Appellants’ emergency motion for a stay of the district court’s April 5, 2019 and July 2, 2019 orders pending appeal (Dkt. Entry No. 10) is granted in part and denied in part.
PART B: The Court MODIFIES the injunction to find that the statutory prohibition at
Immigration and Nationality Act § 235(b)(1)(B)(ii) against releasing on bond persons found to
have a credible fear of persecution if returned to their country and awaiting a determination of
their asylum application violates the U.S. Constitution; the Bond Hearing Class is
constitutionally entitled to a bond hearing (under the conditions enumerated above) pending
resolution of their asylum applications.
(1) Matter of X-K-, 23 I&N Dec. 731 (BIA 2005), was wrongly decided and is overruled.
(2) An alien who is transferred from expedited removal proceedings to full removal
proceedings after establishing a credible fear of persecution or torture is ineligible for
release on bond. Such an alien must be detained until his removal proceedings conclude,
unless he is granted parole.
With regard to the Bond Hearing Class,
Defendant Executive Office for Immigration Review must, within 30 days of this Order:
1. Conduct bond hearings within seven days of a bond hearing request by a class
member, and release any class member whose detention time exceeds that limit;
2. Place the burden of proof on Defendant Department of Homeland Security in those
bond hearings to demonstrate why the class member should not be released on bond,
parole, or other conditions;
3. Record the bond hearing and produce the recording or verbatim transcript of the
hearing upon appeal; and
4. Produce a written decision with particularized determinations of individualized
findings at the conclusion of the bond hearing