BIA Defies Ninth Circuit: IJs Lack Jurisdiction to Review Asylum Termination

by Jason Dzubow

Earlier this month, the Ninth Circuit held that DHS does not have the authority to terminate an alien’s asylum status (I wrote about this here).  The Court reasoned that although the regulations allow for DHS to terminate asylum, the statute (upon which the regulations are based) grants authority to terminate exclusively to the Attorney General (and through him to the Immigration Judges).  Now the BIA has weighed in, and they have reached the opposite conclusion–the Board held that DHS has the authority to terminate asylum, and that the IJ has no authority to review the termination. See Matter of A-S-J-, 25 I&N Dec. 893 (BIA 2012).

A BIA Board Member addresses the Ninth Circuit.

First, it strikes me as a strange coincidence that the Ninth Circuit ruled on asylum termination a few weeks ago and now the BIA is publishing a decision on the same issue.  The BIA publishes only about 40 decisions per year, and so it seems odd that they would publish a decision on this same issue at the same time as the Ninth Circuit.  Call me paranoid, but I feel like we should contact Oliver Stone about this one (though perhaps the more prosaic explanation is that the BIA knew about the Ninth Circuit case and was waiting for a decision there before it issued its own decision on the matter).

In essence, the Board held that under the applicable regulations, both the IJ and DHS have authority to terminate asylum in certain circumstances.  However, these are two independent tracks.  According to the BIA, the regulations do not give the IJ authority to review an asylum termination by DHS.

The Board framed the issue as follows: “[W]hether an Immigration Judge has jurisdiction under 8 C.F.R. § 1208.24(f) to review the DHS’s termination of an alien’s asylum status pursuant to 8 C.F.R. § 208.24(a).”  The Board drew a bright-line distinction between the regulations in section 1208 (which the Board held are for EOIR) and the regulations in section 208 (for DHS).  The BIA concludes that

[T]he regulations for termination of asylum status provide for either (1) USCIS adjudication, with the possibility of the alien asserting a subsequent claim for asylum before the Immigration Judge in removal proceedings or (2) Immigration Judge jurisdiction to conduct an asylum termination hearing or to reopen the proceedings for the DHS to pursue termination of asylum status.  The regulations do not confer jurisdiction on the Immigration Judge to review a DHS termination of an asylum grant under 8 C.F.R. 208.24(a).

What this means is that although the IJ does not have the authority to review termination of asylum by DHS, the alien may re-apply for asylum anew before the Judge.  The IJ does not have to accept the determination by DHS concerning termination.  Rather, the IJ makes a de novo determination about the alien’s eligibility for asylum.  So although A-S-J- may make it more difficult for the alien, it does not close the door to relief once DHS terminates asylum.

The dissenting Board Member points out that section 208 of the regulations discusses the IJ’s authority to terminate asylum, and so “it is logical to infer that he also has the authority to restore asylum status terminated by the DHS.”  Although this would make sense from a practical point of view–it would be more efficient to allow the IJ to review a DHS termination rather than force the alien to re-apply for asylum in Immigration Court–I am not so sure that it is “logical to infer” that the IJ has the power to review a DHS termination, particularly given that in other instances, the regulations specifically grant such authority to the IJ.

Given the decision in the Ninth Circuit, I imagine the respondent in A-S-J- will file a petition for review to the U.S. Court of Appeals for the Second Circuit (or maybe a request for rehearing en banc before the BIA).  Although asylum termination is fairly uncommon (as far as I can tell), the issues of who has the authority to terminate a grant of asylum and how that decision is reviewed are important.  I expect we will see much litigation about these issues over the next few years.

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Dead Honduran Seeks Asylum in the U.S.

by Jason Dzubow

Four years ago, Josue Rafael Orellana Garcia fled Honduras to escape persecution by a criminal gang.  It seems the gang originally targeted him due to a handicap–he lost an eye and much of his hearing when he was struck by a tree during Hurricane Mitch.  Mr. Orellana arrived illegally in the United States at age 17 and requested political asylum.  His case was ultimately denied, and he was deported to Honduras in 2010.  

Mr. Orellana's mother with a photo of her deceased son.

Back in Honduras, Mr. Orellana disappeared while running an errand.  His body was found in July of last year.  Presumably, Mr. Orellana was murdered by the same gang members that had been persecuting him all along. 

Now, the Wall Street Journal reports that Mr. Orellana’s attorney has brought a posthumous asylum case before the Board of Immigration Appeals.  The purpose of the case is to highlight our country’s failure to protect people fleeing gang violence in Central America.  Mr. Orellana’s attorney, Joshua Bardavid, states, “I think it’s something that needs to be acknowledged: that we failed him; that he came here seeking safety, and the entire system let him down.”

