By Attorney Farhad Sethna © 2014
In Matter of E-F-H-L-, 26 I&N Dec. 319 (BIA 2014) the BIA decided on June 12, 2014 that an alien must have a full and fair hearing, introducing testimony, before an immigration judge could make a decision on his application for asylum, withholding of removal or deferral of removal. The case arose out of a application for asylum before an immigration judge in Texas. In that case, the immigration judge denied the respondent’s applications for asylum and withholding of removal without first holding a individual hearing. Instead, the immigration judge found that the respondent’s written asylum application as submitted to the court and the alien’s pre-hearing brief in support of his petition did not demonstrate the alien’s prima facie (Latin for “first look at” – or “first sight”) for relief. Therefore, simply on the basis of his first impressions, the immigration judge determined that the alien was not entitled to a hearing on the merits of his applications and denied his applications for relief.
The Board struck down the immigration judge’s decision. In its holding in E-F-H-L-, the Board referenced its prior holding in Matter of Fefe, 20 I&N Dec., 116 (BIA 1989).
The Board held that even though the immigration judge has the authority to control the scope of an evidentiary hearing in the interest of efficiency, such authority must, at a minimum include an opportunity for the applicant to present evidence and witnesses in his or her own behalf.
In Matter of Fefe, the Board found that “an essential aspect of the asylum adjudication process” required a full oral examination of the applicant. This was necessary to protect the integrity of the asylum process itself, and provide fairness to the parties.
In addition, a 9th Circuit case, Oshodi v. Holder, 729 F.3d 883 (9th Cir. 2013) (en banc – Latin for “before the entire court”) held that an alien’s fifth amendment due process right to a full and fair hearing was violated when the immigration judge denied relief solely on an adverse credibility finding after refusing to allow the alien to testify to the content of his applications.
Under E-F-H-L-, and the prior Board decision in Matter of Fefe, as cited above, any move by the immigration judge to cut short a removal proceeding should be strongly and vigorously questioned and objections placed on the record for appeal. This includes an immigration judge’s decision to deny an applicant a full and fair hearing with presentation of witnesses and evidence, and an opportunity to present the applicant’s story, and be subject to direct and cross examination. The immigration judge cannot simply reject an applicant’s application based on an analysis that the applicant has not made a prima facie case for the relief sought. Such reasoning is in violation of the immigration statute, applicable BIA precedential case law, and contrary to the due process protections in the United States Constitution.
About the author: Attorney Farhad Sethna has practiced law for over 20 years. Since 1996, he has been an adjunct professor of Immigration Law at the University of Akron, School of Law, in Akron, Ohio. He is a frequent speaker at Continuing Legal Education and professional development seminars on various immigration-related topics. His practice is limited to immigration and small business. With offices in Cuyahoga Falls, Akron and Dover, Ohio, Attorney Sethna represents clients in all types of immigration cases. Our number is: (330)-384-8000. Please send your general immigration questions to AttorneySethna@immigration-america.com. We will try to answer as many questions as possible.
This is only general legal information. Please consult a qualified immigration attorney for advice on your specific case.