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Preventing Removal through Habeas Corpus

Posted on July 23, 2025 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I have heard that the government is trying to deport people to their countries even if the foreign government does not want them back. Is this true?

Answer: Yes. However, in a recent 9th Circuit decision, Ali vs. Ashcroft, 2003 U.S. App. LEXIS 19213 (9th Cir. 2003), this issue was addressed.

In this case, the man was from Somalia and he had a final order of removal against him. The Bureau of Customs and Immigration Enforcement (BICE) had plans to deport this person (Ali) to Somalia. He filed a Writ of Habeas Corpus in the District Court to prevent BICE from deporting him to Somalia (a country without a functioning government.)

First, Ali was not merely contesting the removal order. Instead, he was primarily arguing that BICE could not remove an alien to a country without a functioning government. Here, the Ninth Circuit held that administrative exhaustion is not required where they are not ruling on the merits of the removal, but rather, a practice of constitutional or statutory violations.

Next, this case held that if it would be futile to exhaust the administrative remedies, and the issue revolves around a legal question, that the appellant is not required to exhaust his administrative remedies.

This is a very critical ruling. Primarily, the reality of being removed from the United States is weighed against exhausting administrative remedies. What usually happens is that when a person is in imminent danger of being deported or removed from the United States, a Motion for a Stay of that Deportation can be filed with the Board of Immigration Appeals. In the vast majority of the cases, they will deny the Stay of Deportation, or simply not rule on the matter prior to the person being deported.

BICE will always try to make these jurisdictional arguments based upon the fact that the alien has failed to exhaust their administrative remedies. However, if the alien did not file the necessary Habeas Corpus to get a real chance at getting the stay of deportation issued, he would be deported and the issue would be moot. In this case, the alien was from Somalia and he faced a real likelihood of being killed or tortured by being returned to a country whereby there is no organized government. Thus, not only would it have been futile to try to get the stay of deportation issued by the BIA, it could have resulted in his death.

Thus, the Ninth Circuit ruled that judicial review was not barred in this case because of a lack of exhaustion of administrative remedies.

In Ali, supra, the Ninth Circuit goes through an analysis of how the government determines which country a person will be deported. The Immigration and Nationality Act §1231 deals with the procedure that must be used in order to designate the country of deportation. It essentially states that a country which the alien designates (or which the government designates if the alien is unwilling to do so) will be the country of removal if the government of that country gives their approval to accept the alien within thirty days. If the foreign government does not give their approval within 30 days, then the subsequent provisions of the statute must be followed to determine which will be the country of removal.

The subsequent provisions also make clear that it is necessary to have the foreign government’s approval in order to deport and remove the alien to that country.

Failing the first two sections, the government must look to a third section to determine the country of removal. In this third section, there is a litany of different provisions that are stated as to where will be the country of removal. All of the provisions do not require the foreign governments consent as do the prior provisions. Here, the BICE was arguing that the statute in the third set of provisions does not require that they have the governments consent, and therefore, they do not need any consent to deport aliens under this provision.

The Ninth Circuit adopted the reasoning of the District Court. In essence, they stated that the consent requirement of the foreign government was implicit in the third section. Otherwise, it would render the first two sections superfluous. For example, the government in the first section could deny the Attorney General permission to deport the alien to their country. Then, the Attorney General could go down to the third section to give themselves authority to deport the person without the consent of the foreign government which was specifically required in the first section. In fact, to allow the third section to stand without an implicit approval by the foreign government would make the first two sections meaningless.

Unfortunately, we are facing more situations similar to this case where the government will try to bootstrap a particular provision as giving them authority to perform an action when other provisions do not give them such authority.

Thus, this case has stood up to the fairness of aliens in this particular situation. The law has shown that BICE cannot try to deport an individual to a country who will not accept this alien and whom will torture and/or kill him upon his return.

After concluding that it was not legal to deport a person to a country where the foreign government has not given their authorization, the Ninth Circuit then addressed the issue of indefinite detention of the alien. Here, where there is no likelihood of removal in the foreseeable future, the alien must be released.

This particular case is not only a win for this particular alien, but for all aliens in his similar situation across the U.S. It is a ruling that shows that basic humanitarian considerations need to be followed.

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Is Immigration suffering or being helped by DHS?

Posted on July 21, 2025 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: Last year, the Department of Homeland Security came into being. I have many friends who are having lots of problems with immigration. Is the DHS helping or hurting these people?

