USCIS draft memorandum, “Guidance on Uniform Denial Language Pertaining to Appeals to the Board of Immigration Appeals (BIA).
BIA issues two crime related decisions
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Our law firm prepares each and every kind of appeal regarding all types of petitions and applications under the Immigration and Nationality Act. Appeals can be made from the Immigration Court, the Bureau of Citizenship and Immigration Services, the Department of State, the Department of Labor and many more.
Appeals go to many different types of entities. Depending on where the original denial came from, appeals can go to the Board of Immigration Appeals, the Board of Alien Labor Certification Appeals, the Administrative Appeals Unit, various Federal District Courts, various Federal Appellate Circuit Courts and the United States Supreme Court.
Appeals are extremely time sensitive. This means that if the appeal is sent one day late, you will have probably lost all chances to ever appeal the decision. Our law firm can get the appeal out in an expedited timely manner to ensure that you are protected.
Losing at the Immigration Court is not the end
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Question: I lost my case at the Immigration Court. I understand that I have many issues that I can appeal and that there is a very reasonable chance that I could win. Can you let me know where my appeal goes and what might happen?
Answer: There are many Immigration Courts in the U.S. All together there are about 55 Immigration Courts through all 50 States as well as in Puerto Rico. Whenever you lose at the Immigration Court level, you appeal to the Board of Immigration Appeals or the BIA. There is only one BIA in the entire United States. The BIA is located in Virginia and handles all of the appeals of every Immigration Court throughout the entire United States.
The Notice of Appeal must be in the hands of the BIA no later than 30 days after issuance of the decision from the Immigration Judge. Afterwards, it goes to a panel of three of the members of the Board of Immigration Appeals and in about one year the decision is issued.
Question: I have heard that there will be some changes at the BIA. Is that true and what are they?
Answer: Yes it is true. The changes are not for the better. In fact, the changes will make the appeal process to the BIA an exercise in futility and will deny numerous rights to immigrants and their rights to appeal. Attorney General Ashcroft has just issued regulations to go into effect later this month that will change some of the basic ways that the BIA decides cases. First, they will no longer make a three member panel to decide cases, but only one member will decide. Only on cases of novel importance or ones that are unusually complicated will it be referred to a three member panel. Who decides if a case is novel or unusual is unclear. In all other real appeals (other than the new BIA regulations) it goes to a three member panel. This gives the person appealing the knowledge and satisfaction that the appeal will be decided among three qualified persons who must come to a consensus. Now, the appeal at the BIA, for the most part, is in the hands of one person. This item by itself takes away much of the due process and fairness to the immigrant.
Next, there is now a timetable that is set for deciding the case. Thus, rather than taking the necessary time to properly decide the case, the Attorney General has mandated that the cases take around 6 months. Thus, again there is a violation of the Due Process rights of immigrants. An appeal should not have as its primary importance the number of days or months it must be decided. What this will do is make a single member rush through cases to make sure that the timetable is met, rather than the case being decided on its merits.
Question: What will happen if the BIA denies the case?
Answer: In reality, that is what will happen in most cases. Because of these new regulations, and because of the violation of Constitutional Due Process rights, people will simply use the BIA as a stepping stone to get to the real appeal. Once the BIA denies the case, it can be appealed directly to a Circuit Appellate Court of the United States. These courts are right below the U.S. Supreme Court. In these appeals, there will be a three judge panel and they will give a real chance to have the case heard on the merits. Do not give up with these new regulations. Just keep fighting until you get to the Circuit Courts, and hopefully, we can restore the immigrant rights that have been lost.
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Filed under: BIA | Tagged: #bia, Appeal, BIA, bia board of immigration appeals, BIA Pro Bono Project, Immigration, Immigration Attorney, Immigration Lawyer, Motion to Reopen with the BIA | 1 Comment »
Question: I lost at the Immigration Court level. I appealed the decision about six months ago to the Board of Immigration Appeals (BIA). Now, I just received a decision of the BIA. The entirety of the decision essentially states that the case is denied without giving any reasoning whatsoever. There is nothing else written on the decision. There is no reasoning to the opinion and no discussion as to why it was affirmed without an opinion. I do not know what to do at this point. I do not know how I can appeal as I cannot tell why the BIA denied the case. Can you help?
Answer: Unfortunately, it is becoming more common for the BIA to issue decisions in this manner. It is very unfair as it does not discuss any merits to the appeal, nor does it discuss why they agree with the Immigration Judge. This is a practice that has become all but common.
Over the past several months, the courts of appeals have issued several decisions directly (and indirectly) addressing the BIA’s summary affirmance without opinion (AWO) procedure. The AWO procedure allows a single BIA member to affirm the underlying immigration judge’s decision, without giving any reasons and without adopting the reasoning of the immigration judge.
