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    UNITED STATES DEPARTMENT OF JUSTICE, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT ‘MIAMI, FLORIDA ta the ater | ee | Fie Nos: Alo 0 a a 2. Ai” a Po za In removal procsodings INTERLOCUTORY DECISION OF THE IMMIGRATION JUDG ‘The Court has before it several cases involving aliens who the Department of Homeland Security (‘Department”) detained at the Southwest border and ultimately released into the interior of the United States, The paperwork documenting theit release frequently says that they were released on a bond pursuant to INA § 236¢ Board of Immigration Appoala (Boasd’) in Matter of X-K:, 28 I&N Dee. 2008). But 2), consistent with the previously-binding decision of the 1 BIA cer their release, we learned from the Supreme Court in Jennings v. 138 S, Ct. 830 (2018), and # I&N Dec, $09 44.6. 2019), two important points, The first is that these alions, as Rodrig Atiomey Genoral in Matter of M-S-, 27 inadmissible applicants for admission, were detained under INA § 235(0). The ccond is that the exclusive legel means for the release of inadmissible applicants for admission is the parole authority under INA § 212(8)()(\. ‘Thus tho question: have these alions beon paroled? Or stated another way: does the paperwork control, meaning they were released on a bond under INA § 236(@), oF does our new understanding of the law control, such that they were paroled under INA § 212(€)(6)A)? Tho answer is significant because if paroled, some of the aliens could seek to adjust their status under the Cuban Adjustment, Act or INA § 245(a), On November 4, 2020, the Court heard oral argument on this recurring issue in six unrelated cases, As a matter of administrativo officiency, the Court issues this order as to the remaining five cazes.! The Court expresses its gratitude to the attorneys for their work, and appreciates their advoesey at cral argument. 1 ‘The Court will not belabor the parties with an extensive recitation of the law from Matter of X-K- to Jennings to Matter of M-S-, and assumes they are now more than familiar with the issues presented, Ulimately, the Court concludes that it is the law, not the paperwork or anything else, that controls. Aliens like these respondents have been paroled into the United States. Their release by the Department cannot qualify as a bond under INA § 236(a), and can only be classified as a release on parole under INA § 212(0)(5\A). The Court comes to this conclusion based on: (1) a simple application of Jennings to the unilisputed facts in these cases; (2) the binding decision of the Board of Immigration Appeals (‘Board’) in a similar dispute on the issue of parole in Matter of O., 16 I&N Dec. 344 (BIA 197): and (3) the clear rule that judicial decisions like Jenvaings are presumptively rettoactive, 0, ‘The most persuasive reason to find that these respondents have boon paroled is the simple, direct moseago sont by the Supreme Court in «Jennings: parole under INA § 2120)(5)(A) is the exclusive logal means for the release of inadmissible applicants for admission who ave detained by the Department under INA § 285%), One ofthe x A A AD stew pee ou sarees Saher eee armen Consent wrth er of Teerghed, 16183 Deo, 260 {Wis ov he walning ve eure wil mo longer be considered on the Cour docket ‘See 198 §. Ct, at 844, Applying this basic principle to the undisputed facts of theso ‘eases yields the following eyllogism: 1, Inadmiss:ble applicants for admission® “shall” be detained under INA § 285(b). See INA § 295(6)(1)(B)ii), GEV), AD. 2. Other than a parole under INA § 212(€)(5)(A), “there are no other circumstances under which aliens detained under § 1225(b) [INA § 2350b)] may be released.” Jennings, 138 8. Ct at 844 (emphasis in original). 3. ‘The respondents wore inadmissible applicants for admission who the Department detained and later released, 4. Therefore, the respondents were detained under INA § 235(b), and their release qualifies as a parole under INA § 212(€)(6)(A) While the most straightforward view of the law is not always correct, here the Court is perstiaded that the conclusion above is the right one. IL. Putting aside tho appeal of a simple extrapolation from Jennings, the Court is not considering the issue on # blank slate, The Board has already considored a case where certain aliens argued they were paroled, and the Department argued they were not paroled. And in that binding decision, the Board stressed that the correct characterization of the release of those alions was controlled by the law, The Board therefore rejected the contrary view that an alien can be paroled only if the "Applicanta for admission aubjest to mandatory detention include arriving aliens, “BWI cxpodited removal, end ‘ther sony? who cannot show their admissibility by clear a tvidence, Soe INA § 255(a\1), (OKI}CEVGUNIND, HA. 8 Department clearly intended to grant parole, or issued the appropriate parole paperwork, ‘The ease is Matier of O-, 16 I&N Dec. 244 (BIA 1977), which arose at the end of the Vietnam War, Approximately 130,000 aliens from Vietnam, mostly ‘Vietnamese, wore evacuated to the United States in April and May of 1975. Id, at 848, ‘The Vietnamese aliens in this large group were considered to have been paroled by the government, Zd, at 961. However, a small group of 126 non Vietnamese aliens who were evacuated on Amorican military aireraft were placed in exclusion proceedings, Id, at 345, The issue before the Board in the consolidated appeals of the 126 aliens was whether or not they had been paroled, with the aliens arguing they had been paroled, and the government arguing the opposite. Id ‘Upon reviow, the Board recognized that none of the 126 non-Vietnamese aliens (or any of the 130,000 evacuees) was issued paperwork to memorialize that they were paroled (Form 1-512). Id, at 348. The Board further recognized that evidence of the intent of the government to exercise its parole authority for the 126 non-Vietnamese aliens was “inconclusive.” Id. at 849. Nevertheless, the Board held that all of these alions were paroled under INA § 212(0)(5). Id, at 348, 351, The Board reasoned: We are unaware of, and the Servico had not provided us any authority making it lawful for the Government to bring these aliens to the United States other than the parole authority granted the Attorney General under section 212(4)(6) of the Act, Id. at 948 (emphasis added), The Board found that the aliens were paroled for soveral other reasons including that: (1) the procedure used to bring them to the United States was no different than the procedure used to bring aliens to the United States who concededly were paroled, (2) Congress contemplated that non- Vietnamese