On Appeal at the BIA

by Jason Dzubow

If you lose your case in Immigration Court, you can appeal to the Board of Immigration Appeals (“BIA”). Conversely, if you win your case and the DHS attorney (the prosecutor) is unhappy with that outcome, DHS can appeal. Here, we’ll talk about what happens during an appeal to the BIA.

Once the Immigration Judge (“IJ”) makes a decision, the parties have 30 days to file an appeal to the BIA. The IJ should indicate on his decision when the appeal is due, meaning the appeal must be received by the BIA on or before the due date. Otherwise, the IJ’s decision is final and the case is over. Appeals are filed using Form EOIR-26. The fee is currently $110 (check to “United States Department of Justice”) or you can request a fee waiver.

The EOIR-26 is the notice of appeal. On the form, you must indicate the reason(s) why you are appealing. Here, you have to be specific, as indicated in the form instructions. If not, the BIA could dismiss your appeal on that basis alone. When I file an EOIR-26, I list the reasons for the appeal and I also note that we “reserve the right to raise additional arguments in our brief.” Next, you have to check a box indicating whether or not you want oral argument. The BIA rarely holds oral arguments (where the attorneys come before Board Members to discuss the case), and so whether you check yes or no probably doesn’t make much difference. But if you have a burning desire to present your case in person, check “yes” and maybe you’ll be invited to Falls Church for an oral argument. The EOIR-26 also requires you to indicate whether you will file a brief. A “brief” is a legal argument explaining why the IJ’s decision should be overturned. While you can file the brief and the Notice of Appeal together, it is more common to file the brief later on. Be aware that if you check “yes” to the brief, you will be required to file a brief, and if you fail to do so, your appeal will be dismissed.

BIA Board Members listen to a rare oral argument.

The EOIR-26 should be mailed to the BIA at the address specified in the instructions. Include with the appeal a copy of the IJ’s decision. If you have a lawyer, the lawyer should include an EOIR-27, appearance of counsel form. You have to send a copy of the entire packet to the DHS attorney’s office (the office of the “prosecutor” who litigated your case before the IJ). You can find their address here.

After the EOIR-26 is filed, you will receive a receipt. You are allowed to remain in the United States while the appeal is pending. You can also renew your Employment Authorization Document (“EAD”) while the appeal is pending.

If you indicated on the EOIR-26 that you plan to file a brief, the BIA will send a briefing schedule. How long it takes to get the briefing schedule is hard to predict. For a detained case, it may take a month or two, but for a non-detained case, it probably takes anywhere from six to 18 months. Along with the briefing schedule, you will receive a transcript of the Immigration Court case. This document contains all the discussions that took place at each appearance before the IJ. Depending on the case, it is usually very helpful to have the transcript, as oral statements made in court are often relevant to the argument you will make on appeal. For this reason, we do not submit a brief when we file the EOIR-26. We wait until we have the transcript and can then submit a more complete–and hopefully more convincing–argument.

Once the briefing schedule arrives, you have 21 days to file the brief (why they give so little time to write the brief, I do not know, but I complained about it here). You can ask for an additional 21 days, but you have to articulate a reason why you need more time.

The brief is the heart of the appeal. In it, you explain why the IJ erred and ask the BIA to overrule the court’s decision. You can see a sample brief here. 

Some types of IJ decisions are easier to overturn than others. If the judge denied your case based on credibility (in other words, because the IJ thinks you lied), the BIA will only overturn the decision if it is clearly erroneous. On the other hand, if the IJ found you credible, but determined that you did not meet the legal standard for asylum, the BIA reviews the decision “de novo,” meaning that the Board will make its own decision and will not defer to the reasoning of the IJ. Put another way, the standard of review for factual errors is high and for legal errors is lower, and so in general, it is easier to win an appeal where you are arguing that the IJ made an error in interpreting the law rather than an error assessing credibility.

