The Board of Immigration Appeals (BIA) — the DOJ administrative tribunal that reviews immigration decisions — recently issued an opinion in Matter of M-R-I-, concluding that applicants for asylum and related humanitarian protections who go back to their home countries on advance parole “absent compelling reasons for the return” abandon those applications. That’s common sense — if an alien claims a country is too dangerous to return to, he shouldn’t voluntarily go there — but let’s wait to see what the federal courts think — and how they analyze the administrative decisions.
“Advance Parole”
As the Legal Information Institute (LII) explains:
Advance parole is a travel document granting permission to certain foreign nationals to re-enter the U.S. after traveling abroad. These foreign nationals typically have applications pending for immigration benefits or for changes in non-citizen status. Advance parole must be obtained prior to leaving the U.S. Failure to do so may result in the foreign national being denied entry to the US and forfeiture of any pending application.
Aliens seeking advance parole (“AP”) must file a Form I-131, “Application for Travel Documents, Parole Documents, and Arrival/Departure Records”, with USCIS, and if permission to travel is granted the alien will receive a Form I-512, “Advance Parole Document”.
AP itself is a form of “parole” under section 212(d)(5)(A) of the Immigration and Nationality Act (INA), an authority Congress granted to the DHS secretary to permit applicants for admission who are inadmissible to the United States (generally because they lack proper documents) to enter this country without being formally admitted.
As LII suggests, however, AP is more of a placeholder that permits aliens to depart and return than it is a formal release from DHS custody — which is how the Biden administration generally (ab)used its limited parole authority to funnel nearly three million inadmissible applicants for admission into the United States.
One other catch is that AP doesn’t ensure that aliens who are granted advance parole will be admitted back into the United States. Holders of a Form I-512 are still subject to inspection under section 235 of the INA at a CBP port of entry upon return and run the risk of being expelled or detained — or worse — when they come back.
M-R-I-
The respondent is a national of Nepal who entered the United States in an unspecified manner but who is indisputably removable, claimed a fear of harm if returned, and applied for asylum under section 208 of the INA, withholding of removal under section 241(b)(3) of the INA (“statutory removal”), and protection under Article III of the Convention Against Torture (CAT) as relief from removal.
Applicants for those three forms of protection file a single written request, the Form I-589 “Application for Asylum and for Withholding of Removal”, for all of them, and while M-R-I-’s I-589 was pending before the immigration court, he first asked DHS for advance parole so he could return to Nepal.
As the BIA explained, M-R-I- claimed he sought AP “because he missed his family and was concerned for his mother’s health and his family’s well-being after the 2015 earthquake” in that South Asian country.
USCIS granted that request, and he returned to Nepal for approximately two months in 2016.
Justice plainly moves slowly, because M-R-I- was still awaiting a hearing on his I-589 in 2018, when he again requested AP, this time so he could go to India and meet family members who had moved there.
Again, that request was granted, and again M-R-I- was gone for about two months.
It wasn’t until June 2020 that the immigration judge issued a decision, in which the court concluded M-R-I- had “abandoned his applications because he returned to Nepal under a grant of advance parole after filing his asylum application and did not establish compelling reasons for such return”.
Specifically, the immigration judge:
explained that the last health incident and hospitalization for the respondent’s mother occurred approximately 4 years before the respondent returned to Nepal and the earthquake occurred 1 year before the respondent’s travels. He found that the significant gap in time between the alleged triggering events and the respondent’s trip to Nepal undermined the claim that he had a compelling need to return to Nepal, as did the respondent’s ability to meet with his Nepalese family in India.
“Abandonment”
An applicant for asylum bears the burden under section 208(b)(1)(B) of the INA of proving he’s a “refugee” as defined in section 101(a)(42)(A) of the INA, that is an alien who’s “unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of” his country of nationality or last habitual residence because of fear of persecution on certain specified grounds.
Voluntarily returning to one’s country of nationality on AP would logically, therefore, undermine one’s protection claim, but to make that point even clearer, regulations at 8 C.F.R. § 1208.8(b) specify that asylum applicants who go back home on advance parole “shall be presumed to have abandoned” their applications, unless they are “able to establish compelling reasons for such return”.
“Compelling reasons” in this context are factual issues for immigration judges to rule upon, and as the opinion in Matter of M-R-I- reveals, the immigration judge in this case decided the question against the respondent.
Matter of M-R-I-
M-R-I-’s only real argument with respect to abandonment on appeal was that the immigration judge erred in considering DHS’s closing argument because it “was allegedly not served on the respondent in a timely manner and was missing some signatures”, and thus the government had waived its claim.
Both the immigration judge and the Board concluded that DHS had filed its closing argument properly under the timeline set by the court, but in any event, the BIA found that the respondent failed to show that his case was prejudiced by the alleged untimely filing because he was able to respond to it.
More importantly, however, the BIA concluded that because M-R-I- bore the burden of proving that he was eligible for asylum, he also bore the burden of proving that that he hadn’t abandoned his I-589 by going back home regardless of what the government claimed.
“Even if DHS’ arguments were not in the record,” the BIA concluded, “the respondent would still have to explain why he voluntarily returned to the country where he allegedly fears persecution and torture.”
Finally, the Board offered an extensive analysis of why M-R-I- not only abandoned his asylum claim but also his applications for statutory withholding and CAT as well.
As noted, the abandonment rule at 8 C.F.R. § 1208.8(b) only applies to asylum applications, but the BIA concluded that the “textual and contextual clues” therein “all support concluding that the respondent abandoned a singular application including asylum, withholding of removal, and protection under CAT”.
Circuit Court Review
Unlike the factual question of whether “compelling reasons” justified M-R-I-’s return to Nepal and his trip to India while his I-589 was pending, the issues of which party bore the burden on abandonment and how the regulatory asylum abandonment bar relates to statutory withholding and CAT claims are legal issues requiring the interpretation and application of black-letter law.
That will matter if M-R-I- files a petition for review under section 242 of the INA in U.S. circuit court. Here’s why.
Congress in section 242(b)(4) of the INA strictly limited the authority of federal courts of appeal to second-guess factual determinations made by immigration judges and the Board, because: (1) Congress didn’t like how courts were using their own takes on factual issues to reverse administrative decisions; and (2) circuit courts reviewed only the cold documentary record and thus weren’t in as good a position as immigration judges to gauge aliens’ in-court testimony.
Consequently, section 242(b)(4)(B) states that “administrative findings of fact are conclusive” on circuit court appeal “unless any reasonable adjudicator would be compelled to conclude to the contrary” (Emphasis added.)
Legal questions are different, however. Under longstanding precedent, circuit courts review BIA and immigration court findings on questions of law de novo, i.e., from scratch, and without any deference to the determination below (except to the extent deference is owed to the agency’s interpretation).
For what it’s worth, the immigration judge’s findings on whether M-R-I- offered compelling reasons for his departures present a mixed question of law and fact, and increasingly the Supreme Court has held that the application of legal standards to undisputed questions of fact are appropriate for circuit court review — even when the INA otherwise bars review of “judgment[s] regarding the granting” of certain forms of immigration relief.
The primary issue, if M-R-I- seeks court review, is whether the immigration judge’s “compelling reasons” analysis is more a factual question (entitled to greater deference) or a legal one (entitled to little or no deference).
Asylum Applicants Ignore the Warnings
Plenty of advocates warn asylum applicants that trips home on advance parole could “undercut” their claims, and yet some go anyway. And the Board of Immigration Appeals agrees. But when it comes to whether “compelling reasons” justify such journeys, you can’t be sure whether circuit courts will agree with immigration judges — or even know the standards they’ll apply.