To date, all of the courts to address AWO’s have turned aside challenges to the validity of the regulations. Nonetheless, most of the published decisions do not foreclose all challenges to AWO’s. Many of the AWO-related court decisions address only limited aspects of the AWO procedure or are limited to the facts of the case.
Question: Does this mean that I should appeal to the Circuit Courts?
Answer: Yes, you should do what is known as a Petition for Review to the Circuit Courts of Appeal. While people have been trying for months to get the AWO overturned, there have not been any conclusive decisions on this matter. Therefore, it is necessary to read closely the controlling cases in your circuit and argue for a narrow interpretation of the AWO cases.
In particular, one argument that has not been foreclosed is that the BIA failed to comply with its own regulations because the case did not meet the criteria for an AWO decision.
Essentially, the BIA member must find that the case satisfies three regulatory criteria before he or she can issue an AWO decision. Specifically, the BIA member must find 1. That the result reached by the immigration judge was correct; 2. That any errors in the decision below were harmless or nonmaterial; and either 3. (a) That the issue on appeal is squarely controlled by existing Board or federal court precedent and does not involve the application of precedent to a novel fact situation; or (b) That the factual and legal questions raised on appeal are not so substantial that a written decision is warranted.
In order to show that the BIA is not complying with its own regulations, it is important to brief fully the merits of your case. Thus, although there necessarily will be additional reasons for remanding the case to the agency, urge the court to remand for the reason that the BIA member did not comply with the AWO regulations.
Therefore, while it will not be easy, you should not give up and keep fighting to try to get the summary decision without opinion overturned. Otherwise, the BIA will simply be a rubber-stamp for whatever the judge did and not a real appellate body.
Filed under: Appeal, Congress, Immigration, Immigration Law, immigration provisions | Tagged: Appeal, BIA | 1 Comment »
Question: I have heard that some new case just came down as a victory for a person filing for asylum. Is that true.
Answer: Yes. For years due process rights have been stripped away from aliens. These people who come into the United States are at the mercy of the laws of the United States. Many aliens apply for asylum in order to avoid having to return to their own countries which have persecuted them. They will leave everything behind and come to the United States with nothing else than the clothes on their backs. They are desperate people who are looking for refuge.
Once they come to the United States, they have one year to apply for asylum. First, the asylum will be processed and decided by the asylum officer. If that officer denies the case, it is immediately referred or sent to the Immigration Judge. In other words, when the alien loses at the asylum officer level, he or she is immediately put into deportation (now known as removal) proceedings.
The Immigration Judge will be able to hear the case de novo. Many times an alien will attempt the first try at asylum by themselves, and then, only after they lose at the asylum officer level will they secure counsel.
If the Immigration Judge denies the case, then it can be appealed to the Board of Immigration Appeals. Lately, the Board of Immigration Appeals has been issuing summary decisions which are basically two to three lines long. These decisions many times will not give any type of reasoning as to why the decision was issued and why the alien’s case was denied.
However, the Ninth Circuit Court of Appeals has just issued a decision which not only verifies certain due process rights still available for aliens, but criticizes the Board of Immigration Appeals on this particular decision.
In this case the Court had to decide whether the Board of Immigration Appeals erred in dismissing an appeal when the petitioner (the person applying for asylum) dutifully followed all regulations and procedures pertaining to filing his Notice of Appeal, but the Board of Immigration Appeals itself deprived him of the opportunity to timely file his brief by sending the briefing schedule and transcripts of proceedings to the wrong address.
The Immigration and Naturalization Service (“INS”) contended that the Board of Immigration Appeals decision, dismissing petitioner’s appeal from the denial of asylum solely on adverse credibility grounds, should be affirmed despite the Board of Immigration Appeals failure to provide any notice and any opportunity to be heard. In other words, the Immigration Judge denied the asylum claim only and solely because he had found the alien not to be credible.
The Court ruled that because these minimal due process requirements are clear and fundamental, and petitioner was prejudiced by an adverse credibility determination unsupported by substantial evidence, that they would grant the petition. However, the path they took to grant the petition was full of statements to the Board of Immigration Appeals which indicate they were not pleased with the decision making process in this case.
In this case, the alien had timely filed an appeal to the Board of Immigration Appeals. However, he had moved subsequent to filing the Notice of Appeal. Over one year later, the Board of Immigration Appeals had sent the briefing schedule to the alien’s old address. It stated when the opening brief needed to be filed. Once the alien had received notification of the briefing schedule the date for the filing of the brief had passed. He filed an unopposed motion to the Board of Immigration Appeals to be allowed to file a late brief based upon the fact he never received the briefing schedule. The Board of Immigration Appeals denied his request and ruled that his asylum will be denied because of the inconsistent testimony which they had refused to allow him to brief in order to explain why such inconsistencies might have occurred.