The problem of gang violence is certainly endemic in several Central American countries.  Honduras, El Salvador, and Guatemala have some of the highest murder rates in the world (several times higher than Mexico, which has received much attention of late).  And the asylum grant rate from those countries is quite low.  According to statistics from the Department of Justice, in FY 2009 (the latest year I see data available) the asylum grant rate was as follows: Honduras: 5.5%, El Salvador: 2.9%, Guatemala: 4.3%.

As far as I know, there is no provision in the INA to grant asylum to someone who is deceased (unlike naturalization, which can be granted posthumously).  However, Mr. Orellana’s case is a sobering reminder that when we return Central American asylum seekers to their countries, we sometimes condemn them to death.  Hopefully, his case will help bring attention to this serious and difficult issue. 

For those attorneys and advocates working on gang-based asylum cases, the U.S. Committee for Refugees and Immigrants has some good resources that might prove useful.

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The BIA’s Ridiculous Deadline

by Jason Dzubow

beeI once heard about an Admiral during WWII who described carrier warfare as hours of boredom punctuated by moments of terror.  That is a bit like how I think of appeals to the Board of Immigration Appeals.

First, you file your appeal.  Nothing happens for a couple months.

Then, the transcript arrives.  You theoretically have 21 days to write the brief.  However, by the time you receive the transcript, a few days have passed.  Plus, you have to make sure that the appeal brief is received by the Board no later than day 21, so you have to mail it early.  Thus, you actually have about 15 or 16 days to write the brief.  Of course, the transcript always arrives when you are about to leave for vacation or when you have three individual hearings to prepare for, so the 15 or 16 days is not enough.  You can ask for one extension (which seems to be granted as a matter of course), so you can realistically gain a total of about 36 or 37 days to prepare the brief.

After the brief is filed, you will then wait one to two years for a decision.

So my question is: Since these appeals take so long anyway, why are we given such little time to prepare a brief?  

Perhaps limiting the time for the alien to submit a brief is a way of stopping her from dragging out her final removal date.  But given the one to two year (or more) time frame for these appeals, is another few weeks going to make much difference?

There is, of course, a downside to limiting the time for the brief: Given most attorneys’ busy schedules, it is difficult to do our best work when we have insufficient time to write the brief, particularly if we are unlucky enough to have the transcript and briefing schedule arrive at a bad time (which always seems to happen).

The obvious solution is to extend the time for filing the brief.  Federal appeals courts (at least where I practice) generally give about 45 days to file the brief.  Lower courts usually give at least 30 days.  All these courts grant extensions where warranted.  At a minimum, the BIA should initially grant six weeks to file the brief; at least this would save lawyers the time and uncertainty of having to ask for a three-week extension.

With more time, we can expect better briefs–not only from the private bar, but also from DHS.  I imagine this would result in better BIA decisions.  There is really no good reason for such short deadlines with the BIA.  The Board should consider extending the time for filing briefs.

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New BIA Decision Will Harm Asylum Seekers

by Jason Dzubow

I periodically complain about the ongoing failure of the Board of Immigration Appeals to provide guidance to Immigration Judges.  But the Board’s latest decision makes me think I should be more careful what I wish for.

In Matter of E-R-M-F- & A-S-M-, 25 I&N Dec. 580 (BIA 2011), the BIA held that, until an arrested alien is formally placed into removal proceedings by service of a Notice to Appear, immigration officers are not required to inform the alien of his right to counsel (at the alien’s own expense) or that his statements might be used against him.  Statements made by the alien after the arrest but before the alien is told of his right to counsel may be used against him in immigration court.

Not surprisingly, this decision has been roundly condemned by immigration advocates.  The American Immigration Counsel had this to say:

For decades, immigrants placed under arrest have been entitled to these critical advisals. Like “Miranda” warnings for criminal suspects, such notifications help to ensure that statements made during questioning are not the product of coercion. As a result of last week’s ruling, noncitizens under arrest will now be even more vulnerable to pressure from interrogating officers, and immigration judges will face greater difficulty determining whether statements made during questioning were truly voluntary.

Since this decision is bad for all noncitizens, it is–ipso facto–bad for asylum seekers and people with asylum.  In some ways, though, this decision might impact asylum seekers more severely than other immigrants.

I'd hate to see what the BIA would say about this interrogation.

For one thing, asylum cases often depend on an alien’s credibility.  If an alien makes a statement to an immigration officer, that statement might later be used to impeach the alien’s testimony.  I’ve seen this happen to some of my clients.  They speak to an ICE officer (sometimes through another detained alien acting as an interpreter) and say something that is inaccurate and that might later be construed as an inconsistency.  I’m not talking here about lies to gain asylum; I’m talking about non-material points, like whether the alien entered the U.S. in the day time or the night time, or what countries she traveled through to get to the United States.  Such inconsistencies are almost certainly honest mistakes, but since non-material inconsistencies can support an adverse credibility finding, such statements can destroy the asylum claim for a legitimate asylum seeker.  The E-R-M-F- decision will only exacerbate this problem.

