M-S

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Matter of M-S-, Respondent

Decided by Attorney General April 16, 2019

U.S. Department of Justice

Office of the Attorney General

(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.

BEFORE THE ATTORNEY GENERAL

The Immigration and Nationality Act (“INA” or “Act”) provides for

several types of removal proceedings, including “full” proceedings

conducted by immigration judges and “expedited” proceedings conducted by

the front-line immigration enforcement officers of the Department of

Homeland Security (“DHS”). Lara-Aguilar v. Sessions, 889 F.3d 134,

137-38 (4th Cir. 2018); INA §§ 235(b)(1), 240, 8 U.S.C. §§ 1225(b)(1),

1229a. Generally, aliens placed in expedited proceedings must be detained

until removed. INA § 235(b)(1)(B)(iii)(IV). But some aliens who start in

expedited proceedings—namely, those who establish a credible fear of

persecution or torture—are transferred to full proceedings. Id.

§ 235(b)(1)(B)(ii); 8 C.F.R. § 208.30(f). The question here is whether, under

the Act, aliens transferred after establishing a credible fear are eligible for

release on bond. 1

In Matter of X-K-, the Board of Immigration Appeals (“Board”) held that

only some aliens transferred after establishing a credible fear are subject to

mandatory detention. 23 I&N Dec. 731, 736 (BIA 2005). Specifically, the

1

This opinion does not address whether detaining transferred aliens for the duration of

their removal proceedings poses a constitutional problem, a question that Attorney General

Sessions did not certify and that is the subject of ongoing litigation. See Rodriguez v. Hayes,

No. 2:07-cv-3239 (C.D. Cal.). For the reasons stated in the Department of Justice’s briefs

in that case, aliens who have never been admitted into the United States do not have a

presumptive constitutional entitlement to be released into the country. See Resp’ts-

Appellants’ Suppl. Br. 28–40, Rodriguez v. Marin, Nos. 13-56706 and 13-56755 (9th Cir.

Aug. 10, 2018); Resp’ts-Appellants’ Suppl. Reply Br. 20–26, Rodriguez v. Marin, Nos. 13-

56706 and 13-56755 (9th Cir. Aug. 30, 2018).

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Board concluded that “arriving” aliens—such as those “attempting to come

into the United States at a port-of-entry,” see 8 C.F.R. § 1001.1(q)—must be

detained, but all other transferred aliens are eligible for bond. 23 I&N Dec.

at 736.

Matter of X-K- was wrongly decided. The Act provides that, if an alien

in expedited proceedings establishes a credible fear, he “shall be detained for

further consideration of the application for asylum.” INA § 235(b)(1)(B)(ii).

The Act further provides that such an alien may be “parole[d] into the United

States . . . for urgent humanitarian reasons or significant public benefit.” Id.

§ 212(d)(5)(A), 8 U.S.C. § 1182(d)(5)(A). There is no way to apply those

provisions except as they were written—unless paroled, an alien must be

detained until his asylum claim is adjudicated. The Supreme Court recently

held exactly that, concluding that section 235(b)(1) “mandate[s] detention

throughout the completion of [removal] proceedings” unless the alien is

paroled. Jennings v. Rodriguez, 138 S. Ct. 830, 844–45 (2018). The Act’s

implementing regulations support that interpretation.

The respondent here was transferred from expedited to full proceedings

after establishing a credible fear, and an immigration judge ordered his

release on bond. Because the respondent is ineligible for bond under the Act,

I reverse the immigration judge’s decision. I order that, unless DHS paroles

the respondent under section 212(d)(5)(A) of the Act, he must be detained

until his removal proceedings conclude.

I.

A.

Under section 235 of the Act, all aliens “arriv[ing] in the United States”

or “present in the United States [without having] been admitted” are

considered “applicants for admission,” who “shall be inspected by

immigration officers.” INA § 235(a)(1), (3). In most cases, those inspections

yield one of three outcomes. First, if an alien is “clearly and beyond a doubt

entitled to be admitted,” he will be permitted to enter, or remain in, the

country without further proceedings. Id. § 235(b)(2)(A). Second, if the alien

is not clearly admissible, then, generally, he will be placed in “proceeding[s]

under section 240” of the Act—that is, full removal proceedings. Id. Third,

if the alien is inadmissible on one of two specified grounds and meets certain

additional criteria, DHS may place him in either expedited or full

proceedings. Id. § 235(b)(1)(A)(i); see Matter of E-R-M- & L-R-M-, 25 I&N

Dec. 520, 524 (BIA 2011).

