On April 21, 2019, I wrote in this blog of an emerging legal clash between the Attorney General, William Barr, and his decision in Matter of M-S-, and a judge for the U.S. District Court for the Western District of Washington, Marsha J. Pechman in an order in the case, Padilla v. Immigration and Customs Enforcement (ICE).
The clash evolves over a class of people, defined by regulation, as aliens who came into the United States within the past 14 days, were apprehended within 100 miles of a land border, had no visa or permission to enter the United States, and entered without inspection. The issue is whether these aliens are entitled to a custody hearing by an immigration judge to determine whether they are a danger to the community or a flight risk and, if not, can be released. Judge Pechman says, in Padilla, that they are entitled to such a hearing and Attorney General Barr, in Matter of M-S-, says they are not.
In making his decision in Matter of M-S-, Attorney General Barr reversed a decision of the Board of Immigration Appeals from 2005 that said they were eligible for a bond hearing. His analysis is based on his interpretation of a long statute, INA § 235(b).
At INA § 235(b)(1), the statute addresses how Customs and Border Protection (CBP) deals with this class of people. Relating specifically to people who entered without inspection and caught within 14 days within 100 miles of the border, those people are subject to expedited removal by CBP. That means the border officers can (and do) arrest them, process them, and send them back to where they are citizens. Thus, if a Chinese person is caught within 14 days of entry within 100 miles of the border and has no documentation indicating a right to be in the United States, they will be arrested, processed, and flown back to China.
These people are subject to mandatory detention while this process of expedited removal transpires. INA § 235(b)(1)(B)(iii)(IV). For a Mexican, it could be a matter of hours. For a Chinese person, or a Guatemalan or Honduran or Salvadoran person, for example, it could be days and weeks until they are processed, airplane tickets are purchased, and transportation arranged to the airport.
There is an exception to the removal of such undocumented people. This is if they express a fear of persecution in their home country. In such a case, according to INA § 235(b)(1)(A)(ii), those people are brought to an asylum officer who listens to the asylum claim. In this process, called a “credible fear interview,” the asylum officer determines whether the person has, you guessed it, a credible fear of return to their country. If so, the person is not expeditedly removed, but rather is sent to immigration court to make their asylum claim with an immigration judge. The big question is whether the mandatory detention section applies to such a person. Attorney General Barr says the mandatory detention section at INA § 235(b)(1)(B)(iii)(IV) applies to such people and they should get no bond hearing from an immigration judge.
Now back to the clash. Matter of M-S- was decided on April 16, 2019. Judge Pechman’s order was dated April 5, 2019. When she made her order, ordering hearings for people who had not been given timely hearings by an immigration judge, she was relying on the decision before Matter of M-S-, Matter of X-K-, which held the opposite, that such people could have bond hearings. When Judge Pechman ordered bond hearings on April 5, 2019, she cited to Matter of X-K-, which was the law at the time, which mandated that such people should get bond hearings (among other things).
No surprise then that after Matter of M-S- was issued that the government’s attorneys would go back to Judge Pechman and point out that an underpinning of her order was Matter of X-K- and Matter of X-K- was overruled by Attorney General Barr. (It is a lengthy discussion for another day how Attorney General Barr, one man, gets to interpret statutes and regulations that bind the entire federal government, in one of the law’s great anomalies, a liberal position, as laid out by the Supreme Court in Kisor v. Wilkie, just three weeks ago.)
The big question emerged, how would Judge Pechman deal with Matter of M-S-? Would she argue that Attorney General Barr’s decision is flawed. (The Attorney General’s power to issue binding interpretations is broad, but not boundless.) Or, would she have to reverse herself based on Matter of M-S-?
Neither. She used another source outside of the statutes, the regulations, and Attorney General Barr’s interpretive authority – she used the Constitution.
In an order dated July 2, 2019, regarding her April 5, 2019, order, which came back to her because of the new Matter of M-S- decision, Judge Pechman wrote:
The Court is unquestionably facing “changed circumstances” as a result of the AG’s decision in M-S. While much of the analysis underlying the issuance of the initial preliminary injunction in this matter concerned Plaintiffs’ constitutional rights in the context of their situation, there is no question that analysis sprang from an understanding (as a result of the ruling in X-K) that the class members were entitled to a bond hearing under the INA.
Then, however, she wrote:
Plaintiffs are “non-arriving aliens” who, having been apprehended within the territorial boundaries of this county, are entitled to due process protections. Among those protections is a longstanding prohibition against indefinite civil detention with no opportunity to test its necessity. The Ninth Circuit [which is the binding circuit court for the State of Washington] has expressed “grave doubts that any statute that allows for arbitrary prolonged detention without any process is constitutional.”
As was discussed in my April 21, 2019, post, immigration law makes a big distinction between people who have made it into the United States and people applying at the border. While Padilla v. ICE has a long way to go and the courts of appeal and the Supreme Court have new members with bold, new ideas about the expansiveness of federal executive power, as of now, under the authority of Judge Pechman, nothing the Attorney General wrote in Matter of M-S- can change that constitutional distinction between those who are on the outside knocking on the door to the United States and those inside trying to stay. Posted July 14, 2019.