BARR EXPANDS “NEW AMERICAN GULAG” — Indefinite Detention Without Bond Hearings For Those Who Establish Credible Fear Of Persecution — DHS Detention Capacity Already Outstripped, Requiring 90 Day Delay In Implementing!

Matter of M-S-, 27 I&N Dec. 509 (A.G. 2019)

matter_m-s-_27_in_dec._509_a.g._2019_002

BIA HEADNOTE:

(1) Matter of X-K-, 23 I&N Dec. 731 (BIA 2005), was wrongly decided and is overruled.
(2) An alien who is transferred from expedited removal proceedings to full removal proceedings after establishing a credible fear of persecution or torture is ineligible for release on bond. Such an alien must be detained until his removal proceedings conclude, unless he is granted parole.

KEY QUOTE:

Because Matter of X-K- declared a sizable population of aliens to be eligible for bond, DHS indicates that my overruling that decision will have “an immediate and significant impact on [its] detention operations.” DHS Br. 23 n.16. DHS accordingly requests that I delay the effective date of this decision “so that DHS may conduct necessary operational planning.” Id. Federal circuit courts have discretion to delay the effective dates of their decisions, see Fed. R. App. P. 41(b), and I conclude that I have similar discretion. I will delay the effective date of this decision for 90 days so that DHS may conduct the necessary operational planning for additional detention and parole decisions.

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Short Takes:

  • An increase in mandatory detention is sure to mean more “Aimless Docket Reshuffling” (“ADR”); as more detained cases are moved to the front of the docket, they will displace lower priority (but “ready to try”) non-detained cases which will be “shuffled off to Buffalo” thus increasing the already overwhelming backlog; as more Immigration Judges are sent to detention facilities near the border, they will “leave behind” already full dockets creating even more chaos in an already dysfunctional system;
  • Expanding mandatory detention raises the stakes even higher in the pending litigation on whether mandatory prehearing detention without recourse to individualized bond determinations by Immigration Judges violates the Due Process Clause of the Fifth Amendment — See Rodriguez v. Marin, https://immigrationcourtside.com/2018/11/27/our-gang-in-action-9th-cir-remands-jennings-v-rodriguez-keeps-injunction-in-effect-hints-that-administration-scofflaws-could-be-in-for-another-big-loss-will-we-see-th/
  • Obviously, planning for the result they asked for (and these days were almost certain to get from the AG) wasn’t part of the DHS program.

PWS

04-16-19

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