BIA Finds 8 C.F.R. § 1240.17 does not Apply to Applicant Whose Negative CFI was Overturned by IJ

The Board of Immigration Appeals has determined that the regulation contained at 8 C.F.R. § 1240.17 does not apply to an asylum applicant who initially received a negative credible fear determination which was overturned by an Immigration Judge. The Board noted that the regulation only applies to those applicants initially placed in expedited removal proceedings and whose asylum applicant was initially adjudicated by the asylum officer. “The respondent is not included in the category of individuals covered by the regulation at 8 C.F.R. § 1240.17 because he was not initially placed in expedited removal proceedings and USCIS did not adjudicate his asylum application.”

Although USCIS did not adjudicate this individual’s asylum application in the first instance, the Board’s finding that he was not initially placed in expedited removal proceedings is curious, as the agency has long considered a person going through the credible fear process to be subject to an expedited removal order until a positive credible fear determination is made.

The full text of Matter of F-C-S- can be found here:

https://www.justice.gov/d9/2024-03/4074.pdf

The Board of Immigration Appeals has issued an amended opinion recognizing that F-C-S- was placed in expedited removal proceedings, but reaffirming that the regulation at issue only applies to asylum applications initially adjudicated by USCIS:

https://www.justice.gov/d9/2024-04/4074_amended.pdf

The Board of Immigration Appeals issued another amended opinion clarifying the procedural history of the case:

https://www.justice.gov/d9/2024-04/4074_amended_2.pdf

Ninth Circuit Finds no Jurisdiction to Review Constitutional Challenges to Expedited Removal Order

The Ninth Circuit has found that it lacks jurisdiction to review any constitutional challenges to an expedited removal order, including any credible fear proceedings.

The full text of Mendoza-Linares v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/10/24/20-71582.pdf

The court has declined to rehear the case en banc:

https://cdn.ca9.uscourts.gov/datastore/opinions/2023/07/05/20-71582.pdf

Ninth Circuit Finds no Jurisdiction to Review Constitutional Claims in Expedited Removal Proceedings

The Ninth Circuit has determined that it has no jurisdiction to determine if a non-citizen was deprived of his right to counsel in a credible fear review because it lacks the authority to review constitutional claims related to expedited removal proceedings.

The full text of Guerrier v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/16/20-70115.pdf

An amended opinion was issued on November 9, 2021, and can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/11/09/20-70115.pdf

Ninth Circuit Finds No Jurisdiction to Review IJ Refusal to Reopen Credible Fear Hearing

The Ninth Circuit has determined that because it lacks jurisdiction to review an expedited removal order, it also lacks jurisdiction to review an Immigration Judge’s decision not to reopen credible fear proceedings, even when the judge refused to reopen based on the belief that she had no authority to do so. “Read together, §§ 1252(a)(2)(A), (D) and 1252(e) provide clear and convincing evidence that Congress intended to deprive circuit courts of appeals of jurisdiction to review expedited removal orders and related matters affecting those orders, including underlying negative credible fear determinations and rulings on the regulations implementing the expedited removal statute. We are without jurisdiction to review the petitions for review of the denials of Petitioners’ motions to reopen and therefore dismiss.”

The full text of Singh v. Barr can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/12/09/19-70932.pdf

District Court Disagrees Matter of M-S-

A District Court has disagreed with the Attorney General’s decision in Matter of M-S-, which found all individuals who entered the United States without inspection and subsequently were found to have a credible fear of persecution or torture to be ineligible for bond. The court made the following orders:

1. Conduct bond hearings within seven days of a bond hearing request by a class member, and release any class member whose detention time exceeds that limit;

2. Place the burden of proof on Defendant Department of Homeland Security in those bond hearings to demonstrate why the class member should not be released on bond, parole, or other conditions;

3. Record the bond hearing and produce the recording or verbatim transcript of the hearing upon appeal; and

4. Produce a written decision with particularized determinations of individualized findings at the conclusion of the bond hearing

The order will go into effect on 7/16/19.

The full text of Padilla v. ICE can be found here:

https://www.courthousenews.com/wp-content/uploads/2019/07/bond-asylum.pdf

Attorney General Finds all Individuals with a Credible Fear of Persecution Ineligible for Bond

The Attorney General has determined that all individuals placed in expedited removal proceedings are ineligible for bond, even if they subsequently receive a positive credible determination, overruling Matter of X-K-. The Attorney General delayed implementation of the decision for 90 days to give DHS the opportunity to adjust its operational capacity accordingly.

This decision will effectively result in the widespread detention of asylum seekers who ICE refuses to parole.

The full decision of Matter of M-S- can be found here:
https://www.justice.gov/eoir/file/1154747/download