own.
If aliens placed in expedited removal proceedings have to be detained until they can be deported or are granted asylum, most of them will go home rather than stay at a detention center on a military base for several years with no realistic hope of being granted asylum.
According to Adam Cox, a leading expert on immigration and constitutional law, Justice Department lawyers under both Democratic and Republican administrations have argued that undocumented aliens apprehended at the border lack due process protections, and the Supreme Court has never clearly resolved the dispute.
There was an uproar – and some backtracking – over detaining children for even relatively short periods. How will the American public react to people – men, women, and children – being put in mandatory detention that can last for months or even years?
. . . .
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Go on over to The Hill at the above link to see Nolan’s complete article.
It’s likely that “Our Gang” of retired Immigration Judges will be weighing in on this issue in the near future. So, stay tuned for further developments.
PWS
10-16-18
It may be too late to submit a brief to Sessions. His decision directing review says, “Interested amici may submit briefs not exceeding 9,000 words on or before October 16, 2018.” If you are going to ask for an extension, you should do it as soon as possible.
Good point. Thanks, Nolan!
Best,
P 10/16