BIA Subjects Applicants for Admission to Mandatory Detention

The Board of Immigration Appeals has determined that an applicant for admission who is arrested and detained without a warrant while arriving in the United States, whether or not at a port of entry, and subsequently placed in removal proceedings is detained under section 235(b) of the Immigration and Nationality Act and is ineligible for any subsequent release on bond under section 236(a) of the INA.

“An ‘applicant for admission; is defined, in relevant part, as an alien ‘who arrives in the United States whether or not at a designated port of arrival.’ An alien, like the respondent, ‘who tries to enter the country illegally is treated as an ‘applicant for admission.’” The Board further noted that the only exception to mandatory detention of applicants for admission is parole, which suggests that anyone who meets the definition of an applicant for admission who is not detained is actually paroled in the United States. However, the parole is terminated by the service of a Notice to Appear, which in turn, permits later detention under section 235(b) of the non-citizen.

The full text of Matter of Q. Li is found here:

https://www.justice.gov/eoir/media/1400431/dl?inline

BIA Finds 8 C.F.R. § 1240.17 does not Apply to Applicant Whose Negative CFI was Overturned by IJ

The Board of Immigration Appeals has determined that the regulation contained at 8 C.F.R. § 1240.17 does not apply to an asylum applicant who initially received a negative credible fear determination which was overturned by an Immigration Judge. The Board noted that the regulation only applies to those applicants initially placed in expedited removal proceedings and whose asylum applicant was initially adjudicated by the asylum officer. “The respondent is not included in the category of individuals covered by the regulation at 8 C.F.R. § 1240.17 because he was not initially placed in expedited removal proceedings and USCIS did not adjudicate his asylum application.”

Although USCIS did not adjudicate this individual’s asylum application in the first instance, the Board’s finding that he was not initially placed in expedited removal proceedings is curious, as the agency has long considered a person going through the credible fear process to be subject to an expedited removal order until a positive credible fear determination is made.

The full text of Matter of F-C-S- can be found here:

https://www.justice.gov/d9/2024-03/4074.pdf

The Board of Immigration Appeals has issued an amended opinion recognizing that F-C-S- was placed in expedited removal proceedings, but reaffirming that the regulation at issue only applies to asylum applications initially adjudicated by USCIS:

https://www.justice.gov/d9/2024-04/4074_amended.pdf

The Board of Immigration Appeals issued another amended opinion clarifying the procedural history of the case:

https://www.justice.gov/d9/2024-04/4074_amended_2.pdf