Further, asylum seekers tend to be vulnerable people.  Many have been through traumas, often at the hands of officials from their home governments, and they have a particular fear of law enforcement officers.  Such people are susceptible to manipulation and will sometimes make false statements in order to please (or placate) an interrogating officer.  For these reasons, asylum seekers–more than most–need to be protected when they interact with immigration officers.  Again, the Board’s new decision is the exact opposite of what these people need.

My fear is that ICE officers will take advantage of the new ruling to question aliens before they serve the Notice to Appear, and that such statements will be unfairly used to damage asylum seekers’ credibility.  My hope is that the Ninth Circuit (which will likely review this matter) will see fit to overturn the Board’s decision.

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The BIA on Firm Resettlement

by Jason Dzubow

Under the Immigration and Nationality Act (“INA”) an alien who is “firmly resettled” in a third country is ineligible for asylum in the United States. See INA § 208(b)(2)(A)(vi); see also 8 C.F.R. § 1208.15.

If Angelina Jolie shows up, it probably means you are not firmly resettled.

It’s been more than 20 years since the BIA issued an opinion on firm resettlement, and during that period, the various federal circuit courts have weighed in, creating a patchwork of inconsistent law across the U.S.  In a new decision, Matter of A-G-G-, 25 I&N Dec. 486 (BIA May 12, 2011), the Board has issued important guidance concerning firm resettlement.

The BIA held that the Department of Homeland Security has the initial burden to make a prima facie showing of an offer of firm resettlement by presenting direct evidence of an alien’s ability to stay indefinitely in a third country.  When direct evidence is unavailable, indirect evidence may be used if it has a sufficient level of clarity and force to establish that the alien is able to permanently reside in the country.  An asylum applicant can rebut this evidence by showing by a preponderance of the evidence that such an offer has not been made or that the applicant’s circumstances would render him or her ineligible for such an offer of permanent residence.

The failure to apply for permanent residence where it is available to an alien does not rebut evidence of firm resettlement.  Thus, evidence that permanent resident status is available to the alien under the law of the third country may be sufficient to make a prima facie showing of an offer of firm resettlement, and a determination that the alien is firmly resettled is not contingent on whether the alien applies for permanent status in the third country.

It makes sense that the initial burden of proving firm resettlement is on the DHS–in most cases, an alien subject to the firm resettlement bar will have lived for a time in a third country.  In this case, the alien, A-G-G-, was a Mauritanian national who lived in Senegal for eight years.  He married a Senegalese citizen.  The fact that the alien resided in Senegal alerted DHS to the possibility of a firm resettlement bar, and they submitted evidence that A-G-G- could live permanently in Senegal.  A-G-G- then had an opportunity to rebut that evidence.  The fact that he chose not to apply for permanent status in Senegal was not sufficient–in and of itself–to avoid a permanent resettlement bar.  However, if there was some reason that A-G-G- could not live in Senegal, he could have presented that evidence and perhaps avoided the bar.

Matter of A-G-G- seems to strike a fair balance between protecting an asylum seeker’s ability to obtain asylum and preserving the government’s interest in barring people who have permanent residency elsewhere.



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BIA Makes It Easier to Deport 14 Year Olds

by Jason Dzubow

In a recent decision, the Board of Immigration Appeals held that service of a Notice to Appear (“NTA”) on an alien is effective, so long as the alien is at least 14 years old. See Matter of Cubor-Cruz, 25 I&N Dec. 470 (BIA April 29, 2011).  

Another child served with a Notice to Appear.

It may seem idiotic to expect a child still in the throws of puberty to respond to an NTA, but to be fair, the BIA was just following orders:

Section 239(a)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1229(a)(1) (2006), provides that the Notice to Appear is properly served if it is “given in person to the alien (or if personal service is not practicable, through service by mail to the alien or to the alien’s counsel of record, if any).” See also 8 C.F.R. § 103.5a(c)(1) (2010) (providing for personal service of notice).  However, the regulations state that if the alien is a minor under 14 years of age, “service shall be made upon the person with whom the . . . minor resides; whenever possible, service shall also be made on the near relative, guardian, committee, or friend.” 8 C.F.R. § 103.5a(c)(2)(ii); see also 8 C.F.R. § 236.2(a) (2010).

So I suppose it really isn’t the BIA’s fault that the regulations allow for service of an NTA on a middle school student.  There are a few things that bother me about this decision.

For one, the regulation is ridiculous.  How can a 14 year old be expected to understand and respond to an NTA?  This is another example highlighting the need for court-appointed advocates in cases involving minors or people who are incapable of representing themselves.   

Second, why did the Board bother to publish this decision?  It does nothing except re-state the regulation.  Given that the BIA publishes decisions so rarely (only about 1 case in 1,000 is published), it is disappointing that they would “waste” a published decision on a case that does nothing to clarify the law or set a precedent.

