© Farhad Sethna, Attorney, 2018

Attorney General finds way to derail Asylum Applications – or does he?

March 5, 2018: Attorney General Sessions reopened a BIA decision, Matter of E-F-H-L-, 26 I&N Dec. 319 (BIA 2014) [lets’ call this case EFHL I], which held that an immigration judge could not deny an asylum applicant the right to present his or her asylum application at a full trial, introducing evidence and witnesses.

The AG, squarely taking aim at the decision, ordered that it be referred to him (almost 4 years later). In his one-page decision on the case, Matter of E-F-H-L-, 27 I&N Dec. 226 (A.G. 2018) [lets’ call this case EFHL II], the AG pounced on the fact that the respondent had voluntarily withdrawn his applications for asylum and withholding, thus rendering the original 2014 BIA decision moot.

Why reopen a 4-year old case? Why especially a case that had already been rendered moot because the respondent had withdrawn his applications for relief? Seems unnecessary – but then there’s the shrewd cunning of the AG……

In EFHL I, the Board decided that the asylum applicant could and should have his day in court. That is, the applicant should be allowed to present his full asylum case, with evidence and witness testimony. However, subsequently, the applicant voluntarily withdrew his applications for relief, choosing instead to rely on a family-based petition filed by a US-Citizen relative. This choice, the AG believes, rendered EFHL I moot; therefore, the BIA decision could be reopened, vacated (since E-F-H-L- never went to a full hearing on the merits of his applications), and remanded (returned) to the underlying immigration court.

Sessions made it clear that “….the Board’s decision is effectively mooted. I accordingly vacate the decision of the Board in this matter, and I also direct that this matter be recalendared and restored to the active docket of the Immigration Court.”

So, what does Sessions hope to achieve?

That immigration judges nationwide (remember that Immigration Judges are appointed and can be removed by the AG) will take Sessions’ lead to rule that since EFHL I was overruled, that when an alien raises an asylum or withholding claim, an immigration judge has the ability to cut off such an application without a full hearing if the judge does not believe the applicant has made a prima-facie case.

Is this appropriate?

Absolutely not! The regulations and case law hold otherwise. Instead of listening to the applicant and lay witness statements, being open minded to expert testimony, and reviewing the supporting evidence, all under the applicable standards of law, the judge can substitute his or her initial snap judgment! But, that, in the warped land of Trump, is obviously OK! Due process….out! Rights….out! Not returning an alien to a land where he or she could face torture and death……Out!!!

What will happen now?

The EOIR (immigration court) which originally heard the case will reopen it. Once the file reaches the court from the BIA, the immigration judge will review it and extract any meaning from the cryptic one-page AG decision, and then schedule a full merits hearing for a decision. In EFHL II, the AG did NOT specifically call for immigration judges to pretermit asylum applications.  Instead, the AG simply vacated the entire decision.  Note that typically, a matter returned by the AG on remand will be assigned to another immigration judge, not the same judge who made the initial determination to pre-termit (dismiss before trial) the alien’s asylum and withholding claims.

The question is – what decision can the judge reach?

If the judge wants to keep the status quo – that is, preserve the right of the alien to present their case at a full-blown merits hearing, then the judge can rule that since EFHL I has been reversed, that the alien now has the opportunity to litigate his asylum and withholding applications at a full merits hearing. In all fairness to the AG (he’s had a bad week, even more so being the butt of his boss’ tweets and sarcasm!), the AG hasn’t asked the immigration judge to reopen the asylum case. The only item that the AG requires is that the case be placed back on the active docket of the court. This surmises that E-F-H-L- may not have fared well on his or her I-130 petition, since it seems that E-F-H-L-‘s attorney did not move to reopen his case.

Alternatively, a judge might believe that the AG wants the court to deny asylum seekers a right to a full hearing, and rule that way. This is, in my opinion, going to cause the Department of Justice nothing but problems, as any alien denied the right to a full hearing can and will appeal the denial to the BIA, and from there, as a constitutional argument, to a federal appeals court. So Session’s directive, if interpreted to its fullest extent, will only serve to backlog the BIA and the appeals courts even more.

Finally of course, is the middle ground: the immigration judge does nothing to involve the applications for asylum and withholding, and proceeds to let the case move forward on its remaining application for relief – the I-130 petition. This option has the best grounds of being upheld on appeal, since it skirts the controversial EFHL II decision.

Will the AG succeed in denying aliens their right in court?

Doubtful for at least three reasons:

First, the USA is party to several international human-rights treaties including the Convention on Status of Refugees (the “Refugee Convention”) and the United Nations Convention against Torture (“CAT”). It is doubtful that a quick snapshot of an applicants’ case by an immigration judge can do justice to an aliens’ carefully prepared and detailed individual hearing. The US’ obligations under such treaties mandate that asylum seekers get a full and fair hearing in an unbiased court of law.

Second, as EFHL I pointed out, and relied on – there is substantial case law which supports the alien applicant’s right to present his asylum or withholding case at a full and fair hearing. Just because Sessions says that he vacates the BIA’s decision doesn’t leave a vacuum; existing case law and regulations continue to exist, and aliens will therefore continue (or appeal any denial) to pursue their well-founded asylum and withholding cases.

Third, Sessions did not expressly rule that the Court needed to decide the now-mooted applications for asylum and withholding; indeed, it appears that E-F-H-L- gave up his or her right to pursue her applications for asylum and withholding in order to have the DHS prosecutor agree to having her case administratively closed (a very typical outcome in immigration court). It would be incongruous to argue that applications which were withdrawn with prejudice must now, four years later, be re-litigated. In a pattern eerily reminiscent of INS v. St. Cyr, 533 U.S. 289 (2001), the Immigration courts are being asked to rule on defenses that were abandoned as part of negotiations between the respondent and the Government. As the Supreme Court held in St. Cyr, the government could not use the inviolate expectations of a criminal defendant who made a plea deal with prosecutors against him in order to deport him. So also, it may be argued against EFHL II, that an alien who reached an agreement with the DHS’ attorneys has a well-founded expectation that the government would uphold its’ side of the bargain.

In conclusion:

While on its’ face, the AG’s reversing and remanding E-F-H-L- may seem draconian, in reality, the realities on the ground in the courts around the nation are far from settled: the vast majority of immigration judges want to and will follow the law and established precedent.

As immigration courts around the country try to grapple with Sessions’ new dictate, more litigation will doubtless ensue, which might bring some clarity to this now-unsettled area of the law.

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Copyright, Farhad Sethna, Attorney, 2018

Farhad Sethna has practiced law for over 25 years. He was awarded his JD in 1990 and his MBA in 1991, both from the University of Akron. Since 1996, he has also been an adjunct professor of Immigration Law at the University of Akron, School of Law, in Akron, Ohio, where he wrote and used his own immigration textbook. Attorney Sethna 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. He has won awards for excellence in teaching and for pro-bono service. With offices in Cuyahoga Falls, Akron and New Philadelphia, Ohio, Attorney Sethna represents clients in all types of immigration cases before federal agencies and the immigration courts nationwide. A private pilot, it is Farhad’s goal to fly to each of Ohio’s 88 county airports. 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.