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Immigration Law

Law Profs File Amicus Brief in in Matter of M-S-, 27 I&N Dec. 476 (A.G. 2018)

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&N
Dec. 476 (A.G. 2018), amici respectfully submit this brief asserting that the Attorney General
must not vacate the decision in Matter of X-K-, 23 I&N Dec. 731 (BIA 2005). A decision
vacating Matter of X-K- would deny Immigration Court custody redetermination hearings to
asylum seekers who have passed a credible fear interview, permitting umeviewable detention
throughout lengthy asylum proceedings. Such unjustified detention should not be allowed,
because it would run counter to the statutory scheme established in the Immigration and
Nationality Act ("INA") and would violate the fundamental right to liberty.

The decision in Matter of X-K- thirteen years ago provided a well-reasoned interpretation
of the applicable immigration statutes and ensured that asylum seekers have the ability to seek
Immigration Court review of their detention, with the potential for release on recognizance or
monetary 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 the
interpretation in Matter of X-K-. The decision in Matter of X-K- should stand as the best
interpretation of the relevant statutory provisions.

In addition to providing the best interpretation of the statute, Matter ofX-K- provides for
custody redetermination hearings in a manner that is consistent with Constitutional standards
prohibiting a deprivation of liberty without an individualized determination of the need for
detention, with independent review. ... 

A decision to vacate Matter of X-K- and deny asylum seekers an individualized detention
determination and a custody redetermination hearing before the Immigration Court would result
in impermissible deprivation of freedom. The Attorney General may not issue a decision that
leads to violations ofthe fundamental right to liberty and, accordingly, must not vacate Matter of