The Executive Office for Immigration Review (EOIR), the Department of Justice component responsible the supervising the nation's 58 immigration courts, has issued a "Backgrounder on [its] Strategic Caseload Reduction Plan". Having encountered similar proposals in the past, I am generally skeptical of their ultimate effectiveness. This one, however, is particularly detailed; moreover, the attorney general has openly made backlog reduction a priority. For these reasons, I am cautiously optimistic that this proposal will be more successful than previous incarnations.
There is one simple step that the attorney general could take to meet one of the primary goals of that backgrounder, "Realign[ing] the agency toward completing cases." Specifically, Attorney General Sessions could issue a decision on certification clarifying two decisions from the Board of Immigration Appeals (BIA) that all but mandate full hearings on applications for asylum, withholding of removal, and protection under the Convention Against Torture (CAT), regardless of their legal merit.
According to the Transactional Records Access Clearinghouse (TRAC), as of October 2017 there were 650,411 cases pending before the immigration courts. In an April 2016, Human Rights First reported that 20 percent of all incoming removal cases in the immigration courts are applications for asylum. In FY 2016, the immigration courts received 65,218 asylum cases, while completing 52,109 cases. Plainly, asylum applications are a leading driver of the backlog.
In Matter of Fefe, a decision issued in 1989, the BIA considered an appeal from an immigration judge's denial of an application for asylum and withholding of removal filed by an alien from Haiti. According to the BIA, the applicant:
[C]ompleted a Request for Asylum in the United States (Form 1-589), including a two-page, typewritten addendum providing details concerning his fear of persecution in Haiti. ...
The applicant appeared with counsel for the hearing on the merits of his asylum application. Applicant's counsel stated that because "the 1-589 [is] such an extensive story in itself, we'll just rest on that." The [government] attorney also declined to ask the applicant any questions concerning his written asylum request, stating that he was "not going to cross examine." In a closing statement, the [government] attorney raised various questions regarding the nature of the information provided in the applicant's affidavit. The immigration judge then entered his decision denying the applicant's requests for asylum and withholding of deportation. In his decision, the immigration judge reviewed the applicant's written testimony but described his statements as "self-serving." The immigration judge also noted that the applicant had offered no corroboration for his Form 1-589, and he stated that "[w]e don't know whether his story is true or not."
In its decision, the BIA reviewed the regulations, and concluded that the immigration judge erred in denying the applications in this manner, holding:
At a minimum, we find that the regulations require that an applicant for asylum and withholding take the stand, be placed under oath, and be questioned as to whether the information in the written application is complete and correct. We would not anticipate that the examination would stop at this point unless the parties stipulate that the applicant's testimony would be entirely consistent with the written materials and that the oral statement would be believably presented.
In the ordinary course, however, we consider the full examination of an applicant to be an essential aspect of the asylum adjudication process for reasons related to fairness to the parties and to the integrity of the asylum process itself. We note that there are often significant differences (either discrepancies or meaningful omissions) between the written and oral statements in an asylum application; these differences cannot be ascertained unless an applicant is subjected to direct examination. Moreover, if an applicant is not fully examined under oath there would seldom be a means of detecting those unfortunate instances in which an asylum claim is fabricated. On the other hand, there are cases where an alien establishes eligibility for asylum by means of his oral testimony when such eligibility would not have been established by the documents alone.
Almost 25 years later, the BIA returned to this issue in Matter of E-F-H-L-. There, in addition to the I-589, the applicant filed two evidentiary exhibits and a prehearing brief. In that case, again, an immigration judge denied applications for asylum and withholding of removal without taking testimony. He concluded "the respondent's written asylum application and prehearing brief did not demonstrate his prima facie eligibility for relief," and therefore "determined that [respondent] was ... not entitled to a hearing on the merits of his applications."
Respondent appealed that decision, and the Board reversed, holding that "a full evidentiary hearing is ordinarily required prior to the entry of a decision on the merits of an application for asylum, withholding of removal ... or" CAT. It found that "an applicant for asylum or for withholding or deferral of removal is entitled to a hearing on the merits the applications, including an opportunity to provide oral testimony and other evidence, without first having to establish prima facie eligibility for the requested relief."
In footnote 3, however, the Board recognized:
[W]here "the parties stipulate[d] that the applicant's testimony would be entirely consistent with the written materials and that the oral statement would be believably presented," a full examination of the applicant might not be strictly required. ... However, [it noted] even this limited exception still requires the applicant to testify under oath as to the correctness and completeness of the application.
The Form I-589 is clear that the applicant for asylum, withholding of removal, or CAT should answer the questions fully and completely. Specifically, it states:
When answering the following questions about your asylum or other protection claim [withholding of removal and CAT], you must provide a detailed and specific account of the basis of your claim to asylum or other protection. To the best of your ability, provide specific dates, places, and descriptions about each event or action described. You must attach documents evidencing the general conditions in the country from which you are seeking asylum or other protection and the specific facts on which you are relying to support your claim. If this documentation is unavailable or you are not providing this documentation with your application, explain why in your responses to the following questions.
Many asylum applicants seek protection pro se, that is, without the assistance of an attorney. Where an attorney prepares an application (assuming that the lawyer is diligent and competent), the application generally sets out in detail the basis of the claims. In addition, Forms I-589 will often come complete with briefs setting forth the legal bases of the request for protection. If such briefs are not filed, an immigration judge can always request that they be filed.
Most asylum applications are clear with respect to the basis or bases for relief. Testimony is taken thereafter in order to test the validity of the claims.
Some asylum claims, however, do not state legally legitimate claims; that is, they do not establish prima facie eligibility for relief. Given the restrictions in the BIA's decision in Matter of E-F-H-L-, however, immigration judges are all but bound to hold full evidentiary hearings on those applications despite the fact that the judge knows at the outset that the claims therein are not supported by law.
By certification, the attorney general should issue a decision expanding on footnote three from Matter of E-F-H-L-, and making it clear that immigration judges may dispose of protection claims in the manner set forth therein. Specifically, where the immigration judge concludes that the Form I-589 is full and complete, and that the alien (represented by counsel) has had the opportunity to state the bases for the claim (either on the Form I-589 or in briefs, or both) the immigration judge should be able to place the applicant under oath to attest to "the correctness and completeness of the application." If the government attorney is willing to stipulate that the alien will testify in accordance with the application and that there are no apparent credibility issues, the immigration judge should be able to then issue a decision denying the application on legal grounds, without holding a full evidentiary hearing.
The assistance of counsel in this scenario would eliminate the concern posited by the BIA in Matter of Fefe that the alien might "establish eligibility for asylum by means of his oral testimony when such eligibility would not have been established by the documents alone." Specifically, such a decision would place the lawyer on notice of his or her obligation to state the claim fully in the application or in any additional filings.
This process would preserve limited judicial resources while ensuring that the applicant has had the opportunity to have his or her claim heard. Moreover, were the immigration judge to group a number of such applications together, real efficiencies, consistent with due process, could be achieved. And the backlog reduced.