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Original Date Announced
April 16, 2019Asylum 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)Effective Date
April 16, 2019Subsequent Trump-Era and Court Action(s)
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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.
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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.**
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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.**
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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.**
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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.**
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Current Status
Fully in EffectOriginal Trump Policy Status
Status: Final/ActualTrump Administration Action: AdjudicationSubject Matter: Asylum, Withholding and CAT DetentionPre Trump-Era Policies
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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)
Documents
Trump-Era Policy Documents
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New Policy
Original Source:
Matter of M-S-, 27 I&N Dec. 509 (AG 2019)
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Prior Policy
Original Source:
Matter of X-K-, 23 I&N Dec. 731 (BIA 2005)
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Prior Policy
Original Source:
Matter of M-S-, 27 I&N Dec. 476 (AG 2018)
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Subsequent Action
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Subsequent Action
Original Source:
2020.03.27 Ninth Circuit Opinion re Padilla
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Subsequent Action
Original Source:
2021.01.11 Supreme Court Order Vacating Padilla Judgment
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Subsequent Action
Original Source:
2022.07.29 Order Vacating Preliminary Injunction
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Subsequent Action
Original Source:
2023.01.11 Fourth Amended Complaint
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Subsequent Action
Original Source:
2024.01.05 Order Approving the Settlement Agreement
- Commentary
Commentary
AG Barr Strips Bond Eligibility from Asylum-Seekers
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