BIA Rules Illegal Entrants Are Ineligible for Bond

On September 5, the Board of Immigration Appeals (BIA) — the administrative component of DOJ that considers appeals from trial-level immigration court decisions — issued what is likely the most important bond decision in at least two decades, Matter of Yajure Hurtado. In that case, a three-member panel concluded that under the plain language of the Immigration and Nationality Act (INA), immigration judges lack jurisdiction to grant bond to illegal entrants. It’s a point I’ve been making for years, but for now, nearly three decades of bad statutory interpretation has ended, because DHS finally asked.

The Attorney General’s Authority

Congress in section 103 of the INA gave various immigration authorities to executive branch agencies.

Not surprisingly, most of those powers were assigned to the secretary of Homeland Security, who controls not only the two main immigration-enforcement agencies (ICE and CBP), but also the main immigration-benefits adjudications agency (USCIS).

The president retains certain immigration powers, however, and the DHS secretary shares some of her authority over immigration benefits with the secretary of State, as is clear from the first paragraph of section 103, which states in pertinent part:

The Secretary of Homeland Security shall be charged with the administration and enforcement of this chapter and all other laws relating to the immigration and naturalization of aliens, except insofar as this chapter or such laws relate to the powers, functions, and duties conferred upon the President … the Secretary of State, the officers of the Department of State, or diplomatic or consular officers.

I say, “in pertinent part” because that paragraph ends with the following proviso: “Provided, however, that determination and ruling by the Attorney General with respect to all questions of law shall be controlling.”

That’s because when Congress created DHS in the Homeland Security Act of 2002 (HSA), there was discussion — and often contentious debate — as to whether all immigration power should be vested in the new department, including over visa issuances at consulates abroad and over the immigration courts and the BIA.

Ultimately, Congress decided to let DOS consular officers keep doing their thing, and to maintain the authority of the attorney general (AG) to interpret the immigration laws.

That latter part makes sense, because the AG has the world’s largest law firm at her disposal, and its lawyers ultimately must defend executive-branch immigration decisions in the federal courts.

The Executive Office for Immigration Review

The primary agency the AG uses to exercise her immigration authority is the Executive Office for Immigration Review (EOIR), a DOJ component that includes the BIA and the immigration courts.

In case you’re curious, “EOIR” is pronounced like “Eeyore”, Winnie the Pooh, Piglet, and Tigger’s gloomy donkey friend, and for most of the office’s under-resourced existence, the name has been apt.

But I digress.

EOIR adjudicators — immigration judges and BIA members — can only use the authority either Congress or the AG gives them, a point underscored 47 years ago by the Ninth Circuit when it held: “Immigration judges … are creatures of statute, receiving some of their powers and duties directly from Congress … and some of them by subdelegation from the Attorney General.”

EOIR’s Custody and Bond Redetermination Authority

One of the authorities Congress gave the AG that the AG subdelegated to EOIR in 8 C.F.R. § 1003.19 is to release aliens detained by DHS.

Specifically, subsection (a) in that regulation allows immigration judges to review DHS “custody and bond determinations” for aliens arrested on warrants under section 236(a) of the INA, and § 1003.19(f) provides the BIA authority to review those immigration judge bond decisions under its general appellate authority in 8 C.F.R. § 1003.38 (a separate AG delegation).

Again, however, the AG can only delegate authorities Congress has given her, and the release authority for aliens, in particular, is not all-encompassing.

“DHS Can’t Just Release Illegal Migrants at the Border”

Which brings me to my October 2021 analysis of the mandatory detention requirements in section 235(b) of the INA for aliens encountered by CBP at the borders and the ports, headlined “DHS Can’t Just Release Illegal Migrants at the Border”.

Here’s a brief synopsis: In section 235(a)(1) of the INA, Congress explicitly treats aliens in the United States who haven’t been admitted to this country and the ones seeking admission at the ports of entry as “applicants for admission”.

Thus, even if aliens hide in the trunks of cars at ports, trek through the Sonoran Desert, or wade across the Rio Grande expressly to avoid encountering an immigration officer, Congress still wants them treated as if they were seeking admission.

Congress is more practical about the criminal implications of such entries, however, making it an ongoing federal offense in section 275(a)(2) of the INA for an alien to “elude[] examination or inspection by” an immigration officer, but for purposes of civil enforcement of the immigration laws, an alien who enters illegally and settles in Des Moines is treated the same as one stopped by a CBP officer at the Del Rio port.

And regardless of whether those aliens are subjected to “expedited removal” under section 235(b)(1) of the INA (which allows DHS, with exceptions, to remove aliens without first obtaining an immigration court removal order) or “regular” removal proceedings before EOIR under section 240 of the INA, Congress mandates — in sections 235(b)(1)(B)(ii) (expedited removal) and 235(b)(2)(A) of the INA (regular removal) — that they be detained.