Answer: March 1, 2004 marks the one-year anniversary of the Department of Homeland Security’s (DHS’s) assumption of U.S. immigration functions. There are several problems that exist within the agency. 1) Inadequate Coordination: Because enforcement and adjudications are two sides of the same coin it would be to the benefit of all if there were close coordination from DHS and between the DHS and other federal agencies including the State Department, Department of Justice, FBI, and CIA. However, this has yet to be realized.

Next, inadequate funding long has characterized adjudications. Especially in light of this historical underfunding, it is imperative that the US Citizenship and Immigration Services (USCIS) be accorded adequate resources to do its job. Direct congressional appropriations are necessary in order to ensure that the USCIS lets the appropriate people into the country and bars those who mean to do us harm, and adequately delivers services.

Question: I also have many friends over the last year who have received answers to their applications. For one reason or another, it always boils down to a “no”.

Answer: This is a definite problem. The DHS must change the culture of “No”. There have been widespread reports of unfair, arbitrary and inconsistent adjudications. Reinforcing this view are the increased numbers of unnecessary requests for additional information that contribute to the dramatic slowdown in the processing of petitions and applications. While our immigration system has long been characterized by backlogs, delays, and inadequate funding, current backlogs and delays have reached historical levels. Many organizations and individuals are reporting severe delays in processing that have negatively impacted American business and family members. USCIS needs to efficiently and fairly adjudicate petitions and applications.

Question: I have read a report that the number of B2 Visitor Visas has been denied and cut drastically over the last couple of years. Is this really what DHS wants?

Answer: The Importance of Immigration at our Ports of Entry must be recognized. Our national and economic security depends on the efficient flow of people and goods at these ports. Unfortunately, current reports suggests that the Custom and Border Protection Bureau (CBP) is giving inadequate attention to immigration and is initiating polices that do not reflect the intricacy of the subject and its importance to our country.

Question: My family has appointments at the U.S. Consulate, but there have been numerous delays. Is this also a problem?

Answer: With the Department of Homeland Security’s authority to establish and administer rules governing the granting of visas, it is vitally important that visas be granted to the people who come to build America and denied to those who mean to do us harm. We must balance our national security and economic security needs by recognizing that the U.S. is tied to the rest of the world economically, socially, and politically. However, severe delays at the consulates continue to hamper the visa issuance process, with serious consequences for businesses, families, schools and others in the United States. The gridlock that has paralyzed the visa issuance process in the past two years must be resolved – the agencies charged with clearing security checks must be motivated to give these operations the priority that they deserve.
Thus, there are a great many items that must be worked upon. It is a constant balancing of safety verses allowing immigrants into the U.S. Hopefully, in the near future, there will be a comprehensive policy to deny visas to persons who would be a danger to our society, but to allow those into the U.S. for legitimate means.

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PERM: Am I an ‘Arriving Alien’?

Posted on July 6, 2025 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I am married to a U.S. Citizen and just entered the U.S. Unfortunately, I have a crime in my past. The Immigration Judge denied my case and stated that because I was an arriving alien that I do not qualify to adjust my status in the U.S. Is this true?

Answer: Actually, in a majority of the U.S. you would not be eligible to adjust status to that of a Lawful Permanent Resident because you are considered to be an arriving alien. This is when a person basically enters the U.S. and is immediately put into deportation or removal proceedings. However, there was issued just recently a decision in the First Circuit Court of appeal a case that deals with this very issue. This case raises issues of first impression in immigration law as to the validity of a regulation promulgated in 1997 by the Attorney General, 8 C.F.R. § 245.1(c) (8). The regulation redefines certain aliens as ineligible to apply for adjustment of status to lawful permanent residents. Under that regulation, the Attorney General will not consider an application for adjustment of status from the entire category of aliens who have been granted parole status (permitted to enter the U.S.) but have been placed in removal proceedings.

Question: What was the reasoning of the court?

Answer: First, 8 U.S.C. Section 1255 specifically states who is eligible to adjust status. Previously, in 1997, the Attorney General carved out an exception to this (through implementing new regulations) that arriving aliens are not eligible to apply. First, the actual code 8 U.S.C. Section 1255 (made by Congress and signed by the President) specifically permits persons whom are paroled into the U.S. (and therefore an arriving alien) to adjust status in the U.S. Therefore, the actual Immigration and Nationality Act is not silent on the issue to which the Attorney General made the regulation.

Next, the Court ruled that Congress has specifically stated where the Attorney General had the authority to issue discretionary decisions as to eligibility for adjustment of status. Here, there was no authority given to the Attorney General (John Ashcroft at the time) to issue such a decision to bar people from adjusting status when the Immigration and Nationality Act specifically permitted those people to adjust. Basically, Congressional intent in making the policies of who can adjust status takes precedence over what the Attorney General thought that he could do.

