Matter of M-S- (A.G. 2019)

Decided December 12, 2019
This is an anti-immigrant decision that makes it more likely that an immigrant’s application for asylum or other form of relief from removal before the Immigration Court will be denied for a perceived inconsistency.

It has always been the case that an adverse credibility determination should not be based on inconsistencies that take the immigrant by surprise.  This is true even though the immigration judge is obviously not required to adopt the immigrant’s explanation for any inconsistency.

The issue presented by this case is one of fairness –  specifically how clear it must be to the immigrant that he or she must explain inconsistencies before being denied.  In this case on appeal, the immigrant attempted to argue that the immigration judge herself must point out any inconsistency to the immigrant and provide the immigrant with an opportunity to explain the inconsistency.  However, the Board of Immigration Appeals disagreed.

An Immigration Judge may ask the applicant to respond to a perceived inconsistency, but that is not the only way to bring it to his attention. The Government may give the applicant an opportunity to respond through cross-examination. The applicant’s representative may also decide to elicit testimony on direct examination, or on redirect to clarify inconsistencies that are brought out during the hearing, particularly if they are not obvious or apparent. See, e.g., Martinez v. Holder, 734 F.3d 105, 112 (1st Cir. 2013) (noting that the applicant, who was represented by counsel, had “many missed opportunities” for clarification of his testimony). Although an Immigration Judge is not required to ask about obvious inconsistencies, there is nothing that precludes him or her from doing so for the sake of clarity and completeness of the record.

Therefore, under a broad reading of this decision, if the scope of the cross examination loosely touches on an inconsistency in the immigrant’s testimony, the immigrant can be caught off guard and removed for a perceived inconsistency that he or she was unaware needed explanation.

Matter of M-S- (A.G. 2019)

Decided April 16, 2019
Arriving aliens – i.e., people who turn themselves in at a port of entry seeking asylum – and others apprehended after attempting unlawful entry into the United States at or near the border are subject to expedited removal.
They are promptly removed if they do not indicate a fear of returning to their home country which triggers referral to an asylum officer who must determine whether that person has a “credible fear of persecution or torture.”
In the past, it was common to obtain a bond for such individuals who were transferred to full immigration court proceedings (called 240 proceedings) after a positive determination of the asylum officer – at least in the case of immigrants other than arriving aliens.  This case changes that practice.

The question presented is whether aliens who are originally placed in expedited proceedings and then transferred to full proceedings after establishing a credible fear become eligible for bond upon transfer. I conclude that such aliens remain ineligible for bond, whether they are arriving at the border or are apprehended in the United States.

This is a huge decision that will frustrate the will of many people seeking safety in the United States.   The decision was made by the Attorney General – William Barr – and is part of the Trump administration’s war on immigration.  While the Department of Homeland Security retains the discretionary authority to parole individuals – or let them out of prison – while their case is pending in the immigration courts, many will wait for months if not years to receive a trial without the possibility of bond.

Denver Immigration Judge Trujillo (Women as Social Group)

Decided April 23, 2019
An immigrant may be eligible for asylum if he or she can establish a credible fear of persecution on the account of race, religion, nationality, political opinion or membership in a particular social group. The meaning of “particular social group” has been and will continue to be a cause for extensive litigation. The courts have not provided clear guidance and the more they attempt to define the phrase, the more convoluted the notion becomes. Whether gender alone could constitute a particular social group has been a question of much intrigue and little answers. Recent developments in the law might suggest that the answer is no – contrary to logic – but Denver Immigration Judge Eileen Trujillo took a bold and common sense approach to the question finding that “Mexican women” are a particular social group.

The unfortunate reality is that many countries marginalize women as second-class citizens. Sometimes this occurs through laws that grant men and women different rights, and in other instances religion or long-established cultural traditions relegate women to inferior social statuses. Where a society institutionalizes laws that permit violence against women or holds women and men in unequal standing, there is no reason why gender or sex should not align with the definition of a “refugee” and be treated as tantamount to the broad, protected classes of race, religion, and political opinion.