Finally, why didn’t the Board take this opportunity to criticize the regulation and/or call for court appointed advocates in cases involving minor children?  The BIA likes to tell us that it has no authority to rule on the validity of the regulations that govern it.  Maybe so, but it does have the expertise and the moral authority to criticize those regulations where they are unfair.  There is a long tradition in the American legal system of courts criticizing laws, even when they cannot invalidate those laws.  Sometimes, a well-written criticism helps change an unjust law.  Also, there is a tradition of courts asserting their authority even when the other branches of government question that authority (think Justice Marshall in Marbury v. Madison). 

In Matter of Cubor-Cruz, the BIA missed an opportunity to criticize an unjust regulation.  It also missed a chance to assert its (moral) authority in order to bring about a positive change in the law. 

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DHS and Mentally Ill Respondents: Why Is the Fox Guarding the Hen House?

by Jason Dzubow

I recently learned about the removal case of mentally ill man from Africa.  Several years ago, the man was granted Withholding of Removal from his country because he faced persecution there.  His immigration case was recently re-opened after he committed a crime rendering him ineligible for Withholding.  He might still be eligible for relief under the UN Convention Against Torture, if he demonstrates that it is more likely than not that he would be tortured in his country.   

Based on an expert report, the Immigration Judge found that the man (who cannot be identified here) was not competent to represent himself.  At the IJ’s insistence, DHS appointed a custodian, an ICE Detention and Removal Officer.  At the hearing, the ICE officer failed to appear, so the IJ dismissed the case.  The IJ found that, because the alien could not represent himself, the absence of a custodian violated his right to due process of law.  DHS appealed and the case is currently before the Board of Immigration Appeals.

What concerns me is not the failure of the custodian to appear for the hearing (it seemed to be an honest mistake), but the fact that the custodian was an ICE Detention and Removal Officer.  Why is the person charged with physically detaining and removing the alien the same person who is supposed to represent the alien’s interests in court?  Clearly, something needs to be done.

According to the Immigration Policy Center, over the last year or so, DHS has been working with stakeholders to improve the situation for mentally ill aliens in immigration court.  Some issues are: (1) The absence of a formal mechanism to identify mentally ill aliens in immigration court; (2) Mentally disabled aliens are not appointed counsel in immigration court; (3) Aliens with mental disabilities cannot effectively represent themselves in court; and (4) Immigration judges have too many cases to effectively address the needs of aliens with mental disabilities.  Perhaps DHS will issue some standards to protect mentally ill aliens, though it is unlikely that the standards currently under consideration would satisfy advocates for the mentally ill.  (The Legal Action Center of the American Immigration Counsel has an informative website about this issue).

In the mean time, the BIA might take matters into its own hands.  In the pending case of Matter of L-T-, the Boards has requested briefing on issues related to mentally ill aliens in immigration court.  An amicus brief filed in this case by the Legal Action Center (formerly AILF) is available here.

Mentally ill aliens in immigration court face many difficulties.  At the minimum, we should try to ensure that their due process rights are protected.  As things stand now, that is not the case. 

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The Unbearable Lightness of BIA-ing

by Jason Dzubow

In an average year, the  Board of Immigration Appeals decides over 35,000 cases, but publishes less than 40 decisions.  The small number of published decisions provides insufficient guidance to the nation’s Immigration Judges and results in inconsistent rulings between judges.  The lack of guidance has also contributed to the dramatic increase in immigration cases heard by the federal courts of appeals.  So instead of the law being settled by the BIA–which specializes in immigration–the various appeals courts have been interpreting the law, not always consistent with their sister circuits.

Here is how the numbers break down for the last few years: In 2009, the BIA decided 33,103 cases and published 34 decisions.  In 2008, it decided 38,369 cases and published 33 decisions.  In 2007, it decided 35,394 cases with 45 published decisions, and in 2006, it decided 41,476 cases and published 26 decisions.  So far this year, the Board has published 31 decisions.

Maybe Harry Truman could lend the BIA his famous sign.

When I was at the AILA conference last summer, we heard that published decisions require far more time and resources than unpublished decisions, but I just don’t buy it.  The BIA is authorized to have up to 15 Board Members.  It has a staff of well over 100 attorneys.  So even during their most prolific year (2007, when they published 45 decisions), each Board Member was required to write only three decisions, and each staff attorney wrote less than half of one decision.   

According to the BIA Practice Manual:

Decisions selected for publication meet one or more of several criteria, including but not limited to: the resolution of an issue of first impression; alteration, modification, or clarification of an existing rule of law; reaffirmation of an existing rule of law; resolution of a conflict of authority; and discussion of an issue of significant public interest.

It’s hard to believe that of the 30 to 40 thousand cases the Board reviews each year, only about 0.1% (one in one thousand) contain an issue that meets the above criteria.  I’ve had several cases before the BIA that involved issues of first impression, none of which were published (though two of them were published decisions by federal circuit courts).  Why is the Board passing the buck on decisions to the federal courts of appeals?

