Here’s a hopefully hypothetical scenario: You apply for asylum (or some other relief) in Immigration Court and the judge denies your case. What do you do?
The losing party in Immigration Court has the right to appeal to the Board of Immigration Appeals (BIA), which is a higher court that reviews the decision of the Immigration Judge (IJ) to determine whether the IJ made a mistake. If you “win” your appeal, the BIA will explain the IJ’s error and “remand” (send back) the case to the judge to issue a new decision.
Today, we’ll discuss how to evaluate your chances for success on appeal, how the appeals process works, and what happens if you win or lose the appeal. (more…)
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.
Way back in 2010, I did a blog post about the Board of Immigration Appeals, where I complained that the Board issues too few decisions and does not provide enough guidance to Immigration Judges. Ten years later, things are no better. In fact, based on the available data, the Board is publishing even fewer decisions these days than it did back in the late aughts. Here, we’ll take a look at the situation in 2010, and then review where things stand now.
Before we get to that, we have to answer a preliminary question: What is the Board of Immigration Appeals? According to the BIA Practice Manual—
The Board of Immigration Appeals is the highest administrative body for interpreting and applying immigration laws. The Board is responsible for applying the immigration and nationality laws uniformly throughout the United States. Accordingly, the Board has been given nationwide jurisdiction to review the orders of Immigration Judges and certain decisions made by the Department of Homeland Security (DHS), and to provide guidance to the Immigration Judges, DHS, and others, through published decisions. The Board is tasked with resolving the questions before it in a manner that is timely, impartial, and consistent with the Immigration and Nationality Act and regulations, and to provide clear and uniform guidance to Immigration Judges, DHS, and the general public on the proper interpretation and administration of the Immigration and Nationality Act and its implementing regulations.
Having completed their one published decision for the year, some BIA Board Members take a well-earned rest.
In essence, the BIA is supposed to be the Supreme Court of immigration law. But because the Board issues so few published decisions, it is not fulfilling its duties to provide guidance or ensure that laws are applied uniformly throughout the country. This is not a recent problem.
If you look back at the data from a decade ago, you will see that in 2007, the BIA decide a total of 35,394 cases and had 45 published decisions. In 2008, it decided 38,369 cases and published 33 decisions, and in 2009, it decided 33,103 cases and published 34 decisions. This means that for every 1,000 cases the Board decides, it publishes about 1 case. Looked at another way, during 2007, 2008, and 2009, the Board had about 15 Members (judges on the BIA are called Board Members). This means that in its most prolific year (2007), each Board Member would have had to publish three cases. I’m told that publishing a case is a real production, but even so, three cases per year? That seems pretty weak. The not-very-surprising result is that the Board is not providing the guidance that Immigration Judges need, and this contributes to a situation where different adjudicators are interpreting the law in widely inconsistent ways.
Fast forward 10 year and the situation is no better. In FY2016, the Board decided 33,241 cases and in FY2017, it decided 31,820 cases. In each year, the Board published just 27 decisions. In FY2018, the Board decided 29,788 cases and published 38 decisions, and in FY2019, the BIA published 22 decisions (EOIR has not released data about the number of cases adjudicated by the Board in FY2019). Indeed, in 2018 and 2019, the situation is even worse than these numbers suggest. That’s because in 2018, of the 38 published BIA decisions, 15 were actually decided by the Attorney General (meaning only 23 were decided by the BIA). In 2019, the AG published six cases, meaning that the Board itself published a paltry 16 decision, or–given the expanded number of Board Members–less than one published decision per Member.
Let’s digress for one moment to discuss the difference between an Attorney General decision and a BIA decision. The BIA derives its decision-making authority from the Attorney General. This means that the AG has power to decide immigration appeals, but he has given that authority to the specialists on the Board, who presumably know more about immigration law than their boss. However, because decision-making power ultimately comes from the AG, he can “certify” a case to himself and then issue a decision, which has precedential authority over Immigration Judges and over the Board itself. This means that if the Board issues a decision that the AG does not like, he can change it. Prior to the Trump Administration, AGs generally deferred to the Board and rarely certified cases to themselves for decisions. In the last two years of the Obama Administration, for example, the AG issued a total of three published decisions, two in 2015 and one in 2016, as compared to 21 AG decisions in 2018 and 2019 (to be fair, the Trump Administration did not issue any AG decisions in 2017). The main reason for the AG to issue decisions is to more forcefully implement the current Administration’s immigration agenda. Many who work in the field oppose this type of politicization of the immigration law, and organizations such as the National Association of Immigration Judges (the judges’ union) have been pushing for an independent court system.
Aside from politicization of the law, one result of the AG’s more active role in issuing decisions has been to sideline the BIA. I imagine this is not good for morale. Essentially, the “Supreme Court of Immigration Law” has been relegated to deciding unpublished decisions, which contribute little to improving the overall practice of law.
In any event, it has always surprised me how few decisions the BIA publishes. Chapter 1 of the BIA Practice Manual provides: “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.” Frankly, it is difficult to believe that fewer than one case in one thousand satisfies these criteria. As I wrote in 2010–
Although it might be more work over the short term, if the Board published more frequently, Immigration Judge 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.
All this remains true. But after three years of the Trump Administration appointing Board Members, many of whom are considered hostile to immigrants, perhaps now is not the time to complain about too few published decisions. Maybe. But I still think there exists a desperate need for guidance and consistency, and even the “unfriendly” Board Members are more inclined to follow the law than our current AG. In addition, there are many mundane, non-political issues that simply need deciding (such as this recent BIA decision). Despite the more hostile make-up of the Board, I still believe–as I believed ten years ago–that the BIA should embrace its role as “the highest administrative body for interpreting and applying immigration laws” and publish more decisions.
The coronavirus is causing unprecedented disruptions to nearly every area of life, and the Immigration Courts are no exception. The courts were already in a post-apocalyptic era, with over one million cases in the backlog, and now the situation has been thrown into near total chaos. The fundamental problem is that EOIR–the Executive Office for Immigration Review, the office that oversees Immigration Courts and the Board of Immigration Appeals–is determined to continue adjudicating cases, even if that means risking the lives of its own employees; not to mention the lives of respondents, witnesses, and lawyers (and anyone who comes into contact with them).
EOIR is closing and re-opening various courts seemingly at random, often times with an after-hours Tweet, such as one last night at 9:23 PM, declaring that the Newark and Seattle Immigration Courts will reopen today for purposes of accepting filings and litigating detained cases (non-detained cases through April 10, 2020 have been postponed). In reaction to this latest news, Susan G. Roy, an attorney and former Immigration Judge (and my friend from law school – Hi Sue!) wrote last night–
NJ has the second highest number of corona virus cases in the nation, second only to NY. The Newark Immigration Court was closed because someone tested positive for the virus. Now a DHS attorney is fighting for his life in ICU, another attorney is very ill, and an interpreter has tested positive. These are the ones we know about. The Court was set to reopen on April 12. That is a reasonable time to ensure that everyone is safe and that the risk of transmission is limited. How is it even remotely reasonable to decide to open TOMORROW? Even if it is only for filings, court staff and others will be forced to violate the Governor’s Executive Order [directing all residents to stay at home], put themselves at great risk, and risk contaminating others, while many people who work in the same building remain under mandatory quarantine. You are ruthlessly jeopardizing the lives of your own employees, not to mention the public, for no legitimate reason.
There’s a new dress code at the Boston Immigration Court (and yes, this photo really is from the Boston Immigration Court).
And it’s not just advocates who are upset about EOIR’s decision-making. The National Association of Immigration Judges (“NAIJ” – the judges’ union) and ICE attorneys are also reacting with anger. In response to EOIR’s tweet reopening the courts in Seattle and Newark, NAIJ responds, “Putting our lives at risk, one Tweet at a time.” And Fanny Behar-Ostrow, an ICE prosecutor and president of AFGE Local 511, says of EOIR: “It’s like insanity has taken over the agency,“
One of our members recently had a detained master calendar hearing scheduled for this past Friday, March 20, at the Varick St. Court. In order to prepare the bond application and for the master, the attorney and his staff met with the client‘s mother. A request for a bond hearing, together with the required relief applications, and a request for a telephonic hearing, were hand delivered to the Court at noon on Wednesday March 18th, 2020. The attorney did not receive any response to the motion for a telephonic hearing, and repeated calls to the court that day and the next went unanswered. To ensure that the Court was aware of the request, the client‘s mother retrieved from the attorney‘s office, Thursday evening, a letter to the court confirming the request for a telephonic hearing. She traveled to the court in Manhattan, from Long Island, and delivered the letter to the Clerk, and thereafter waited in the waiting area with family members of other detainees and other attorneys who were compelled to appear.
Today we received confirmation the client‘s mother has been diagnosed with COVID–19 virus, through medical testing. Can you imagine the number of people she came into contact with as the result of the decision to keep this court open? In addition to exposing the attorney and office staff, she traveled from her home on Long Island, on the Long Island Railroad, to Penn Station, from there to the subway and ultimately to the Court. Undoubtedly she came into contact with, and exposed, countless numbers of people, who in turn exposed countless others.