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This case concerns aliens subject to expedited removal. To qualify for

expedited removal, an alien must either lack entry documentation or seek

admission through fraud or misrepresentation. INA § 235(b)(1)(A)(i)

(referring to id. § 212(a)(6)(C), (a)(7)). 2 In addition, the alien must either

be “arriving in the United States” or within a class that the Secretary of

Homeland Security (“Secretary”) has designated for expedited removal. Id. 3

The Secretary may designate “any or all aliens” who have “not been admitted

or paroled into the United States” and also have not “been physically present

in the United States continuously for the 2-year period immediately prior to

the date of the determination of inadmissibility.” Id. § 235(b)(1)(A)(iii). To

date, the Secretary (and previously the Attorney General) have designated

only subsets of that class. See Notice Designating Aliens Subject to

Expedited Removal Under Section 235(b)(1)(A)(iii) of the Immigration and

Nationality Act, 67 Fed. Reg. 68,924 (Nov. 13, 2002); Designating Aliens

for Expedited Removal, 69 Fed. Reg. 48,877 (Aug. 11, 2004) (“2004

Designation”). The designated group at issue here encompasses aliens who

(i) “are physically present in the U.S. without having been admitted or

paroled,” (ii) “are encountered by an immigration officer within 100 air miles

of any U.S. international land border,” and (iii) cannot establish “that they

have been physically present in the U.S. continuously for the 14-day period

immediately prior to the date of encounter.” 2004 Designation, 69 Fed. Reg.

at 48,880.

For an alien originally placed in expedited proceedings, the removal

process varies depending upon whether the alien indicates either “an

intention to apply for asylum” or “a fear of persecution or torture.” 8 C.F.R.

§§ 235.3(b)(4), 1235.3(b)(4)(1); see INA § 235(b)(1)(A)(ii). If the alien does

not so indicate, the inspecting officer “shall order the alien removed from the

United States without further hearing or review.” INA § 235(b)(1)(A)(i). If

the alien does so indicate, however, the officer “shall refer the alien for an

interview by an asylum officer.” Id. § 235(b)(1)(A)(ii). That officer assesses

2

Section 235(b)(1)(F) of the Act excepts from expedited removal any “native or citizen

of a country in the Western Hemisphere with whose government the United States does

not have full diplomatic relations and who arrives by aircraft at a port of entry.” For many

years, that provision applied to Cuban nationals, but that is no longer the case. See

Eliminating Exception to Expedited Removal Authority for Cuban Nationals Encountered

in the United States or Arriving by Sea, 82 Fed. Reg. 4902, 4904 (Jan. 17, 2017) (“[T]he

statutory provision categorically barring the use of expedited removal for certain aliens

who arrive by aircraft at a U.S. port of entry no longer applies to Cuban nationals, as the

United States and Cuba have reestablished full diplomatic relations.”).

3

Although the Act refers to the “Attorney General,” Congress has since authorized the

Secretary to exercise that power. See 6 U.S.C. § 202(3); 8 C.F.R. § 235.3(b)(1)(ii) (2002).

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whether the alien has a “credible fear of persecution or torture,” 8 C.F.R.

§ 208.30(d)—in other words, whether there is a “significant possibility” that

the alien is eligible for “asylum under section 208 of the Act,” “withholding

of removal under section 241(b)(3) of the Act,” or withholding or deferral of

removal under the Convention Against Torture (“CAT”), 4 8 C.F.R.

§ 208.30(e)(2)–(3). If the alien does not establish a credible fear, the asylum

officer “shall order the alien removed from the United States without further

hearing or review.” INA § 235(b)(1)(B)(iii)(I). But if the alien does establish

such a fear, he is entitled to “further consideration of the application for

asylum.” Id. § 235(b)(1)(B)(ii). 5 By regulation, that “further consideration”

takes the form of full removal proceedings under section 240 of the Act.

8 C.F.R. §§ 208.30(f), 1208.30(g)(2)(iv)(B). Thus, if an alien originally

placed in expedited removal establishes a credible fear, he receives a full

hearing before an immigration judge.

Section 235 of the Act expressly provides for the detention of aliens

originally placed in expedited removal. Such aliens “shall be detained

pending a final determination of credible fear.” INA § 235(b)(1)(B)(iii)(IV).

