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.
Filed under: best deportation attorney | Tagged: history, Immigration, news, Politics, trump | Leave a comment »
Brian D. Lerner Immigration Attorney & Deportation Lawyer Blog 
New BIA Policies Admonished by ABA
Question: I appealed to the Board of Immigration Appeals (BIA). The decision took only three months and there was no analysis. I read an article of yours last week on a similar subject. Is there anything being done about the way the BIA is making there decisions?
Answer: Actually, since last week, the American Bar Association (ABA) which is the organization that all attorneys in the United States must follow, issued a scathing report on how the new regulations of how the BIA makes it decisions violates the due process of the immigrants.
The American Bar Association today called on the Board of Immigration Appeals to discard procedures it adopted in 2002 or, failing that, to adopt a series of changes in order to unclog federal court dockets and achieve justice for immigrants and their families.
The findings of the study confirm concerns that the ABA has had from the time the changes were proposed, and about which the ABA has communicated with the Department of Justice.
“This study concludes that changes billed as simple procedural matters are having a serious and sweeping effect on the administration of justice,” said ABA President Dennis W. Archer. “After reviewing it, the ABA is recommending that the Department of Justice quickly discard the procedural changes and reinstate prior procedures.”
Question: What exactly does the study represent?
Answer: Its results demonstrate that: While 1 in 4 appeals were granted before the procedural changes, just 1 in 10 are now; The rate at which BIA decisions are being appealed to the federal courts tripled from 5 percent in 2001 to 15 percent in 2002. The 2nd, 9th, 5th and 3rd circuits have been particularly hard hit by higher rates of appeals; Reducing the number of BIA members who must review each case and imposing strict time periods for decision-making, measures purportedly aimed at eliminating the backlog, have backfired. Overworked board members have insufficient time to carefully consider the facts and legal arguments of each case;
Allowing affirmance without written decision creates a clear incentive for board members to meet case processing guidelines by affirming removal orders without regard to the merits of the appeal. Board members are not required to articulate the basis for their decisions. The lack of written decisions gives courts of appeal less guidance in reviewing decisions; and massive changes in immigration law, not lack of diligence or efficiency by individual board members, played a large part in the increased backlogs between 1996 and 2002.
Question: Are there any recommendations the ABA gives to the BIA.
Answer: Yes. The suggest the following: That each case have a written decision that addresses errors raised by the appellant, the basis for determining that the case was correctly decided below, specific legal precedents on which the decision is based, and the reason that the case was assigned to a single board member; Prohibit single-member review in cases where judicial review would be foreclosed; Prohibit single-member review for reversing an order of an immigration judge to terminate proceedings or grant relief to a non-citizen; Make available reconsideration of whether or not a case was appropriately decided whenever a removal order is affirmed by a single member; Ensure that time frames sufficiently accommodate the practical impediments many respondents face in preparing briefs or finding counsel; Expand board membership, rather than reduce it; Ensure decisional independence of board; and preserve access to judicial review of immigration decisions, as the federal courts provide important oversight.
As you can see, the way the BIA has been issuing decisions and the unfairness of those procedures has now reached much farther than the immigrant. If we keep fighting, eventually, we can get these matters overturned and make them fairer for the immigrant.
Share this:
Filed under: best deportation attorney | Tagged: commentary, news, Politics, Supreme court, trump | Leave a comment »