Anyone with a basic grasp of the fundamental principles of epidemiology – easily garnered from watching CNN or the local evening news – understands how easily this virus spreads. Given this, the decision to continue to keep the courts open can only be construed as a conscious decision on the part of EOIR to subject our Immigration Judges, court staff, interpreters, DHS attorneys, institutional defenders, members of the private bar, our clients, their families, and all whom they come into contact with, to an unreasonable risk of infection, serious illness and death.
NAIJ echoes this sentiment: “With [New York] the epicenter of the virus, DOJ is failing to protect its employees and the public we serve.”
The appropriate path forward is painfully obvious. EOIR should immediately close all courts for all cases. Staff should work remotely when possible to re-set dates and adjudicate bond decisions (so non-criminal aliens who do not pose a danger to the community can be released from detention). That is the best way to protect everyone involved with the Immigration Court system and the public at large.
Finally, I think it is important to name names. The Director of EOIR is James McHenry. I have never been a fan. Mr. McHenry was profoundly unqualified for his job, having gone from supervising maybe half a dozen people in a prior position to overseeing thousands at EOIR. However, he was politically aligned with the goals of the Trump Administration and he got the job. I have previously described the functioning of the agency during Mr. McHenry’s tenure as maliciousness tempered by incompetence. But these days, it is more like maliciousness exacerbated by incompetence. And in the current crisis, incompetence can be deadly. It’s time for Mr. McHenry and EOIR to do the right thing: Close the courts now.
The Executive Office for Immigration Review (“EOIR”) recently announced a new way to check case status on-line. The system provides information about cases that are (or were) pending before the Immigration Courts and the Board of Immigration Appeals. According to the EOIR press release–
The automated case information application allows users to receive the most recent information about a case after inputting a unique alien registration number. Available information includes next scheduled hearings, decision information at the immigration court and Board of Immigration Appeals (BIA) levels, and court and BIA contact information. Immigration courts’ operating statuses are also included.
The new portal can be found here. By entering your Alien number, you can view your case information in English or Spanish. This new system is similar to the old EOIR telephone hotline (which still works–you can call 800-898-7180 to obtain information about your case). The online system provides similar information to the hotline, but in written format.
Easy access to court information is great, but maybe it could be a bit less public.
Overall, I like this online system better than the telephone hotline. It is more convenient and faster to use. It also includes some helpful information that the hotline does not provide, such as better court contact information and news about court closures (at the bottom of the portal home page). That said–and I hate to look a gift horse in the mouth–I do have a few quibbles with this shiny new toy (shocking, I know).
First, and maybe most significantly, when you enter your Alien number and go to the page with information about your case, you will see your full name displayed at the top. This makes me nervous. Maybe I am old fashioned, but I don’t like seeing my asylum-seeker clients’ names displayed for all the world to see (not to mention their A-numbers and information about their cases). I worry that information like this should not be so publicly available.
To be fair, you can’t access this information without the person’s A-number, and when you call the EOIR hotline, you can obtain essentially the same information already. It’s just that having this information available in written format somehow seems less secure. Also, because the online portal is so much faster than the telephone hotline, it’s not difficult to enter one A-number after another and get information about lots of random people. This is particularly easy since A-numbers are assign sequentially. So if you know one person’s number, you can change it slightly and find other (random) people’s names and numbers. Whether this information could be used for nefarious purposes, I do not know, but given the human capacity for mischief, I imagine it is a possibility.
Perhaps a partial solution here is to provide less information about the alien–maybe just the person’s initials. Whether that would provide much protection against bad actors, I am not sure, but it seems safer than displaying the full name. Another possibility would be to require users to enter their Alien number and their name in order to access the system. This would at least make it more difficult to gain access to random people’s information.
A second quibble is that the portal does not distinguish between removal, Withholding of Removal, and relief under the Convention Against Torture (“CAT”). In each case, the decision information will indicate that the person has been denied relief (in contrast, where a person has been granted asylum or a Green Card, the system will indicate that the Immigration Judge “granted the application”). This is the same information that is provided through the telephone system. Having talked to some government techies, I know it is not always possible to obtain more specific information from existing databases, but it would be helpful to know whether a person has been denied all relief or has been granted Withholding or CAT.
A third issue is that the online system does not provide any information about the Asylum Clock. This is surprising, since the telephone hotline does give information about the clock. For some asylum applicants, it is possible to get clock information from USCIS by entering the asylum receipt number (not the Alien number) here. But given this fancy new online system, it’s too bad that clock data is not included as part of the package.
Finally, and this is perhaps an unfair criticism, it seems to me that EOIR could do a lot more with this website. For example, it could include contact information for the relevant DHS office (you can find that separately here). It could indicate whether biometrics are current. Each individual Immigration Court has its own webpage (which you can access here) with information about office hours, staff, parking, and more. It would be nice if the portal provided a link to the relevant court’s webpage. Maybe it could also include links to local pro bono resources and to the Immigration Court Practice Manual. And if we’re really ambitious, it could include information about how to submit a complaint against an adjudicator, other court personnel or an attorney. Dare to dream.
One last point–the new portal is only useful if people know that it exists. Instead of all the mumbo jumbo on the Notice to Appear and the Immigration Court scheduling order, why not include a prominent (and I mean **PROMINENT**) link to the new online system? This new system is not bad (despite my kvetching) and it would be great if more people learn about it.
These days, anything resembling a positive development in immigration world should be celebrated. EOIR’s online portal is a helpful tool for immigrants and their advocates. I hope EOIR will continue to upgrade this system to make it more secure and more useful for us all.
EOIR–the Executive Office for Immigration Review–has proposed a fee increase for applications before the Immigration Courts and the Board of Immigration Appeals (“BIA”). The new fees purportedly reflect the cost of adjudicating the various applications that EOIR reviews, and include the following–
Increase the fee for Form EOIR-26 (Notice of Appeal from a Decision of an Immigration Judge) from $110 to $975.
Increase the fee for Form EOIR-29 (Notice of Appeal to the Board of Immigration Appeals from a Decision of a DHS Officer) from $110 to $705.
Increase the fee for Form EOIR-40 (Application for Suspension of Deportation) from $100 to $305.
Increase the fee for Form EOIR-42A (Application for Cancellation of Removal for Certain Permanent Residents) from $100 to $305.
Increase the fee for Form EOIR-42B (Application for Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents) from $100 to $360.
Increase the fee for filing a motion to reopen or reconsider with the immigration court from $110 to $145.
Increase the fee for filing a motion to reopen or reconsider with the BIA from $110 to $895,
Also, the new fees include a $50 fee for asylum cases filed with the Immigration Court (I wrote about this previously after USCIS proposed a similar fee for asylum cases filed with that agency).
EOIR hopes to revive the tradition of paying your executioner.
As you can see, the new fees are significantly higher than the current fees. EOIR Director James McHenry justifies the fee increase as follows–
The proposed fee increases are marginal in terms of inflation-adjusted dollars and would mitigate the significant taxpayer subsidization of these forms and motions. EOIR is long past due for a review of its fee-based filings, especially as its caseload and costs have increased substantially since 1986.
As usual, Mr. McHenry’s comments reflect his lack of compassion for vulnerable immigrants, not to mention his tenuous grasp of reality. A 900% fee increase for BIA appeals is certainly not “marginal,” and will likely preclude many people from exercising their right to due process of law. Sadly, though, the rights of immigrants have never been a priority or a concern for Mr. McHenry, at least as far as I can tell, and so his comments are hardly surprising.
Now, to be fair, EOIR has not increased fees for 30 years, and so a review of current fees is overdue, and a reasonable fee increase could certainly be justified. Let’s take, for example, the most impactful of the new fees, the fee to appeal an Immigration Court decision to the BIA. The current fee is $110. According to EOIR, had this fee been adjusted for inflation (starting in 1986), it would be $252.63 in today’s dollars. So in that sense, the current fee is less than it should be (whatever that means). The new proposed fee of $975 is nearly nine times the current fee, but “only” about four times the adjusted-for-inflation fee.
Also, a fee waiver may be available for those who need it, using form EOIR-26A. This form (at least in its current iteration) is fairly simple, and seeks information about the applicant’s income and expenses. It’s not clear how much evidence is needed to support the contentions in the form, but given the wide latitude of adjudicators to grant or deny a fee waiver, it seems to me that the wise applicant will include significant supporting evidence (which may require a lot of work). Pursuant to the regulations, EOIR has the “discretion” to grant a fee waiver. However, the regulations also indicate that, “if the fee waiver request does not establish the inability to pay the required fee, the appeal or motion will not be deemed properly filed.” Does this mean that an appeal filed along with a fee waiver will be rejected if the fee waiver is denied? Will EOIR provide some type of notice, so that applicants can raise the fee and pay for their appeal? How much time will EOIR allow to pay the fee? It’s hard to be optimistic about any of this, given that the whopping new fees seem purposely designed to dissuade applicants from pursuing their rights before the Immigration Courts and the BIA.
Finally, EOIR’s main justification for the new fees is that costs for the agency have increased, and raising fees will help cover EOIR’s expenses and protect tax payers–to the tune of about $45 million per year. To come up with their numbers, EOIR completed a study where they looked at who adjudicates the various applications, how long it takes, and how much it costs (taking into account salaries, but not other expenses such as overhead or employee benefits). How accurate is this study? I have no idea. Different appeals, for example, require very different amounts of work. Some appeals are simple; others are complicated. But even assuming the new fees accurately reflect EOIR’s expenses, I think that fee increases of this magnitude are unfair for two main reasons.