Aliens found not to have a credible fear “shall be detained . . . until removed.”

Id. Aliens found to have such a fear, however, “shall be detained for further

consideration of the application for asylum.” Id. § 235(b)(1)(B)(ii). Like all

aliens applying for admission, however, aliens detained for further

consideration of an asylum claim may generally be “parole[d] into the United

States . . . for urgent humanitarian reasons or significant public benefit.” Id.

§ 212(d)(5)(A). Accordingly, the Act’s implementing regulations assume

that aliens in expedited proceedings will be detained, but provide that, if an

alien establishes a credible fear, “[p]arole . . . may be considered . . . in

accordance with section 212(d)(5) of the Act and [8 C.F.R.] § 212.5.”

8 C.F.R. § 208.30(f).

Section 236 of the Act addresses, more generally, the detention of aliens

in removal proceedings. Once an alien has been arrested pursuant to an

immigration warrant, DHS “may continue to detain the arrested alien” or

“may release the alien on” “bond of at least $1,500” or “conditional parole.”

INA § 236(a)(1)–(2), 8 U.S.C. § 1226(a)(1)–(2). DHS and Department of

4

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85.

5

Under DHS and Department of Justice regulations, “[a]n asylum application shall be

deemed to constitute at the same time an application for [statutory] withholding of removal”

and CAT relief. 8 C.F.R. §§ 208.3(b), 1208.3(b); see also id. §§ 208.16, 1208.16. This

opinion employs the regulations’ definition of “application for asylum.” Relatedly, as used

in this opinion, the term “asylum claim” encompasses a claim for asylum, statutory

withholding of removal, or CAT relief.

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Justice regulations provide that, when reviewing an “initial custody

determination” made by DHS, an “immigration judge is authorized to

exercise the authority in section 236 of the Act . . . to detain the alien in

custody, release the alien, and determine the amount of bond, if any, under

which the respondent may be released, as provided in [8 C.F.R.] § 1003.19.”

8 C.F.R. §§ 236.1(d)(1), 1236.1(d)(1). Section 1003.19, in turn, expressly

limits the availability of bond for certain enumerated classes of aliens. Id.

§ 1003.19(h)(2)(i). One of those classes is “[a]rriving aliens,” id.

§ 1003.19(h)(2)(i)(B), which includes aliens “attempting to come into the

United States at a port-of-entry,” id. § 1001.1(q). But section 1003.19 does

not mention the classes of aliens that have been designated for expedited

removal.

B.

Against that statutory and regulatory backdrop, the Board held in Matter

of X-K- that, except for arriving aliens, all aliens transferred from expedited

to full proceedings after establishing a credible fear are eligible for bond.

23 I&N at 736. The Board assumed that the respondent there was covered

by the Secretary’s 2004 Designation and had been placed in expedited

removal. Id. at 733 & n.3. After the respondent established a credible fear,

DHS had transferred him to full proceedings for further consideration of his

asylum claim, and determined that the respondent would be detained for the

duration of those proceedings. The respondent appealed that custody

determination to an immigration judge, who ordered that the respondent be

released on bond. On appeal, DHS argued that aliens originally placed in

expedited proceedings were not eligible for bond, even if they were later

transferred to full proceedings.

The Board rejected DHS’s argument. The Board observed that, with

respect to aliens in expedited removal, “[t]he Act provides for . . . mandatory

detention . . . ‘pending a final determination of credible fear.’” Id. at 734

(quoting INA § 235(b)(1)(B)(iii)(IV)) (emphasis in original). But with

respect to detention after a credible-fear finding, the Board concluded that

“[t]he Act is silent” and “provide[s] no specific guidance.” Id. In reaching

that conclusion, the Board did not mention section 235(b)(1)(B)(ii) of the

Act, which expressly provides that an alien found to have a credible fear

“shall be detained for further consideration of the application for asylum.”

The Board then turned to the Act’s implementing regulations. Those

regulations, the Board noted, impose a “requirement that aliens who had

initially been screened for expedited removal” and then had a “positive

credible fear determination” be “placed in full section 240 removal

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proceedings.” 23 I&N Dec. at 734 (citing, inter alia, 8 C.F.R. § 1208.30(f)

(2004)). The Board reasoned that immigration judges may “exercise the

general custody authority of section 236 of the Act,” including the authority

to grant bond, “over aliens in section 240 removal proceedings.” Id. (citing,

inter alia, 8 C.F.R. § 1236.1(c)(11), (d)). The only exceptions are for

“specified classes of aliens . . . specifically excluded from the custody

jurisdiction of Immigration Judges by 8 C.F.R. § 1003.19(h)(2)(i)(B).” Id.

at 735. That regulation expressly excludes “arriving aliens,” but does not

mention aliens who have been designated for expedited removal. Id.

