BIA Decision Demonstrates Weaknesses in Removal Process

Of frivolous asylum applications and recalcitrant countries: Does China own the State Department?

By Andrew R. Arthur on November 23, 2020

The Board of Immigration Appeals (BIA) issued a decision earlier this month in Matter of H-Y-Z-, a case that addresses motions to reopen following a final decision that an alien had knowingly filed a frivolous asylum claim. Read between the lines, however, and you will come to an inescapable fact that undermines the entire immigration system: Aliens ordered removed — that is after receiving due process — don't leave. And bigger structural issues, as well.

The respondent is a citizen and national of the People's Republic of China (PRC). It is not clear when or on what grounds she was placed into removal proceedings, but as relief from removal, she filed applications for asylum, statutory withholding of removal, and protection under the Convention Against Torture.

On June 28, 2004, after providing the respondent with the warnings for filing a frivolous asylum application, an immigration judge (IJ) denied her asylum, finding that her testimony was not credible and that "material elements" of her claim were "deliberately fabricated" — the standard for concluding that the respondent had filed a frivolous asylum application pursuant to regulation.

The consequences for filing a frivolous asylum application are (appropriately) severe. Under section 208(d)(6) of the Immigration and Nationality Act (INA):

If the Attorney General determines that an alien has knowingly made a frivolous application for asylum and the alien has received ... notice ... the alien shall be permanently ineligible for any benefits under this chapter, effective as of the date of a final determination on such application. [Emphasis added.]

"This chapter" is Title II, chapter 1 of the INA, and would include most immigration benefits, though a frivolousness finding, however, would not preclude the granting of statutory withholding or CAT.

In any event, she eventually sought to reopen her case so that she could receive derivative status as a U nonimmigrant under section 101(a)(15)(U)(ii)(II) of the INA, from which she would otherwise be barred pursuant to section 208(d)(6) of the INA. "Eventually", however, turned out to be a long time.

The attorney who represented her before the IJ filed a notice of appeal with the BIA, listing — among other grounds for appeal — that the IJ had "erred in finding the Respondent's application to be frivolous as it was not fabricated."

Note that the notice of appeal (technically the "Form EOIR-26") and the appellate brief are two different documents. The Form EOIR-26 is sufficient to prevent the IJ's order from becoming final, but if no subsequent brief is filed, the BIA can simply dismiss the appeal, rendering its decision final.

A second attorney filed the brief in support of the respondent's appeal, which, however, did not mention the frivolousness finding. The BIA dismissed the appeal in October 2005 (a year after the IJ's decision), and notwithstanding the fact that the issue was not briefed, it "specifically affirmed the Immigration Judge's determinations that [the respondent] lacked credibility and submitted a frivolous application for asylum."

Then, a third attorney filed a petition for review with the U.S. Court of Appeals for the Third Circuit In December 2005. While that petition was pending, the same attorney filed a timely motion with the BIA to reconsider its decision and reopen respondent's case. That motion was premised on an alleged mistranslation of a foreign document that was previously submitted and that the IJ considered as evidence. The BIA denied the motion, which the respondent did not appeal.

The Third Circuit ruled on the petition for review In a December 2006 opinion, Hui Yun Zhou v. Attorney General.

In that opinion, the circuit court noted that "IJs and the BIA must be diligent to scrutinize carefully a petitioner's testimony in removal proceedings," which the court concluded they did in respondent's case.

It specifically quoted from the portion of the IJ's decision in which he concluded that the respondent's application "was deliberately fabricated and clearly meets the definition of a frivolous application for asylum". Finding that there was substantial evidence to support the IJ's and BIA's conclusions, the circuit court dismissed her appeal.

Notwithstanding the fact that the respondent was under a final order, she did not leave. Almost 13 years after the Third Circuit's decision (and 14 years after the administrative decision was final), the respondent (through a fourth attorney) moved to reopen. That motion was filed to vacate the IJ's finding that the respondent had filed a frivolous asylum application, in order to overcome the section 208(d)(6) bar, and on the ground that she was now the beneficiary of a pending petition for a derivative U visa.

The respondent argued that the IJ had "habitually made erroneous frivolousness findings in asylum cases like hers", but that ineffective assistance of (the second) counsel prevented her from showing that to be true in her case (by not briefing the issue).

Under section 240(c)(7) of the INA, with limited inapplicable exceptions, an alien can file only one motion to reopen, and that one motion to reopen must be filed within 90 days of the final administrative order of removal. That time period would have ended at some point in January 2006, and as noted she had already filed a motion to reopen.