All that said, it is difficult to win any appeal at the BIA. That has always been the case, but the situation got worse in 2019, when the Trump Administration elevated six Immigration Judges known for their high denial rates to the Board. As a result, the Board is even more unlikely to overturn an IJ’s negative decision. Nevertheless, it can sometimes happen, and if you are not satisfied with the results in Immigration Court, you have the right to appeal. 

After you file the brief, the wait time for a decision is unpredictable. Cases where the non-citizen is detained are faster–maybe another one to three months (on top of the time you already waited before the briefing schedule was issued). Non-detained cases are much slower, and can take anywhere from six months to a year or more.

Finally, you will receive a decision. Typically, either the BIA dismisses the appeal, meaning that the IJ’s decision stands, or remands the case back to the judge to remedy any errors and correct the decision (and hopefully grant relief, but this is not guaranteed and varies by case).

If you do not like the BIA’s decision, you can file a petition for review to the federal appeals court with jurisdiction over your case. Filing such a petition does not stop ICE from deporting you, though you can (and should) ask the federal court to issue an order “staying” (preventing) your removal while the federal appeal is pending. Such cases are usually difficult to win, and they are procedurally complicated. You can learn more about litigating an immigration case in federal court here. From the federal appeals court, the next–and final–step is the United State Supreme Court. Very few cases reach that level, and so usually if the BIA is not the end of the road, the federal appeals court is.

Unfortunately, the entire immigration system is legally complex, and that is particularly true of BIA cases, where legal arguments may not be apparent to a non-lawyer. If you have a case before the Board, your best bet is to find a decent lawyer to help you. You can learn more about the whole process in the BIA Practice Manual. You may also be interested in the BIA Pro Bono Project, which matches attorneys with BIA cases (usually for noncitizens who are detained). Finally, there is this website, which helps non-represented applicants find a pro bono (free) lawyer. Despite all the difficulties, it is still possible to win at the BIA, and if you are not satisfied with the IJ’s decision, you can appeal and seek a better result.

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Book Review: My Trials by Judge Paul Grussendorf

by Jason Dzubow

Let’s take a break from the doom and gloom associated with the President’s ongoing effort to subvert our democracy and look at something a bit more cheery–A new edition of the book My Trials: Inside America’s Deportation Factories by Paul Grussendorf. Judge Grussendorf’s 35-year career has spanned the gamut in the asylum law field: Immigration attorney, clinical professor, Immigration Judge, Supervisory Asylum Officer, Refugee Officer. His book, styled a “legal memoir,” discusses his time as an advocate and adjudicator and gives an insider’s perspective on our nation’s very dysfunctional immigration system.

While this book is generally targeted at people in the profession, law students, and policy-makers, it would also be useful for asylum seekers themselves. In many respects, Immigration Judges, DHS attorneys (the “prosecutors” in Immigration Court), and Asylum Officers are an inscrutable bunch. What are they thinking about when they interact with applicants and make decisions? How do they relate to each other? What are their outside interests? Judge Grussendorf’s book shines a light on the world behind the façade, and somehow, seeing government adjudicators as human beings is comforting.

That said, the overall picture painted by Judge Grussendorf ain’t pretty. He lays bare an immigration system that is a mess, where many prosecutors are unyielding and out of control, families are ripped apart for no logical reason (other than arbitrary laws that require it), politicians intervene to deny due process and treat immigrants as tools in a partisan game, and where training for judges and DHS attorneys is completely inadequate. The Judge has particular scorn for those DHS attorneys who do not know the law or care about “doing justice,” but who instead simply seek to deport anyone who comes into their crosshairs.

One aspect of the book that held particular interest for me was Judge Grussendorf’s discussions of cases he denied when he was on the bench. Such cases help illustrate how most deportations do nothing to make our country safer or better. Instead, they result in families being separated and good, hard-working people being ripped from their homes. Our harsh and unforgiving immigration laws often prevent judges–including well-meaning judges like the author–from granting relief even when that is clearly the better outcome. Other times, the applicant simply does not qualify for relief. In such cases, Judge Grussendorf did as most judges do: He denied the case and went on with his daily business. On reflection, it is striking that a judge can order someone deported in the afternoon and then go for a pleasant jog in the evening, but that’s the job, and good Immigration Judges can separate their job from their life.

