M-S
(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,
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
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.”
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.
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.”
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.”
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),
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
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
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
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”);
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.
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
Although Rodriguez did not address the Act’s implementing regulations, those regulations support the conclusion that transferred aliens are ineligible for bond. First,
In Matter of X-K-, the Board drew a negative inference based upon
In conclusion, the statutory text, the implementing regulations, and the Supreme Court’s decision in Rodriguez all lead to the same conclusion: that
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.