Question: So, what was the final outcome?

Answer: The First Circuit Court of Appeals sent the case back down to the Immigration Court for Adjustment of Status proceedings after ruling that the regulation promulgated by the Attorney General making arriving aliens (or those paroled into the U.S.) ineligible for adjustment proceedings unconstitutional.

Question: Does this rule apply all over the U.S.?

Answer: Unfortunately, it does not. It only applies if you happen to be living in the 1st Circuit. This would be in the Northeastern part of the U.S. Thus, in all other areas of the U.S. an arriving alien cannot adjust status in removal proceedings. However, this ruling from the First Circuit is very powerful and can be used to convince the Immigration Judge to permit such an adjustment. If he/she does not, you can take it up on appeal to the Board of Immigration Appeals. After, if you lose, you can appeal this up to the Circuit Courts of Appeal in your jurisdiction. Finally, if you lose there, take it all the way up to the U.S. Supreme Court.

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212(c) Deportation Relief Expanded.

Posted on June 17, 2025 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I have been in the U.S. for the last 25 years and committed only 1 crime in 1996. However, I am in deportation now and they claim that I am an aggravated felon and not eligible for 212(c) relief and that I will be deported for the rest of my life. I committed the crime in August of 1996, and plead guilty the following October. Is there anything I can do to avoid deportation?

Answer: If you happen to live in the jurisdiction of the 9th Circuit you are in luck. If you live elsewhere, I would get a good immigration attorney to fight for you up to the appellate level to make the same similar arguments that were made in the newly published 9th circuit case. First, it is necessary to have a little background. In 1996, Congress passed IIRAIRA which expanded quite considerably the definition of what crimes constitute an aggravated felony. It also repealed or took away 212(c) relief. This is a type of relief whereby if a person had a certain number of years in the U.S. as a lawful permanent resident and committed a crime that was not an aggravated felony (basically any crime that they received less than five years of jail time), they could apply for this relief in deportation proceedings. If they won, they would get their Green Card back and could remain in the U.S.

From 1996 until sometime in 2001, every court was denying 212(c) relief because it was repealed by IIRAIRA. However, the Supreme Court of the United States came out with a case called St… Cyr. Which essentially stated that it was unconstitutional to retroactively apply IIRAIRA to these people. It stated that if someone PLEAD guilty before April of 1996, that they could now apply for 212(c).

While St.. Cyr was a great case, it left a group of people out of its ruling that were similarly situated, but did not fall under the exact parameters of this case. It was those people who COMMITTED the crime before the passage of IIRAIRA, but were CONVICTED after the passage. In these cases, these people for all these years have not been eligible for 212(c) and have been deported for the rest of their lives.

Question: What did this new case rule?

Answer: Cordes v. Gonzales held that post-IIRIRA case law (namely INS v. St. Cyr) limiting the availability of §212(c) relief, to legal permanent residents who had not committed deportable offenses at the time of their conviction offends equal protection when §212(c) is available to similarly situated permanent residents who committed deportable offenses at the time of their conviction. The “only discernible difference” between the two groups, the court said, is that “those entitled to section 212(c) relief faced deportation at the time they entered their guilty pleas.” “This difference, however, is ‘irrelevant and fortuitous’ since the [immigrant in this case] quite obviously faces deportation now,” the court said. The court also found there is no rational basis for the disparate treatment of lawful permanent residents who are eligible for §212(c) relief under St. Cyr based on the “ironic fortune of facing the prospect of deportation at the time that they entered their guilty pleas” and permanent residents, like Petitioner, who are not eligible simply because their crime was not serious enough to render them deportable at the time they pled guilty. The court said:

“Allowing permanent residents who have committed worse crimes than Cordes to apply for section 212(c) relief, while denying the same opportunity to Cordes, does not achieve Congress’ express purpose behind the expanded definition of aggravated felony and its retroactive application: to expeditiously remove criminal aliens and make it more difficult for them to obtain relief from removal. Indeed, the disparate grant of section 212(c) relief here does not increase the total number of criminal aliens subject to removal, as Congress intended, but rather perversely increases only the number of less dangerous criminals subject to removal.”

Thus, this case now opens up the possibility of applying for 212(c) relief to those previously not eligible (at least in the 9th circuit court of appeals) and gives a much better fighting position to those in other jurisdictions to fight on this same basis.

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Removal Proceedings – What is it?

Posted on June 3, 2025 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I am now in removal proceedings. I also have many friends who are in the same type of removal proceedings. However, all of us have different situations. Under what basis can we be put into removal proceedings?

