Attorney General Barr in Matter of M-S-, 27 I&N Dec. 509 (A.G. 2019): Even If you Have Credible Fear of Being Persecuted or Tortured, ICE Doesn’t Have to Release You from Detention
Since its beginnings in 2017, the Trump administration has touted plans to build a wall, then to close the border, then to keep migrants in Mexico as they await Court hearings. The administration’s plans have garnered the attention of many human rights organizations and attorneys.
Here at the Fogle Law Firm, we have continued to represent both detained and non-detained individuals seeking asylum from countries all over the world.
However, the recent decision by the Attorney General published in Matter of M-S-, purports to overrule critical case law that has allowed Immigration Judges to grant bonds to our clients who have established credible fear of returning to their home countries.
When an individual is caught within 100 miles of the US border, Customs and Border Patrol agents have the discretion to order that individual removed in Expedited Removal proceedings. No judge is involved, and the matter is handled administratively. If an individual claims that he or she has a fear of returning to his or her home country, that individual is then referred for screening by an asylum officer to determine if there is a reasonable probability that he or she would indeed suffer persecution or torture.
The Trump administration has in recent days talked publicly of allowing CBP officers, with no formal training in asylum law, to conduct these credible fear interviews in the wake of a federal court enjoining further denial of migrants seeking asylum entry into the United States.
However, Matter of M-S, 27 I&N Dec. 509 (AG 2019) overrules longstanding case law, holding that an individual who is placed in removal proceedings by way of a favorable credible fear determination is not eligible for a bond before the Immigration Judge.
After significant losses in federal court with respect to the policy of keeping migrants in Mexico until they can be screened, Matter of M-S- is ultimately an attempt to further distance respondents on the border from access to counsel.
There is no doubt that the matter will be appealed. If a respondent is charged as being admitted without parole, he or she is statutorily eligible for bond. The only way that Matter of M-S- would make sense is if all respondents in this situation were to be charged as arriving aliens. Typically, however, the Department does not charge individuals as arriving aliens as it leaves open the opportunity for that person to apply for adjustment of status before USCIS.
While the lasting effects of this case remain to be seen, it is undoubtedly important to contact an attorney as soon as possible on behalf of your loved one who is detained, especially after that individual has been found to have credible fear of persecution or torture. While a judge cannot release such individuals until Matter of M-S- is appealed and overturned, an expert immigration attorney can work with ICE to request humanitarian or other release. Moreover, in cases where individuals are seeking asylum, they are often given quick deadlines to turn in applications, supporting evidence, and go to trial. Attorneys with the Fogle Law Firm are available to discuss your loved one’s claim and provide support where needed.