Drawing a negative inference from the regulation, the Board concluded that

arriving aliens transferred from expedited to full proceedings after

establishing a credible fear are ineligible for bond, but that all other aliens so

transferred are eligible. Id.

C.

The respondent here is a citizen of India. He traveled to Mexico and

crossed illegally into the United States. He was apprehended within hours

about 50 miles north of the border. DHS placed him in expedited removal

proceedings.

After the respondent claimed a fear of persecution in India, DHS referred

him for an asylum interview. The asylum officer determined that the

respondent lacked a credible fear, but, at the respondent’s request, DHS

reconsidered and reversed its determination. DHS then transferred the

respondent to full proceedings. Upon his transfer, DHS issued the

respondent a Notice to Appear (DHS Form I-862) and a Notice of Custody

Determination (DHS Form I-286), the latter of which informed the

respondent that, “pending a final administrative determination in your case,

you will be . . . [d]etained by the Department of Homeland Security.”

The respondent requested that an immigration judge review that custody

determination. Without mentioning section 235(b)(1)(B)(ii), the

immigration judge held that the respondent “is not subject to mandatory

detention.” Matter of M-S-, Order on Motion for Custody Redetermination

at 2 (Immig. Ct. July 18, 2018). The immigration judge ordered that the

respondent be released if he could produce a valid Indian passport and post

a bond of $17,500. Id. at 3. The respondent appealed to the Board, arguing

that his bond should be reduced.

While that appeal was pending, the respondent again requested

immigration-judge review of his custody, as permitted by regulation. See

8 C.F.R. § 1003.19(e). The respondent argued that, because the Indian

consulate had denied his request for a replacement passport, he should not be

required to produce one. A different immigration judge agreed, but increased

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the respondent’s bond to $27,000. Matter of M-S-, Order on Motion for

Custody Redetermination at 2 (Immig. Ct. Sept. 17, 2018). The respondent

posted that amount and was released on September 27, 2018. The Board,

apparently unaware of that development, decided the respondent’s appeal the

next day, affirming the first immigration judge’s bond order. Matter of M-S-,

slip. op. at 1 (BIA Sept. 28, 2018). Neither the respondent nor DHS appealed

the second immigration judge’s order. 6 The respondent’s case remains

pending.

II.

The question presented is whether aliens who are originally placed in

expedited proceedings and then transferred to full proceedings after

establishing a credible fear become eligible for bond upon transfer. I

conclude that such aliens remain ineligible for bond, whether they are

arriving at the border or are apprehended in the United States.

The text of the Act mandates that conclusion. Section 235(b)(1)(B)(ii)

provides that, if an alien in expedited proceedings establishes a credible fear,

he “shall be detained for further consideration of the application for asylum.”

“The word ‘shall’ generally imposes a nondiscretionary duty.” SAS Inst.,

Inc. v. Iancu, 138 S. Ct. 1348, 1354 (2018). And the word “for” often means

“with the object or purpose of” or “throughout.” 6 Oxford English

Dictionary 23, 26 (2d ed. 1989). Granted, “for” can also mean “in

preparation for or anticipation of.” Id. at 24. But that latter definition makes

little sense in light of surrounding provisions of the Act. See, e.g., Rodriguez,

138 S. Ct. at 844–45 (recognizing that defining “for” to mean “until the start

of” “makes [no] sense in the context of the statutory scheme as a whole”

(emphasis in original)). If section 235(b)(1)(B)(ii) governed detention only

“in preparation for”—that is, until the beginning of—full proceedings, then

another provision, section 236, would govern detention during those

proceedings. Section 236, however, permits detention only on an arrest

warrant issued by the Secretary. INA § 236(a). The result would be that, if

an alien were placed in expedited proceedings, DHS could detain him

6

All three decisions below—both bond orders and the Board’s decision—pose the same

threshold, legal question: whether the respondent became eligible for bond after

establishing a credible fear and being transferred to full proceedings. I certified this case

to answer that question, and I have authority to answer it by reviewing either the Board’s

decision or the second bond order. See 8 U.S.C. § 1103(g)(2) (authorizing the Attorney

General to “review such administrative determinations in immigration proceedings . . . as

[he] determines to be necessary for carrying out” the Act). My decision therefore has the

effect of reversing the second bond order.