Nearly 30 Years of Bad Statutory Interpretation

Those detention mandates for applicants for admission were added to section 235 in 1996, but what followed was nearly 30 years of bad interpretations and caselaw as EOIR and the AG (by implication) serially exceeded their authority to release such aliens.

The most notable was Matter of X-K-, a May 2005 decision in which the BIA held that aliens subject to expedited removal, found by USCIS to have a “credible fear” of persecution, and placed into section 240 removal proceedings before an immigration judge were eligible for release on bond.

It should come as no surprise to learn that after Matter of X-K- and a subsequent Obama-era, December 2009 decision to release aliens who’d received positive credible-fear decisions on parole, both the percentage and number of aliens subject to expedited removal who claimed a fear of harm skyrocketed, from 5 percent of the total (fewer than 5,400 cases) in FY 2006 to 39 percent (more than 94,000 cases) a decade later.

Matter of X-K- was indirectly called into question by the Supreme Court in its February 2018 opinion in Jennings v. Rodriguez, where the majority of justices reversed the Ninth Circuit and held (among other things) that aliens detained under sections 235(b)(1)(B)(ii) and 235(b)(2)(A) of the INA aren’t entitled to EOIR bond redeterminations.

Thereafter, in April 2019, AG William Barr overruled Matter of X-K- using his “certification” authority (a residual power under section 103(a)(1) of the INA) in Matter of M-S-.

The problem, however, is that Matter of M-S- only stripped EOIR of its authority to release aliens who were stopped by CBP at the border, subjected to expedited removal, found to have a credible fear, and placed into removal proceedings.

It said nothing about all those “applicants for admission” who successfully made their way into this country and were later encountered by ICE in the interior.

Matter of Yajure Hurtado

Which brings me to Matter of Yajure Hurtado, the latest BIA decision on EOIR’s release authority.

The Board there logically began by noting, “The authority of an Immigration Judge to adjudicate any matter, including a request for a bond, is limited to the authority that is delegated to the Immigration Judge by the INA and the Attorney General through regulation,” before turning to the statutes that either mandate the detention or permit the release of aliens.

As noted, section 235 of the INA requires that applicants for admission be detained, but as also noted that section 236(a) of the INA expressly permits the release of certain aliens arrested by ICE on administrative warrants.

The BIA concluded that because the release authority in section 236(a) “does not purport to overrule the mandatory detention requirements for arriving aliens and applicants for admission explicitly set forth in section 235(b)(1) and (2) of the INA”, no alien present in the United States who hasn’t been admitted is eligible for release by EOIR immigration judges or the BIA, regardless of how long they’ve been here, even if they were arrested by ICE with a warrant.

In essence, the BIA concluded that those aliens remain “applicants for admission” to the point they’re either admitted or removed and therefore remain subject to mandatory detention under section 235(b).

The respondent, however, argued that section 236(c) of the INA, which bars the release of aliens inadmissible on criminal and national security grounds — and also (as added by the Laken Riley Act) those charged with or convicted of “burglary, theft, larceny, shoplifting, or assault of a law enforcement officer offense, or any crime that results in death or serious bodily injury to another person” — would be superfluous if applicants for admission weren’t otherwise eligible for EOIR release.

The BIA quickly flipped that argument, first by noting that “redundancies are common in statutory drafting” (often because Congress wants to be “doubly sure” its rules are followed), and then by noting the alien’s interpretation would actually render section 235(b)(2)(A) superfluous, violating the “cardinal principle of statutory construction” that “every clause and word of a statute” be given effect when possible.

Why So Long?

So why did it take almost three decades for EOIR to properly interpret the mandatory detention provisions for illegal applicants for admission in section 235(b) of the INA? Because nobody asked it to.

Seriously. As the BIA explained:

We acknowledge that for years Immigration Judges have conducted bond hearings for aliens who entered the United States without inspection. However, we do not recall either DHS or its predecessor, the Immigration and Naturalization Service [INS], previously raising the current issue that is before us.

Instead, as the Board notes, the INS under the Clinton administration in 1997 concluded that aliens who had entered illegally and who were found in the interior remained eligible for bond, but: (1) there’s no reason for that erroneous interpretation to be indefinitely replicated; and (2) even though President Clinton signed those 1996 changes into law, his administration never liked mandatory detention.

In fact, then-INS Commissioner Doris Meissner specifically asked Congress in September 1998 to extend the more lenient “Temporary Period Custody Rules” (TPCR), which allowed certain releases as a stopgap until INS could ramp up detention space, but that request was never acted upon.

Matter of Yajure Hurtado will be challenged, but the Supreme Court has already held that applicants for admission are subject to mandatory detention and will probably extend Rodriguez here. In the interim, illegal entrants in this country may want to leave now, because they won’t be getting bond once ICE finds them.