Answer: The Executive Office for Immigration Review (EOIR), an agency of the Department of Justice, oversees three components which adjudicate matters involving immigration law matters at both the trial and appellate level. Under the Office of the Chief Immigration Judge, more than 200 Immigration Judges located in 53 Immigration Courts nationwide conduct proceedings and decide individual cases. The agency includes the Board of Immigration Appeals (BIA), which hears appeals of Immigration Judge decisions, and the Office of the Chief Administrative Hearing Officer, which handles employment-related immigration matters.

Immigration Judges conduct removal proceedings, which account for approximately 80 percent of their caseload. Removal hearings are conducted to determine whether certain aliens are subject to removal from the country. Beginning April 1, 1997, the distinction between exclusion and deportation proceedings was eliminated, and aliens subject to removal from the United States were all placed in removal proceedings. Thus, the removal proceeding is now generally the sole procedure for determining whether an alien is inadmissible, deportable, or eligible for relief from removal. The Department of Homeland Security (DHS) is responsible for commencing a removal proceeding.

Removal proceedings generally require an Immigration Judge to make two findings: (1) a determination of the alien’s removability from the United States, and (2) thereafter deciding whether the alien is eligible for a form of relief from removal.

Usually at the beginning, an Immigration Judge conducts a bond redetermination hearing for aliens who are in DHS detention. The person in proceedings makes a request to the Immigration Judge to lower or eliminate the amount of the bond set by the DHS. These hearings are generally informal and are not a part of the removal proceedings. This decision can be appealed by either the alien or by DHS to the BIA.

Question: One of my friends actually already has their Green Card. Why would he be in removal proceedings?

Answer: An Immigration Judge can conducts a rescission hearing to determine whether a lawful permanent resident (LPR) should have his or her residency status rescinded because he or she was not entitled to it when it was granted. Additionally, it is possible for someone who is an LPR to commit a crime making them ineligible to keep their Green Card.

Question: What about someone who fears going back to their home country?

Answer: An asylum-only hearing will be used to determine whether certain aliens who are not entitled to a removal hearing but claim a well-founded fear of persecution in their home country are eligible for asylum. In normal circumstances, asylum claims are heard by Immigration Judges during the course of a removal hearing.

Thus, there are many different types of hearings that can be conducted. There is many times relief from removal proceedings, so you need to fight hard during the proceedings and do not let anyone walk over your rights.

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Door is Closed for Professionals

Posted on May 4, 2025 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I came here on a visitor visa 3 months ago and now I would like to apply for the H-1B. What must I do?

Answer: Unfortunately, you are too late for this years allotment. As of October 1, 2004, all H-1B’s have been allotted for the next fiscal year until October 1, 2005. Thus, as unfair as it seems, the day the new year’s allotment was opened, it was shut off and closed.

The H-1B Cap prohibits U.S. Employers from hiring global talent On October 1, 2004. USCIS officials announced that the H-1B cap on visas for highly educated foreign professionals had been reached. Unless Congress takes action before the end of the 108th session, employers will be barred from hiring new H-1B foreign professionals for an entire year. Essential action would include exempting from the H-1B numerical cap graduates from U.S. universities who have earned a Master’s degree or higher. Such a rational solution to this crisis would help ensure a workable H-1B program that would give U.S. employers access to the talent they need and help retain jobs in America. A select number of H-1B professionals are graduates from U.S. top universities’ Master’s and PhD programs. In the graduate-level math and sciences programs, foreign nationals represent roughly half of all graduates. Prohibiting access to these world-class minds raises troubling issues. Not only would U.S. employers miss out on American-educated talent, but we would be handing this talent to our competitors abroad. Indeed, foreign countries are updating their immigration policies to attract this highly educated talent, making the competition to retain the best and the brightest that much more difficult for the United States to win. The exhaustion of this fiscal year’s visa numbers also has made it more difficult for Americans to receive needed services. For instance, it is not commonly known that H-1B professionals serve as doctors, teachers and researchers, and work to develop products and services that improve the lives of Americans. H-1B professionals include psychologists and special education instructors who work with the mentally challenged, engineers who design tunnels and subway corridors that can withstand terrorist attacks, and biomedical researchers central to the fight against cancer, AIDS and other diseases. Without access to these highly educated foreign professionals, America will suffer. Not only will our ability to provide benefits to our own citizens be diminished, but the glow of American innovation that results from having access from the world’s brightest minds may be forever dimmed.

Question: Are there any other options?

