Attorney General Jeff Sessions is implementing numerous strategies, under the color of law, that have devastating effects on the due process rights of one of our most vulnerable immigrant populations — asylum seekers.
As head of the Department of Justice, Sessions has direct control over the Executive Office for Immigration Review — the office that oversees all of the immigration courts. Respondents in removal proceedings before the EOIR are ensured certain rights.
Respondents “shall” have a reasonable opportunity 1) to examine the evidence against the alien, 2) to present evidence on the alien’s own behalf, and 3) to cross-examine witnesses presented by the government. The rights codified under 8 CFR § 1240.11(c)(3) (2013) in the context of asylum and explicitly provide that when an asylum application has been filed with EOIR, the application will be decided after an evidentiary hearing to resolve factual issues in dispute.
During such evidentiary hearings, the asylum seeker shall be examined under oath regarding his/her application and may present evidence and witnesses on his or her own behalf. An immigration law judge should determine whether the testimony presented is credible, weighs the credibility of the testimony along with other evidence of record and applies the law before deciding whether an individual qualifies for relief in the form of asylum.
In 1989, the Board of Immigration Appeals issued a precedent decision, Matter of Fefe. In Fefe, the BIA held that the regulations in effect at that time required that an applicant for asylum must at least be questioned under oath to determine whether the information in their asylum application was complete and correct before the IJ could adjudicate the application on the merits. In that same decision, the BIA held that a full oral examination of the applicant, over and above the preliminary questioning, was an “essential” aspect of the asylum adjudication process for reasons related to fairness to the respondents and the integrity of the asylum process itself. The BIA seemingly understood the complicated nature of the asylum process. Due to the nature and circumstances under which asylum applicants flee their home countries, applicants do not always have the essential documentary evidence to support their claims of persecution, making an applicant’s testimony vital as sometimes that is the only evidence before the Immigration Court.
In 2014, the BIA in Matter of E-F-H-L, looked to Matter of Fefe and the regulatory requirements for asylum applications. E-F-H-L held that 8 CFR § 208.6 (1988) mandated that an asylum applicant shall be examined in person by an immigration officer or judge prior the adjudication of the asylum application. Furthermore, pursuant to 8 CFR § 236.3(a)(2) (1988) and 8 CFR § 242.17(c) (1988), an applicant for asylum shall be examined under oath and given an opportunity to present evidence concerning his application. The BIA clarified that though 8 CFR § 208.6 (1988), 8 CFR § 236.3(a)(2) (1988) and 8 CFR § 242.17(c) (1988) had been replaced, the current regulations, 8 CFR § 1240.11(c)(3) (2013), required that an IJ decide an asylum application only after an evidentiary hearing has been held, during which an asylum applicant presents evidence and testifies under oath.
The Attorney General’s authority to refer cases to himself is not limited by any specific requirements. Pursuant to 8 C.F.R. § 1003.1(h)(1)(i), the BIA shall refer to the Attorney General for review of its decision all cases that he directs the BIA to refer to him. On March 5, Sessions ordered the BIA to refer its 2014 decision to him and vacated the decision in E-F-H-L.
In his decision, the Attorney General did not indicate why he chose Matter of E-F-H-L. However, his decision to do so affects the ability of asylum seekers to receive a full and fair hearing on their claim of persecution. Essentially, Sessions has opened the door to allow immigration judges to deny asylum claims based on preliminary evidence submitted to EOIR prior to the hearing, without allowing the applicant to testify on his behalf or present witnesses. Equally unsettling is the Attorney General’s unexplainable decision to vacate a well-reasoned BIA decision, based on precedent from the board’s own 1989 decision and current regulations that mandate asylum seekers be given a full and fair hearing and be allowed to testify and present evidence, regarding their fears of persecution.
This follows on the heels of a BIA decision from Jan. 19, Matter of W-Y-C-&H-O-B-, 27 I. & N. Dec. 189, 191 (BIA 2018), in which the BIA held that applicants seeking asylum based on their membership in a particular social group must “clearly indicate” on the record before the IJ the exact delineation of any proposed particular social group. This opens the door for an IJ to deny an asylum application based solely on a finding that the applicant has not presented a cognizable social group, therefore no testimony is necessary.
Many seasoned immigration attorneys struggle with crafting a legally cognizable particular social group. Requiring an applicant that appears pro se to craft “the exact delineation of any particular social group(s) to which she claims to belong” is unconscionable. Individuals appearing before our Immigration Courts have the right to retain an attorney, but there is no appointed counsel.
If an individual cannot afford an attorney or find pro bono assistance, adults and children alike are forced to appear pro se and contend with our most complicated set of laws, only second to the U.S. tax code. Nationally, 63 percent of litigants appeared pro se for their removal cases.
Further complicating matters, on March 30, Sessions notified immigration judges that beginning on Oct. 1, their performance evaluations were dependent on meeting quotas designed to address the 700,000 case backlog in EOIR.
Some of the released quotas consist of 1) judges being required to complete 700 cases a year and to see fewer than 15 percent of their decisions sent back by a higher court, 2) 85 percent of removal cases for people who are detained be completed within three days of a hearing on the merits of the case, and 3) 95 percent of all merits hearings be completed on the initial scheduled hearing date. This quota system does little to ensure that a full and fair review of an asylum seeker’s case when an immigration judge’s job hinges on expeditious resolution of their caseload.
On April 6, Sessions issued a memorandum titled “Zero-Tolerance for Offenses under 8 USC §1325(a)” requiring federal prosecutions along the southwest border of the U.S. In his memorandum, Sessions asserts that past prosecution initiatives along the border resulted in decreased illegal activities (i.e. illegal entries), therefore to deter future immigrants from entering the U.S. illegally, prosecution under 8 USC § 1325(a) is mandated.
Prior to April 6, CBP officers had discretion to initiate criminal proceedings against individuals entering the U.S. without permission. This action is seen as a direct attack on asylum seekers and the unaccompanied children that have been fleeing the cartel violence in Mexico and the gang violence in Central America.
Further on April 10, Sessions alerted the Vera Institute of Justice that funding would end on April 30 for the nonprofit’s Legal Orientation Program. This program conducted information sessions for 53,000 immigrants in more than a dozen states, including California and Texas, last year alone. These programs are vital and provide basic legal education to thousands of immigrants in removal proceedings who would not otherwise have access to legal counsel.
The spirit of our immigration law is not to place obstacles for the most vulnerable immigrants — asylum seekers, which include unaccompanied children — but to provide a safe haven to those individuals whose lives or freedom have been threatened in their home country. Congress’ inability to fix our broken immigration system has left the door wide open for the current administration to act under color of law to prevent asylum seekers from obtaining the very benefits our immigration laws afford them.
— Arnulfo Hernández is managing partner and Christine Hernández is a shareholder at Hernández & Associates.