AILA Quicktake #263: Attorney General Issues a Decision in Matter of M-S-

AILA’s Director of Government Relations Greg Chen discusses Matter of M-S-.

Video Transcript

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On April 16, Attorney General William Barr isslued a decision in Matter of M-S-
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ruling that asylum seekers who entered between ports of entry
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and establish a credible fear of persecution are no longer eligible for release
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on bond before an immigration judge.
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The decision sweeps aside longstanding Board of Immigration Appeals precedent
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which the immigration courts and DHS have been implementing for nearly 14 years.
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The AG delayed implementation of his decision for 90 days to give DHS
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time to plan for additional detention space.
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If this decision is implemented thousands of people will be unnecessarily detained,
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dealing a devastating blow to those seeking protection from persecution
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who will have a much harder time proving their claims for asylum while detained.
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Already, the American Immigration Council, ACLU, and
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Northwest Immigrant Rights project
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have announced plans to challange Matter of M-S-.
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Just weeks ago, those organizations
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obtained a favorable ruling from a federal district court
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which ordered the government to provide prompt bond hearings to the same category
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of individuals at issue in Matter of M-S-.
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Yet the Attorney General went ahead and issued Matter of M-S-.
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The Federal court case is Padilla v. ICE.
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With Matter of M-S-, the administration is now attempting to expand mandatory detention.
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But the government has a choice not to detain these asylum seekers.
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The government should review each case individually and release those asylum seekers
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who pose no flight risk or threat to the public safety.
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In Matter of M-S-, the Attorney General also cited the Supreme Court's decision
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in Jennings v Rodriguez as supporting his interpretation.
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But in Jennings the Supreme Court did not address at all the availability
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of Immigration Court custody redetermination hearings
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for the class of asylum seekers at issue in Matter of M-S-.
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The Supreme Court never mentioned or called into question the BIA’s decision
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that the AG has now overturned in Matter of M-S-.
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Not only does M-S- impact the detention of asylum seekers,
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but the AG is taking another step to strip judges
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of their most elemental operational authorities
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and as a result is making it more difficult for courts to manage their dockets
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and reduce the case backlog which exceeds 800,000 cases.
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Asylum seekers arriving at the southern border can be processed in an orderly way
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while also being provided with thorough and fair review of their asylum cases.
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Instead of putting resources into improved processing,
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the administration is looking to squander more resources to detain them
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when it’s not justified or necessary.
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To improve case processing, the courts must be allowed to operate as courts,
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not puppets of the Attorney General.
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That’s why AILA is urging Congress to create an Article One
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independent immigration court system, separate from the DOJ.
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The administration is using detention here as a sword against due process
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and the humanitarian principles upon which our nation was founded.
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AILA will fight back using all the tools at our disposal
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including the co-equal branches of Congress and the courts.

Cite as AILA Doc. No. 19041740.