Although it might be more work over the short term, if the Board published more frequently, IJ decisions would become more consistent–creating less work for the BIA over the long term.  It would also make life easier for the federal courts of appeals, saving government resources.  Finally–and most important from my point of view–it would create more certainty and predictability for immigrants and their families. 

The BIA should embrace its role as “the highest administrative body for interpreting and applying immigration laws” and publish more decisions.

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Amicus Brief on Protecting Mentally Disabled Respondents

by Jason Dzubow

Human Rights Watch and Patterson Belknap Webb & Tyler LLP recently filed an amicus brief with the Board of Immigration Appeals in the case of an alien with a mental disability.  The brief is based on a year-long, joint investigation by HRW and the American Civil Liberties Union concerning violations of the rights of people with mental disabilities in the U.S. immigration system.  The report is called Deportation by Default: Mental Disability, Unfair Hearings, and Indefinite Detention in the US Immigration System.

Our view of the mentally ill continues to evlove, but we've still got a way to go.

In the amicus brief, HRW argues that all respondents in immigration and removal proceedings, including those with mental disabilities, are entitled to a fair hearing and a chance to defend their rights.  From the brief: 

“‘The [incompetency] doctrine [where a defendant can not stand trial if he can’t comprehend the charges against him, can’t effectively consult with counsel, and can’t assist in his defense] . . . has been characterized by the Supreme Court as ‘fundamental to an adversary system of justice.'”  Removal proceedings must respect human rights, honor U.S. human rights commitments, and ensure fair and accurate decision-making.  A fair hearing is central to the protection of a person’s rights and is the hallmark of a functioning justice system. 

To meet the right to a fair hearing guaranteed under international human rights law, meaningful safeguards are necessary to ensure such a fair hearing and protect the rights of individuals with mental disabilities.  Among these safeguards are (1) the respondent’s right to counsel, (2) the Immigration Judge’s (“IJ”) ability to terminate proceedings, (3) the IJ’s power to order a competency hearing, and (4) the right to be free from arbitrary and prolonged detention. 

In order to comply with international human rights obligations, individuals with mental disabilities must be guaranteed the right to counsel in removal proceedings.  Even then, in certain circumstances, if the IJ determines that a respondent with a mental disability cannot explain the reasons against expulsion, even with counsel, the IJ must be empowered to terminate proceedings. 

U.S. immigration law currently provides no right to appointed counsel for individuals with mental disabilities and remains confusingly unclear as to whether and under what circumstances an IJ may terminate proceedings or order a competency evaluation.  Moreover, in the absence of these important safeguards to ensure a fair hearing, many immigration detainees with mental disabilities remain in prolonged detention during their immigration hearings.  Accordingly, U.S. immigration law currently violates international human rights standards. 

If this case is anything like the cases I’ve litigated in the BIA, we won’t have an answer until late 2012, but it will be interesting to see whether the BIA responds in a positive way to the brief.  The power of the BIA is limited, but at a minimum, it could issue guidance about terminating cases where a respondent is unable to defend himself due to a mental disability.  However, my guess is that the laudable goals set out in the brief are above the pay grade of the BIA. 

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“One Central Reason” and Withholding of Removal

by Jason Dzubow

In a decision issued last week, the Board of Immigration Appeals held that the “one central reason” standard for asylum also applied to withholding of removal pursuant to INA § 241(b)(3). See Matter of C-T-L-, 25 I&N Dec. 341 (BIA Sept. 14, 2010).

Under the REAL ID Act, an alien is eligible for asylum only if “one central reason” for the feared persecution is race, religion, nationality, particular social group or political opinion. See INA § 208(b)(i)(B)(I).  Now the BIA has held that the same standard applies to claims for withholding of removal under INA § 241(b)(3).  The Board reasoned that “all indications are that Congress intended to apply the ‘one central reason’ standard uniformly to both asylum and withholding claims:”

Applying this standard to withholding claims has two distinct practical advantages. The first is that it will avoid the application of the different standards adopted by the courts of appeals in “mixed motive” cases….  The second is that the burden of proof standard would be consistent between asylum and withholding of removal claims.

What motivates a persecutor?

The BIA found that “Applying a different standard in ‘mixed-motive’ cases to asylum and withholding of removal would create inherent difficulties because it would require a bifurcated analysis on a single subissue in the overall case.”  “An application for asylum necessarily includes the similar but lesser form of relief of withholding of removal….  applying the same standard promotes consistency and predictability, which are important principles in immigration law.”

The Board concluded:

Considering the language and design of the statute, congressional intent to create a uniform standard, and the inherent difficulties in applying different burden of proof standards on the subissue of the persecutor’s motive, we conclude that an applicant for withholding of removal must demonstrate that race, religion, nationality, membership in a particular social group, or political opinion was or will be “at least one central reason” for the claimed persecution.

With that, the Board dismissed the alien’s appeal.