The BIA, however, by regulation, can reopen and reconsider a case in which it has made a decision at any point on its own motion (sua sponte). Sua sponte reopening, however, is discretionary, and in this case, the BIA opted not to exercise that discretion favorably toward the respondent.

She had asserted that reopening should be granted because of equities that she had acquired while she was illegally present in the United States. Not surprisingly, under case law, such equities are not generally considered "exceptional" enough to justify discretionary reopening.

Ineffective assistance of counsel presents a different case. There are good lawyers and bad lawyers, and generally, the law provides a procedure to protect aliens from malpractice. The requirements that an alien must meet to obtain such protection are stringent, however, but in this case the BIA found that the respondent had complied with those requirements.

To merit reopening for ineffective assistance of counsel, under Third Circuit precedent, an alien also must also show due diligence in seeking to have his or her case reopened, to correct the incompetence complained of.

The problem was that the BIA did not find that the respondent had been prejudiced by her second lawyer's failure to brief the issues of credibility and frivolousness, and had not been diligent in seeking reopening to correct that error in any event.

With respect to prejudice, the BIA noted that the first lawyer had raised the IJ's frivolousness finding in the Form EOIR-26 (and so the BIA had ruled on the IJ's adverse credibility and frivolousness findings), and the third lawyer had requested reconsideration of the BIA's decision — contesting the adverse credibility finding — as well.

Not to mention that the Third Circuit found no error in the determinations of the IJ and the BIA.

With respect to diligence in seeking reopening, the BIA held:

Despite the various efforts of the three attorneys who represented the respondent [ostensibly excluding the lawyer who filed the brief with the BIA], she has also not explained why she apparently made no inquiries regarding the frivolousness finding or took any steps to contest it between the years 2005 and 2019. This inaction for the nearly 14-year period between our administratively final order and the filing of her current motion demonstrates a lack of due diligence.

Given these facts, the BIA decided not to reopen respondent's case and reverse the IJ's finding that she had filed a frivolous asylum application, thereby barring her from relief (in this case again, derivative U-visa status).

At the end of its decision, the BIA gave the respondent the following notice:

If a respondent is subject to a final order of removal and willfully fails or refuses to depart from the United States pursuant to the order, to make timely application in good faith for travel or other documents necessary to depart the United States, or to present himself or herself at the time and place required for removal by the Department of Homeland Security, or conspires to or takes any action designed to prevent or hamper the respondent's departure pursuant to the order of removal, the respondent shall be subject to a civil monetary penalty of up to $813 for each day the respondent is in violation.

I have never seen an alien be subjected to that penalty, and likely the respondent will not be, either. The problem is that the PRC is a "recalcitrant country" — that is, it either fails to accept its nationals ordered removed, or slow walks the process — as my former colleague Matt Sussis noted in April 2019. That likely explains why the respondent has been in this country under a final order of removal — yet not removed — for almost 14 years (counting the petition for review).

There is a remedy. Section 243(d) of the INA provides that if the attorney general or DHS secretary tells the secretary of State that a country is refusing to accept its nationals ordered removed, the Secretary of State is supposed to tell his consular officers to stop issuing immigrant visas, nonimmigrant visas, or both to nationals of that country, until the country changes its ways.

The PRC has been a problem for years, and yet the State Department continues to issue visas to its nationals.

In Executive Order 13768, President Trump directed DHS and the State Department to "cooperate to effectively implement the sanctions provided by section 243(d) of the INA ... as appropriate."

In response, DHS imposed sanctions on B-visas (tourist and business) for certain government officials (and in some instances their family members and attendants) from Cambodia, Guinea, Sierra Leone, Burma, Laos, Ghana, and Pakistan. All Eritrean B-visas were suspended under this authority as well. The sanctions on Ghana and Guinea have subsequently been lifted.

Sanctions have never been imposed on the PRC, however, despite the fact that, as Sussis noted, there are a huge number of Chinese nationals under final orders of removal. In FY 2019 alone, 27,541 immigrant visas were issued to Chinese nationals (not counting Hong Kong). And, last year, they were issued an astounding 1,255,992 nonimmigrant visas.

There is a saying: "If you have a $20,000 loan, you owe the bank. If you have a $200 million loan, you own the bank." To explain, if you owe a small amount, the bank will come after you if you don't pay. If you owe a huge amount, the bank will "work" with you, so it stays solvent.

In this case, I guess that the PRC owns the State Department — it has so much trade with the United States ($634.8 billion, both imports and exports in 2019), and sends so many of its nationals, the United States apparently cannot afford to impose visa sanctions.

So decades pass, and Chinese nationals under removal orders remain. Even if they have been found to have filed frivolous asylum applications.

Topics: Asylum