Proposed Regulation: IJs Should Consider Precedent in Review of Negative Credible-Fear Determinations

Common-sense codification of current practice

By Andrew R. Arthur on June 18, 2020
  • Proposed regulations would direct immigration judges to consider relevant precedent in reviewing negative determinations by asylum officers in credible-fear cases, codifying current practice.
  • The current regulation governing such negative-fear reviews directs immigration judges to consider "the credibility of the statements made by the alien in support of the alien's claim and such other facts as are known to the immigration judge" in determining whether an alien can establish eligibility for asylum, statutory withholding of removal, and protection under the Convention Against Torture, but says nothing about the immigration judge considering precedent.
  • As a matter of practice, however, immigration judges already consider such precedent in negative-fear review proceedings.
  • The Ninth Circuit has held that aliens can seek habeas review of findings that they have not demonstrated credible fear in expedited removal proceedings. That opinion is currently under Supreme Court review.
  • A D.C. federal district judge has held that asylum officers should apply the "most favorable" circuit law in assessing whether an alien has a credible fear where there is a dispute among the circuits. That decision is on appeal.
  • The proposed regulation would direct immigration judges to apply the law of the circuit in which the alien's request to review the asylum officer's negative credible fear determination is filed. Again, most immigration judges already apply such law in negative-fear review proceedings, as that would be the law with which they are most familiar and the applicable precedent.

In two recent posts, I have begun analyzing proposed regulations that the Department of Justice (DOJ) and the Department of Homeland Security (DHS) issued on Monday as part of a Joint Notice of Proposed Rulemaking (JNPR). The next proposal for analysis, directing immigration judges (IJs) to consider relevant precedent in reviewing a determination by an asylum office (AO) that an alien has failed to establish credible-fear, is so sensible that it borders on the banal, but in Washington (and the Ninth Circuit), common sense is an uncommon virtue.

As U.S. Citizenship and Immigration Services (USCIS) explains:

If [an AO] does not find a credible fear of persecution or torture, the individual can request review by an Immigration Judge of the negative decision. If no review is requested or the Immigration Judge concurs with the negative decision, the individual will be removed from the United States. Generally, there is no review of the Immigration Judge's determination that the individual does not have a credible fear of persecution or torture. If the Immigration Judge finds a credible fear of persecution or torture, the case will be referred for a full hearing.

The regulation implementing this process can be found at 8 C.F.R. § 1003.42. Pursuant thereto, aliens in those "negative-fear review" proceedings are placed under oath, and they can offer testimony and submit evidence to support their claims and/or rebut the AOs' findings.

As currently written, the regulation makes clear that the IJ is to make a de novo assessment — that is, a fresh review — of the alien's claim, and not simply rely on the AO's determination. The proposed amendment does not alter that standard.

The regulation in effect also directs the IJ to assess "the credibility of the statements made by the alien in support of the alien's claim and such other facts as are known to the" IJ in determining whether the alien can establish he or she is eligible for asylum, statutory withholding of removal under section 241(b)(3) of the Immigration and Nationality Act (INA), and protection under the Convention Against Torture. Again, there is no change to that requirement in the proposed regulation.

While the current regulation refers the IJ to the relevant provisions in the INA and regulations relating to those protections in making such determinations, it says nothing about considering those claims in the context of the case law governing the protections in question. That is an oversight, because the INA and its implementing regulations do not exist in a vacuum.

Rather, there are decades of relevant precedent handed down by the Board of Immigration Appeals, the attorney general, circuit courts, and the Supreme Court interpreting those provisions. That precedent is not just a helpful guide: In our system of justice, it is the law.

This omission, however, is generally harmless (in my experience, at least), because as an IJ, my review of negative credible-fear and reasonable-fear determinations was always guided by such precedent, and I assume my colleagues do the same. For example, extortion, without more, is not "persecution" for asylum and statutory withholding purposes, but that is precedent interpreting the INA — not a conclusion set out in the act itself.

I say "generally" (as USCIS does in the excerpt above) because the Ninth Circuit has decided that aliens whose credible fear claims have been denied can seek review of those determinations on habeas in district court — contrary to the express limitations on such review in section 242(e)(2) of the INA as well as the aforementioned regulation — in a case currently under consideration by the Supreme Court.

While the absence of express authority in the regulations to consider pertinent case law precedent would likely not trigger such review when the IJ (logically) does so, DHS and DOJ are correct in leaving nothing to chance. Where there's a writ, there's a way.

One additional note.

The proposed regulation specifically directs the IJ to consider "relevant precedent issued by ... the federal circuit court of appeals having jurisdiction over the immigration court where the Request for Review is filed." Despite the lip service that the Ninth Circuit pays to the need to "promote[] uniformity in administering federal immigration law" in its various universal injunctions of the administration's immigration efforts, the standards for asylum are not strictly uniform across the circuits (with the Ninth Circuit as one of the most egregious outliers).

This language makes clear that IJs are to consider only the law from the relevant circuit in assessing credible fear claims. This is not exceptional, however, as IJs likely already apply the local precedents (with which they would be most familiar) in assessing asylum claims — including in negative-fear reviews.

It does, however, clarify the applicability of a 2018 decision from the D.C. District Court, Grace v. Whitaker (currently on appeal), in which District Judge Emmet Sullivan held that AOs are to apply the circuit law "most favorable" to the applicant's claim in making a credible fear determination where there is a disagreement among the circuits.

The reasoning there was that the alien may move to a different place if found to have a credible fear by the AO, and therefore applying the most favorable law ensured that such a possibility was considered. I disagree with the ruling (as does DOJ, obviously), but the logic therein becomes much weaker given the finality of an IJ finding that an alien does not meet the credible fear standard. Nonetheless, this provision could be subject to court review, assuming that DOJ does not prevail on appeal in Grace.

All of that said, however, the amendments in the JNPR to 8 C.F.R. § 1003.42 are unexceptional, commonsense codifications of current practice. That they are necessary simply reveals the overreach of the courts in areas that Congress has expressly restricted.