evacuees would be treated similarly to Vietnamese evacuees, and (3) the aliens were removed from Vietnam with the express consent of the United States government. Id. at 391. Just as in Mat of O., here the Department cannot provide the Court any awful authority justifying the release of these respondents “other than the parole authority granted the Attorney General under section 212(@)(6) of the Act.” Jd. at 1348. The respondents were inadmissible applicants for admission, and the Supreme Court: has made it clear that apart from a parole under INA § 212(€)(5)(A), “there ave no other circumstances” justifying release, Jennings, 138 8. Ct. at 844 (emphasis in original), While the paperwork might have been issued under a mistakon viow of the law, the only Jawfal authority for release was a parole. Vv. Another way to look at the issue is to consider the case law on retroactivity Jennings announced clear rules of law on detention and release. But the Department released some of these respondents before the Supreme Court decided Jennings. So when the Court decides if all of the respondents have been parcleil, it is really dotermining if the logal principles in Jennings reach backwards in time. ‘The general rule on retroactivity is that legislation operates prospectively and only rarely retroactively, while judicial decisions are presumptively retroactive, See De Niz Robles v. Lynch, 803 F.34 1165, 1169-71 (10th Cir, 2015): Glazner v Glazner, 847 P.3d 1212, 1216 (11th Cir. 2003). Applying the genoral rule, the Court is confronted here not with legislation, but the hinding decision of the Supreme Court in Jennings. The presumption is that this judicial decision—which simply explains what the law has always been—is retroactive. And the Court finds no reason to depart from the presumption here. See Harper v. Virginia Dep't of Taxation, 609 U.S. 86,96 (1993) ‘a rule of fodoral law, once announced and applied to the parties to the controversy, must be given full retroactive effect by all courts adjudicating federal law.) (citation omitted).* TTBecause Jennings applied the rules of law it announced to the partos before it the retroactivity Lanny In at au end fr thio Court and sll thor infoioe courts. tn aaoasing the retroactivity of & jilieal (not administrate) deceon in a civil cas whore the higher Fedaral Court did not apply the Fre of law announce to he parties before it, the Eleventh Circuit appli the three-facior test cet eth in Chevron Oil Co, Hason, 404 US. 97 (1871). See Sussman v, Hampton, 700 F: App's 76, ‘od (Lith Cir 2017). The factors to be considered include: (I) whether a new principle of law i Gotablshed, (the purpove of the rule in question and whether retroactive operation would further In finding Jennings retroactive as to the correct classification of the respondents’ release, the Court recognizes it may feel unsettling to some in the Department. The Court is absolutely attaching “new legal consequences’ to events ‘completed before Matter of M-S- was announced (and oven before Jennings in the A A AEDS De Mis bles, Lyn, 88 P4165, 1168 1th i 2015 ing INS St. Cr. 638 US. 20,921 QDU})(oding An atta or judicial oder peat retuectl when it seeks to impose “new legal consequences to ovents completed before its announcement.") (internal quotation marks omitted). But that is inherent in retroactivity, and the Department can complain no more effectively than aliens who also answer to the cleay command of the law in similar contexts. For example, consider the case of Savoury v. U.S. Aify. Gen., 449 F.3d 1307 (11th Cir, 2006), There an alien applied for adjustment of status and fully disclosed to the Department that he had a cocaine conviction, yet the Department granted him adjustment of status anyways, Jd. at 1310. When later placed in removal proceedings after a trip abroad, the alien sought relief from removal available to aliens “lawfully admitted for permanent residence”: a waiver under former INA §212(¢) Id. at 1312. The Bleventh Circuit Court of Appeals revognized that the alien had done nothing wrong, and shat the Department was at fault for mistakenly granting residency in the first place. Id. at 1914, Nevertheless, it agreed with tho Boaril’s conclusion that the alien was not eligible for the waiver because he was never “lawfully” admitted, Id. at 1313. The Eleventh Circuit reasoned that to be “lawfully” admitted requires more than the absence of fraud—it requires consistency with all applicable law. Id. tr binder ite operation, and () whether retrvadive application of the rule wosld be inequitable, fd ‘Xeauming the ‘Cheoran Oi test was applicable here, the Court would sill eonciude shat dennéngs ‘ras retroactive. While Jennings announced new principles of law with respect to detention end oleate, serouetiviry would further (and certaialy ot hindee) operation of these rues by promoting Uniformity in the tceatment of apglicants for admission in the fed of immigration law. And for the reatons cited below in Seetion V.C. ofthis dessin, i: would not Le inequitable forthe rules to apply retroactively ‘The takeaway from Savoury is that the alien could not hold up his permanent resident card as proof that he was “lawfully” admitted. ‘The permanent resident card (the paperwork) did not control. Nor did the Department's past intent in granting his application for adjustment of status. What controlled was the law. It cortainly must have felt unfair for the alien in Savoury to have held residency for a decade before the Department sought to take it away, but that was what the lew required, And in the same vein, the Department cannot hol up its paperwork here indicating that the respondents were roleased on a bond under INA § 236(@), oF successfully argue that its intent to grant a bond is what controls. Again, what matters is the law v ‘The Court will now aiddress the arguments of the Department. The Court notes that it encouraged the Department to reduce its position to writing in each of 1s before it. While the Department parole issue in three of the five enses, it has not accepted the Cours invitation to the five es uibmitted a brief addressing the file a brief on the parle Sasiie in the other two cases.! The Department did, however, carefully propare and deliver an “opening statement” at the oral argument of November 4, 2020, Because those remarks are much mere detailed as to the The Department submitted briefs addzessing the parole issue in the three eases whore she ‘naperdenta entered the United States withoat inspection and admission or parole. See Department ff Homeland Security Memorandum of Law ia Support ofthe Postce thatthe Respontent Was Not Fit ute liedSacs Rae) is ot, i ll N's Be roondets were davotied ts arving alesse the rogaions spect hat USCIS Weald hw jurado ov any renest fr amen ef satue—the Department argued that Tehette repindenes have beer parled was met, nat jutcable, was oats the Cows JeShckion, and beare no import to aspects of tho cave that the Court ha jarisditon we Mince? Se Deparment of Homeaed Seni Memorandum of Law Sipping the eontonton Judges Lack of Juredicuon to Adusiated Whevar the Respondent vas Purple int Se coat) ied nthe cas i a RE: a), A ER). 