The new edition of My Trials is timely, in that it has come out when Joe Biden is (hopefully) about to take office. While the Democratic Platform laid out a bold agenda, it is unclear whether a President Biden would be able (given Congressional resistance) or willing (given Mr. Biden’s more cautious nature) to pursue that agenda. Judge Grussendorf weighs in with a number of his own ideas for reform–some will require Congressional action; others will not.

A page from My Trials, chosen completely at random.

One of his proposals that I found interesting was the idea of granting Mexico some type of most favored nation status and essentially legalizing all Mexicans in the United States (except for those with criminal issues). Given that so many Mexican nationals are currently in the Immigration Court system, if this group were legalized, it would go a long way toward relieving the overburdened courts.

Judge Grussendorf also proposes removing asylum cases from the court system and delegating them to “Special Hearing Officers,” which are essentially better trained and better paid Asylum Officers. This would allow asylum cases to be adjudicated in a non-adversarial manner while freeing up the Immigration Courts to deal with other types of removal cases and eliminating the current redundant situation where the same asylum case is heard by both an Asylum Officer and an Immigration Judge.

A final proposal that I’ll mention here is the Judge’s idea to greatly reduce the use of pre-trial detention in immigration cases. This proposal is not unique to Judge Grussendorf. However, his real-world experience adds weight to arguments that the practice is dramatically over-used and illogical, and helps illustrate how devastating incarceration is for the non-citizen and the non-citizen’s family (and on the non-citizen’s ability to prepare for his Immigration Court hearing).

I hope that Judge Grussendorf’s book–and particularly his policy proposals–get some attention as we try to reform our immigration system. It seems like too often in this debate we hear from policy advocates and politicians, but not from people who have worked in the trenches. We need voices like Judge Grussendorf’s as we hopefully enter an era where immigration reform is a possibility. 

My Trials sheds needed light on the absurd, cruel, dysfunctional, and unfair American asylum system. We are left with the impression that despite the systematic failures, justice in asylum cases is sometimes accomplished. When that happens, it is because individuals working within the system allow their humanity, decency, and respect for the rule of law to shine through and overcome the institutional barriers designed to prevent qualified applicants from receiving the protection they need and deserve. Judge Grussendorf is to be commended for his book, and for his effort to improve our nation’s asylum system.

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How Much More Damage Can the Trump Administration Do?

by Jason Dzubow

Joe Biden has won the popular vote and the majority of the electoral college vote. Whether he will be sworn in as the 46th President of the United States, however, remains to be seen. In yet another break with precedent and an attack on our democracy, President Trump has refused to concede and claims that the election was plagued by widespread fraud. He made the same claim in 2016, and even created a commission, chaired by Vice President Mike Pence and anti-immigrant crusader Kris Kobach. That commission quietly shut down after failing to discover any significant evidence of fraud, and so far, there is no evidence of wrongdoing in the current election. Nevertheless, when we have a President who has repeatedly demonstrated his contempt for the rule of law and for reality itself, the peaceful transition of power in no longer a given.

And what’s worse than the President are those who support and enable him. We already know that many Republicans care more about winning than about democracy. Exhibit A in that regard is the Supreme Court nomination process. Senate Republicans blocked Merrick Garland from even receiving a hearing during the last year of President Obama’s term. The claim was that since an election was upcoming, “the people” should decide who gets to fill the vacant seat on the high court. Four years later, the same Senate Republicans rushed through the confirmation of a Justice they supported ideologically, Amy Coney Barrett, in the days before the 2020 election. This action laid bare the utter contempt Republicans have for fairness and for those who disagree with them. In my view, democracy simply cannot exist in such an atmosphere.