First, EOIR’s justification for these fees is a con job. They talk about the expenses of immigrants, but not the contributions of immigrants to our society. The Trump Administration tried this trick at least once before, when it suppressed a study showing that refugees contribute more to our economy than they take, and instead released a distorted study, listing only the costs of helping refugees. You simply can’t separate out the costs of maintaining an immigration system from the benefits we as a nation derive from that system. Yet that is what EOIR is doing here: Director McHenry decries the expenses to the system, but we learn nothing about how immigrants contribute to our economy (and the weight of the evidence indicates that immigration benefits our economy).
Second, in its mission statement, EOIR indicates that it “is committed to providing fair, expeditious, and uniform application of the nation’s immigration laws in all cases.” How can it fulfill this mission if the people before the Immigration Courts and the BIA cannot afford the relief to which they are entitled? To have a functioning legal system, people in our country need access to courts–civil courts, criminal courts, and immigration courts, among others. Our’s is not (and should not be) a nation where you receive only the justice you can afford. Non-citizens who live in our country should not be an exception to this rule. Or, as the indefatigable Paul Wickham Schmidt writes—
Correcting errors on appeal is probably one of the most important functions the Government performs. That’s particularly true when the public segment “served” is generally limited income individuals and the getting results correct could be “life determining.”
At this stage, the new fees are proposed, but not yet in effect. The public can submit comments about the proposal, and perhaps that will cause EOIR to modify its plan. To submit comments, see page 2 of the proposed rule.
Make no mistake, these proposed fees are another attack on immigrants, justified with half truths, and implemented because immigrants are too vulnerable to fight back. All people of good conscience should continue to resist these terrible policies, which directly impact our non-citizen neighbors, but which, in the end, harm us all.
Earlier this month, the Executive Office for Immigration Review (“EOIR”)–the office that oversees our nation’s Immigration Courts–issued a Myths vs. Facts sheet, to explain that migrants are bad people and that most of them lose their asylum cases anyway.
I am always suspicious of “myths vs. facts” pronouncements, and to me, this one from EOIR seems particularly propaganda-esque (apparently the Washington Post Fact Checker thinks so too, as they gave the document two Pinocchios, meaning “significant omissions and/or exaggerations”). In terms of why EOIR created this document, one commentator has theorized that the current agency leadership is tired of answering the same questions and justifying its actions, and so they created a consolidated document that could be used whenever questions from the public or Congress come up.
EOIR has released a new “Myths vs. Facts” brochure.
This is a plausible enough explanation, but I wanted to know more. Lucky, I have a super-secret source inside EOIR itself. I met up with my source in a deserted parking garage, where he/she/it/they (I am not at liberty to say which) handed me a sealed envelope containing an additional sheet of myths and facts. These myths and facts didn’t make it into EOIR’s final draft. But now, for the first time, in an Asylumist exclusive, you can read the myths and facts that EOIR did not want you to see. Here we go:
Myth: Aliens who appear by video teleconferencing (“VTC”) equipment get just as much due process as anyone else. Maybe more. Fact: The video camera makes aliens who appear by VTC look 20% darker than their actual skin tone (the skill level of EOIR’s make-up crew leaves something to be desired). Since dark people are viewed as less credible and more dangerous, this increases the odds of a deportation order. Another benefit of VTC is that Immigration Judges (“IJ”) can turn down the volume every time an applicant starts to cry or says something the IJ doesn’t want to hear. This also makes it easier to deny relief. Fun fact: Newer model VTC machines come with a laugh track, which makes listening to boring sob stories a lot more pleasurable.
Myth: Immigration Judges don’t mind production quotas. In fact, most IJs keep wall charts, where they post a little gold star every time they complete a case. At the end of the month, the IJ with the most stars gets an ice cream. Fact: While some IJs relish being treated as pieceworkers in a nineteenth century garment factory, others do not. Frankly, they shouldn’t complain. EOIR recently commissioned a study, which found that a trained monkey could stamp “denied” on an asylum application just as well as a judge, and monkeys work 30% faster. Even for human judges, EOIR has determined that it really shouldn’t take more than 10 minutes to glance at an asylum case and write up a deportation order. At that rate, an IJ can deny six cases an hour, 48 cases per day, and 12,480 cases per year. Given these numbers, even IJs who insist on some modicum of due process should easily complete 700 cases per year (as required by the new production quota). And they better. Otherwise, it’s good bye homo sapien, hello pan troglodyte.
Myth: Aliens who participate in Legal Orientation Programs (“LOP”) spend an average of 30 additional days in detention, have longer case lengths, and add over $100 million in detention costs to DHS. Fact: Knowing your rights is dangerous. It might cause you to exercise them. And people who exercise their rights are harder to deport. EOIR is working on a new LOP, which will teach aliens how to properly respond to a Notice to Appear (“Guilty, your honor!”), how to seek asylum (“I feel totally safe in my country!”), how to seek relief (“I don’t need any relief – please send me home post haste!”), and how to appeal (“Your Honor, I waive my appeal!”). EOIR estimates that aliens who follow this new ROP will help reduce detention time and save DHS millions. The new ROP will help Immigration Judges as well. It’s a lot easier to adjudicate an asylum case where the alien indicates that she is not afraid to return home. And faster adjudications means IJs can more easily meet their production quotas – so it’s a win-win!
Myth: EOIR Director James McHenry got his job based on merit. He has significant prior management experience, and he is well-qualified to lead an agency with almost 3,000 employees and a half-billion dollar budget. Fact: James McHenry’s main supervisory experience prior to becoming EOIR Director comes from an 11th-grade gig stage-managing “The Tempest,” by William Shakespeare. In a prescient review, his school paper called the show “a triumph of the Will.” More recently, Mr. McHenry served as an attorney for DHS/ICE in Atlanta, and for a few months, as an Administrative Law Judge for the Office of the Chief Administrative Hearing Officer. In those positions, he gained valuable management experience by supervising a shared secretary and a couple of interns. When asked for a comment about her boss’s management skills, Mr. McHenry’s former intern smiled politely, and slowly backed out of the room.
Myth: In the EOIR Myths vs. Facts, the myths are myths and the facts are facts. That’s because the Trump Administration is always honest and credible when it comes to immigration. Fact: [Sounds of screeching metal and explosions]. Uh oh, I think we just broke the myths and facts machine…
So perhaps all is not as it seems. Sometimes, myths and facts get mixed up, especially in the Trump Administration, which has redacted human rights reports to show that countries are safe, buried other reports that don’t say what they like, and claimed that asylum lawyers are making up cases to get their clients across the border. It’s all in the grand tradition of the merchants of doubt, men and women who know better, but who obfuscate the truth–about tobacco, global warming, vaccines, whatever–to achieve a political goal (or make a buck). Why shouldn’t EOIR join in the fun? But to return to our friend William Shakespeare, I have little doubt that, eventually, the truth will out. The question is, how much damage will we do to migrants and to ourselves in the meantime?
As you may have heard, parts of the federal government are closed for business. After two years of Republican inaction on “the wall,” somehow President Trump has decided that now is the time to shut the government down in an effort to “permanently fix the problem on the Southern Border.” Let’s look at the effect of the shutdown on immigration generally, and on asylum more particularly.
In immigration world, the biggest–and most ironic–effect of the shutdown has been to close most of the nation’s Immigration Courts. Courts that handle detained cases are still operating normally, but non-detained courts are closed. The irony is that shuttering the courts will have the effect of delaying the deportation of many aliens. On average (and based on current projections for FY2019), Immigration Judges will deport about 676 people per day. If we remove detained cases from the mix (very roughly speaking, detained cases make up about 13% of all Immigration Court cases), we can estimate that for each day the government is shut down, 588 people are spared from deportation. Given the long backlog in Immigration Court, most people with postponed cases will probably not return to court for another year or two, and so such people will be able to remain the U.S. far longer thanks to the shutdown.
$5,700,000,000 wall vs. $79 ladder.
Also from the Irony Department: The lapse in government funding means that Border Patrol agents–the very people who are supposed to guard our Southern border–will not be paid until the shutdown ends. As you can imagine, this is not great for morale. In addition, the E-Verify System, which allows employers to check whether a particular person is authorized to work, is down. If this “electronic wall” is not working, some “illegals” may be able to work. These results seems contrary to Mr. Trump’s stated goals of deporting more people and fixing the broken immigration system, but what else is new?
Of course, many asylum seekers will not be very happy about having their court cases delayed. Some have been waiting years for a decision, all the while separated from family members and living with great uncertainty. For such people and their families, the delay is heartbreaking.
To check on the status of the Immigration Courts, you can visit the EOIR website, which will indicate whether operations have resumed. If your court case is postponed due to the shutdown, the case will be rescheduled once the lapse in funding has been resolved. From EOIR:
Non-detained docket cases will be reset for a later date after funding resumes. Immigration courts will issue an updated notice of hearing to respondents or, if applicable, respondents’ representatives of record for each reset hearing.
In other words, the Immigration Court will send you or your lawyer a written notice for the new hearing date. You can also check the Immigration Court hotline, which indicates when your next hearing is scheduled. The phone number is 800-898-7180. This is a computer system; not a person. When it answers, follow the instructions and, when prompted, enter your Alien number. The system will tell you your next hearing date. Unfortunately, the hotline will not be updated during the shutdown, but once the situation is resolved, you can check for your next appointment (whether cancelled Individual Hearing dates will be set for another Individual Hearing or a Master Calendar Hearing, we do not yet know).