1 eas only it she middie of oral Seaeee ntme chert settee blot leurn tnt tbe Deraranen: would be tain the pion Te scepondens in the lvar tw cava Were nos psi Sr Digi Audio Rewrding a 3888, isa Now 2) Department's view of the Inw in general terms than its written briefing, the Court hhas reproduced its “opening statement,” and a few other exchanges, at Appendix A ‘The Department argues that: (A) the quotation from Jennings relied on by the Court is dicta and incorrect as a matter of law, (B) the detention of inadmissible applicants for admission is discretionary, (C) Matter of M-S- is not retroactive, (D) Matter of M-S- is distinguishable, and (E) Immigration Judges have no authority to grant parole nune pre tine, As explained below, the Departmentis arguments are unpersuasive, A ‘The linchpin of the Court's ruling today is the holding of the Supreme Court in Jennings that other than 2 release on parole under INA § 212(@)(5)(A), “there are no other citcumstances under which aliens detained under § 1226(b) {INA § 235(b)] may be released.” Jennings, 188 S, Ct. at 844 (emphasis in original), The Department claimed during oral argument that these words of the Supreme Court were “of no moment" and “dicta.” See Digital Audio Recording at 1:04:35 (Nov. 4, 2020), When pressed if the Supreme Court's conclusion was legally correct, dicta or not, the Court was sucprised by the Department's answer: “No, your Honor, it not fa correct statement cf the Jaw at all. It ignores E-R-M,, it ignores M-S-, and it completely takes Jennings out of context.” Id. at 1:09:11. ‘This cate therefare calls for the Court to choose between the Supreme Court of the United States, or instead the Department, as to a disputed conclusion of law. Unsurprisingly, the Court chooses the former. The Court will not be faulting the Supreme Court for “ignoring” Matter of E-R-M- & L-R-M- or any other case, and finds the reasoning of the Supreme Court, even if dicta, highly persuasive and correct. See generally Schwab v, Crosby, 451 F.3d 1808, 1825 (11th Cir. 2006) (rocognizing that Supreme Court dicta is not something to be lightly cast aside: “there is dicta, and then there is Supreme Court dicta.” he Court is providing all of the parties with a copy of the Digital Audio Recording of the oral hirgument of November 4, 2020, concurrently with the issuance ofthis decision, 8 Furthermore, the Court is not taking the words of the Supreme Court “out of context.” The Supreme Court's statement came during review of a broad ruling of the Ninth Cirewit Coart of Appeals requiring periodic bond hearings in a class action lawsuit, See Jennings, 198 S. Ct. at 838, The certified class included certain alions detained longer thsin six months pursuant to one of the general immigration detention statutes perding completion of removal proceodings, and was ultimately Aivided into three Diond subclasses: those detained under INA § 295(b), INA § 236(a), and INA § 296(c). Id, at 889. In that context, tho Supreme Court held that periodic bond hearings were not xequited for any of the throe subclasses, Id. at 842, And in that contest, the Supreme Court explained that the reason bond hearings were not required wes because parole, not bond, is the exclusive legal means to release an alien detained under INA § 295(b). See id. at 844. The Supreme Court's conclusion is not dieta ~it is the express reasoning invoked in -Tennings to overrule the contrary conclusion of the Ninth Cireuit Court of Appeals that periodic bond hearings were requited. See Seminole Tribe of Fla. v. Fla., 517 U.S. 44, 67 (1996) (the holding of a case includes the result of the case and “those portions of the opinion necossary to that result”) And while the Department now says it disagrees with the straightforward conclusion of the Supreme Court in Jennings, it eppoars it has taken that position for those cases only. As a represented party, the Department has repeatedly argued bolore the Federal Courts, without qualification, that parole is the sole legal means to roloase aliens detained under INA § 235(b). In fact, the Department haa even cited to the exact language from Jennings it now says is “not a corect statement of the law at all” To put it mildly, the Department's shifting positions are problematic. B Having attacked the reasoning of the Supreme Court, the Department does provide its own theory of detention and release ut the U.S. border. Relying heavily: ‘on Matter of E-R-M- & L-R-M-, 25 I&N Dec. 520 (BIA 2011), the Department argues "A few of the Departments public statements on this issue are collected at Appendix B. 8 that the detention of inadmissible applicants for admission is not mandatory, but discretionary. If the Department chooses as a mutter of discretion to process an alien for expedited removal, the alien is apparently detained under INA § 235(b) and can be released orly on a parole, If the Department instead chooses to afford an alien full removal preseedings (as it chose for the respondents here), the alien is apparently detained under INA § 236(a) and can be released only on @ bond, ‘Therefore, “[éJhe section elected by the Department, either 295 expedited removal or 240 full removal proceedings, determines the legal authority to utilize to detain and to release.” See Digital Audio Recording at 1:04:03 (Nov. 4, 2020) (emphasis added).