While consistency is a laudable goal, the fact remains that in the REAL ID Act, Congress amended the standard for asylum and not the standard for withholding of removal.  I imagine that we have not heard the last of this issue.  A petition for review to the Ninth Circuit seems likely, and we will see how that court interprets the statute.

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The BIA Rules on Frivolous Asylum Claims

by Jason Dzubow

The Board of Immigration Appeals earlier this week held that an Immigration Judge can make a determination that an asylum application is frivolous even in the absence of a final decision on the merits of that application. See Matter of X-M-C-, 25 I&N Dec. 322 (BIA 2010).  The Board also held that withdrawal of the alien’s asylum application after the required warnings and safeguards have been provided does not preclude a finding that the application is frivolous.

In Matter of X-M-C-, the alien filed an affirmative asylum application that contained false information.  After an interview at the Asylum Office in California, the case was referred to an Immigration Court.  During a court hearing, the alien admitted that her asylum claim and her testimony before the Asylum Officer were false.  She withdrew her application for asylum and applied for adjustment of status.  She also admitted to submitting fraudulent documents.  The IJ denied the adjustment of status holding that the later recantation of her story did “not waive the fact that a frivolous application has been filed.”  The BIA found:

[An] Immigration Judge’s authority to determine that an alien has knowingly made a frivolous application for asylum is not limited to circumstances in which the Immigration Judge makes a final determination on the merits of the application. The relevant provisions of the Act and the regulations clearly indicate that an inquiry into whether an application is frivolous can be triggered once the application is “made” or “filed.” 

“Consequently,” the Board held, “after a determination has been made that an asylum application is frivolous, a separate evaluation of the merits of the application is not necessary.”

The Board also determined that withdrawal of the asylum application does not prevent a determination that the application was frivolous:

The plain language of section 208(d)(6) clearly provides that an asylum application can be deemed frivolous once it is “made” and the required warnings have been given. Allowing the preemptive withdrawal of an application to prevent a finding of frivolousness would undermine both the plain language of, and the policy behind, section 208(d)(6)—as well as the potency of the required warnings. An alien, such as the respondent, who not only filed a frivolous application but also testified falsely in support of that application to an asylum officer could escape the consequences deliberately chosen by Congress to prevent such abuse of the system.

While applicants should be encouraged to recant false statements and withdraw false applications, the Immigration Judge and this Board are not prevented from finding that an application is frivolous simply because the applicant withdrew the application or recanted false statements after the appropriate warnings and safeguards were given, but prior to a decision on the merits.

The paragraph quoted immediately above lays bare the dilemma of cases involving fraudulent asylum applications.  On the one hand, we want to encourage aliens to recant false statements.  On the other hand, Congress has plainly indicated that aliens who make false statements should be punished.  The alien who makes up a claim where there is none has earned such treatment.  But aliens who have legitimate claims often “enhance” their story because they feel (or are told) that they should do so.  Such aliens are–to me at least–much more sympathetic.  In general, IJs seem to distinguish between these two categories of fraudsters, treating the latter better than the former. 

Matter of X-M-C- does not require frivolous findings and does not prevent IJs from distinguishing the different types of fraud.  It does, however, make clear that an alien cannot protect herself from a frivolous finding by withdrawing her asylum application.

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More from EOIR

by Jason Dzubow

I recently wrote about Chief Immigration Judge O’Leay’s comments at the AILA Conference.  Another EOIR official who spoke was David Neal, the Acting Chairman of the BIA. 

Mr. Neal told us that the Board of Immigration Appeals receives about 3,000 new cases per month.  This is slightly down from years past, and Mr. Neal speculates that this is because there are more detained respondents–detained respondents are less likely to appeal.  Mr. Neal says that detained cases should be processed within 150 days of arrival at the BIA and, in fact, 95% of detained cases are completed in less than 150 days.  The average time for a detained case at the Board is 95 to 100 days. 

The symbol of the BIA: A blindfolded woman wielding a sword. Seems dangerous.

Mr. Neal also mentioned the Emergency Stay section of the BIA, and he praised their dedication.  I strongly second that opinion.  The Emergency Stay sections deals with respondents who are in imminent danger of being deported.  I had occasion to interact with the Emergency Stay clerks a few years ago for a Lozada motion to reopen case (a motion to reopen based on the previous attorney’s ineffective assistance of counsel).  The Emergency Stay clerks always returned my calls promptly, did what they told me they would do (and in a timely manner), and provided helpful assistance.  Thanks to their assistance, the Board reopened my client’s case, he was released from detention, and he ultimately received his lawful permanent residence.  

Mr. Neal also told us that the Board’s practice of “affirmance without opinion” has been greatly reduced.  Three years ago, 30% of cases were decided without a written opinion.  Today, only 4% of cases are decided that way, and most of those are bond appeals.  He also said that more decisions are made using a three-Member panel (as opposed to a single Board Member).  Currently, 11% of cases are decided by three Board Members.  A few years ago, 7% of cases were decided by three Members.  Mr. Neal noted that three-Member decisions are uncommon because it takes a lot of resources for three Board Members to work on a single appeal.