What if you want to file documents, evidence or a change of address with the Immigration Court? Immigration Courts and the Board of Immigration Appeals (“BIA”) are accepting filings for detained cases. As I understand, most courts are also accepting filings for non-detained cases, but such filings will not be acted upon. The problem is that such filings may get lost in the avalanche of documents that the courts receive. This problem will be especially acute if the shutdown drags on for weeks or months. My advice: If you have a deadline, file your documents, but make sure to keep a copy for yourself and have evidence that you filed (if you can file in-person, the clerk will stamp your copy of the documents; if you file by mail, you should keep a copy of the certified mailing receipt). If you do not have a deadline or an emergency, it is probably better to wait until the shutdown ends before filing any documents with an Immigration Court or the BIA.
For asylum seekers and immigrants who do not have court cases, the shutdown is far less consequential. USCIS obtains its budget from “customer fees” (i.e., money you pay for your green card, work permit, etc.), and so the lapse in government funding is not an issue (there is currently no fee for asylum, but USCIS customer fees fund the Asylum Offices). As a result, the Asylum Offices, USCIS offices, and Application Support Centers (the place that takes your fingerprints) are all operating normally. While this is unlikely to change, there is no harm in double checking before you make the trek to your appointment. You can do that here.
One final question is, How long will the shutdown last? Of course, we do not know. The longest shutdown to date occurred during President Clinton’s term, and lasted 21 days. The current shutdown began on December 22, 2018, and so as of this writing, we are approaching Mr. Clinton’s (or more accurately, Newt Gingrich’s) record. The shutdown is inflicting much damage on our country, including to some immigrants and asylum seekers. Let’s hope that our leaders can bring an end to the impasse as soon as possible.
The Attorney General, Jefferson Beauregard Sessions, has been busy “certifying” cases to himself in order to (apparently) reduce protections for certain asylum seekers. I want to talk about two cases in particular, but first, let’s talk about the process that Mr. Sessions is following.
“Oh Magoo, you’ve done it again!”
The decisions in question involve cases that were before the Board of Immigration Appeals (“BIA” or “Board”), the administrative appellate body that interprets the nation’s immigration laws. The BIA has been called (sometimes derisively) the “Supreme Court of immigration law.” The BIA is not actually a court in the normal sense of the word (and, by the way, neither are the Immigration Courts). Instead, it is an office within the U.S. Department of Justice. The leader of the Department of Justice is the Attorney General (“AG”). So in essence, the BIA derives its power from the AG, who is the ultimate “decider” when it comes to BIA cases.
What has been happening recently is that Mr. Sessions has been “certifying” cases from the BIA to himself. Basically, this means that he is taking the cases from the BIA and changing the Board’s decisions. In a sense, this is nothing new–previous AGs have done the same thing on occasion. But the concern here is two-fold: Substantively, the AG seems to be moving towards limiting the scope of asylum protections in some types of cases, and procedurally, the AG’s actions do not comport with due process of law, at least as that concept is understood in non-totalitarian countries.
The first case I want to discuss is Matter of E-F-H-L-, 27 I&N Dec. 226 (AG 2018). In that case, the AG vacated a 2014 BIA decision (also called Matter of E-F-H-L-) and returned the matter to the Immigration Judge (the letters in the case name refer to the alien’s initials). The 2014 case stands for the proposition that an asylum applicant is entitled to a hearing on the merits of her application, including an opportunity to provide oral testimony and other evidence, “without first having to establish prima facie eligibility for the requested relief.” In other words, the case is widely viewed as re-affirming the right to a hearing, even if the asylum claim, as articulated by the applicant, is legally insufficient.
In civil litigation, there is something called “failure to state a claim.” Judges routinely dismiss lawsuits if they determine that a litigant’s claim–even if taken as true–does not entitled the litigant to relief. In our adversarial system, this makes sense. Why waste a court’s time (or the jury’s time) adjudicating the facts of a case if those facts do not entitle the claimant to any relief? And why not do the same thing for asylum applicants?
The main objection is that many asylum applicants are unrepresented, and do not know how to articulate their claims effectively. Only in the course of testimony might an applicant’s claim become apparent (and that is especially true in a case like E-F-H-L-, where there is a complicated “particular social group” analysis). Most Immigration Court hearings are fairly truncated affairs to begin with, and so further curtailing an applicant’s ability to present his case makes it even more likely that overworked judges will take the easy route and dismiss an asylum claim before the applicant is able to fully develop his case. The result, of course, will be that legitimate asylum seekers are denied protection.
So it is concerning that Mr. Sessions has vacated E-F-H-L-. But what comes next is not yet clear. The case has been returned to the Immigration Court for further decision-making, and as I read the case, it seems unlikely that the Judge or the BIA would need to rule on E-F-H-L-‘s right to a full hearing. According to the AG’s decision, E-F-H-L- married a U.S. citizen and withdrew his asylum claim. If that is true, there is little reason to think we will hear anything more about this particular case.
The problem, though, is that the AG presumably vacated E-F-H-L- for a reason. I expect the reason is that he wants to create a new standard (in a different alien’s case) for adjudicating asylum claims. What this standard will be, we do not yet know, but given Mr. Sessions’s jaundiced view of asylum seekers, I’m not feeling optimistic. Whatever he does, Mr. Sessions is limited by the statute and by the courts, and so hopefully, it will not be as bad as we fear.
The second case I want to discuss is Matter of A-B-, 27 I&N Dec. 227 (BIA 2018). Mr. Sessions has certified that BIA case to himself and requested new briefs (legal arguments) from the parties and from amici (interested organizations). The question Mr. Sessions wants briefed is this:
Whether, and under what circumstances, being a victim of private criminal activity constitutes a cognizable “particular social group” for purposes of an application for asylum or withholding of removal.
We don’t know, but presumably the goal here is to block asylum seekers who fear harm from “private criminal activity.” This might, for example, block people fleeing harm from gangs in Central America, or victims of domestic violence. It potentially affects other types of asylum claims as well.
The main problem is that Mr. Sessions has asked for briefing on a question that is vague. He has not given us the facts of the case, thus making it difficult to write an effective brief, since cases are fact specific. He even tried to hide the name of the attorney representing A-B-; perhaps in an effort to block advocates from learning more about the case.
This is not how due process works, and I imagine that whatever decision the AG issues in A-B- will be vulnerable to review by the federal appellate courts, which tend to look askance at such blatant (and amateurish) violations of due process.
That the Attorney General of the United States would engage in such obvious procedural misfeasance is very concerning. Since we don’t know what the AG is really asking for, his request for amici briefs is completely disingenuous. Indeed, even if you favor limiting the scope of asylum, you should be concerned when our country’s top law enforcement officer demonstrates such contempt for the rule of law.
Where the AG is heading with all this, we shall see. The widespread belief among advocates is that in anticipation of DACA and TPS ending, Mr. Sessions is planning to roll back protections for certain asylum seekers, specifically people facing harm from gangs and also victims of domestic violence. But he could also be targeting LGBT asylum seekers who fear community (as opposed to government) persecution, victims of female genital mutilation, and victims of terrorist groups, among others.
Finally, it’s difficult not to see the irony here. For years, advocates for asylum seekers have been litigating to expand protections for a wider range of persecuted individuals, particular women, who often face harm not contemplated by the people (mostly white men) who came up with the definition of “refugee” after World War II. However, by pursuing litigation—rather than legislation—we have left ourselves vulnerable to a restrictionist Administration that now seeks to contract that definition.
Don’t get me wrong—I certainly don’t blame advocates for our current woes; we tried and failed legislatively at least once. But I do hope that if the pendulum swings back, and the public mood becomes more favorable, we will try again to create a refugee law that is more in-tune with the types of harm individuals face today. Until then, we are stuck litigating our clients’ cases in an uncertain environment, against an Attorney General who has little interest in playing by the rules.
One of my professional goals in life is to get a published decision from the Board of Immigration Appeals (“BIA”). It won’t be easy–the Board publishes only about one case out of every 1,000 (I wrote about this problem in a blog post called, The Unbearable Lightness of BIA-ing). If the Board could publish more cases, it would provide better guidance to the nation’s Immigration Judges and would probably result in more consistency across the country. Alas, it seems unlikely that the BIA will take my suggestion anytime soon.
I did have a recent case that I thought might stand a chance of publication. As far as I know, it was an issue of first impression (meaning that there are no other published cases discussing the same topic). It is also a fairly common issue, so some guidance from the Board would have been appropriate. The bad news is that my dreams of publishing glory have been shattered, as the Board issued an unpublished decision in my case. But the good news is, we won. And perhaps our unpublished victory might be helpful to others who are in a similar situation.
Unlike published BIA decisions, unpublished decisions are not binding on Immigration Judges. However, they are “persuasive,” meaning that if you can find an unpublished case on point, you can submit it to the Judge, who will hopefully consider it. The Executive Office for Immigration Review (the office that administers the BIA and the Immigration Courts) does not release unpublished decisions, but fortunately, there is a sort-of underground network led by the legendary Dan Kowalski, where attorneys can submit their unpublished decisions and make them available to others.