* ‘The Court's sesponse is twofold. First, the Department's theory is contradicted by a full reading of all of the provisions of INA § 235. See Corley u: United States, 656 U.S. 903, 314 (2009) (holding that a statute should be construed to give effect to all of ite provisions). INA § 285(b)(2) requires, with certain oxcoptions inapplicable here, that inadmissible applicants for admission “shall be detained for « proceeding under section 240." INA § 235(b)(2M(A). This mandatory dotention provision is separate and apart from the expedited removal provisions at INA § 235(b)(1), explicitly refers to full removal proceedings under INA § 240, and nevertheless mandates detention, And if the text of the statute were somehow unclear, the Supreme Court has explainod that INA § 299(b)(2)(A) “serves as a catchall provision that applies (0 all applicants for admission not covered by §122506)(1) [INA § 285(b)(1)] (with specific exceptions not relevant here).” Jennings, 138 8, Ci. at 897 (emphasis added). Therefore, the Department's assertion that it can exercise its discretion to (1) elect to issue a Notice to Appear, and then (2) grant a bond under INA § 236(a), is simply not true, INA § 235(b)(2)(A) requires the detention of inadmissible applicants for admission in full removal proceedings, subject to the parole authority at INA § 212(€)(G)(A). See Apparently the only constraint on the Departments discretion ia the “eveible fear cutof'—"what ‘MLS. ood is ta certain pint, there inno mwitchever, and thet point occurs after positive credible fears I at L255. Thetsfor, “tbo Dopartaent] ean switch to 240 proceedings with the ability 0 release fon abond under INA § 295(2)] up until that positive cvedible fear finding” fd at 1:16:0, 10 Jennings, 138 &, Ct. at 842 CRead most naturally, §§ 1226(b)(1) and (6X2) thus ‘mandate detention of applicants for admission until certain proceedings have concluded”) (emphasis added). Second, the Defartment reads too much into Matter of B-R-M- d& L-R-M:. In that caso, an Immigration Judge terminated removal proceedings under INA § 240. Matter of E-R-M- & L-R-M., 25 I&N Dee, at 520, Relying on the use of the word “shuall™ in INA § 235(0)(1\ANG) - which states that cortain inadm “shall” be ordered removed “without a hearin blo aliens — the Immigration Judge concluded that the Department was required to process the alien under expedited removal proceedings, and could not pursue full removal proceedings under INA § 240, Id. at 520-22, Reversing, the Roar held that the word "shall" in INA § 296()(1)(A)&) did not carry its ordinary meaning and instead meant “may.” Id. at 522-28. The Board explained that historically, the word “shall” has not constrained Executive Branch decisions on whether to charge an individual with a crime, and which charges are brought. Jd, at 622, Similasly, the Board found that INA § 285(b)(1)(A)G) should not be interpreted to operate as a restraint on the Department's prosecutorial discretion to clect to pursue full removal proceedings undor INA § 240. Id. at 523. Quite plainly, the Board in Motter of E-R-M- & L-R-M- did not come to any conclusions regarding the detention of inadmissible applicants for admission under INA § 235(b). Instead, Matter of E-R-M- & L-R-M- held that the Depaxtmont retains prosecutorial diseretion under INA § 285(b\{1)(AXi) when choosing the type of proceeding to pursue against an inadmissible applicant for admission: expedited removal proceedings under INA § 235(b\1) or full removal proceedings under INA § 240. The Court notes that Matter of E-R-M- & L-R-M- was certainly on the books when Jennings was decided, and the Suprome Court nevertheless found that the word “shall” used repeatedly in INA § 285(b) as to detention was mandatory. See Jennings, 138 §, Ct. at 844 (holding that the uso of the word “shall” in INA. §235(b)(1) and ()2) as to detention was mandatory—those provisions “unequivocally mandete that aliens falling within their scope ‘shall’ be detained.”) n c ‘The Department also azgues that “M-S- was a change in the law . . ..” See Digital Audio Recording at 1:02:44 (Nov. 4, 2020). As “every single one of these respondents were apprehended, processed, and released prior to M-Ss effective date,” Matter of Me of MS. applies only prospectively and is therefore "beyond the scope” of the eases rannot apply. Id. at 1:04:24, In the Department view, Matter before the Court, Id. a: 1:16°06. But it is Jennings that clarified the nature of the Department's obligation to detain inadmissible alions arriving at our borders, and its corresponding release authority, Jennings did not change the law, but explained what the law has always i= Robles, 803 F.8d at 1170, As the Court held above in Soetion IV., Jennings 's a judicial decision that is retroactive. Matter of M-S- merely been. See generally De Ni ‘adopted Jennings anc overruled contradictory Board precedent; it did not change the law in a way where looking hackwands is off ints. A perfect example of these principles is Yu v. U.S. Atty, Gen., 568 F.3d 1328 (11th Cir, 2009), There an alien sought asylum based on the forced abortion and sterilization of his wife. Id. at 1829. When his hearings before the Immigration Judge were held, the respondent's case was governed by the precedent decision of the Board in Matter of C-Y-Z-, 21 I&N Dec. 915 (BIA 1997), which held that the pereocution of one spause could be established hy coerced abortion or sterilization of the other spouse. Id, at 1520-30, During the pendeney of the respondent's appeat to the Board, however, the Attorney General overruled Matter of C-Y-Z: in Matter of J-S., 24 IRN Dec, 526 (A.C. 2008), concluding that the spouse of a person subjectod ‘to cooreed abortion and sterilization was not automatically eligible for refugee ‘status, Id. at 1930. When the Board relied upon the Attorney General's intervening Aecision in Matter of J-S- in dismissing his appeal, the alien sought review before the Eleventh Circuit Court of Appeals. Id. Aifirming the Board’s decision, the Eleventh Circuit concluded that the Attorney Generals decision in Matter of J-S- was correct because it was required by the plain language of the rolevant statute (INA § 101(a)(42)(B)), and clearly and 2 unambiguously reflected Congressional intent. Jd. at 1382, And importantly, the Eleventh Circuit rejected the alion’s claim that it was improper for the Board to Id, at 1933. “The BIA did not retroactively apply & new law but instead appliod the Attorney General's retroacti ly apply Matter of --S- to his cas determination of what the law ‘had always meant?" Id. (citation omitted). The alien's reliance on Matter of C-¥-Z- therefore did not bar applying Matter of I-S- to his pending adminisinitive proceeding: “[o}ace the Attorney General clnsified the meaning of § 1101(a)(12)(B) in Matter of J-S:, that decision bocame the controlling interpretation of the Jaw and was entitled to full retroactive effect in all cases still open on divect review, regardless of whether the events predated the Attorney General's devision.” Id. at 1333-84 (emphasis added and citations omitted), Just ag in Yu, the Court is presiding over pending administrative proceedings which have not come to a conclusion in any of these five cases. And just as in Yu, the Attorney General here did not change the law in deciding Matter of M-S-; he simply adopted the Supreme Court's explanation of what the law has always meant So when the Department says that Matter of M-S- is “beyond the scope” of these pending proceedings because “every single one of these respondents were apprehended, processed, and