Another area that takes more resources is published decisions.  Mr. Neal stated that the Board is issuing more precedent decisions than previously; the numbers are up by 20 or 30% over past years.  He responded to a criticism that the BIA tends to publish precedent decisions in cases where the alien is pro se (without a lawyer).  This situation could be problematic, as an unrepresented alien may not make the most effective arguments in his case, and this could result in more unfavorable precedential decisions.  Mr. Neal stated that the Board prefers not to issue precedential decisions in cases where the alien is unrepresented.  He noted that very few recent precedential decisions involved unrepresented aliens.

Finally, Mr. Neal noted that the trend in the circuit courts was to uphold more BIA decisions.  Over the last few years, reversal rates have declined from 20% to 10%.  The biggest improvements (well, improvements from the BIA’s point of view) have been in the Second and Ninth Circuits.

I have a few items on my wish list for the BIA.  For one, I would like to see more precedent decisions.  Such decisions are important because they give more guidance to IJs.  Although precedential decisions require more time and resources, over the long run, if the Immigration Judges have more guidance, they might make better and more consistent decisions.  This would result in less work for the Board.  Second, the average time for a non-detained appeal (at least for my cases) is almost two years.  I know this wait time is substantially lower today than it was 10 years ago, but I would like to see it reduced further.  Finally–and this is more of a pet peeve–I would like the Board to give more time to prepare the appellate brief.  Currently, after an appeal is filed, the BIA sends the transcript of proceedings to the alien’s attorney.  The attorney then has three weeks (plus a three-week extension upon request) to file the brief.  I can see no reason for such a short turn around time, especially when it takes the Board close to two years to reach a decision once the brief is filed.  Why not give attorneys more time to file the brief, say 60 days.  That would allow us to prepare better briefs and would accommodate our often busy schedules.

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Report from the AILA Conference

by Jason Dzubow

So, for the time since I struck out on my own as an attorney, I attended an AILA (American Immigration Lawyers Association) conference.  I had avoided it in the past because it was too expensive (about $800.00 for the conference fee alone) and I didn’t think I would get much out of it.  Turns out, I really enjoyed the conference–it is fun to meet and hear about people who are doing the same work as you and who speak the same “language,” though invariably I spent most of the time hanging out with people I already knew.  Although the fee was pretty steep, I’m glad I went, and maybe I will go again next year if I am feeling flush.

I also had an opportunity to speak on a panel with some very impressive people, including two professors, a USCIS employee, and another private attorney.  The subject was the UN Convention Against Torture (“CAT”).  More specifically, we talked about how the Torture Convention might apply to non-governmental actors.  My role was pretty easy–I presented some hypothetical examples for the audience and the panelists to discuss.  Since I am not so creative, my hypos were actual cases that I had litigated.  One “hypo” examined whether a woman who feared female genital mutilation in her country could gain relief under the CAT.  In real life, I lost that case, though I managed to convince the IJ that FGM was torture.  At least one federal court of appeals has found that FGM can constitute torture. See Tunis v. Gonzales, 447 F.3d 547 (7th Cir. 2006).  The other case involved an African drug smuggler who feared that corrupt police would kill him to retaliate for his cooperation with the U.S. authorities.  That case, I won, as there was strong evidence that he would be murdered if he returned to his home country.

The audience responds to my analysis of the UN Convention Against Torture.

Aside from that panel, there were a number of panels–and some informal meetings–relevant to the asylum practitioner.  Two that were directly related to asylum law were a panel on demonstrating harm in asylum applications, and another examining what constitutes a “particular social group.”  I thought both panels were helpful, and they featured some of the top people in the field, including speakers from law schools, USCIS, the United Nations, and various human rights groups (shout out to Human Rights First, who was there en mass). 

AILA is often perceived as an organization more relevant to business immigration than to asylum or Immigration Court practice.  Maybe it was the people I hung out with and met, but there seemed to be a lot of fellow travelers at the conference.  The fact is, however, that there is not a whole lot of crossover between business immigration and asylum/deportation defense.  One solution might be to have a conference targeted at the more public interest-oriented practitioners, and a second conference for the business practitioner.  Although my eyes glaze over at the thought of working on a business immigration case, I must confess that it was nice to attend a conference with all sorts of immigration attorneys.  There is certainly something to be said for not becoming over specialized, and the diverse topics at the AILA conference gave us a chance to learn about something new.  

Overall, it was a useful and energizing conference.  I hope to be back next year.

