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AG Barr issues Matter of M-S-, holding that an asylum-seeker who establishes credible fear is ineligible for bond, even when transferred to removal proceedings

  1. Original Date Announced

    April 16, 2019

    Asylum seekers in expedited removal proceedings who have established a credible fear of persecution or torture are no longer eligible for release on bond and will be detained until the disposition of their case unless they are granted parole under INA 212(d)(5)(A). This decision by Attorney General Barr overrules a 14-year-old BIA precedent. It does not affect migrants who apply for asylum at a port of entry, who were ineligible for bond under the prior precedent, but extends the unavailability of bond to those processed for expedited removal who are apprehended after crossing into the United States between ports of entry without authorization.

    [ID #75]

    Matter of M-S-, 27 I&N Dec. 509 (AG 2019)

  2. Effective Date

    April 16, 2019

  3. Subsequent Trump and Court Action(s)

    • July 15, 2019

      ICE ERO Interim Guidance for Implentation of Matter of M-S

      On July 15, 2019, the Executive Associate Director for Enforcement and Removal Operations (ERO) released interim guidance, effective immediately and pending developments in Padilla v. ICE, directing ERO personnel to continue to detain individuals subject to expedited removal while allowing for discretionary parole, authorized by ERO.

      View Document
    • March 27, 2020

      2020.03.27 Ninth Circuit Opinion re Padilla

      On March 27, 2020, the Ninth Circuit held that asylum seekers with positive credible fear determinations have a due process right to bond hearings--see Padilla v. ICE, Ninth Circuit 19-35565.

      **Litigation is listed for informational purposes and is not comprehensive. For the current status of legal challenges, check other sources.**

      View Document
    • January 11, 2021

      Supreme Court Order Vacating Ninth Circuit Judgment in Padilla

      On January 11, 2021, the Supreme Court of the United States vacated the judgement of the Ninth Circuit in Padilla and remanded for further consideration in light of Department of Homeland Security v. Thuraissigiam, 591 U. S. ___ (2020).

      **Litigation is listed for informational purposes and is not comprehensive. For the current status of legal challenges, check other sources.**

      View Document
    • July 29, 2022

      2022.07.29 Order Vacating Preliminary Injunction

      Following the Supreme Court vacatur of the prior Ninth Circuit decision in Padilla, the Ninth Circuit directed the district court to vacate the preliminary injunction.

      **Litigation is listed for informational purposes and is not comprehensive. For the current status of legal challenges, check other sources.**

      View Document
    • January 11, 2023

      2023.01.11 Fourth Amended Complaint

      Following the Supreme Court’s decision that resulted in the vacatur of the preliminary injunction, plaintiffs filed an amended complaint on behalf of the (1) Credible Fear Interview class and (2) Bond Hearing class. The amended complaint states that following the Matter of M-S- decision and the vacatur of the district court’s injunction preserving bond hearings, class members continue to face lengthy detention without independent review or prompt bond hearings that comport with the Due Process Clause.

      **Litigation is listed for informational purposes and is not comprehensive. For the current status of legal challenges, check other sources.**

      View Document
    • January 5, 2024

      2024.01.05 Order Approving the Settlement Agreement

      The parties agreed to settle the claims of the Credible Fear Class and the court approved the settlement agreement after concluding a fairness hearing on January 5, 2024. Although the settlement agreement provides guidelines for the timely referral of fear claims to USCIS and for USCIS to complete fear interviews, it does not resolve the claims of the Bond Hearing Class challenging Matter of M-S- and the denial of bond hearings to people who entered without inspection and were processed under expedited removal and who then received a positive credible fear determination.

      **Litigation is listed for informational purposes and is not comprehensive. For the current status of legal challenges, check other sources.**

      View Document

Current Status

Fully in Effect

Original Trump Policy Status

Status: Final/Actual
Trump Administration Action: Adjudication
Subject Matter: Asylum, Withholding and CAT Detention
Agencies Affected: EOIR ICE AG

Pre Trump-Era Policies

  • May 4, 2005

    Noncitizens processed for expedited removal after entering between ports of entry who received a positive credible fear determination for persecution or torture were previously eligible for a custody redetermination (bond) hearing before an Immigration Judge.

    Matter of X-K-, 23 I&N Dec. 731 (BIA 2005)
  • October 12, 2018

    The Attorney General (AG) certified to himself the case of Matter of M-S- and invited parties and amici to brief whether certain noncitizens screened for expedited removal are eligible for bond.

    Matter of M-S-, 27 I&N Dec. 476 (AG 2018)

Commentary

Documents

Trump-Era Policy Documents

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