released prior to M-S"s effective date", it misses the mark, Jennings (and Matter of M-S-) apply to these pending proceedings regardless of whether the events predated the Attorney General's decision. The forum for determining the legal significance of past events—whether it be the Department's decision to release the respondents, or the forced sterilization of an alien's spouse in their home country—is this one. ‘Tho Court ackaowledges that there is a line of cases specifying when the actions of an administrative agency, either by rulomaking or adjudication, apply Sipping the script, the Court would guess that the private bar would love to argue that « number vreau eitmcrk diviskns othe Attorney Ccnsral retsicting aryl slg, and reversing prior Doand precedent, chruld be considered “beyond the scope’ because their clients were harmed it {and led from their home eountrioe bofers those decisions were announced. See, eg, Matter of AB, STIGN Dec, 316 (AG. 2018) Matter of L-E-A-, 27 IGN Dec. 581 (AG. 2015), But its well known to all who practice immigration law that the Department’ position on the retrosetiity of those ‘ecnions of the Attorney General is quite different than their view of Mater of M.S. here. 18 retroactively. See, eg., Matter of Cordero-Gareia, 27 1&N Dec. 662 (BIA 2019). The Court finds these cases are inapplicable because this is not a situation where the Attorney General has ‘changed the law” hy exorcising his authority to give meaning to an ambiguous statute. Compare De Nix Robles, $03 F.3d at 1173 (holding that a now agency rule announced in a Chevron step two adjudication did not apply retroactively). Instead, it was the Supreme Court in Jennings who explained that the Law applicable tu the detention and release of applicants for admiesion was clear and unambiguous. See Jennings, 128 S. Ct, at 842 (referring to the “clear language” in INA §§ 235(b)(1) and (6)(2)), 84 (holding that those provisions “unequivocally ‘mandate” detention ard cannot be characterized as ambiguous). Assuming the Court wore incorrect, it would still conclude that Matter of M.S. applies retroact-vely as to the correct classification of the release of these respondents. To detemmine if an agency decision which changes the Jaw app retroactively, a number of factors must be considered: “(1) whether the particular case is one of first improssion, (2) whether tho new rule represents an abrupt doparture from well established practice or merely attempts to Sill a void in an ‘unsettled area of law, (3) the extent to which the party against whom the new rule is applied relied on the former rule, (4) the degree of the burden which a retroactive order imposes on a party, and (5) the statutory interest in applying a new rule despite the reliance of a party on the old standard.” Matter of Cordero-Garcia, 27 T&N Dec. at 658 (citation omittod). Here, the issue is not one of first impression, See generally Matter of X-K-, 28 IGN Dec. 731 (BIA 2005). And it does represent a departure from the well- ‘established (although mistaken) practice of the Department at the border in processing applicants for admission. It is now clear that a category of aliens previously released on honds under INA § 286(a) will be eligible for release only if paroled in accordance with INA § 212(€)()(A). ‘The most interesting factor, however, is reliance by the Department, It cannot be deniod that the Department relied upon, and indeed was bound by, the prior procedent decision of the Board in Moiter of X-K-. But the Court cannot ignore 4 that the Department opposed the rule of law announced in Matter of X-K-. And since ita appoals in Motter of X-K- wore dismissad in 2005, the Department. os repeatedly advocated for a broad view ofits detention obligation under INA § 236(b) before the Federal Courts, and hns mado oxpliit statomonts that parole is the exclusive means forthe release of aliens detained under INA § 285(). Importantly, these representations to the Federal Courts dato back to at least March 16, 2013, see Appeulix B, and therefore they precede the relenae of all of the reepondonts here, with the excepticn 0 jm Assessing this history, the Court concludes that the Depastment has embarked on a longstanding, strategie effort to persuade the Courts to acopt a view ‘of detention (and release) at the horder inconsistent with Matter of X-K-. That effort included a successful appeal to the Supreme Court in Jennings, and « successful effort to overrule Mater of XK: before the Attorney General. So while in « sense the Department relied upon prior law, it did so with its eyes open. Accordingly, any reliance by the Department des not weigh heavily against retroactivity. With respect to the statutory interest in applying the new rule, the Cont finds this factor cuts strongly in favor of retroactivity. INA § 286(b) “unequivocally mandatels)' detention absent parole. Jennings, 198 8. Ct, at 844, Honoring this clear statutory command is important in the field of immigration law, where uniformity is expected. Matter of Cordero-Garcia, 27 1&N Dee, at 662-63. And the fact that retroactive application of the law here operates to benefit the respondents makes no difference. The Department's interests heve perfectly coincdo with the dictates of the law, and there is no reason the Court can see why the Department would prefer that Jemnings apply only prospectively (or be burdened if it applied retroactively). The Department does not tako positions on dizerete legal issues with tn eye to whether the position will hurt or benefit the aliens to whom the rules apply. Finally, the Coart would note that the Department has already argued that Matter of MS. should bo vetroactive as to the detention of aliens released on a bond ‘under Matter of XK. In its brief to the Attorney General in Matter of MS. the Department stated that ruling in its favor by overruling Matter of XK- would have immediate and significant impact on detention operntions.” See U.S. ‘Department of Homeland Security Brief on Referral to the Attorney General at 23 1.16, Matter of M-S-, 27 IN Dec. 609 (A.G, 2019) (attached as Appendix C), Referring to statistics showing there were 42 383 past cases from fiscal year 2017 where @ credible fear was found, the Department argued that “{iJhis entire population” would “immediately” be subject to detention and could only be released on parole, Id, Ruling in the Department's favor, the Attorney General agreed that the mandatory detension called for by INA § 235(b) would apply retroactively, holding that the alien in Matter of M-S: “must be detained” untess paroled, Matter of M-S., 27 I&N Dee, at 519. And at the Department's request, the Attorney Genoral delayed the affective