Attorney General Overrules BIA Precedent, Expands Mandatory Detention of Asylum Seekers

In an effort to shape immigration law and policy, Attorney General Jeff Sessions certified a number of Board of Immigration Appeals rulings to himself for review. New Attorney General William Barr seems poised to do the same.  Yesterday, in Matter of M-S-, he overruled Matter of X-K-,  23 I&N Dec. 731, 736 (BIA 2005) and  ruled that a noncitizen 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 (and thus is subject to indefinite and mandatory detention).

Reaction to the Attorney General's ruling was swift and withering.  Here is one example from Mary Bauer, Deputy Legal Director, the Southern Poverty Law Center on Attorney General Barr Order Targeting Asylum Seekers with Indefinite Detention:

“Yet again this Administration is targeting the most vulnerable individuals with truly egregious policies. This edict means that asylum seekers who have passed their initial “credible fear” asylum interview would automatically be detained indefinitely - essentially depriving parents of the right to be with their children and condemning those who have already experienced extraordinary trauma to even greater suffering.

It also makes absolutely no sense to contend that individuals must wait in dangerous conditions in Mexico because we don’t have room in detention while at the same time seeking to expand significantly the number of people subject to mandatory detention. This Administration will stop at nothing to vilify and criminalize vulnerable people lawfully seeking refuge from harm. Congress must stand up against these out-of-control agencies and reassert its authority in this area.”

KJ