The Law Underlying Catch and Detain, Catch and Release, or Catch and Return
Congress amended section 235 of the Immigration and Nationality Act ("the Act") in section 302 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) to create the statutory foundation for procedures applied during border inspection to identify applicants for admission to the United States who might have valid asylum claims and those who do not.
Those who establish a significant possibility that they could be eligible for asylum under section 208 of the Act (i.e. a credible fear of persecution) are generally detained for further consideration of an asylum application. See section 235(b)(1)(B)(ii) of the Act.
Those who do not establish a credible fear of persecution and are inadmissible to the United States are subject to removal from the United States without further review. See section 235(b)(1)(B)(iii) of the Act.
It appears that, in part, Congress created expedited removal procedures to eliminate the need for formal immigration court proceedings in the case of every inadmissible alien encountered at the border.
Congress also provided that:
. . . in the case of an alien who is an applicant for admission, if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding under section 240.
See section 235(b)(2(A) of the Act.
Section 240 of the Act governs immigration court proceedings.
Congress provided for return of aliens arriving from a contiguous territory (such as Mexico and Canada) pending immigration court proceedings as follows:
In the case of an alien described in subparagraph (A) who is arriving on land . . . from a foreign territory contiguous to the United States, the Attorney General may return the alien to that territory pending a proceeding under section 240.
See section 235(b)(2)(C) of the Act.
Section 235(b)(2)(C) of the Act is the statutory foundation for the Trump administration’s Migrant Protection Protocols (“MPP”) created by the Secretary of the Department of Homeland Security (“DHS”) on December 20, 2018.
Congress did not provide for the release of aliens in the context of expedited removal procedures under section 235 of the Act. Aside from the option of return to a contiguous territory pending immigration court proceedings, the law under section 235 of the Act requires detention of aliens pursuing asylum claims as follows:
Any alien subject to the procedures under this clause shall be detained pending a final determination of credible fear of persecution and, if found not to have such a fear, until removed.
See section 235(b)(1)(B)(iii)(1)(IV) of the Act. See also section 235(b)(1)(B)(ii) of the Act (an alien with a credible fear of persecution “shall be detained for further consideration of the application for asylum”).
The DHS, however, does have discretion to release aliens under other provisions of the Act. The most widely used authority for release of inadmissible aliens who would otherwise be subject to detention is known as parole.
Congress provided for parole as follows:
The Attorney General may . . . in his discretion parole into the United States temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the United States . . ..
See section 212(d)(5) of the Act.
The DHS can also release on “bond” or “conditional parole” an alien arrested on a warrant and detained “pending a decision on whether the alien is to be removed.” See section 236 of the Act. However, section 236 of the Act applies to aliens who are deportable, as opposed to inadmissible.
The States of Texas and Missouri challenged the lawfulness of the use of parole discretion in favor of the June 1, 2021 rescission of the MPP by the Biden administration, in part, by pointing out that parole authority must be applied “only on a case-by-case basis,” and cannot be used to release aliens en masse into the United States. See The State of Texas, The State of Missouri v. Joseph R. Biden Jr., et al, In the United States District Court for the Northern District of Texas Amarillo Division, (August 13, 2021) Case No. 2:21-CV-067-Z, at p. 43 and note 11.
On August 13, 2021, the District Court entered a nationwide injunction requiring the DHS to reinstate the MPP.
More details of the detention issue and other issues relating to the Administrative Procedure Act, standing and justiciability, etc. imbedded in the controversy involving the June 1, 2021 rescission of MPP and the District Court reinstatement injunction are addressed by the Fifth Circuit Court of Appeal in a decision relating to a motion for stay by the defendant/appellant (Biden administration). State of Texas; State of Missouri v. Joseph R. Biden, Jr., in his official capacity as President of the United States of America . . . (5th Cir. August 19, 2021) No. 21-10806.
The United States Supreme Court denied the Biden administration's motion for stay of the District Court injunction on August 24, 2021. See BIDEN, PRESIDENT OF U.S., ET AL. V. TEXAS, ET AL. Order No. 21A21.
The language of Order No. 21A21 is brief enough for quotation:
The application for a stay presented to Justice Alito and
by him referred to the Court is denied. The applicants have
failed to show a likelihood of success on the claim that the
memorandum rescinding the Migrant Protection Protocols was not
arbitrary and capricious. See Department of Homeland Security v.
Regents of Univ. of Cal., 591 U. S. ___ (2020) (slip op., at 9-
12, 17-26). Our order denying the Government’s request for a stay
of the District Court injunction should not be read as affecting
the construction of that injunction by the Court of Appeals.
Justice Breyer, Justice Sotomayor, and Justice Kagan
would grant the application.
It is interesting to note that Department of Homeland Security v. Regents of Univ. of Cal., et al 591 U.S. __ (2020) cited in the above quoted denial of the Biden administration's motion for stay is the same decision in which the United States Supreme Court determined that the DHS rescission of Deferred Action for Childhood Arrivals ("DACA") during the Trump administration was arbitrary and capricious under the Administrative Procedure Act.
See Department of Homeland Security v. Regents of Univ. of Cal., et al, 591 U.S. __, at Slip Op. 13-26 (2020).