- A proposed regulatory change would allow an immigration judge (IJ) to deny a legally invalid application for asylum, statutory withholding, or CAT, without holding an evidentiary merits hearing — a procedure called "pretermission".
- Before doing so, the IJ or DHS must give the applicant at least 10 days' notice of the deficiencies in the alien's application or claim.
- This is all-but-legally identical to a procedure followed by federal courts to resolve claims and defenses before trial called "summary judgment", as well as a similar procedure called "summary decision" employed by DOJ's Office of the Chief Administrative Hearing Officer (OCAHO). Like the immigration courts and the Board of Immigration Appeals, OCAHO is an adjudicatory body within the Executive Office for Immigration Review.
- There is nothing in the statute or the regulations that would prevent IJs from pretermitting protection applications without holding a merits hearing, and the only applicable BIA precedent that would prevent pretermission was vacated by Attorney General Jeff Sessions in 2018.
- DHS and DOJ should consider, however, amending the proposed regulation to allow IJs to consider the particular characteristics of an unrepresented alien before pretermitting the alien's application for protection without an evidentiary merits hearing.
On June 15, the Departments of Justice (DOJ) and Homeland Security (DHS) proposed reforms to the implementation of the asylum and expedited-removal provisions in the Immigration and Nationality Act (INA) in a Joint Notice of Proposed Rulemaking (JNPR) containing draft regulatory amendments. One of those proposed amendments would allow IJs to skip evidentiary hearings where applicants have failed to establish legal eligibility for asylum, statutory withholding of removal under section 241(b)(3) of the INA, and protection under the Convention Against Torture, and deny those applications, an action known in the law as "pretermission". This amendment will conserve resources and allow immigration judges (IJs) to focus on more meritorious claims.
Pertinently, it specifically proposes to add a new subsection (e) to that regulation, allowing IJs to pretermit a protection claim where the alien has failed to establish legal eligibility for the protection sought — that is, has failed to "establish a prima facie claim for relief or protection under applicable law."
This is not a new procedural in the legal world, even if it is a new one as relates to asylum, statutory withholding, and CAT.
For example, Rule 56 of the Federal Rules of Civil Procedure (FRCP), which applies to Article III courts, states that a party may obtain "summary judgment" to dispose of a claim or defense in a case prior to a trial. Summary judgment may be granted if the party requesting it "shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."
In other words, if the facts are not at issue, and the only question is whether the non-moving party can sustain a claim or defense as a matter of law, the court can issue a judgment in favor of the party seeking summary judgment if it can show the non-movant cannot prevail.
A similar mechanism is provided for in the regulations governing the Office of the Chief Administrative Hearing Officer (OCAHO), which is an adjudicatory body — like the immigration courts and the BIA — within DOJ's Executive Office for Immigration Review (EOIR).
Specifically, 28 C.F.R. § 68.38 provides that a party may move for what is termed "summary decision". Subsection (c) therein states that the administrative law judge must issue a summary decision sought by any party on any part of a complaint if the evidence shows "there is no genuine issue as to any material fact and that [the] party is entitled to summary decision." As OCAHO case law shows, "summary decision" is based on "summary judgment" in federal courts, and "OCAHO jurisprudence looks to federal case law interpreting" the procedures guiding summary decision in Rule 56(c) of the FRCP, "for guidance in determining when summary decision is appropriate."
The same would likely be true if the regulation proposed by DHS and DOJ in the JNPR is ultimately issued in a final rule.
That said, one need not look that far afield to find precedent for the regulatory amendment in the JNPR, as this standard basically already applies to IJ and BIA decisions on aliens' motions to reopen to apply for new relief.
The regulations governing the immigration courts and the BIA provide for such reopening of decisions issued by those courts. The Ninth Circuit explains in its primer on reopening in immigration proceedings that a petitioner may move to reopen removal proceedings to apply for a new form of relief, but that the BIA can deny such a motion where the movant has "fail[ed] to establish a prima facie case for the relief sought." That circuit court has explained elsewhere that "a prima facie case is established when the evidence reveals a reasonable likelihood that the statutory requirements for relief have been satisfied" (internal punctuation omitted) — that is, the alien has shown he or she is eligible for the relief as a matter of law and fact.
Nor are there any legal requirements that an IJ hold an evidentiary hearing on an application for asylum, statutory withholding, or CAT where there are no factual issues in dispute, and the alien applicant fails to show that he or she is eligible for such protections as a matter of law — anymore.
I say "anymore" because there used to be. In its 2014 precedential decision in Matter of E-F-H-L, the BIA held that an applicant for asylum or statutory withholding in removal proceedings "is entitled to a hearing on the merits of those applications, including an opportunity to provide oral testimony and other evidence, without first having to establish prima facie eligibility for the requested relief."
The IJ there concluded that the respondent's asylum application and the prehearing brief he submitted in support of that application failed to demonstrate that he was prima facie eligible for asylum and statutory withholding. For that reason, the IJ held the alien was not entitled to a hearing on the merits of those applications, and denied them.
The BIA disagreed, and held, as noted, that the applicant did not need to show that he was prima facie eligible for such protection in order to be entitled to a hearing on the merits, at which he could present evidence and testimony. It admitted that a regulation permitted the IJ to control the scope of the evidentiary hearing, but concluded that the IJ had to at least hold a hearing.
The BIA relied upon three main sources of authority for its determination: section 240(c)(4)(B) of the INA, the aforementioned regulation (8 C.F.R. § 1240.11(c)(3)), and its 1989 decision in Matter of Fefe.
The statutory and regulatory provisions cited, respectively, direct the IJ to assess the facts presented by an alien in support of an application generally and an asylum application specifically. At issue in Matter of E-F-H-L-, however, was not the facts upon which the alien based his claims, but upon the legal sufficiency of the claims themselves.