date of his decision so that the Department could conduct the necessary planning “for additional detention and parole decisions." Id acsi9n.8® ‘The Court has considered all of the five factors set forth in Matter of Cordero- Garcia. Assuming the Attorney General “changed the law” in Matter of M-S., that change applios rotrosctively. The Court finds it particularly important that the Department itself advocated that Matter of M-S- should be applied retroactively as to detention, and its arguments along those lines are strong and perhaps ultimately will prevail, Having taken that position, however, the Court finds it inapposite for ¥ Maite of MS. was the subject of immediate review by the United Statos Distuiet Court forthe Western Distt of Washington in Pala v, ICE, 2:18-cv926 NalP (WD. Wash), In tha litigution, the Department qualified ts prior suggestion that a favorable ruling im Matter ef M.S. would reqsine ‘fll 80 days of operatioal planing to apparently re-detain Inege aumbors of aliens released on 8 fond under Motter of Xk, In & declaration submitted to the District Court (which had already ‘toued injunctive rele, the Department indicated that “at this time" st did not intend to re-dotain tens released on a bond before Matter af M.S. went into effect on July 15,2019. Soe Declaration of Burwell Hott at 2, Padila ¢. 1CE, 1S ddresing the question whether en raigeaton jude may review DHS’s decision to detain aliens processed fr enpeitd removal night of the Supreme Counts reser eision in Jennings so for fhe ass discussed inthe ef, Conary tthe BIA ntepretin ofthe ‘amewor for detaining “certain oer aliens” processed for expedited removal, he plain sn mignon ade er acading te aston 240 fhe At arent lf ons adhere arent bight fora bond redetermmtion Store rst ge") 4 language ofthe INA. deserted by he Supreme Court in emnings, iret ht a len wo ‘us initlly bea detaied for expedited removal pursuant to INA § 235(0(:)a)i, but who thas subsequnly been efered fbr removal roceedings under INA § 240 following» pose crsdible fear sterination, remains in estady under INA § 23561) ais therefore not elgiie or «bond nearing before an mimlration judge. Acciinyly the nunlgtion judge lacked authority to ld a bon hearing in he respondents ote, nowithstanding the BIA's As discussed below, the BIA previously filled areglatory exp with Aecison in Meter of 2 nits withthe Supreme Cours subsequent plan language reading of an inereaion the expdiedemoyal tate, As such the tern General should is a deision hat Jerre regulatory feo na anne consistent with th utboiing sat ani tin wit Supreme Cout present STATEMENT OF FACTS ‘Therespondet MII IB ie nd kien of fia wig eners the United Stats ato sear Oy Mes, Califo, on Mach 13,2018, See Revrd of Deporbletnadisibe Alen (Porm £213). AUS, Bonder Patel agent expending to seasr scriviy in te sector rcountered the respondent pproximatly 3 miles cst of designated por vena and $0 miles mri ofthe United States-Menico border and prom apprhende hin. 1. On Mach 14,2018 U.S. Customs an ode Protstion poses the espondent for expeied removal denned him pursuant o INA §235(b) 20 also Notice and Order of Expedited Removal Fuen 1860), While in DS custody, the respondent xpresed a ero persecution if returned lo India, See Form 1-213. [An yl officer conducted» cree fear interview, detenminod that he respondent had order of persecution? and fsued a Notice to Appear (NTI) fo fil ensdertion of the asylum and withholding of removal elms in removal proceedings under seton 249 ofthe ‘Act. Notice wo Appear Fon F862} se abo C.F R. § 208.30 (procedures ox ose credible fx ndings). Inthe NTA, DHS charged the vesponden as rads under NA $5 212(0X7)(A)KD (oo vl gration dane) sa 212(66KANED (resent inthe United States witout adnistion er parle). See Form -862 (0m Jane 29, 2018, the immigration judge bel a heaving on the respondent's pplication fora change in custody status. See U Bond Order Gune 29,2018) (“U Bond Order”). a threshold mater, the inmigraton jude ruled that he ha jurisdiction to entertain the respondents estoy rdsterminationrguest pursuant INA §236(3), 1 Bond Memorandum (Guly 18,2018) CU Bond Memao 1) at 1, The immigration judge sso prediested jurisdiction on the regulation at § CER. 68 1236.1) and 1003.1) a well ws Matter of AI, 25 18 Dec 45,46 & m2 (BTA 2008), 11 Bond Memo Lat 1, On the mls ofthe application the immigration ge detrrnned thatthe respondent ws fight sk, but that conditions of eles sould adequately ensure his presence a fur immigration hearings, U Bond Memo Lat 1,3 Accordingly the immigeation judge ordered release fom DHS custody under bond of $17,500 and on condition that he provide ald passport verifying his deri). 1d, On appeal by the respondeot, the BIA affemed the inunigration judge's dessin and dismissed the respondents bond appect. See ME SHIM, AIIM. ox 1 (218 Sepr. 28, 2018). (00 September 6 2018—prior tothe Boars September 28 decision damissing the respondent's bond eppea!—the respondent led a motion for new bond redetermination based on ne a negtive rete fe fining Ap 10, 2018, he on vas » Altoap tea alii speeded by pote ceil banged circumstances purtuet to 8 CER. § 1003.19)" The respondent argued thet producing a passport slould be removed as a condition of release, beeause the Indien console Genie his request fore replacement Ladin passport. See Motion for New Bond on Changed (Cinsumstances at $-6,11 (Sept. 6,2018). On September 17, 2018 the immigration judge! Issued a new bund desi in whi she eliminated the prapport condition treed the monetary bond emnoun! to $27,000, See Decision and Order ofthe Immigration Judge (Sept. 17, 2018) (*U Bond Order")? On September 27,2018, the espondeat posted bond, end DAS released him from custody, See Notice of Relense and Proof af Service; Notice of Change of Custody (Sept. 27,2018) (Form I-830), Neither party appealed the second bond decision, The ‘respondent's removal provesngs remain pending on the nondetsined docket.” ARGUMENT |. The Expedited Removal Statutory Regime Contemplates Detention of Aliens Determined to Have a Credible Fear of Persecution, “The enforcement of our nation's imrnigration laws involves daly determinations by DHS imnigeation offices esto wheter to sdmit, parole, or remove aliens encountered at designated portsof-entry of who tre appreended betwen the pors-ofenty. Aliens who ar “aplianis for admission” are subject to an immigration Inspection. See INA §235(@X1), (3). Applicants for admission who ate amenable to the expedited removel process include: (1) “ariving aliens” Are el bond deen an ls eet for uber bon raetemintin sabe mae ie ‘wh snd Beco ony oon 2 shoving hee ale’ cheunstaees fave hanged ntl Sse Iie pa bond redevrminaton” HCE 