My case centered on a legal construct called “firm resettlement.” An alien who has been “firmly resettled” in a third country is ineligible for asylum. See INA § 208(b)(1)(B)(2)(vi). My client’s husband had been a high-ranking member of his country’s government. When the government turned against him, he and the rest of the family fled to a neighboring country, which granted the family asylum–hence, they were firmly resettled in a third country. As a result of being firmly resettled, the Immigration Judge (“IJ”) denied asylum, but granted Withholding of Removal as to the home country, and ordered my client and her children deported to the third country.
During the pendency of the BIA appeal, the home government assassinated my client’s husband while he was residing in the third country. After the assassination, DHS agreed that the case should be remanded to the IJ.
On remand, we presented evidence that my client could not return to the third country, as she no longer had any status there. We also presented evidence that it was no longer safe for her in the third country.
DHS argued that even if she could not return to the third country, she had been firmly resettled there, and that she was thus barred from asylum. The lawyer described firm resettlement as a door. Once you pass through it, you are forever barred from asylum. When you read the case law (and the primary case on this point is Matter of A-G-G-, 25 I&N Dec. 486 (BIA 2011)), the government’s argument is not unreasonable. Though, in fact, while Matter of A-G-G- lays out a framework for the firm resettlement analysis, it does not cover the situation in our case, where the country of firm resettlement somehow becomes unsafe.
Ultimately, the BIA accepted one of several arguments we presented. The Board held:
The intent of the firm resettlement bar is to disqualify asylum applicants who have previously found another country of refuge, not another country in which he or she faces a danger of persecution…. Given respondent’s situation with regard to [the third country], we conclude that, even assuming she otherwise would be viewed as having firmly resettled in that country, she is not barred from asylum.
Id. (emphasis in original). Thus, the Board went beyond the analysis of Matter of A-G-G- and looked to the intent of the firm resettlement bar. The intent, the BIA says, was only to bar “aliens who had already found shelter and begun new lives in other countries.” Id. (emphasis in original) (citing Rosenberg v. Yee Chien Woo, 402 U.S. 49, 56 (1971)).
It seems to me that the Board’s emphasis on the intent of the bar is significant. If you only read the firm resettlement bar (INA § 208(b)(1)(B)(2)(vi)) and Matter of A-G-G-, you could reasonably conclude–like the DHS attorney and the IJ in my case–that once a person is firmly resettled, she is forever barred from asylum. But that is not the conclusion the Board has now reached.
I am glad for the result and for my clients, but I am disappointed that the BIA chose not to publish this decision. The issue that my clients faced–where the country of resettlement is unsafe–is not uncommon. A number of my clients have faced similar situations, and I suspect that they are not unique. A published decision would have helped clarify matters and provided better guidance to our country’s Immigration Judges.
Maybe I am asking for too much. Maybe I should just be happy with what we got. Maybe I am being a big jerk for looking this gift horse in the mouth. But I can’t help but think that if the BIA would publish more decisions–especially in cases where there is no existing precedent–our Immigration Court system would be more consistent and more efficient. And so while I am thankful that we received a good decision from the Board in this particular case, I am also thinking about how much more good the Board could do if it made a concerted effort to fulfill its role as “the highest administrative body for interpreting and applying immigration laws,” and if it would publish more cases.
And now, part 2 of my interview with Paul Wickham Schmidt (if you missed part 1, it is here):
ASYLUMIST: Your Chairmanship ended in April 2001, a few months into the George W. Bush Administration. What happened?
PWS: John Ashcroft was President Bush’s first Attorney General. He was advised by Kris Kobach, who was then at DOJ. Kobach is now Secretary of State in Kansas and is well known for his outspoken restrictionist positions. Ashcroft and his people did not like some of the Board opinions, and they particularly did not like Board Member Lory Rosenberg and several others of us. They apparently thought the Board was too liberal, even though the so-called “liberal wing” was consistently outvoted on almost all meaningful precedents where there was a “split Board.”
Paul Wickham Schmidt relaxes after being grilled by The Asylumist.
I’d add that the dissenters have eventually been proved right by subsequent decisions from the Federal Courts and even from the BIA itself on issues like protection for domestic violence victims, more critical examination of IJ credibility decisions, application of the categorical approach and modified categorical approach to crimes, and a less restrictive approach to CAT protection. Board Member Rosenberg was known for being quite outspoken in separate opinions criticizing some of the BIA’s jurisprudence. But, she often was proved right over time. Indeed, the Supreme Court favorably cited one of her dissenting opinions, something that, to the best of my knowledge, no other Board Member has ever achieved. So, in many ways we were punished for being ahead of our time.
About a week after Ashcroft got there, EOIR Director Kevin Rooney told me that the DOJ leadership wanted me out as the Chair. It wasn’t Kevin’s decision. He made it clear that he was just the messenger. Because I was a career member of the Senior Executive Service, this decision probably violated Civil Service rules which would have required the new Administration to keep me in place for a period of time – perhaps 120 days – before booting me to another position. But I realized that if Ashcroft didn’t want me, I could not survive in the job, and dislodging me might hurt the BIA by provoking an attack on the entire institution to justify removing me. I wanted to resolve the situation; not stretch it out, and I wanted something workable. If I had resisted, it might have been a little hard to justify moving me, since I had all outstanding performance reviews with SES bonuses up until that point, but then they could have started attacking the Board, and I did not want that.
I was not ready to go back into private practice. Also, I did not want to move to another location — at the time, I was taking care of my dad, who was in a retirement home near the BIA. Also, I wanted to avoid becoming a “hall-walker” at the DOJ.
I asked Kevin what I could do. I thought (completely naively as it turned out) that they might need some loyal opposition, so I asked whether I could step down as Chair and go to the BIA as a Board Member. Eric Holder, Deputy AG, a Clinton appointee at DOJ, and future Attorney General under President Obama, was still there during the transition. If he had been gone, who knows what would have happened? Also, there had been a regulation change creating more BIA positions. So we agreed that I would step down as Chair, and with Eric Holder’s assistance, I become a BIA Board Member.
It all happened quickly—in a week. I announced that I was stepping down as Chair. It was a fake-y announcement. I said I wanted to spend more time adjudicating cases and less time managing. Lori Scialabba, who was one of my Vice Chairs, and is now the Deputy Director of USCIS, became Acting Chair. I did not change my views about the law; I regularly voted against the majority on issues that were important to me, particularly asylum and other protection issues. But I continued doing my job.
Then came the reorganization where Ashcroft cut Board Members. He removed Board Members John Guendelsberger, Cecelia Espenosa, Lory Rosenberg, Gus Villageliu, and me. Technically, Lory left before the final cut, and another Board Member who undoubtedly would have been axed, applied for a voluntary transfer to an IJ position in another city. I learned about it when Kevin Rooney (who at one point was my career hero) called me up to his top floor office. He was shaking, and he told me, “You did not make the cut.” He said, “They did not like some of your opinions, particularly dissents where you joined with Lory Rosenberg.”
There was no application or interview process to decide who should stay and who should go. There was no interview. The reason I was cut is because they did not like my opinions—Ashcroft apparently wanted a cowed, compliant Board where nobody would speak up against Administration policies or legal positions that unfairly hurt migrants or limited their due process.
Part of the stated rationale for the reorganization was that there were too many Board Members and it was too contentious, and therefore not “efficient.” In the Government immigration world, “efficiency” is often a buzzword for actions that take away or reduce the rights of migrants. But the workload clearly demanded more than the 12 Board Members that Ashcroft left. A few months after the cut, they had to start using BIA staff attorneys as “temporary” Board Members because they needed more Board Members to do the work. Some of these attorneys eventually became Board Members. So they were upgrading staff, rather than doing independent hiring. Basically, this was a cover up for Ashcroft’s inappropriate and politically motivated reduction in permanent Board Members. The real reason for the reduction in the BIA’s size was to eliminate opposing views from the dialogue.
ASYLUMIST: How do you think these changes have affected the Board?
PWS: Well, the picture has not been pretty. The summer of 2000 was the last time that an outsider was appointed to the Board. In my view, many of the current Members are “going along to get along,” because the clear message of the Ashcroft cuts was that resisting the majority, particularly speaking up for the rights of migrants, could be career threatening. The Board has abandoned the pretense of diversity. Also, the idea that they can operate effectively with a smaller number of Members is simply a ruse. The BIA uses temporary Members to fill the gap. But they cannot vote en banc, so this truncates the en banc process. The Board ends up rubber-stamping cases. Also, since mostly three-Member panels, rather than the en banc Board, now issue precedent decisions, the majority of Board Members are able to escape accountability on most such cases because they don’t have to take a public vote. Only the votes of the three panel members are publicly recorded. The BIA also seldom hears oral argument anymore, so it has become very distant and inaccessible to those most affected by its decisions. Moreover, quietly and gradually, the BIA has had to add additional permanent Board Members because the Ashcroft cuts left the BIA short of the number required to do the work. But, there never has been a public acknowledgement by EOIR or the DOJ of what Ashcroft did and why it has been necessary to take corrective action.