Answer: There are other types of nonimmigrant visas such as the O, E, L, and other H’s. You should definitely look into those other options and not go out of status.

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I can get my Green Card back after having a deportation order?

Posted on April 30, 2025 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I was young and committed in a crime in 1994. Even though I had my Green Card for years, I was put into deportation proceedings in 2001 and was ordered deported. I am still in the U.S. Is there anything I can do?

Answer: The Department of Justice (Department) published a proposed rule to permit certain lawful permanent residents (LPRs) to apply for relief under former section 212(c) of the Immigration and Nationality Act, from deportation or removal based on certain criminal convictions before April 1, 1997. Certain LPRs who plead guilty or nolo contendre to crimes before April 1, 1997, may seek section 212(c) relief from being deported or removed from the United States on account of those pleas. Under this rule, eligible LPRs currently in immigration proceedings (and former LPRs under a final order of deportation or removal) who have not departed from the United States may file a request to apply for relief under former section 212(c) of the Act, as in effect on the date of their plea, regardless of the date the plea agreement was entered by the court. This rule is applicable only to certain eligible aliens who were convicted pursuant to plea agreements made prior to April 1, 1997.

Question: I have already lost at the Board of Immigration Appeals and am now appealing to the Circuit Court. What must I do at this point?

Answer: Based upon the regulations, you should request that the Circuit Court hold the case without processing it. Simultaneously, you should file a Motion to Reopen the case under 212(c) under this special rule to the Board of Immigration Appeals. If granted, the Board of Immigration Appeals will send the case back down to the Immigration Judge for hearings on 212(c).

Question: I have a friend in a similar situation who was actually deported back to his home country. Will he qualify to make the Motion to Reopen?

Answer: Under the new regulations, the answer is no. Unfortunately, the logic of the regulations is that they could have asked for various federal court relief or a stay of deportation, and therefore, their cases are closed and are no longer eligible for 212(c) relief.

Question: What if a person had a jury trial instead of pleaing guilty?

Answer: Again, they do not qualify for this 212(c) Motion to Reopen. They must have plead guilty, no contest or nolo contendre. There are other ways of fighting the battle to try to get 212(c) relief in federal courts. However, a straight forward Motion to Reopen will not work.

Question: Is there a time deadline in which to apply?

Answer: Yes. There will be a window of 180 days to apply. If you are unsure as to the exact date, you should get your motion filed as soon as possible.

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Is there any law coming to help undocumented workers?

Posted on April 14, 2025 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I have heard a lot about upcoming immigration reform and bills to help immigrants obtain jobs. However, I know many people who have been working under the table for a very small wage. Do know what laws may be coming and how they might help immigrants?

Answer: There has been the introduction in the Senate of the first comprehensive immigration reform bill introduced in Congress. Other bills are expected to be introduced shortly. One such proposal is centered on an uncapped temporary worker program intended to “match willing foreign workers with willing U.S. employers when no Americans can be found to fill the job.” The program would grant program participants temporary legal status and authorize working participants to remain in the U.S. for three years, with their participation renewable for an unspecified period. Initially, the program would be open to both undocumented people as well as foreign workers living abroad (with the program restricted to those outside of the U.S. at some future, unspecified date).

American employers would have to make reasonable efforts to find U.S. workers. Under this proposal, participants would be allowed to travel back and forth between their countries of origin and “enjoy the same protections that American workers have with respect to wages and employment rights.” The proposal also includes incentives for people to return to their home countries and calls for increased workplace enforcement as well as an unspecified increase in legal immigration.

Question: Are there any more bills?

Answer: The Immigration Act of 2004 also includes a “Willing Worker” program that revolves around a needed reform of the current H-2B program and the creation of a new H-2C program. The bill reforms the H-2B program as follows: it caps the program at 100,000 for five years, after which the numbers revert to 66,000; admission of H-2B visa holders is limited to nine months in any twelve-month period (with a maximum of 36 months in any 48-month period); and, with some exceptions, it does not allow portability. The new H-2C program is a two-year program

renewable for another two years. It is capped at 250,000 annually, and sunsets five years after regulations are issued. Portability is allowed after three months, with exceptions for earlier transfers allowed under certain circumstances. An attestation is required for both visas, with employers having to meet certain U.S. worker recruitment requirements. Dual intent is allowed in both visas and derivative status is available for both as well.

Thus, if these two reform bills go through, there will be a significant boost to the legal jobs available to people in these situations.

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Is my appeal useless?

Posted on April 9, 2025 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

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.

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Victory for Due Process Rights of Aliens

Posted on April 7, 2025 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

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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