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Amicus Brief in in Matter of M-S-, 27 I&N Dec. 476 (A.G. 2018)
"In response to the question posed by the Attorney General in Matter of M-S-, 27 I&NDec. 476 (A.G. 2018), amici respectfully submit this brief asserting that the Attorney Generalmust not vacate the decision in Matter of X-K-, 23 I&N Dec. 731 (BIA 2005). A decisionvacating Matter of X-K- would deny Immigration Court custody redetermination hearings toasylum seekers who have passed a credible fear interview, permitting umeviewable detentionthroughout lengthy asylum proceedings. Such unjustified detention should not be allowed,because it would run counter to the statutory scheme established in the Immigration andNationality Act ("INA") and would violate the fundamental right to liberty.
The decision in Matter of X-K- thirteen years ago provided a well-reasoned interpretationof the applicable immigration statutes and ensured that asylum seekers have the ability to seekImmigration Court review of their detention, with the potential for release on recognizance ormonetary bond. 23 I&N Dec. at 733-34. The Supreme Court's decision in Jennings v.Rodriguez, 138 S.Ct. 830 (2018), does not in any way overrule or call into question theinterpretation in Matter of X-K-. The decision in Matter of X-K- should stand as the bestinterpretation of the relevant statutory provisions.
In addition to providing the best interpretation of the statute, Matter ofX-K- provides forcustody redetermination hearings in a manner that is consistent with Constitutional standardsprohibiting a deprivation of liberty without an individualized determination of the need fordetention, with independent review. ...
A decision to vacate Matter of X-K- and deny asylum seekers an individualized detentiondetermination and a custody redetermination hearing before the Immigration Court would resultin impermissible deprivation of freedom. The Attorney General may not issue a decision thatleads to violations ofthe fundamental right to liberty and, accordingly, must not vacate Matter ofX-K-."