Yesterday, in Matter of E-F-H-L-, Attorney General Jeff Sessions utilized his referral authority to vacate an earlier precedential decision of the Board of Immigration Appeals (BIA). The attorney general's order will streamline the adjudication of immigration applications, give immigration judges the authority to summarily dismiss deficient asylum applications, and cut down on the filing of frivolous applications to delay removal.
Some background: On June 12, 2014, a three-member panel of the BIA issued a precedent decision in Matter of E-F-H-L-. The respondent in that matter was a native and citizen of Honduras who had entered the United States illegally in June 2011.
The immigration judge concluded that the respondent's "written asylum application and prehearing brief did not demonstrate his prima facie eligibility for relief and determined that he was not entitled to a hearing on the merits of his applications" for asylum and withholding of removal.
Those applications were premised on the respondent's assertion that he was eligible for asylum and withholding of removal as a member of a "particular social group", specifically, "members of a family that is persecuted because of its property ownership in its hometown in Honduras."
The BIA held that the immigration judge had "erred in denying the respondent's application for asylum and withholding of removal without first conducting an evidentiary hearing or giving him an opportunity to present evidence or witnesses in his behalf." It concluded:
[I]n the ordinary course of removal proceedings, an applicant for asylum or for withholding or deferral of removal is entitled to a hearing on the merits of the applications, including an opportunity to provide oral testimony and other evidence, without first having to establish prima facie eligibility for the requested relief.
Accordingly, the BIA remanded the matter, directing the immigration judge "to conduct a hearing on the merits of the respondent's applications for asylum and withholding of removal."
As the attorney general explains in his order, that hearing never occurred, because "respondent subsequently withdrew his application for asylum and withholding of removal with prejudice." Instead, on motion of the parties, the court "administratively closed removal proceedings to allow the adjudication of a Petition for Alien Relative (Form I-130)" that had been filed on the respondent's behalf.
The attorney general held:
Because the application for relief which served as the predicate for the evidentiary hearing required by the Board has been withdrawn with prejudice, the Board's decision is effectively mooted. I accordingly vacate the decision of the Board in this matter, and I also direct that this matter be recalendared and restored to the active docket of the Immigration Court.
As a consequence, the respondent in that matter will likely face removal (or be granted voluntary departure) from the United States, unless he is eligible for some other form of relief.
It is unclear how the respondent came to the attention of U.S. Immigration and Customs Enforcement (ICE), but he either was apprehended after entry and found to have a "credible fear" of persecution, or he filed an affirmative asylum application with U.S. Citizenship and Immigration Services (USCIS) that was referred to the immigration court, or he otherwise was placed into proceedings by ICE and filed a defensive application for asylum and withholding of removal.
In any event, the attorney general's order should allow immigration judges to dismiss, without holding an evidentiary hearing, applications for asylum and withholding of removal for which the applicants are not prima facie eligible. This generally occurs where applicants have failed to show a nexus between the harm they allegedly suffered or fear and one of the five factors (race, religion, nationality, membership in a particular social group, or political opinion) for such relief, or because they have failed to show harm and a fear of harm at all. This will allow those judges to preserve precious docket spaces for more meritorious cases.
As I noted in my March 1, 2018, post "DOJ to Expand the Board of Immigration Appeals": "As of January 1, 2018, there were 667,292 total cases pending before the immigration courts." Given the fact that there are just more than 340 immigration judges in the nation's 58 immigration courts, this works out to approximately 2,000 cases per judge. Given the fact that an asylum merits case can take anywhere between two hours and several days, this authority will allow those judges to streamline their dockets and complete more cases in a timely manner.
This is not to say that this rule will or should be applied to every application for asylum and withholding of removal. The respondent in this matter was apparently represented by counsel, and filed not just an application and evidence (including the "uncle's alleged death certificate" and two photographs), but also a prehearing brief. Based on the narrative in the BIA's decision, the respondent was given sufficient opportunity to establish his claim, but failed (at least in the immigration judge's assessment) to do so. As a former immigration judge, it would appear to me that this matter was ripe for decision without a hearing.
In the case of an unrepresented applicant, particularly one who is not fluent in English, such a summary determination would not be appropriate, and likely would not have been issued. In those cases, it is the duty of not only the applicant, but also the immigration judge and the ICE counsel to develop the record in order to assure that the applicant's claim is fully heard, which generally requires an evidentiary hearing.
Further, while there is no evidence that it occurred in this matter, it has been argued that certain aliens facing removal will file deficient or frivolous applications in order to remain in the United States indefinitely. The massive backlogs in the immigration courts mean that years can pass between the filing of an application and its adjudication by the immigration court. This does not even include the possibility of appeal to the BIA of an adverse decision, which will extend the alien's stay even more. As the Supreme Court recognized in INS v. Doherty, however, "in a deportation proceeding ... as a general matter, every delay works to the advantage of the deportable alien who wishes merely to remain in the United States." The attorney general's order will curb any such abuses as well.
Finally, it is not entirely clear why respondent's case was administratively closed following the BIA's remand by the immigration court. Under section 245(a) of the Immigration and Nationality Act (INA), in order to adjust status in the United States (with certain exceptions not apparently applicable to respondent's case) an alien must have been "inspected and admitted or paroled into the United States". Therefore, even if the Form I-130 (which the attorney general indicated in his order was filed on respondent's behalf) were approved, it does not appear that he would have been eligible for relief before the immigration court. Again, the closure of the matter for the adjudication of that petition simply seems to have added to the immigration court's true backlog.
In December 2017, the attorney general issued a memorandum to the Executive Office for Immigration Review (the Department of Justice agency with jurisdiction over the immigration courts and BIA), in which he promised to "work to identify and adopt — consistent with the law — additional procedures and techniques that will increase productivity, enhance efficiencies, and ensure the timely and proper administration of justice." As he stated: "I ... anticipate clarifying certain legal matters in the near future that will remove recurring impediments to judicial economy and the timely administration of justice." He has begun to deliver on those promises.