27 I. & N. Dec. 509
BIA2019Background
- Respondent (Indian national) was apprehended ~50 miles from the U.S.–Mexico border and placed in expedited removal after illegally crossing.
- He claimed fear of persecution; an asylum officer initially denied credible fear, DHS reconsidered and reversed, and he was transferred to full (Section 240) removal proceedings.
- DHS issued a custody determination stating he would be detained pending final administrative determination; an IJ ordered release on bond, later increased; respondent posted bond and was released.
- The Board in Matter of X-K- (BIA 2005) previously held that only “arriving aliens” transferred after a credible-fear finding are ineligible for bond; other transferred aliens could seek bond.
- Attorney General reviewed and overruled Matter of X-K-, holding that aliens transferred from expedited to full proceedings after a credible-fear finding are ineligible for bond and must be detained unless paroled under INA § 212(d)(5)(A).
- Decision delayed 90 days to allow DHS operational adjustments; the Attorney General reversed the IJ’s bond order and remanded that the respondent remain detained absent parole.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether aliens transferred from expedited removal to §240 after a credible-fear finding are eligible for bond | Transferred aliens become eligible for bond under §236 once in full proceedings | Section 235(b)(1)(B)(ii) mandates detention “for further consideration,” making transferred aliens ineligible for bond; parole is the only avenue for release | Transferred aliens are ineligible for bond; must be detained unless paroled under §212(d)(5)(A) |
| Whether Matter of X-K- correctly interpreted the statute and regulations | X-K-: only "arriving aliens" are bond-ineligible; others may obtain bond | X-K- overlooked §235(b)(1)(B)(ii) and misread the statutory scheme separating §235 and §236 classes | Overruled Matter of X-K- as wrongly decided |
| Whether §236’s bond provisions govern detention after transfer to §240 proceedings | §236 provides bond authority once alien is in §240 proceedings following transfer | §235’s mandatory detention provision for expedited-removal applicants controls the entire period of further consideration, not merely pre-§240 screening | §236 does not make transferred expedited-removal aliens bond-eligible; §235 governs unless parole granted |
| Whether parole under §212(d)(5)(A) permits release of transferred aliens | Not addressed by plaintiff regarding universality | Parole is the express statutory exception and remains available; parole—not bond—is the mechanism for discretionary release | Parole remains available; otherwise detention is mandatory until removal proceedings conclude |
Key Cases Cited
- Jennings v. Rodriguez, 138 S. Ct. 830 (2018) (Section 235(b) detention continues throughout proceedings absent parole)
- SAS Inst., Inc. v. Iancu, 138 S. Ct. 1348 (2018) ("shall" imposes nondiscretionary duty)
- NLRB v. SW Gen., Inc., 137 S. Ct. 929 (2017) (negative-implication canon: express inclusion may exclude others)
- Loughrin v. United States, 573 U.S. 351 (2014) (textual differences between adjacent statutory provisions indicate different meanings)