After an evolution from simple to very complicated, the BIA, in another miraculous coincidence, has issued a decision to support a brand new Trump-administration policy. I say another, because I recently wrote about Matter of A-A-R-, where the BIA has tried to buttress a Trump-administration scheme to send U.S. deportees to El Salvadoran prisons by making it extremely difficult to prove eligibility for the humanitarian protections of asylum, withholding of removal, and U.N. Convention Against Torture relief.
This new BIA case, Matter of Q. Li is about the possibility of release for aliens detained after crossing into the United States. The case concludes that people caught inside the United States and susceptible to the expedited removal process are not eligible for release from detention (except humanitarian parole at the discretion of Customs and Border Protection. How we got here requires some background and explanation.
For the longest time, there was a bright line rule that governed application of immigration law to undocumented people caught along the border – either at an actual port of entry or who entered without inspection away from a port of entry and then were apprehended by immigration officers, usually Customs and Border Protection border patrol officers, or surrendered themselves to the border patrol. Those arrested at the border were subject to mandatory detention. Those caught inside the United States were eligible for release from detention and could even ask to be released by an immigration judge. This policy had a certain irrationality (people who sneaked into the country were better off than those who sought entry at a border) to it, as most bright-line rules do, but it also gave clarity about the law.
In the 2010 Board of Immigration Appeals decision, Matter of Castillo-Padilla the Board of Immigration Appeals differentiated between the release from custody of non-citizens who were released with “humanitarian parole” under INA § 212(d)(5) after they applied for admission at a port of entry and those who were released under INA § 236(a)(2)(b) “conditional parole,” after being detained inside the United States after successful illegal entry. Matter of Castillo-Padilla was not about the right to detain and release but rather how to characterize the releases. They were characterized as different with that difference affording non-citizens with different rights depending on which type of parole applied to the release.
The decision was not without some incoherence. That is because a confounder statutory process, the expedited removal process. Before 1996, the immigration law held quite strictly to the distinction between those applying for admission and being caught at an inspection station (port of entry) and those caught in the United States after entering without inspection. Then, with the passage of the Illegal Immigration Reform and Alien Responsibility Act of 1996 (IIRAIRA), there emerged the concept of expedited removal found at INA § 235(b)(1). This process allowed immigration inspectors to order the removal of non-citizens appearing at ports of entry without proper documents or committing fraud. The statute allowed for the expansion of expedited removal to “certain other aliens” which includes non-citizens who entered without inspection who have been physically present in the United States for less than two years at the time of their apprehension. INA § 235(b)(1)(A)(iii). These expansions occurred piecemeal from 2002. In 2019, expedited removal was expanded to non-citizens apprehended anywhere within the United States within two years of entering the United States.
Further, before IIRAIRA, the dichotomy between aliens present in the United States with or without inspection and those apprehended at ports of entry was found in the expulsion statutes. Different grounds for expulsion, deportation versus exclusion, applied whether a person was an applicant for admission (excludabity grounds at INA § 212) or was found inside the country (deportability grounds at INA § 241). With IIRAIRA, came the removability ground at INA § 212(a)(6)(A), which states:
An alien present in the United States without being admitted or paroled, or who arrives in the United States at any time of place other than as designated by the Attorney General, is inadmissible.
Suddenly, regardless of whether one entered without inspection and was caught inside the country or applied for admission at a port of entry and was detained for lack of documents or fraudulent documents or acts were treated the same in that they were both subject to expedited removal. Those subject to expedited removal, the Supreme Court said in Rodriguez v. Jennings in 2018 could be released only through INA § 212(d)(5)(A) humanitarian parole.
Herein lies the incoherence. IIRAIRA and Rodriguez v. Jennings seemed to be saying that any non-citizen, both applicants for admission and people inside the United States for less than two years, could only be released through INA § 212(d)(5)(A) humanitarian parole. Seeking release from an immigration judge was no longer an option. The dichotomy in Matter of Castillo-Padilla no longer existed. Yet in 2023, the Board of Immigration Appeals affirmed Matter of Castillo-Padilla in Matter of Cabrera-Fernandez, maintaining the dichotomy regarding the nature of and eligibility for release between conditional and humanitarian parole depending on whether or not the non-citizen sought entry at a port of entry. Having had the opportunity to clarify how IIRAIRA with its new inadmissibility ground for people in the United States, the application of expedited removal to people inside the United States, and the holding in Rodriguez v. Jennings can be harmonized with the different treatment of non-citizens at ports of entry and those who accomplished entry without inspection, instead the Board just kept the muddle muddled.
This state of confusion continued until recently when a new Trump-administration policy highlighted the confusion. Again, a little digression is necessary. During the middle-Biden-presidency years, there was a huge waive of migration to the United States. Ports of entry were flooded with large numbers of people fleeing various forms of oppression based on racial, religious, political, nationality, and social group issues or poverty and crime. Because of closed borders, people entered without inspection (often at entry points created by or monitored by border patrol officers but not technically designated ports of entry) where they were processed for conditional parole release or humanitarian parole release or detained. Who got what treatment was pure serendipity. Those released were placed in removal proceedings to determine their eligibility to remain in the United States, chiefly through withholding of removal or Convention Against Torture relief, as the Biden administration stripped most arrivals of the right to apply for asylum.
Very recently, immigration authorities have begun arresting these people at their immigration court hearings. The hope, I assume, is that the specter of detention will encourage self-deportation. The coercion would fail if the newly arrested could simply ask for release through the immigration court’s conditional parole authority. This opens up the question about whether these people can be released once re-detained. Those who were paroled at ports of entry cannot seek release from an immigration judge as INA § 212(d)(5) humanitarian parole is their only option and that determination cannot be made by an immigration judge. As for those who entered without inspection, though subject to expedited removal, would the dichotomy described in Matter of Castillo-Padilla and affirmed in Matter of Cabrera-Fernandez, still apply and these entrants without inspection could ask an immigration judge for release ? If it did, then the coercion scheme would be of limited value.
And now comes the miracle, once again, of the well-timed Board of Immigration Appeals decision. In Matter of Q. Li, decided on May 15, 2025, the Board of Immigration Appeals held that people detained at a port of entry or after entering without inspection and subject to expedited removal (which is anyone without documents, committed fraud, and has been in the United States for less than two years) cannot be released under conditional parole by Immigration and Customs Enforcement or an immigration judge. The dichotomy was killed, giving the Trump-administration policy cruel, coercive teeth.
Immigration law practitioners and observers would be wise to consider that an out-of-the-blue Board of Immigration Appeals decision on a Monday presages a new, horrible Trump-administration policy by Friday. Or maybe I am just another conspiracy-theory peddlar. Posted May 25, 2025.