I respect the current Board Members, indeed many of them are personal friends, and I certainly recognize the difficulties of their job. But, almost none of the current Board Members have substantial achievements in the private immigration sector, particularly in the area of asylum scholarship and asylum advocacy. They are all appointed from within Government, which is often viewed as a way of bringing in reliable “company people,” who won’t rock the boat. This is supposed to be the Supreme Court of immigration. But it is not actively trying to attract the best and brightest from all sectors of immigration practice, including private practice, academics, clinical professors, and NGO leaders, in addition to those with substantial achievements in government service, in a fair competitive selection process.
One problem is that Board Member positions are less attractive today because they are less visible, less secure, and viewed by some as an assembly line operation after the Ashcroft reforms. A Board Member can be moved to the FOIA unit if they are out of political favor. As a result, the Board doesn’t get the type of outside applicants it really needs – partners in major law firms, tenured academics, respected clinical professors, and high ranking NGO officials, at a time when our system needs their voices more than ever. The example set by Ashcroft is continuing—the current Administration has not changed that. Board Members do not rock the boat, and they all too often do not reflect or fully understand the needs of other constituencies from outside government service, particularly the needs of asylum seekers and others seeking protection in today’s chaotic Immigration Courts.
Maybe the BIA has reduced the backlog, but that has been done with smoke and mirrors. The quality of work has fallen off. They reduced the backlog by compromising the most important function of Board: Guaranteeing due process to individuals appearing in Immigration Court, which requires courageous public deliberation and spirited dialogue on the most important and controversial issues, where dissenting positions are accepted as an essential part the judicial dialogue and therefore supported, rather than suppressed. In my view, since the Ashcroft purge, the BIA has become a deliberative body that no longer publicly deliberates. That’s bad for the public, bad for the justice system, bad for due process, and, actually, bad for the Board Members themselves
ASYLUMIST: And what happened to you, after the “purge”?
PWS: I thought about volunteering to become an IJ, but then I would have had to leave Washington, DC. I did not want to leave my community, plus my dad was still in the area. Kevin floated the idea of early retirement, but I did not want that either.
EOIR created non-judicial positions for some of the “cut” Board Members, like glorified staff attorney positions or senior jobs in the General Counsel’s Office. To show how ludicrous this was, at a time when the Board needed experienced judges more than ever, some of the top judges in the system, who had been selected following a competitive nationwide search, were sent off to perform non-judicial work at the same salary. There was an almost immediate adverse reaction from the Circuit Courts as the Board launched many “not quite ready for prime time” decisions into the judicial review process.
Kevin said I could become an Assistant Chief Immigration Judge (“ACIJ”), but no position was open at the time. I waited for weeks. I was going to be out as a Board Member, but I had not been reassigned. EOIR sent me to IJ training school, but I was still part of the BIA. I went to en banc meetings, but I sat mute. After the IJ training, I did not have a start date or a position. I was a “lame duck,” and I was angry and frustrated.
Finally, I told Kevin that I had to go. There was no reason for me to be there. My things were packed. But then he told me that Ashcroft had directed that I be moved to an IJ position in Arlington, Virginia. He told me that a vacancy had been created overnight, and the Attorney General moved me to the top of the “waiting list.” The Arlington Court was a desirable posting, so there was a waiting list for internal transfers there. Kevin said that someone decided I should be in an adjudication position. It was a huge break for me to get out of the Headquarters “Tower” in Falls Church. I doubt that I would have remained at EOIR as long as I did if I had been in the Tower. I had too much pent up anger, and the Tower would have reminded me of it every day. The Arlington Immigration Court was a great chance for me to put all of that behind me.
I think someone went to bat for me at the Department; I had no relationship with the Attorney General, so I theorize that someone must have intervened on my behalf to put me in Arlington. So, I’m probably the only Immigration Judge who got the position without ever applying for it.
ASYLUMIST: We’ve only covered about two-thirds of your career, but I know you need to get back to the really important things in life, like your kayak, so I’ll ask one last question: Suppose you were the “Immigration Czar,” what would you do with EOIR?
PWS: As you know from history, being a “Czar” of anything can be a life-limiting opportunity. Having had several “career-limiting opportunities” already, I think I’ll take a pass on that job. But seriously, I’m glad you asked the question. Here is my “five-point program” for a better Immigration Court–one that would fulfill its vision, drafted by a group of us when Kevin Rooney was the Director: “Through teamwork and innovation being the world’s best tribunals guaranteeing fairness and due process for all.”
First, and foremost, the Immigration Courts must return to the focus on due process as the one and only mission. That’s unlikely to happen under the DOJ – as proved by over three decades of history, particularly recent history. It will take some type of independent court. I think that an Article I Immigration Court, which has been supported by groups such as the ABA and the FBA, would be best. Clearly, the due process focus has been lost when officials outside EOIR have forced ill-advised “prioritization” and attempts to “expedite” the cases of frightened women and children from the Northern Triangle who require lawyers to gain the protection that most of them need and deserve. Putting these cases in front of other pending cases is not only unfair to all, but has created what I call “aimless docket reshuffling” that has thrown our system into chaos. Evidently, the idea of the prioritization is to remove most of those recently crossing the border to seek protection, thereby sending a “don’t come, we don’t want you” message to asylum seekers. But, as a deterrent, this program has been spectacularly unsuccessful. Backlogs have continued to grow across the board, notwithstanding an actual reduction in overall case receipts.
Second, there must be structural changes so that the Immigration Courts are organized and run like a real court system, not a highly bureaucratic agency. This means that sitting Immigration Judges, like in all other court systems, must control their dockets. If there are to be nationwide policies and practices, they should be developed by an “Immigration Judicial Conference,” patterned along the lines of the Federal Judicial Conference. That would be composed of sitting Immigration Judges representing a cross-section of the country, several Appellate Immigration Judges from the BIA, and probably some U.S. Circuit Judges, since the Circuits are one of the primary “consumers” of the court’s “product.”
Third, there must be a new administrative organization to serve the courts, much like the Administrative Office of the U.S. Courts. This office would naturally be subordinate to the Immigration Judicial Council. Currently, the glacial hiring process, inadequate courtroom space planning and acquisition, and unreliable, often-outdated technology are simply not up to the needs of a rapidly expanding court system like ours. The judicial hiring process over the past 16 years has failed to produce the necessary balance because judicial selectees from private sector backgrounds–particularly those with expertise in asylum and refugee law–have been so few and far between.
Fourth, as you know, I would repeal all of the so-called “Ashcroft reforms” and put the BIA back on track to being a real appellate court. A properly comprised and functioning BIA should transparently debate and decide important, potentially controversial, issues. The BIA must also “rein in” those Immigration Courts with asylum grant rates so incredibly low as to make it clear that the generous dictates of the Supreme Court in Cardoza-Fonseca and the BIA itself in Mogharrabi are not being followed.
Fifth, and finally, the Immigration Courts need e-filing NOW! Without it, the courts are condemned to “files in the aisles,” misplaced filings, lost exhibits, and exorbitant courier charges. Also, because of the absence of e-filing, the public receives a level of service disturbingly below that of any other major court system. That gives the Immigration Courts an “amateur night” aura totally inconsistent with the dignity of the process, the critical importance of the mission, and the expertise, hard work, and dedication of the judges and court staff who make up our court.
ASYLUMIST: Very ambitious! I’d love to hear more, but that would probably take another day or two.
PWS: Thanks for the offer. But, all things considered, I’m heading out onto Linekin Bay in my kayak. Due process forever!
ASYLUMIST: Thank you so much for your time and your thoughts. Happy paddling.
Paul Wickham Schmidt served as Chairman of the Board of Immigration Appeals (“BIA”) from 1995 to 2001. He was a Board Member of the BIA from 2001 to 2003, and served as an Immigration Judge in Arlington, Virginia from 2003 until his retirement earlier this year. He also worked in private practice and held other senior positions in government, including Deputy General Counsel and Acting General Counsel at INS. The Asylumist caught up with Judge Schmidt in Maine, where he has been enjoying his retirement, and talked to him about his career, the BIA, and the “purge” of 2003.
ASYLUMIST: How did you get started in the field of immigration?
Since he retired, Judge Schmidt has been doing a lot of this (eat your heart out, Burmanator!).
PWS: My wife, Cathy, and I had both spent our whole lives in Wisconsin. After I graduated from law school, we wanted to go somewhere else. Because I went to law school in Wisconsin, I did not have to take the bar—I was granted automatic admission to the Wisconsin bar. I’ve actually never taken a bar exam. I knew if I got a job with the federal government, I would not have to take a bar, so I was interested in working for the feds. Also, I had an uncle from Wisconsin who went to DC to work for the Roosevelt Administration and stayed for an entire career, and that also attracted me to federal service.
I applied to the Department of Justice through the Honors Program, but they rejected me. At the time, the Board did not actively recruit from the Honors Program, but they looked at the pool of applicants, liked my writing experience, and asked me to apply. I didn’t know anything about immigration, so the first thing I did was to go to the law school library and learn about immigration law. Then, we drove to Washington, DC for the interview. I met the Chairman, Board Members, and the Executive Assistant. Following an afternoon of interviews, the Chairman, Maurice A. “Maury” Roberts, a legendary immigration “guru,” called me in and said, “We discussed it at conference, and you’ll do.” With that auspicious beginning, I was hired. It was 1973. At the time, the BIA had nine staff attorneys and five Board Members.