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without a warrant, but, if the alien were then transferred to full proceedings,

DHS would need to issue an arrest warrant to continue detention. That

simply cannot be what the Act requires. Instead, I read section

235(b)(1)(B)(ii) to mandate detention (i) for the purpose of ensuring

additional review of an asylum claim, and (ii) for so long as that review is

ongoing. In other words, section 235(b)(1)(B)(ii) requires detention until

removal proceedings conclude.

Several amici would read section 236 of the Act to render transferred

aliens eligible for bond. That section provides that, once an alien is arrested

pursuant to an immigration warrant, DHS “may continue to detain the

arrested alien” or “may release [him] on” “bond of at least $1,500” or

“conditional parole,” unless he has committed certain crimes. INA

§ 236(a)(1)–(2), (c). The amici therefore read section 236 to render all non-

criminal aliens eligible for bond. Yet section 235 (under which detention is

mandatory) and section 236(a) (under which detention is permissive) can be

reconciled only if they apply to different classes of aliens. See Fifty-Six Hope

Road Music, Ltd. v. A.V.E.L.A., Inc., 778 F.3d 1059, 1081 (9th Cir. 2015)

(concluding that “permissive and mandatory [provisions] are in harmony, as

they apply to different situations”). For purposes of the respondent’s case, I

need not identify the full universe of aliens covered by section 236(a). It

suffices to find that section 236(a) provides an independent ground for

detention that does not limit DHS’s separate authority to detain aliens

originally placed in expedited removal, who, after the credible-fear stage,

“shall be detained” either for further adjudication of their asylum claims or

for removal. See INA § 235(b)(1)(B)(ii) (an alien placed in expedited

removal who demonstrates a credible fear “shall be detained for further

consideration of the application for asylum”); id. § 235(b)(1)(B)(iii)(IV) (an

alien placed in expedited removal who does not demonstrate a credible fear

“shall be detained . . . until removed”). I do not read section 236(a) to

authorize granting bond to aliens originally placed in expedited proceedings,

even if they are later transferred to full proceedings after establishing a

credible fear.

The conclusion that section 235 requires detention does not mean that

every transferred alien must be detained from the moment of apprehension

until the completion of removal proceedings. Section 212(d)(5)(A) of the

Act separately provides that “any alien applying for admission” may be

“parole[d] into the United States . . . for urgent humanitarian reasons or

significant public benefit.” Aliens with “serious medical conditions,” for

example, are generally eligible for parole. 8 C.F.R. § 212.5(b)(1). An alien’s

term of parole expires “when the purposes of such parole . . . have been

served,” at which point the alien must “return or be returned to . . . custody.”

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INA § 212(d)(5)(A). This provision grants the Secretary the discretion to

parole aliens under its terms.

In light of that express exception to mandatory detention, the Act cannot

be read to contain an implicit exception for bond. Under the negative-

implication canon, “expressing one item of [an] associated group or series

excludes another left unmentioned.” NLRB v. SW Gen., Inc., 137 S. Ct. 929,

940 (2017) (alteration in original). Section 212(d)(5)(A) expressly states that

aliens applying for admission—which includes aliens originally placed in

expedited proceedings—may be released on parole. That suggests that those

aliens may not be released on bond. And that suggestion is particularly

strong here given that the Act expressly provides that aliens in the separate

class covered by section 236(a) are eligible for both “bond of at least $1,500”

and “conditional parole.” INA § 236(a)(2)(A)–(B). See, e.g., Loughrin v.

United States, 573 U.S. 351, 358 (2014) (“We have often noted that when

Congress includes particular language in one section of a statute but omits it

in another—let alone in the very next provision—this Court presume[s] that

Congress intended a difference in meaning.” (alteration in original) (internal

quotation marks omitted)).

The Supreme Court recently interpreted the Act in the exact same way.

In Jennings v. Rodriguez, a class of aliens in removal proceedings—

including aliens transferred from expedited to full proceedings after

establishing a credible fear—argued that the Act did not permit their

“prolonged detention in the absence of . . . individualized bond hearing[s].”