In Matter of Fefe, the BIA held that at a minimum, an applicant for asylum must be allowed to take the stand in support of that application and be questioned whether the information contained therein is true and correct — a truncation of the proceeding that would normally only be held where the parties had stipulated that the facts in the application would be consistent with those in the alien's testimony, and would be believable.
The alien in Matter of Fefe actually declined to testify, and the government attorney, in closing, questioned the veracity of the claims in the application. The IJ denied protection, concluding that the court did not know whether the applicant's story was "true or not".
The BIA, in holding that the IJ erred in not holding an evidentiary hearing, relied on regulations then in effect that required the applicant to "be examined in person by an immigration officer or judge prior to the adjudication of the asylum application." Those regulations have subsequently been stricken, a fact that was recognized by the BIA in Matter of E-F-H-L-, which (erroneously) concluded, however, that those regulations did "not differ in any material respect from" 8 C.F.R. § 1240.11(c)(3).
I will note that subparagraph (iii) in that regulation states: "During the removal hearing, the alien shall be examined under oath on his or her application and may present evidence and witnesses in his or her own behalf." That subparagraph, however, is subordinate to paragraph 8 C.F.R. § 1240.11(c)(3) itself — which specifically requires "an evidentiary hearing to resolve factual issues in dispute". It says nothing, however, about a requirement that such a hearing occur where there are no factual issues in dispute — the subject of the proposed amendment.
In any event, then-Attorney General (AG) Jeff Sessions utilized his referral authority to issue his own order in Matter of E-F-H-L-, vacating the BIA's decision in that case, on a very unusual set of facts.
You see, after the BIA's remand there, the applicant withdrew his applications for asylum and statutory withholding, opting instead for administrative closure to await adjudication of an immigrant visa petition (Form I-130) that had been filed on his behalf. The AG held that because the BIA had remanded the case to allow the alien to pursue an application that had subsequently been withdrawn, the BIA's decision was moot, and so the AG vacated it.
The deeper implications of the AG's order were apparent, however — at least to me. As I explained in my assessment of that order, it likely would allow IJs "to dismiss, without holding an evidentiary hearing, applications for asylum and withholding of removal for which the applicants are not prima facie eligible."
With respect to the latter point, I explained:
This generally occurs where applicants have failed to show a nexus between the harm they allegedly suffered or fear and one of the five factors (race, religion, nationality, membership in a particular social group, or political opinion) for such relief, or because they have failed to show harm and a fear of harm at all. This will allow those judges to preserve precious docket spaces for more meritorious cases.
My assessment of the implications and benefits of the AG's order apply with equal effect to the proposed regulatory amendment in the JNPR.
To backtrack, however, the BIA in its decision in Matter of E-F-H-L- made much of the utility of an evidentiary hearing, even on a protection application that lacks legal sufficiency. In particular, it held that both it "and the circuit courts have recognized that in certain circumstances, the facts underlying an application for relief from removal may continue to develop up to the time of, and even during, the final individual hearing on the merits."
This raises two points.
First, the scenario described by the BIA essentially allows an alien to file an asylum application that contains no facts at all, and then expound on his or her history and theories of relief at a subsequent merits hearing. If that is the case, why require the alien to file an application at all?
Moreover, such cases would place the DHS attorney representing the government at a significant disadvantage in challenging the all-but-blank application. This would deprive the government of its ability to challenge any facts presented at the removal proceeding or the applicant's theory for relief. Notably, removal proceedings are adversarial in nature, and the government is entitled to notice of the claim to prepare — which the BIA's decision could well have denied.
Second, the proposed regulation anticipates and addresses these issues. An IJ would be allowed thereunder to pretermit an application for asylum, statutory withholding, or CAT upon a motion by DHS or on the IJ's own initiative (sua sponte). In either case, the regulation makes clear that the applicant must be given at least 10 days to respond to either DHS's motion to pretermit or the IJ's own order to show why the application should not be pretermitted.
This will give the alien the opportunity to present any legal arguments or provide additional facts to be proven at a merits hearing that are not already in the application, and/or in any supporting documents and briefs. The proposed regulation would require the IJ to consider any response in deciding whether to pretermit. Such notice will protect the alien's rights, but also prevent a situation in which the alien submits a factually or legally inadequate application only to throw facts at the court during the merits proceeding to see which ones support the claim.
Finally, as I stated in my assessment of AG Sessions' order in Matter of E-F-H-L-:
In the case of an unrepresented applicant, particularly one who is not fluent in English, such a summary determination would not be appropriate, and likely would not have been issued. In those cases, it is the duty of not only the applicant, but also the immigration judge and the ICE counsel to develop the record in order to assure that the applicant's claim is fully heard, which generally requires an evidentiary hearing.
I stand by those points, and the final rule should make clear that an IJ in considering pretermission of an application for protection should take into account the specific characteristics of an unrepresented applicant, and in particular the applicant's ability to present his or her claim absent a hearing.
That said, however, the idea behind asylum, statutory withholding, and CAT is that a foreign national has come to this country seeking protection for specific reasons (and in particular, fearing harm from a specific source). Therefore, even an unrepresented alien respondent should be expected to explain what those reasons are, whom and what the alien fears, and why. And any such exception should not swallow the rule, but instead act as a screen to ensure that there is some merit to the alien's claim.
In summary, the proposed amendment in the JNPR that would allow IJs to pretermit legally invalid protection applications is well grounded in law and legal practice — including EOIR regulations and IJ and BIA procedures. It will speed the adjudication of those applications consistent with due process, and will preserve judicial resources — thereby allowing IJs to focus on more meritorious claims. It should be adopted in the final rule — with the minor amendments I have suggested herein.