The Court stated that the alien provided a credible account of persecution on political and religious grounds. The alien, Singh fled his native India after suffering persecution due to his support of religious and political rights for the Sikh minority in the Punjab province of India. He entered the United States without inspection in November of 1995 and filed an application for asylum. On September 26, 1996, the Immigration and Naturalization Service commenced deportation proceedings against him.
In his asylum application, and during seven subsequent hearings before an Immigration Judge held over the course of more than four years, Singh described his activism on behalf of the Sikh separatist movement in Punjab, including his membership in the All India Sikh Student Federation (“AISSF”) and his support of the Akali Dal Party.
At the age of nineteen, Singh became involved with the AISSF after an attack on the Sikh Golden Temple, which was believed to be the work of Indian security forces. In 1988, Singh was arrested during an AISSF rally that he organized in Jallhandar. He was held in jail for fifteen days, while being beaten and tortured by the police. He was never charged with a crime nor brought before a judge.
In January of 1992, Indian police again arrested Singh without a warrant. He was held for twenty days, beaten with a bamboo stick, punched, kicked, and threatened with death if he did not end his affiliation with the AISSF. The police told him he was arrested because of his association with Sikh militants, even though he adamantly denied any such association.
In August 1993, Singh was arrested for a third time, along with three other AISSF members, while leaving the Sikh temple in his village. He was held by the police for thirteen days, during which time he was beaten until he lost consciousness. His head was shaved, an affront to Sikh religious practice, and he was then forced to stand for hours under the hot summer sun.
In April 1995, Singh testified that he was arrested for a fourth and final time while distributing party posters and collecting party funds. This time, he was held in jail for thirty-five days, again without being charged with a crime or taken before a judge. While in jail, he was tortured, humiliated, and threatened with death if he continued to support the AISSF.
The Board of Immigration Appeals ruled that they found three inconsistencies (even though they did not let the alien explain those inconsistencies.) The Court held that adverse credibility findings are reviewed for substantial evidence. The Court went on to rule that the Board of Immigration Appeals refusal to allow Singh to file a brief explaining his allegedly inconsistent testimony violated his right to due process. They ruled that the Board of Immigration Appeals must provide a petitioner with a reasonable opportunity to offer an explanation of any perceived inconsistencies that form the basis of a denial of asylum. Denying Singh the opportunity to file a brief plainly violates this well-established due process right.
In statements which the Board was reprimanded, the Court stated that the Board, after sending the briefing schedule and transcript to an incorrect address, justified denying Singh’s motion to file a late brief by asserting that the motion was untimely. However, to comport with due process requirements, the notice afforded aliens about deportation proceedings must be reasonably calculated to reach them. The Court stated that notice mailed to an address different from the one Singh provided could not have conceivably been reasonably calculated to reach him. As Singh was not afforded notice of the deadline, the Board of Immigration Appeals reasoning that his motion was untimely is patently insufficient.
Singh’s testimony took place over the course of seven hearings spread out over four years, during some of which he was so fatigued that the hearing had to be continued “in deference to the respondent’s condition.” After reviewing Singh’s testimony alongside his explanatory brief, the Court concluded that the testimony was remarkably consistent given the circumstances. The Board of Immigration Appeals decision to the contrary was not supported by substantial evidence, and could only be a result of its refusal to entertain Singh’s brief. The Court went on further to state that the Board of Immigration Appeals own words were revealing: it considered its conclusion bolstered by he fact that Singh failed to provide “any specific and detailed arguments about the contents of his testimony and why he should be deemed a credible witness.” Because the Board of Immigration Appeals denied him the opportunity to do just that, they reversed its determination that Singh is not credible.
In its final ruling, the Court held that because the adverse credibility decision was the sole basis for the denial of asylum, substantial evidence compelled them to find that Singh is eligible for asylum. They remanded the case back to the Board of Immigration Appeals to exercise its discretion, accepting Singh’s testimony as credible, to determine whether to grant asylum.
This case is a victory for aliens insofar as it shows that their due process rights cannot simply be trampled upon and that they must be afforded some level of due process in their asylum claims.
Brian D. Lerner is an Immigration Attorney Specialist. This firm does every aspect of immigration law including family and employment based petitions, deportation defense and criminal related immigration issues, asylum, naturalization, appeals, nonimmigrant visas, immigrant visas, and all other areas of immigration law. An appointment can be made by calling (866) 495-0554 or (562) 495-0554. The Firm website is www.californiaimmigration.us.
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