138 S. Ct. at 839 (internal quotation marks omitted). The class

acknowledged that section 235(b)(1)(B)(ii) provides that a transferred alien

“shall be detained for further consideration of the application for asylum.”

The class argued, however, that “the term ‘for’ . . . mandates detention only

until the start of [full] proceedings.” Id. at 844 (emphasis in original). Once

those proceedings begin, the class continued, section 236 applies, under

which transferred aliens are generally eligible for bond and thus entitled to

bond hearings. Id. at 845. The Court rejected that argument as “incompatible

with the rest of the statute.” Id. If the class were right about when sections

235 and 236 apply, “then the Government could detain an alien without a

warrant at the border, but once removal proceedings began, the [Secretary]

would have to issue an arrest warrant in order to continue detaining the

alien.” Id. But “that makes little sense.” Id. In evaluating whether

transferred aliens are eligible for bond, the Court also considered section

212(d)(5)(A)’s parole exception. “That express exception to detention,” the

Court reasoned, “implies that there are no other circumstances under which

aliens detained under [section 235(b)] may be released.” Id. at 844 (emphasis

in original). For those reasons, the Rodriguez Court held, as I do here, that

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the Act renders aliens transferred from expedited to full proceedings after

establishing a credible fear ineligible for bond.

Although Rodriguez did not address the Act’s implementing regulations,

those regulations support the conclusion that transferred aliens are ineligible

for bond. First, 8 C.F.R. § 208.30(f) provides that, if an alien is either a

“stowaway” or in expedited proceedings, and he establishes a credible fear,

he must be transferred to, respectively, “proceedings under [8 C.F.R.]

§ 208.2(c)” or full removal proceedings. In either case, after the transfer,

“[p]arole of the alien may be considered only in accordance with section

212(d)(5) of the Act and [8 C.F.R.] § 212.5.” 8 C.F.R. § 208.30(f). The

regulation makes no mention of bond.

In Matter of X-K-, the Board drew a negative inference based upon

8 C.F.R. § 1003.19’s expressly rendering “arriving aliens” ineligible for

bond but not addressing other categories of aliens who are subject to

expedited removal. 23 I&N Dec. at 734–35. But as explained above, the

Board did not discuss section 235’s detention requirement at all and therefore

overlooked the implications that provision has upon the appropriate

interpretation of section 236. Section 1003.19(h)(2)(i) thus does not provide

an exhaustive catalogue of the classes of aliens who are ineligible for bond.

The Secretary recognized that very point in designating the class at issue

here. The Secretary explained that, “[u]nder Department of Justice

regulations, immigration judge review . . . is permitted only for bond and

custody determinations pursuant to section 236.” 69 Fed. Reg. at 48,879.

And “[a]liens subject to expedited removal procedures . . . (including those

aliens who are referred after a positive credible fear determination . . . for

proceedings under section 240 of the Act)” are covered by section 235, not

section 236. Id. Thus, the Secretary concluded, even without adding the

designated aliens to section 1003.19’s list of bond-ineligible classes, the

designated aliens “are not eligible for bond [or] for a bond redetermination

hearing before an immigration judge.” Id. I agree with that interpretation,

which ensures that the regulation remains consistent with the statute. 7

In conclusion, the statutory text, the implementing regulations, and the

Supreme Court’s decision in Rodriguez all lead to the same conclusion: that

7

In Matter of X-K-, the Board never suggested that, if an alien designated for expedited

removal established a credible fear, then DHS could terminate his expedited proceedings

and initiate full ones, thereby rendering him eligible for bond. And for good reason: DHS’s

authority under Matter of E-R-M- & L-R-M- expires once an asylum officer (or

immigration judge) makes a final credible-fear determination, at which point the alien

“shall be detained” either for further adjudication of his asylum claim or for removal. INA

§ 235(b)(1)(B)(ii), (b)(1)(B)(iii)(IV).

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all aliens transferred from expedited to full proceedings after establishing a

credible fear are ineligible for bond. Matter of X-K- is therefore overruled. 8

III.

Here, despite the respondent being bond ineligible, the second

immigration judge ordered DHS to release him on a bond of $27,000. The

respondent posted that bond in September 2018, and was released from

custody. I reverse the order granting bond to the respondent. I order that,

unless DHS paroles the respondent under section 212(d)(5)(A) of the Act, he

must be detained until his removal proceedings conclude.

8

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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