I liked the job. It was a great group of people, and I learned a lot about the law. Chairman Roberts was a mentor to me and my office-mate. I also worked with the late Lauri Steven Filppu, who became a close friend, and who went on to become a Deputy Director of the Office of Immigration Litigation and then served with me on the BIA.I liked the human interest element and that it involved creative thinking. However, there was an ideological divide among the Board Members. At that time, Board Members were political appointees, rather than career appointments as they are today. The most senior Board Member had been appointed by President Truman. Chairman Roberts was appointed at the end of the Johnson Administration. I believe the other three Board Members were appointed during the Nixon Administration and did not have prior immigration backgrounds. Also, in those days, oral argument was a right, and the Board had four days of oral argument each week.
While I was there, Lauri Filppu and I helped form the BIA employees union, which was led by our friend and colleague Joan Churchill. She later became an Immigration Judge in Arlington and served with me there for several years before her retirement. One impetus for forming the union was an incident where the Board librarian was fired in the middle of our Christmas party. We thought that was harsh. The union still exists today. Indeed, as Chairman, I later had to go “head to head” with the union on an arbitration relating to the assignment of offices.
ASYLUMIST: You started as BIA staff. How did you get to be Chairman of the Board of Immigration Appeals?
PWS: I left the BIA at the end of 1975. I felt I had done what I could do there, and the work was getting repetitive. I was ready for something new, and so I moved to the General Counsel’s office at INS. At the time, Sam Bernsen was General Counsel. He was an amazing guy, who started as a messenger on Ellis Island when he was 17 and worked his way up to the top ranks of the Civil Service. He was also a good friend of Chairman Roberts. I advanced in the General Counsel’s office, and by the end of the Carter Administration, I was the Deputy General Counsel and the Acting General Counsel. The Deputy General Counsel basically ran the day-to-day operations of the INS’s nationwide legal program. The General Counsel during the Carter Administration, David Crosland (now an Immigration Judge in Baltimore) was the Acting Commissioner of the INS for about the last half of the Administration. At the time, I was only 31 or 32 years old. In that period, we were re-organizing the legal program. The GC took over supervision of Trial Attorneys (they were previously supervised by the District Directors – they now are called “Assistant Chief Counsels”). We also replaced Naturalization Attorneys with paralegals. Some of these changes were controversial within the INS. I got yelled at a lot by some of the District Directors. But, I can yell pretty loud too. This was really the beginning of what today are the Offices of Chief Counsel at the DHS. And, I worked on legislation, including the Refugee Act of 1980, which brought me into contact with David Martin and Alex Aleinikoff who later became well known in the immigration and refugee world. Other big issues I worked on were the so-called Cuban Boatlift and the Iranian Hostage Crisis.
I continued as Deputy GC during the Reagan Administration. I served under General Counsel Maurice C. Inman, Jr., known as “Iron Mike.” He was a real character, but we got a tremendous amount accomplished together. It was more or less a “bad cop, good cop” situation. We completed the legal program reorganization, and I also helped plan and execute the transfer of the Immigration Judges out of INS and into a separate entity, which was the “birth of EOIR” in 1983. Mike left in 1986, and I became the Acting GC again, right at the time that IRCA was enacted. But, I felt like I had reached a dead end.
I applied for jobs at law schools, and I found a head-hunter. However, it was the “Old Girl Network” through Cathy, who was then the president of our co-op preschool, which led to my next job. I was offered a senior associate position at Jones Day, which was just starting an immigration practice. At that point, the Commissioner, Al Nelson, and the Attorney General, Ed Meese, offered me the GC job, which I had always wanted. But, I turned it down. I moved over to Jones Day, and remained there as a partner until 1992.
It was difficult to be an immigration attorney in a general practice firm, and so I eventually went to Fragomen, Del Rey, and Bernsen, where I succeeded my mentor Sam Bernsen as Managing Partner of the DC Office. I did mostly business immigration. While I liked private practice, and learned much that has been helpful in making me a better judge, I felt that business immigration was like working at a well-baby clinic: Highly stressful, but fundamentally routine. We had to do as many cases as we could, as quickly as possible, which made it challenging to take on interesting cases that did not generate significant fees or repeat business. The clients wanted more for less, and there was always pressure to charge more and more money to contribute to the success of the firm. In the end, I suppose my heart was not in business immigration. I liked my clients, my colleagues, and making more money for our family than I had in government, but eventually it was not as satisfying as government work.
Around this time, the BIA Chair position opened up. I liked the idea of being in charge, and I felt there were opportunities to be creative. But, there was a lot of competition for the job. I lobbied the people I knew for their support, and in the end, I was offered the position. I began work in February 1995. I definitely think my experience in the private sector was a significant factor in my getting the job.
The goal when I started was to make the Board into the “13th Circuit,” to make it more like a court, to expand the diversity and the number of Board Members, to publish more opinions, and to develop a more humane and realistic view of asylum law. There was a big backlog, and we needed more Board Members. Up until then, different Immigration Judges were being detailed to the BIA to help with the work, but this system was cumbersome and it was very expensive. The original plan was to expand the Board from five to nine Members, but with then Director Tony Moscato’s help, we managed to expand it to twelve Board Members (four panels of three Members each). Attorney General Janet Reno was receptive to expanding the BIA, and we also increased the staff significantly and set up a team structure with senior supervisors. While I was there, we also changed the appeals filing system so that people could file directly with the Board (instead of filing appeals with the local court), and we added bar codes to help organize the files (up until that time, staff spent a lot of time looking for lost files). All these changes required us to expand the legal and clerical staff. And, the BIA itself kept on growing, reaching a membership of more than 20 just before the Ashcroft purge.
The expanded Board also became more polarized. Essentially, the middle fell out of the Board shortly after the Kasinga case in 1996. Before then, I was often in the majority, but after that time, I was out-voted in most precedential decisions. I think the enactment of the IIRIRA at the end of 1996 also had something to do with it. By the time of the R-A- decision in 1999—one of the most disappointing cases of my tenure because the majority squandered the chance to show real judicial leadership, take the next logical step following Kasinga, and “do the right thing” for domestic violence victims—I was pretty firmly entrenched in the minority for en banc decisions. I therefore often had to write or join separate dissenting opinions, known as “SOPs” in BIA lingo.
ASYLUMIST: This brings up an interesting point. I’ve long felt that the BIA should issue more precedent decisions, to provide more guidance to Immigration Judges. Why doesn’t the Board publish more decisions? And how does the Board decide which cases will be published?
PWS: I think that following the “Ashcroft purge,” the BIA has become hesitant to delve into controversial issues, particularly those that might provoke dissent. During my time at the Board, we did publish more decisions. Indeed, in my first full year as Chair, in 1996, we published approximately 40 opinions, many with separate dissents and concurrences, on cutting edge issues like particular social group, credibility, AEDPA, and IIRIRA. By contrast, in 2015, the BIA published approximately 33 decisions, and neither the dialogue nor the range of issues was nearly as extensive. Even with a greatly expanded and often divided Board, in 1999, one of my last full years as Chairman, we published 50 precedents, many dealing with extraordinarily difficult and complex issues.
The idea later promoted by the “Ashcroft crowd”—that a very large, diverse, and often divided Board cannot produce timely, important guidance–is ridiculous. Any party could request that a case be designated as a precedent decision. But generally, the Board was not receptive to party requests. The Chair or the Attorney General could also designate a decision as precedential. In addition, by majority vote, any panel could recommend a case for en banc consideration, and a majority vote of the Board could designate a decision as precedential. Almost all of the precedents were the result of the en banc process.
Ironically, one the most common reasons for publication was because the majority wanted to “slam” the dissenters’ position. These tended to be cases that illustrated important points or new interpretations of the law. Also, when new laws went into effect, and we had to interpret new statutory provisions, we were more likely to issue a precedent decision. In fact, there was a lot of controversy on the Board surrounding the dissenting positions. The Members generally got along with each other, but there was a lot of stress related to differing viewpoints. Some Members felt that dissenters were attacking the BIA as an institution. My being in the dissent in a number of precedents strained my relationship with some of my colleagues who were almost always in the majority.
Perhaps this was a consequence of my decision to change the format of BIA decisions so they looked more like court decisions. Therefore, Board Members had personal responsibility for their decisions. This made Board Members more accountable for their decisions, but it also gave them more of a personal stake in each decision.
Unfortunately, the BIA today has abandoned one of its primary functions—to provide timely expert guidance on the INA. Instead, it now publishes mostly non-controversial stuff, unless a Federal Circuit Court orders the Board to enter a precedential decision (I call this, “Go fetch me a precedent”). The initiative for shaping immigration law has gone from the BIA to the Federal Courts. There needs to be reform. I think the Board should function like the 13th Circuit; instead, it is more like the Falls Church Service Center. There are far too many single Member decisions, and the single-Member decisions are all over the place. The Board should use three Member panels in all cases where the IJ decision is not suitable for summary affirmance. That’s the “original streamlining” that I instituted, and it was intended to increase dialogue and careful deliberation, not eliminate it, as has been the case under the misguided “Ashcroft reforms.”
