Ninth Circuit Disagrees with Matter of M-S-

The Ninth Circuit has determined that asylum seekers who enter without inspection and pass their credible fear interviews are constitutionally entitled to a bond hearing, despite the Attorney General’s decision in Matter of M-S-. The court affirmed the District Court’s injunctive relief requiring bond hearings, noting the harm caused the class members due to “substandard physical conditions [in detention centers], low standards of medical care, lack of access to attorneys and evidence as Plaintiffs prepare their cases, separation from their families, and retraumatization of a population already found to have legitimate circumstances of victimization.”

The court remanded for further factfinding by the District Court to support its order requiring a bond hearing to take place within 7 days of the asylum seeker requesting the hearing, as well as other procedural protections related to burden of proof and recording of the hearings.

The full text of Padilla v. ICE can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/03/27/19-35565.pdf

Seventh Circuit Finds Credible Fear Interview Notes Insufficiently Reliable to Support Adverse Credibility Determination

The Seventh Circuit has determined that an asylum officer's notes from a credible fear interview are insufficiently reliable to sustain an adverse credibility determination.  The court noted that the officer's notes specifically state they are not a verbatim transcript and do not represent an in-depth assessment of the applicant's asylum claim.  

The full text of Jimenez Ferreira v. Lynch can be found here:

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D08-05/C:15-2603:J:PerCuriam:aut:T:op:N:1806548:S:0

Ninth Circuits Finds No Jurisdiction to Review a Negative Credible Fear Determination

The Ninth Circuit has determined that it lacks jurisdiction to review an Immigration Judge's affirmance of an Asylum Officer's negative credible fear determination.  It found no due process violation in denying judicial review because a non-citizen could still file a habeas petition or collaterally attack the underlying expedited order in any future criminal reentry proceedings.

The full text of Pena v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/09/28/12-72099.pdf