Defendants have essentially conceded that the recent surge in detention during a period of mass migration is not mere happenstance, but instead reflects a design to deter such migration. Indeed, they state that ICE officials are required to follow the binding precedent contained in Matter of D–J–, 23 I. & N. Dec. 572 (2003), in which then-Attorney General John Ashcroft held that deterrence of mass migration should be considered in making custody determinations under 8 U.S.C. § 1226(a). See Def. Reply at 4; see alsoMatter of D–J–, 23 I. & N. Dec. at 572 (“[I]t is appropriate to consider national security interests implicated by the encouragement of further unlawful mass migrations [when making custody determinations].”); see alsoid. at 578–79 (agreeing with INS that “the threat of further mass migration” constitutes a “reasonable foundation” for denying release).

The Homeland Security Act of 2002 transferred much of the Attorney General’s immigration authority to the newly created office of the Secretary of Homeland Security. See In re D-J , 23 I. & N. Dec. 572, 573–74 & n.2 (Op. Att’y Gen. 2003) (citing Homeland Security Act of 2002, Pub. L. No. 108-7, 117 Stat. 531 (2003) ). Though the Attorney General retains authority over the Executive Office for Immigration Review, id . n.3, the Secretary of Homeland Security is now responsible with the general administration and enforcement of immigration law, id . n.2.

On May 21, 2003, Plaintiff sent Defendant a request for records under the Freedom of Information Act. [Exhibit 1 to Plaintiff's complaint; Giles Affidavit, ¶¶ 2, 8]. The request sought: . . . any and all information regarding the use of Haiti as a staging ground for the migration of third country nationals to the United States. Specifically, we seek all such information that provided the basis for U.S. Attorney General John Ashcroft to state in the In Re D.J. ( 23 I. N. Dec. 572, April 17, 2003): "Thus, the State Department declaration asserts that it has `noticed an increase in third country nations (Pakistanis, Palestinians, etc.) using Haiti as a staging point for attempted migration to the United States. . . ." INS Brief, Exh. B, par. 11.

See, e.g., Sol v. I.N.S., 274 F.3d 648, 651 (2d Cir. 2001) (per curiam) ("[F]ederal jurisdiction over § 2241 petitions does not extend to review of discretionary determinations by the [Immigration Judge] and the BIA."). Xue argues on appeal that the district court's decision was in fact based on a legal error, namely a misinterpretation of the Attorney General's decision, In re D-J-, 23 I. N. Dec. 572 (Op. Att'y Gen. Apr. 17, 2003) ("D-J-"). See, e.g., Khan v. Gonzales, 495 F.3d 31, 35 (2d Cir. 2007) ("[W]here, as here, . . . the petitioner raises a question of law, [] we have jurisdiction to review [it].").

Moreover, the Attorney General has recently asserted a broad power to make "controlling" legal and policy determinations regarding whether individual aliens should be detained. See In re D-J, 23 I. N. Dec. 572, 573-74, 2003 WL 1953603 (Op. Att'y Gen. April 17, 2003) ("Although authority to enforce and administer the INA and other laws related to the immigration and naturalization of aliens has recently been transferred to the Secretary of Homeland Security by the HSA, the Attorney General retains his authority to make controlling determinations with respect to questions of law arising under those statutes."); see also id. (citing "considerations of sound immigration policy and national security" in denying bond to a detained alien).

This procedural posture also undermines Kharis's ability to show prejudice at this stage, because the IJ's merits denial generally weighs in favor of a flight risk finding. See Matter of D-J-, 23 I. & N. Dec. 572, 582 (2003) ("The IJ's denial of the respondent's application for asylum increases the risk that the respondent will flee if released from detention."). However, the Court agrees with Kharis that the BIA's decision does not mention "highly probative" evidence on which Kharis relied.

This procedural posture also undermines Kharis's ability to show prejudice at this stage, because the IJ's merits denial generally weighs in favor of a flight risk finding. See Matter of D-J-, 23 I. & N. Dec. 572, 582 (2003) ("The IJ's denial of the respondent's application for asylum increases the risk that the respondent will flee if released from detention."). However, the Court agrees with Kharis that the BIA's decision does not mention "highly probative" evidence on which Kharis relied.

Third, Plaintiffs note that the government has referenced a deterrence policy in other litigations. SeeR.I.L–R , 80 F.Supp.3d at 175 (noting that the government has claimed that "ICE officials are required to follow the binding precedent contained in Matter of D–J, 23 I. & N. Dec. 572, 2003 WL 1953603 (2003), in which then-Attorney General John Ashcroft held that deterrence of mass migration should be considered in making custody determinations under [a different INA provision]"). While Defendants have not admitted to a deterrence policy here, as they did in their R.I.L–R briefing, id. , they do not contest that the government has referenced such a policy before other courts.

An alien has no right to be released during removal proceedings, though the statute provides the Attorney General with discretion to release non-criminal aliens on bond. See INA § 236(a); Matter of D-J-, 23 I N Dec. 572, 575-576 (A.G. 2003). Section 236(c) specifically instructs the Attorney General to take certain criminal aliens into custody and precludes the release of such aliens pending the conclusion of removal proceedings. INA § 236(c).