6 1003.1) 20) » mtr migration je rsd overthe seen bon ewig th iamiraon judge's cin was ud Defoe DHS aubaieg uespors. See U Bod One at ‘abe fap sie gee 102001 +n Ob; 12 208, pen ctsideratn of te epoedets matin fr change of vee he in ue ‘spec eremovelrscetgs nm grin cout iNew York, New York See Ore of tragrion age 2} 83613 (0 (2208) who are indimissible de to fraud, misrepresontaton or lack of valid immigation documents 3s swell as (2) “certin othe aliens” designated bythe Secretary of Homelend Security who are subject to these inadmisibility grounds. INA. § 235(0X1)(A) ‘Une expedited rsmaval process results in removal order entered by ax immigration officer unless the ali jon or wate, a fear of return, oF an intetion to presses ar of persec arly forusyum, See. § 2350 1KANDS8 CHR 235.10), Under tase coursanees, ‘beaten it refered ton ey ocr for a erie fear interview, The INA then des thatthe officer makes apositve rile fer determin, hae “eal be detained for uber consideration of thespian for asylum” I. § 2350) 1B1G9, Puruant1o 8 CFR. § 208309, for postive crete fear eterminions he eu officer rfes the alien for removal proceadings before an immigration judge by issuing an NTA ni plcig the lien nromoval proceedings under INA § 240. However ato point does the asylum ofcerlnsae a warrant fares or # custody detination ws is done by US. Immigation end Customs Enforenent or U.S. Customs and Boner Protection oft for alien aresed and dened underINA § 236, See8 CFR, £§256.1((0), 1236.100N0 (4 waren of ast may cy be issued by thos immigration officer listed in 8 CER 6§287.5(e)(2), which des not includ asylum offices). The expedited removal scheme covers the inal encounter wih DIS though execution fhe fia oer of removal. Thowghout the where aplicble, aliens subject to using INA § 24D removal proce proces, inl ‘expedited removal remain detained pursuant 1o BNA § 235(b). See INA § 235(0)2KAK 8CFR. $§235.6(0\1), 1235.66) section 235(6)1)(A)} of the INVA provides bat the Secretary of Homeland Security nay apply the expedited removal process to aliens, tike the respondent inthis ese, who are described in section 285(6\ TAXI) ofthe INA as designated bythe Seeretay pursusnt 0 section 235COMIMANGHND. In making the Gesignation, tbe Seereiary is authorize by statute to “apply clauses (i) and ("of section 235(4)(1XA) to suc aliens, INA § 235(b)()CAND, This language indicates that Congress intended for aliens so designated to be subject 0 exasly the sume processes ose amiving allan doseribed in clause) af he statute. On August 11 2004, the Secretary published such a notoe inthe Federal Register designating eeran ales fr inclusion under the expedited removel provisions of INA § 235(b). See 69 Ped, Reg. 48,877 “The Depariment of Jusive hed previously exercised this same authority to designate olsses of aliens for expedited renoval, See Notice Designating Aliens Subject to Expedited Removel Under Seaton 235(6)(KAMi ofthe INA, 67 Fed, Reg 68,924 (Now, 13,2002), In both instances, the notes alvised that an alien, processed for expedited removal and later refered to an immigration judge fr proceedings under INA § 240 afer a positive credible fear determination, is ineligible for a custody redetermination before the immigration judge. Compare 69 Fed, Reg, a $8,880-81 (stting that “aliens doained pursuant tothe expedted removal proceedings under setion 235 ofthe Act including those aliens who ee refered after & positive credible fer determination to an immigration judge for proceedings under seetion 240 ‘of the INA) are not eligible for bond, snd taetefore nt elgible fora bond reeterminaton before ‘an immigration judge"), with 67 Fed. Rey, at 68,926 (tating that “an alien found to have & credible fear and subsequently placed into removal proceodings before en migration jxge will bbe detained”, TL, The BIA’s Dession in Matter of X-K- Incorrectly Applied the Statutory Reali. ‘As evidenced bythe Supreme Court's recent ling in Jemings, the BIA’S prior resolution of the gap in the regulations governing immigration judge bond authority under 8 CFR. §1005.19in Mater of K- was iacomect. Subsection (82) of tat epulation is silent sto whether “certain othr aliens” may be affded bond redeteeinwtons. See general Mars, J Alexander's LLC, 905 F.3d 610,625 (th Ci, 2018) (en bane) ("The regultion's silence on his pins compeling evidence ot ambiguity). Nor ther anyindation that the regulaions drafter “hd ntetion the reise gueton a sse;" Negi olde 555 US. 511, $18 (200). Infact, eation 1003.19 des not spesfclly ares the unique subelas of erin ote alien” primarily Because the regulation lng pests the 2004 expedited nemval designation under INA § 235(0XINANiI). See 63 Fed, Reg. 27.448 (May 19, 198)" Ceninly, te mgustory text nos plana foesose a contrary interpretation, Se generally Thomes leffeson Univ v, Shalala, $12 U.S. 04, $12 (1994) (holding thet cour must efecto the ageney’sinerpetation oft ambiguus regulation unless an “altemative endings compelled byte reltion’s plan language o by oer inlieatons othe [agensys] tent st the sme ofthe regulon promulgation) emphasis de). “The Attorty General, moreover, shuld avoid ey interpretation like the one ade in Mater of that rs contrary to he str) Tame werk and leads to enomalous es ht thovat the obvious inet of Congress in INA § 235(0). See, ex Tre Island Restoration Nevworkv US. Dep't of Commerce, 878.34 728, 733 (th Cit 2017) isrsting hat reviewing cout us ssi tht the fagoncy’s] interpretation [fis on regulation i not Inconsitent with acongesinal dete"): of ¢@, are Mage Reston, 2085.34 108, 116 (34 Cit. 2000) Even where the expres language ofa statute appears unambiguous, = “Similarly, 8 CER. § 1003.19 does nat specially adres lens dtsined by DHS under INA § 217 pura the ola waive rst yethe Bowral at mito ages ek abort band eens UBisponp olbes See Mer ofl, 2512N De. 45 (BIA 200), DHS exanies Maver of eg ‘drain Section 1, ore a 10 se court must Took beyonthat plain knguage where itera interpretation ofthis guage would hvatthe purpose ofthe overall sltuory shams, woud lead to an su res, of would otherwise proce a rest demondubly tos wit he intention ofthe dates” (quotation marks and cations emit) 1 Maer of 3 the BUA held ha ani who i intally posed in expedited mov under INA §235(6(2)A) as a member ofthe class of liens designated pursuant to the auhoty sn INA § 2850(1(A)(, but ho is subsequent placed in INA § 240 remove proceedines following «positive eredibe fear determineton, is eligible for # custody redetermination hering before an immigration judge ules the alien sa member of any ofthe Listed lasses of lions who ar specially excidd fom the custody usin of immigation}udges puss 0 SCHR §1003.19(h)2)9, See 