This election is like a bad horror movie. We’ve reached the point where the hero seems to have won, but there’s still 20 minutes left to go. Or in our case, 70 days.

Now, the stakes are even higher. Are Republicans just indulging their base and Mr. Trump? Or do they expect something to come of their challenges? And if the results of the election are somehow overturned or subverted, what then? I fear that democracy cannot survive such a moment.

And how does all this affect asylum seekers and immigrants? Even assuming the Trump Administration leaves peacefully, what can it do during the remaining 70-some days before Mr. Biden takes office? Can it make changes that outlast the Trump Presidency and are difficult for Mr. Biden to reverse?

One thing we are seeing is the continuing flurry of new regulations and other actions aimed at making it more difficult to obtain asylum or other legal status in the U.S. Probably the most significant recent action is the refugee cap for FY2021, which further reduces the number of refugees our country will admit for resettlement. For much of the Obama Administration, our country resettled about 85,000 refugees per year. During Mr. Obama’s last year in office, the U.S. resettled about 110,000 refugees. For FY2021 (which began on September 30, 2020), our country will resettle a maximum of 15,000 refugees–the lowest number in the modern history of our refugee program.

In another recent action, on November 5, the Attorney General issued a decision making clear that there is no “duress exception” to the persecutor bar. What this means is that if a person is forced to engage in “persecution” (for example, by serving as a prison guard) under duress, she cannot qualify for asylum. Also, the evidentiary burden for the government has been reduced so that if evidence exists indicating the persecutor bar “may” apply, the asylum applicant must demonstrate that the bar does not apply. Under this strange standard, many asylum applicants could be subject to the bar. Imagine a person who was forcefully conscripted into the Syrian army, an army which commits human rights violations. Even when there is no evidence that this person engaged in any persecutory conduct, he must present evidence that the persecutor bar does not apply. Whether this will block many people from obtaining asylum, I am not sure, but it could. At a minimum, the new decision will make it more burdensome for applicants to present their asylum claims.

The ongoing rule-making is part of a four-year effort to restrict asylum and immigration. Many policies have gone into effect; others have been blocked by courts or are subject to ongoing legal challenges. For example, the Trump Administration increased the wait time for asylum-pending work permits from 150 days to one year, it implemented the “public charge rule” making it more difficult to obtain a Green Card, it narrowed the basis for obtaining asylum for victims of domestic violence and gang violence, it created the Migrant Protection Protocols, which forced thousands of asylum seekers to wait in Mexico in unsafe conditions, it issued restrictions on asylum for people who passed through third countries or countries affected by the coronavirus, it implemented the Muslim travel ban, etc., etc. Whether any more new rules or decisions will be issued in the next few months, we do not know, but it certainly would not be surprising.

One thing the Trump Administration has failed to do is change the immigration law itself. That requires an act of Congress, and even though Republicans controlled both Houses in 2017 and 2018, the President failed to introduce legislation related to immigration or asylum. As a result, all of the changes we’ve seen over the past four years have been regulatory. This means that a new President would have the power to reverse those changes, though those efforts could be blocked by a court if they are found to be “arbitrary and capricious” (as the Trump Administration repeatedly found out).

President Elect Biden has laid out an ambitious immigration agenda and has pledged to reverse many of Mr. Trump’s immigration rules. However, given that the Senate will likely remain in Republican hands, some of his ideas may prove impossible to implement. Others may come up against hard political realities–I wonder, for example, what to do about the thousands of migrants stranded at the U.S./Mexico border. Something needs to be done, but throwing open the gates seems politically risky and could result in a severe backlash (in the 2022 election, for example). It would be far better to come up with bipartisan solutions to these problems, but unfortunately, it seems unlikely that the GOP will play ball.

