Thread by @NicoletteGlazer

The immigration shitstorm continues: AG Barr overrules Matter of X-K and finds that those transferred from 235(b) proceedings to full removal
proceedings after credible fear are ineligible for release on bond but must be detained for duration of proceedings unless granted parole

here is the link to Matter of M-S- justice.gov/eoir/file/1154…

I was struck by the tone & diction which kinda sounds like whomever was tasked with drafting came from OIL or civil not from within the immigration ranks. It does not contain the usual and well worn lingo of a BIA/AG decision of past. As if it was a recycle of Jennings SG brief 1

The entire decision hangs its hat in re: mandatory detention on single statutory provision-- §235(b)(1)(B)(ii)-- providing that if after placement in expedited proceed ppl establish credible fear they “shall be detained for further consideration of the application for asylum.” 2

Attempting a statutory interpretation analysis that will make any practicioner cringe, M-S reasons that because the general parole provision under 212d5 allows "parole" of desginated noncitiznes it must mean that bond is not available. 🤬🤬🤬 3

Some facts: non-citizen is from India & was picked up by CBP 50 miles N of Border. Initially az officer found claim of fear of return not credible but then reversed course (I presume he got an attorney who marshaled facts & pointed out the errors in the AZ officer analysis). 4

DHS placed him in regular 240 removal prgs but issued no parole custody determination. (Sounds like he didnt have passport so ICE probable held that he had not established his identity to merit parole) An IJ held a bond hearing releasing him on 17.5K bond. 5/

He appeals & move for a changed circumstances bond reconsideration based on fact that Consulate refused to issue replacement passport. IJ finds changed circumstances alright and ... wait for it ... ups the bond to $27K. DuuH! 6/

Just think about it. We are talking about someone who fled their country of origins and just stepped foot in the US ... how exactly does a person like that get $30K in a *cash bond*. For most asylum seekers posting a bond like this is just impossible. 7/

Here, the applicant again appealed the 2nd bond decision but after months in detention was able to pay it and got released. Here is the jab by AG to the EOIR ... they did not know so issue an affirmace even though there was a release. Check! 8/

Here is the road map to keep ppl in detention under M-S:
1. no difference if arrive at POE or apprehended w/in 100 miles (designated noncitiznes)
2. anyone in 235(b) proceeding = detention
3. while cred fear under consideration = detention ... 9/

...
4. if no cred fear = detention until removal effected
5. if cred fear = detention unless parole granted. 10/

Here is where whole clown cart that is the M-S- statutory construction just oveturns: attempting to show absurd results AG scriveners missed the memo that NTA & custody determination is what ICE uses instead of a "warrant of arrest" everytime they initiate removal proceedings 11

What is worth reading are the footnotes -- 12

FN 1 appears to incorporate OIL brief in Rodriguez v. Hayes (2:07-cv-3239) for prop that paroled/EWI have no "presumptive constitutional entitlement to be released into the country." 👀 13

FN 2 confirms 235b proceedings now apply to Cubans regardless of manner of arrival. Clear effort to prevent Cubans who are stuck now @ So Border from benefiting from the Cuban Adjustment Act which allows any national of Cuba to apply for gren card one after a grant of parole 14/

Take a deep breath and read FN 8 ... Decision is stayed for 90 days so that "DHS may conduct the necessary operational planning for additional detention and parole decisions." 15/

As to M-S-, well AG Barr reversed order granting bond and ordered that, "unless DHS paroles the respondent under section 212(d)(5)(A) of the Act, he must be detained until his removal proceedings conclude." Decision is stayed so, hipefully ounsel could secure parole 16

I don't know what is ahead for all of us from a practical standpoint. This decision was crafted solely and entirely in order to survive a Chevron deference. And I fear that they may have succeded. 17

The reference to medical parole in decision seems to send a message that 212d5 is meant to cover "extraordinary" circumstances like med needs not a presumption of release upon a finding of a credible fear. If so, expect parole to dry out. 18/

But how do you reconcile this no-parole-unless-dire-needs with POTUS rant about busing everyone to #sanctuarycities? 19/

There are so many ppl who were granted bonds by IJ -- they are all now a low hanging fruit for ERO to start re-arresting. Then how about all the classes federal courts have certified curbing detention & mandating bonds? What happens there -- decertification? 20/