231RN De, 21731, Teming othe gene esd auhorty oFimmigraion judges 8 CR, § 10031902) tbe BIA observed that “arriving aliens” in removal poeedings ar special exe, but her is no pale provision prising to erin oer aliens” wo are intl proceed fr expedited removal nd placed in removal recreible fear determination, See id at 735. The BIA noted tt proceedings following «posit “regulatory gp” eit end then concluded that inumiration jugs must have aubort to told bond herngs for he lass of eran ether aliens” described in INA § 235(0K KA}. sinoe they aero expel roche om doing sounder 8 CFR. § 1003.19. See it ‘hough the Beard comes viewed # CFR. § 1003.19" sence with respect “cert ter aliens" as "regulatory gp resolution ofthat sein Mater of X2K- wes lytcallyfewed and contrary to INA § 235(t), and it has led to anomalous results A key ‘cansertion ofthe BIA Was hat DHS bud initiated removal procesngs through the Hing of aa NTA. Seed at 73334, Focusing on this fact, the BIA Filed to analyze under what custody authority DHS deine the respondent. Indeed, the BIA eppeas to bave assured, without further explanation, tht DHS's custody authority automatically converted from INA § 23519 INA§ 236 y the merefling ofthe NTA, The BIA als easned that once tere fl postive credible fear termination, an liens no longer subject the expedited real statute, See id 0t 733, The BIA sated thal te INA ands implementing epation provided ro spec guidance regarding the estoy sthority ver an alien whos initally processed for expedited removal bat who is ter placed fa INA § 240 rerovalprovseings following « credible fear determination, Se i at 734 ‘The INA isnot silent, however, Subsection 235(0)1)(B)i) specifically states tht the [asylum] officer deermines atthe time ofthe interview that an aien as a eed fee of persecution. the alien shall be detained for further consieration ofthe application for asylum." That sttutory diretive would be frustrated if immigration judges were authorized to onder DHS to release aen,like the respondert, on bond pending futher consideration of thet asylum applications. Additionlly, the lpisltive history relied upon by the BIA establishes hat ‘twas the inte of Corgress that anlen lke the respondent remain detsined even if refered for INA § 240 removal preceedings. Se HLR. Conf. Rep. No, 104-828, a 209 (1996) (*Fthe officer finds that the allen has a eredibe fear of persecution, te alien shall be detained for fue consideration ofthe epson Fossum under zarmal non-expedied removal proceedings’), Farther te sala f immigration adge bond proestings o “cern other ations determined to tave a crdible far is enomalous, because the regltions make cee that aticns pening the expected removal proces under INA §235(H, whether claiming edible fea or ot ay be rlned ony inthe tle neeiewshl tion of DS. See BCR § 238.304) (pending the eredible exe determination by an asylum ofieer and any review of 2 that detersination bys immigration jadpe, the alien shal be detained; ee also 8 CER 4§§ 208.304 (fooleofstins found Yo have established credible fear may be considered only ia sccordance with INA §212(4XS) and 8 CER. § 2125), 235.2 (an lien whone inadmisititty s being considered under INA § 235 or who hs eon ordered removed under [INA §235 shal be detuned peadingdeternintion oiadmissilty and oma) of Mater af Cosillo-Paita, 25 WN Dec, 257.263 (BLA 2010 (clafyng tat pao ino the United States by DHS under INA §212(44S) it itn and diferent procedure fom release on “contol parol” by an immigrafon judge under INA § 2362S). Moreover, tis arorsous ht alien who commit the rime ofilesly entering or re-ntring the United States, see generally 8 US.C, $9 1325, 1326 and only seek asylum once appreberded nt placed into the expeied removal proces asa “etn other lien” would restive more favortbleewsodyconsidestion hun an alien who arses inthe United Swtos at a por-of-entry, presents him- or here for inspection, nad immediately seeks asylum from (IS. oficial, Cf United Nations Convention Relating tthe Staus of Refugees rt. 31(1), 189 UNS. 150,174 (uly 28,1951) (commiting Convention sgnataries not ta “impose penalties, on account o ]illegel entry or presaee, O8 -efigoes wh, soming directly fom &tentory where ths lif or eedom would be threatened... ener oa preset int teitory witht authorization, provided hy present themselves without dla tothe autores sn show goo cause for the ilegal erty or presence.” (emphasis ted). “The BIA ered n Matter of X-K- whe it found tht an alien no longer subst 9 expedited removal proedures on acount of his placement in moval proceedings under NA 6240 uoaah he filing ofa NTA. Sinve the espondont ere expressed fear of persecution returned to his county of nationality, he was referred to an ayluss oficer fora erdible fear 3 interview, a pat ofthe overaehing expedited removal proces. See INA § 235(0)((AMi), (By; 8 CER. §§235 5014), 1235.(0)4), ARer an interview conducted in ssordanoe with SCHR, § 20830, the sylum officer found the respondent had a credible fer of persecution “The asylum officer thee issued an NTA dated May 31,2018, referring the respondent's eli to sn ithhoing of removal lan in es inition judge fr fl coniderton a he removal procedings under section 240 ofthe Ast. See gennay 8 CFR. §20830(. The refelof the respondent to INA §240remval prowseings though the fling ofan NA i pat ofthe expedite removal proces, and fo detention purposes, an len lik the repent remains in DHS custody pending ater consideration of his appliction for asylum neva proceedings. See INA § 235(4(2)B)) (tating ta iF he eye] officer terns whe time ofthe interview tht an alien as a ereible fear f persecution. thelial be lined for frter orsderain the aplistion for apy") IL, ‘The Supreme Court's Reasoning in Jennings v Rodriguez Supports Overreling Matter of XK. In Jennings v Rndrigues, 138 S.C, 830 (2018), the Supreme Court reverse the decision of the US. Court of Appeals fo the Ninh Citeuit in Rocbiguesv, Robbins, 804 F.3d 1060 (ta (Cir, 2018), In doing so, the Cou determined tha the Ninth Creu had een ppb he canon of costttonl avoidace because the plain language ofthe elevartsetons ofthe INA incladng provisions pening to expedited removal, imposes to limit onthe eng of Getstion. Seo Jenningr, 158. CX. at 842, In relevant pr the Cour ruled tht INA |§235(b)(1B)(i) mandates detention “or futher consieration ofthe application for asylum” of ‘Thee wcll? ens at tare sence posi ting it cont cei ofte atone one ye alan spp otis caine ok tbe cts re na oe. cha te ‘len cud eb eighty fray um" under INA § 208, TNA § 2350000100) “4 —_ ‘alien determined to havea credible fear of persecution, while INAS 235(6N2}A) IFS

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