In this political climate, with Trump’s war on immigration ongoing, it is heartening to know a judge with such independence, strength and intellect at our local Denver immigration court.

East Bay Sanctuary Covenant v. TRUMP

Decided November 19, 2018

This case struck a blow to the Trump administration’s attempt to thwart the illegal entry of immigrants along the southern boarder to seek asylum.   The Department of Justice (“DOJ”) and Department of Homeland Security (“DHS”) published a joint interim final rule, entitled “Aliens Subject to a Bar on Entry Under Certain Presidential Proclamations; Procedures for Protection Claims” (the “Rule”). 83 Fed. Reg. 55,934 (Nov. 9, 2018) (to be codified at 8 C.F.R. pts. 208, 1003, 1208). Under the rule, an immigrant would be ineligible for asylum if the President by proclamation limited entry of immigrants across the southern border with Mexico after the effective date of the proclamation.  Of course the president did make a proclamation: “Presidential Proclamation Addressing Mass Migration Through the Southern Border of the United States.” The joint effect of the rule and proclamation would be to prevent individuals who entered the United States without permission, at other than a port of entry, from being granted asylum.  Such individuals would be summarily denied asylum through the “credible fear” process, and then only eligible for Withholding of Removal or relief under the Convention Against Torture; the latter forms of relief much less appealing and much more difficult to obtain.

The Northern District of California temporarily blocked the implementation of the rule, noting that the plaintiffs were likely to succeed on the merits.  And indeed that appears the case.  There seems no good reason to provide Chevron deference to this rule when clearly contrary to the express will of Congress as provided in statute.  According to the Northern District of California:

separately from the question of admissibility, Congress has clearly commanded that immigrants be eligible for asylum regardless of where they enter. Prior to IIRIRA, asylum was potentially available to “an alien physically present in the United States or at a land border or port of entry, irrespective of such alien’s status.” 8 U.S.C. §1158(a) (1980). In IIRIRA, Congress amended §1158(a) to provide that “[a]ny alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum in accordance” with §1158 and §1225(b). 8 U.S.C. § 1158(a) (emphasis added).

Also, as the Northern District of California pointed out, not only does the rule flout the explicit language of the statute, it also represents an “extreme departure from prior practice” and is contrary to the 1967 United Nations Protocol to which the United States acceded in 1968.

Matter of M-A-C-O (BIA 2018)

Decided October 16, 2018
This is a decision seeking to resolve a jurisdictional issue about when an individual in removal proceedings initially determined to be an unaccompanied minor by the Department of Homeland Security files an asylum application first with USCIS after turning 18 years of age. When there has been no affirmative act to terminate that status, in many parts of the country, USCIS offices have continued to adjudicate the applications of individuals initially determined to be unaccompanied minors, but who filed their asylum application after turning 18 years old.  However, this case clarifies that the Immigration Judge may claim initial jurisdiction over such a case, refuse to continue the case to permit USCIS to decide the asylum application, and require the individual to file an asylum application defensively in court.   According to the Board of Immigration Appeals:
While section 208(b)(3)(C) of the Act limits an Immigration Judge’s jurisdiction over an asylum application filed by a UAC, the statute does not prevent the Immigration Judge from determining whether initial jurisdiction over an application filed by an alien who has turned 18 lies with the Immigration Judge or the USCIS.
Important takeaway:  While the holding in this case was limited in scope, the BIA left open the possibility that since age is not the only way an adjudicator could find that an applicant no longer meets the definition of an unaccompanied minor,  if the child is released from custody to a parent or legal guardian and does not file for asylum until after release from custody, an immigration judge could also find that the individual does not meet the definition of a unaccompanied minor for purposes of determining whether USCIS retains initial jurisdiction over the asylum application.