In any event, Mr. Biden can accomplish nothing until he is sworn in, and as far as I can tell, that is not yet a certainty. I know I tend to be pessimistic, and I hope that I am wrong, but from what I can tell, our country is at the most precarious and dangerous point that we have seen since the Civil War. To get past this moment, our leaders need to put the good of the nation before their own self interest and their own partisan loyalties. I suppose there is a first time for everything.

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A Reflection on the Election

by Jason Dzubow

As I write, we still have no decision, and the election rests on the edge of knife. Perhaps Joe Biden will manage to pull out a win, but I am personally feeling deeply pessimistic. Once again Donald Trump has proved the pollsters wrong and he and his fellow Republicans have exceeded expectations. There will be time later to ask “What Happened?” (as Hillary Clinton did after the 2016 election), but here I want to reflect on a few more personal notes.

First, for me at least, yesterday was not all bad. My intrepid associate and I were in Immigration Court representing a gay man from Russia. His case was pretty typical: He suffered many threats (in person and spray painted on his door), he was beaten up a few times (once ending up in the hospital for three days), ostracized by his schoolmates, mentally and physically abused by his parents. You know, the usual for a gay person in Russia. He also happens to be a popular blogger, with some of his posts garnering close to one million views, but this work was done anonymously and so was not something we could hang our hat on. After testimony, DHS opposed asylum. The Immigration Judge explained his reasoning and why he felt that the harm suffered rose to the level of persecution. He also explained why country condition evidence convinced him that there was a likelihood of future harm. After he explained himself, the DHS attorney agreed not to appeal and our client walked out of court as an asylee.

They still believe.

Having done enough of these cases, I can tell a strong case from a weak one, and this case was fairly strong, and so I believe the outcome was correct under existing law and precedent. But there is more here than that. The Immigration Judge listened to our client, and so did DHS. They were polite and professional. They were respectful. The DHS attorney challenged my client on certain portions of his story. That is her job and she did it courteously but firmly. In short, the system worked for my client because the IJ and the DHS attorney respect the rule of law and believe in due process. When I have a case with this judge and with this government attorney, I know that even if my client loses (which we sometimes do), we will have been heard and treated fairly. This is Justice. And though our immigration system is under daily assault, Justice can sometimes still be found almost four years into the Trump Presidency.

Second, as I was perusing Facebook during my copious free time, I noticed a photo posted by a former asylum client, now a U.S. citizen. He was voting. Then I saw another, and another.

Once a person wins asylum, she must wait one year before applying for a Green Card. Once she applies, it used to take about a year to get the approval. Lately, that wait time has increased to over three years. Once the asylee gets a Green Card, she must wait four years to file for citizenship. The citizenship application typically takes another year or two. Finally, the former asylee becomes a United States citizen. So from asylum grant to U.S. citizenship can take anywhere from six to eight years, or more (and remember, before that, most people waited a few years to get asylum, so the total journey can easily be 10 or 12 years).

I have been in the business long enough that a number of my asylum clients are now citizens. Since my Facebook skills are such that I do not know how to block them from becoming my “friends” (I’m thinking of you, Ali), I get to see what they are up to here in the States.

The voters I saw were a woman’s rights activist who created an organization to educate hundreds of young women and girls in Afghanistan. She was threatened by the Taliban and forced to flee to the United States. There were veterans of the Green Revolution in Iran–activists who stood up to that vicious regime in an effort to move their country towards democracy. There was a democracy activist from Egypt and a journalist from Pakistan. There were family members of a diplomat who was assassinated in his country. 

Most of these new citizens continue to engage in political activity to support democracy and human rights in their homelands. All are working productively in the United States.

Whatever the results of the election, and whatever the opinion of my fellow Americans about asylum seekers and refugees, I know the truth because I see it with my own eyes every day. Asylum seekers, refugees, and immigrants are some of the most patriotic people I know. They contribute mightily to our nation. And despite all its flaws, they still believe in America, and in the American dream. Their goodness and their faith help me to try to believe as well.

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