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Two Unpublished BIA Victories for Mentally Ill Respondents

by Jason Dzubow

Here are two recent decisions from the BIA involving mentally ill defendants who faced persecution in their homelands:

(1) Professor Muneer Ahmad of the Yale Law School Worker & Immigrant Rights Advocacy Clinic reports that the BIA has reversed a decision by the IJ denying Convention Against Torture relief to a mentally ill Haitian man.  The Haitian man argued that he would be jailed in Haiti and that he would not receive his medication.  Without medication, the man would not be able to comply or adapt to the conditions in prison.  As a result of this non-compliance, he would be beaten and tortured in prison.  The BIA found that it was more likely than not that he would be tortured.  The Board’s decision reversed the IJ and remanded the case for a grant of CAT relief.  The student attorneys on the case were Alice Hwang, Dale Kotchka-Alanes, Rebecca Scholtz, and Matt Vogel.

(2) Attorney Bob Jobe represented the respondent in another unpublished BIA decision.  In that case, the Board originally denied the claim, but the Ninth Circuit remanded to assess whether “Peruvians with serious chronic mental disabilities” constitutes a particular social group.  On remand, the BIA held: “Mental disabilities are clearly immutable characteristics in that those suffering from them cannot change their disability. Furthermore, people with serious and chronic mental disabilities are socially visible and the evidence of record establishes that [in Peru] they are often discriminated against and treated in an inhumane manner.” 

Mazel Tov to all on these successful outcomes.

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The BIA on Frivolous Asylum Applications

by Jason Dzubow

Biao Yang probably isn’t the first man to tell an exaggerated story about his courage in defense of a woman’s honor. Similarly self-aggrandizing stories have no doubt been told in countless bars and around hundreds of water coolers.

Narrative license of this sort usually carries little risk. A drinking buddy or co-worker might express disbelief by making reference to bovine excrement.

But the personal consequences of Yang’s embellishments are far more serious, as they will likely result in his deportation and the imposition of a lifetime bar to future immigration benefits. The consequences of Yang’s narrative excesses also had a broader effect, as they were the focus of a recent BIA decision that added to the administrative corpus of immigration law by clarifying the standards under which asylum claims are determined to have been made frivolously.

TOUGH GUY

Yang, a Chinese national, arrived in Chicago in 2002. After touching down, he told immigration officials at O’Hare that he had fled his country because “family planning authorities” – bureaucrats tasked with enforcing the country’s “One Child” policies – had forced his girlfriend to abort her pregnancy and that they wanted to arrest him.

Poster extolling the virtues of the one child policy

The embellishments would come in an asylum application filed 18 months later. In that application, Yang asserted that he got into a scuffle with and injured one of the abortionist bureaucrats who had come to his house to escort his girlfriend to the hospital. He further claimed to have been beaten and detained for his fearless acts. And then he claimed that he made a prison break and left the country.

IJ DECISION AND SECOND CIRCUIT REMAND

None of these details had been mentioned during the airport interview, however. This and other suspicious aspects of Yang’s story – including chronological discrepancies , “rank inconsistencies” within his testimony, and the sheer “implausibility” of his prison-break story – led an immigration judge to render an “adverse credibility determination.”

The result was denial of Yang’s asylum claim. But the IJ further held that these inconsistencies indicated that Yang’s asylum claim had been filed frivolously – which resulted in the imposition of a lifetime bar to future immigration benefits.

The IJ’s decision was affirmed by the BIA.  However, the U.S. Court of Appeals for the 2nd Circuit remanded because the case exposed vagueness in the existing BIA standard for making a “frivolousness” determination. Those standards included:

[A] specific finding by the Immigration Judge or the Board that the alien knowingly filed a frivolous application … [and] … sufficient evidence in the record to support the finding that a material element of the asylum application was deliberately fabricated

The Second Circuit examined:

to what extent the IJ is required to set out his or her factual findings to support a frivolousness determination separately from the adverse credibility determination and to what extent he or she is permitted to incorporate by reference the findings made to support an adverse credibility determination.

BIA CLARIFICATIONS

On remand, Matter of B-Y-, 25 I&N Dec. 236 (BIA 2010), the BIA made the following clarifications:

Factual findings made in reaching an adverse credibility determination can be incorporated into the findings made in reaching a frivolousness determination … but will not be sufficient … the frivolousness determination requires additional, explicit findings of “materiality” and “deliberate fabrication.” 

The BIA stated:

In this case, as is often the situation, fact-finding regarding credibility overlaps with fact-finding as to whether an asylum application was frivolously filed. Both determinations involve the identification of inconsistencies and discrepancies in the asylum claim and consideration of any explanations offered for them. There may be circumstances where the pertinent facts do not overlap, and separate factual findings by an Immigration Judge will be necessary.

However, neither fairness nor clarity requires an Immigration Judge to separate and repeat those aspects of the credibility determination that overlap with the frivolousness determination.

… The frivolousness determination, however, requires explicit findings as to “materiality” and “deliberate fabrication” that are not required for an adverse credibility determination. As we indicated in Matter of Y-L-, 24 I&N Dec. at 156, “[T]he Immigration Judge must separately address the question of frivolousness, including a discussion of the evidence supporting a finding that the respondent deliberately fabricated a material element of the asylum claim.”

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