The Board also needs to be independent, but I do not see the willingness in the DOJ to make that necessary change, which would require legislation. When the DOJ wants to resist the Circuit Courts, Congress or public scrutiny, they talk about the Board’s expertise. But when the DOJ addresses IJs and Board Members, they refer to them as just “DOJ Attorneys” — employees who should follow the Attorney General. In other words, the DOJ’s external message is, “The BIA is like a court, so due process is provided and you should not intervene,” but the internal message to Immigration Judges and Board Members is, “You exist to implement the power of the Attorney General, you aren’t ‘real’ independent Federal Judges.”
ASYLUMIST: What other changes did you make at the Board while you were Chair?
PWS: We started doing more oral arguments, including oral arguments on the road (this is now prohibited by regulation). I thought if we were to function as an appellate court, we should be seen in the different places. Some Members liked this; others did not. Some thought oral argument was a waste of time. However, once I became an Immigration Judge, as you know, I was able to have oral argument in every case.
The BIA Pro Bono Project also started during my time as Chair. Under the Pro Bono Project, volunteer attorneys come to the Board office, review appeals of unrepresented immigrants, and then assign meritorious appeals to volunteer attorneys for representation. There was a lot of internal opposition to the Project because it was seen as the BIA deciding who gets represented and who does not. We had not done anything like this before. But, it has been highly successful.
The Virtual Law Library was also started under my tenure, with strong support and encouragement from Director Moscato. Also, we instituted an “electronic en banc voting system.” We also eliminated the position of “Chief Attorney Examiner/Alternate Board Member” and gave the duties of overseeing BIA staff to the two Vice Chairs who assisted me. That was after the last Chief Attorney Examiner, Neil Miller, who recently retired, was appointed to the Board by Attorney General Reno.
ASYLUMIST: Let’s take a break. In next week’s installment, Judge Schmidt discusses the “purge,” his prescription for fixing what ails the Board, and other controversial stuff. Stay tuned…
A recent Board of Immigration Appeals (“BIA”) decision upheld an Immigration Judge’s adverse credibility finding where the respondent’s affidavit was “substantially similar, and in some regards identical, to an asylum application previously filed by respondent’s brother in a different proceeding.” Matter of R-K-K-, 26 I&N Dec. 658 (BIA 2015).
The BIA should think of more creative ways to prevent cheating.
In this case, the first brother came to the U.S., filed for asylum, and was granted. In his asylum application, brother # 1 stated that he was arrested two times–in 2004 and 2006–and he described what happened during those arrests. Later, the second brother (respondent or R-K-K-) came to America and filed for asylum. He also claimed to have been arrested two times–in April and May 2010. R-K-K- described his arrests in terms remarkably similar to his brother’s case, including the time of day when he was arrested, the abuse endured, conversations with abusers, and psychological harm. R-K-K- even included in his affidavit the same spelling and grammar mistakes as his brother.
After informing R-K-K- of the problem, the Immigration Judge (“IJ”) gave him time to gather evidence and explain himself. R-K-K- claimed that the similarities were the result of the brothers’ “common backgrounds and experience,” and because they were assisted by the same transcriber. The IJ asked R-K-K- to locate the transcriber, but R-K-K- was unable to do so.
The IJ did not accept R-K-K-‘s explanation. He found R-K-K- not credible and denied the application for asylum. R-K-K- appealed.
The BIA affirmed the IJ’s decision and issued a published decision in order to set forth a “procedural framework under which an Immigration Judge should address… inter-proceeding similarities.” The short answer here is that (1) the IJ must give the respondent notice that her case has been found substantially similar to another case; (2) allow her an opportunity to explain what happened; and (3) determine the respondent’s credibility based on the totality of the circumstances. The shorter answer is, Who cares?
I do not know how often “inter-proceeding similarities” are an issue, but I imagine it happens now and again. When I was a Judicial Law Clerk at the end of the last century, I worked on a Somali case that was essentially identical to an unrelated person’s case. The affidavits and events were word-for-word the same. Only a few names had been changed to personalize the story a bit. So I suppose there is nothing wrong with establishing a framework for analyzing the problem.
But to me, it seems that the Board in R-K-K- is missing the larger issue. Yes, it appears that R-K-K- committed a fraud, and yes, under the applicable legal standard, he should probably be deported. And fine, it’s nice to have a framework to assess credibility when this issue comes up. But what about the missing “transcriber”? Where is the person who prepared this fraudulent case? He is nowhere to be found. And the BIA does not seem to care.
Frankly, the BIA’s decision here makes me angry. Everyone in this business knows that asylum fraud is a problem. We also know that there are (hopefully) a small number of attorneys and notarios (or transcribers) who are responsible for much of this fraud. These people damage the asylum system and make life more difficult for legitimate asylum seekers.
Some–perhaps most–of the fraudsters’ clients are active participants in the fraud. But at least in my experience cleaning up their messes, many of these “clients” are naïve victims of unscrupulous attorneys who find it all too easy to manipulate frightened people who do not speak English, who are predisposed to mistrust authority (because they were harmed by the authorities in the home country), who do not understand “the system,” and who have no support network in the United States.
So is R-K-K- a victim or a villain? We don’t know, and given the BIA’s “framework” for analyzing similar cases, I guess we never will.
How could this decision have been better? It seems a crime was committed here, so why not involve law enforcement? When a possible fraud has been detected, the Board could require the IJ to inform the applicant about the possible fraud, advise him that if he cannot overcome the finding of fraud, he faces criminal and immigration penalties, and give him an opportunity to switch attorneys and/or work with law enforcement to expose and prosecute the guilty party. He should also be made aware of the benefits of cooperation. The alien can refuse to go along, of course, in which case he will face the consequences. But if he does cooperate, he should be rewarded, particularly if it turns out that he was more of a victim than a co-conspirator.
There is precedent for this type of coercion in immigration proceedings. InMatter of Lozada, the BIA basically held that if an alien has been denied relief due to the ineffective assistance of her attorney, she can reopen her case, but to do so, she generally must file a bar complaint against the ineffective attorney. This requirement forces attorneys to police their own by possibly having their colleagues disbarred. I don’t like it, but I’ll file a complaint when it’s justified. And–so the reasoning goes–if the offending attorney is barred from practice, his future clients/victims will be protected.
The problem addressed by R-K-K- is worse than the one described in Lozada. In Lozada, we are talking about ineffective assistance of counsel–this ranges from a benign screw-up (which can–and does–happen even to the best attorneys) to dereliction of duty. In R-K-K-, on the other hand, the Board is addressing outright fraud: The attorney or notario (or applicant) has appropriated someone else’s case as her own in the hope of outwitting the fact-finder. This is malicious and dangerous behavior that requires punishment. The regime created by R-K-K- allows the little fish to fry and the big fish to keep swimming. It addresses a symptom of the fraud without reaching the source. I hope that the BIA will one day revisit this issue and that it will take a stronger stance against asylum fraud.
If you are an attorney or an immigrant with a case before the Immigration Court, you’ve probably noticed that the computer system has been down for almost two weeks. The phone system for checking case status is not working, and there are all sorts of problems at the courts and the BIA. Apparently, the cause of these difficulties is that some servers in Fairfax, Virginia are broken and cannot easily be repaired. No one seems to know why this happened, and EOIR (the Executive Office for Immigration Review) is not telling us much. The EOIR website says only that they are experiencing a “hardware failure.”
EOIR computer techs are working day and night to solve the problem.
As a public service, I have decided to step in and fill this information gap with unfounded speculation. I figure that if I take the time to write something down, people might as well believe it. So to all those waiting for the system to start up again, take comfort. I present to you the top 10 reasons that the EOIR computers are not working:
10. Juan Osuna forgot to pay the electric bill.
9. The Y2K bug finally kicked in.
8. The computer shut itself down after it played 35 million games of tic-tac-toe and learned that it is impossible to “win” a removal case.
7. It is getting more and more difficult to find new vacuum tubes and punch cards.
6. Once the computer calculated that the average time to the next hearing exceeds the life expectancy of the average respondent, it decided there was no point and turned itself off.
5. Everyone who signed up for Obamacare has accidentally been deported.
4. Someone asked the computer to figure out how the Asylum Clock works, and it blew up.
3. Joe Arpaio arrested the computer for helping “illegals” remain in the U.S.
2. If you build a 500 gigabyte computer, someone will file a 501 gigabyte case.
1. Everyone who knows how to fix a computer has already been deported.
There you have it. Some of these explanations may even prove to bear a relationship to reality. If so, remember that you heard it here first.
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.
I did have a recent case that I thought might stand a chance of publication. As far as I know, it was an issue of first impression (meaning that there are no other published cases discussing the same topic). It is also a fairly common issue, so some guidance from the Board would have been appropriate. The bad news is that my dreams of publishing glory have been shattered, as the Board issued an unpublished decision in my case. But the good news is, we won. And perhaps our unpublished victory might be helpful to others who are in a similar situation.
DHS argued that even if she could not return to the third country, she had been firmly resettled there, and that she was thus barred from asylum. The lawyer described firm resettlement as a door. Once you pass through it, you are forever barred from asylum. When you read the case law (and the primary case on this point is 
It seems to me that the Board’s emphasis on the intent of the bar is significant. If you only read the firm resettlement bar (INA § 208(b)(1)(B)(2)(vi)) and Matter of A-G-G-, you could reasonably conclude–like the DHS attorney and the IJ in my case–that once a person is firmly resettled, she is forever barred from asylum. But that is not the conclusion the Board has now reached.
