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Jeffrey S. Chase, Oct. 6, 2021
"It has been said that Immigration Judges hear death penalty cases under traffic court conditions.1 The death penalty cases are of course asylum claims, which, if wrongly denied, can result in the applicant being returned to their death.
The Biden Administration recently published proposed regulations seeking to revise the system for hearing the asylum claims of those arriving at the southern border. Any positives envisioned in the proposal are greatly outweighed by the damage the rules will do to the right to immigration court review. If enacted as drafted, traffic court conditions would be far preferable to the meager access to review that would remain for many asylum seekers.
To provide some context: presently, arriving asylum seekers who after screening by USCIS asylum officers are found to have established a sufficient risk of harm proceed directly to Immigration Court, where they have a full hearing on their claim before an Immigration Judge. In those proceedings, asylum seekers may freely submit documents, call witnesses, and elicit testimony.
This was as Congress intended it. In creating the present credible fear screening system in 1996, Congress made clear that those passing the screening, in the words of then Senator Alan Simpson (R-WY), “will be provided a full - full - asylum hearing.”2 This sentiment was echoed by Senator Patrick Leahy (D-VT), who stated that those who establish credible fear “get a full hearing without any question,”3 and Rep. Lamar Smith (R-TX), who emphasized that those with a credible fear of persecution “can go through the normal process of establishing their claim.”4
Under the proposal, those who pass the preliminary screening (known as a credible fear interview) will instead have their full asylum claim heard by an asylum officer. This could be a positive development if the rules continued to assure the right to a full court proceeding to those not granted at this initial stage.
Unfortunately, the proposed rules would reduce Immigration Judges to reviewers of transcripts of the asylum office interviews. Additional evidence (including testimony) that was not provided at the Asylum Office will only be allowed if deemed to be “non-duplicative” and necessary to complete the record. If an Immigration Judge determines that the applicant (who may not have been represented by a lawyer) provided sufficient evidence to the asylum officer, the claim may be decided entirely on the record from that initial non-court interview.
It bears noting that the Immigration Judges making these determinations remain subject to the completion quotas imposed under the prior administration. While Immigration Judges must be guided by the requirements of due process and fairness in making such decisions, it would be remiss not to point out that for newly hired judges still on probation, the ability to exclude new evidence and essentially rubber stamp the asylum officer’s decision offers the prospect of a very quick completion for quota purposes. Judges should not be put in the position of choosing between the dictates of justice and their own job security.
As the drafters of the proposed rules are well aware, Immigration Judges have long decided cases that were first heard by Asylum Officers. The outcomes of those cases offer strong reason to question the logic of what is now being proposed. EOIR’s Statistical Yearbook for 2016 (the last year such stats were made available) shows that 83% of cases referred by asylum officers were granted asylum that year by Immigration Judges conducting de novo hearings.5
Having heard referred cases as an Immigration Judge, as well as having represented asylum applicants at the Asylum Office, I have no doubt that the right to a full de novo court hearing, in which attorneys are free to offer documents, briefs, and present testimony as they see fit, is the reason for that large disparity. The current system itself recognizes this; it is why Asylum Officers are limited to granting clearly meritorious cases, and must refer the rest to courts better equipped to delve into the intricacies of a highly complex field of law. Immigration Judges also enjoy greater decisional independence than asylum officers, who require supervisory approval of their decisions,6 are more susceptible to political pressure, and are more limited in the legal theories they may rely on.
As to the criteria for supplementing the record, whether evidence is duplicative or necessary is a fuzzy concept. For example, the law accords greater deference to government sources, such as State Department reports, and at times, Immigration Judges may find other evidence deserving of “little evidentiary weight.” Thus, sometimes duplicative evidence is necessary to persuade a judge who may otherwise not be sufficiently swayed by a single report. But that need might not become apparent until the hearing is concluded, whereas decisions to exclude additional testimony and documentary evidence are made much earlier, at the outset of the proceeding.
There are constitutional considerations as well. In a 2013 decision, Oshodi v. Holder, the U.S. Court of Appeals for the Ninth Circuit held that limiting an asylum seeker’s testimony to events that were not duplicative of the written application, on the belief that the written record would suffice for deciding veracity, was a violation of the asylum seeker’s due process rights. Yet the proposed regulations seek to codify what according to Oshodi the Constitution specifically forbids. The court in Oshodi stated that “the importance of live testimony to a credibility determination is well-recognized and longstanding.” Having heard live testimony as a judge, I can vouch for this. I decided many cases in which an in person demeanor observation was instrumental to my credibility finding.
I will also state from experience that critical “Eureka” moments arise unexpectedly in the course of hearing testimony. A question from counsel, or sometimes from the judge, will elicit an answer that unexpectedly gives rise to a new line of questioning, or even a legal theory of the case. An example is found in last year’s Second Circuit decision in Hernandez-Chacon v. Barr. In that case, the Second Circuit found that a woman’s act of resisting rape by an MS-13 gang member could constitute a political opinion based on one sentence not contained in the written application, and uttered for the first time at the immigration court hearing: when asked why she resisted, the petitioner responded: “Because I had every right to.” From that single sentence, the Second Circuit found that the resistance transcended mere self-protection and took on a political dimension. Under the proposed rules, the attorney would likely never have been able to ask the question that elicited the critical answer. At asylum office interviews, attorneys are relegated to sitting in the corner and quietly taking notes. Furthermore, I have been told by former asylum officers that the concept of imputed political opinion was not available to them as a basis for granting asylum, a fact that pretty much guarantees it will not be covered in an asylum office interview.
The proposed limitations on Immigration Judge review are not necessary to increase efficiency. Whatever cases asylum officers grant pursuant to their new up front review will significantly reduce the Immigration Court case load. And even an imperfect transcript from those interviews in claims referred to the court will provide attorneys for both sides the opportunity for advance conferencing to narrow down the issues in dispute, a practice which significantly reduces hearing times and which should be greatly encouraged.
According to the website of the New York State Department of Motor Vehicles, at a traffic court hearing, “you or your attorney may ask the officer questions. You may testify, bring witnesses or present evidence on your behalf.”7 The Biden Administration cannot provide less rights than these to those facing the life and death consequences inherent in asylum claims.
Those interested may submit their comments on the new regs by October 19.
Copyright 2021 Jeffrey S. Chase. All rights reserved.
See, e.g., Dana Leigh Marks, “Immigration Judge: Death Penalty Cases in a Traffic Court Setting,” CNN, June 26, 2014, https://www.cnn.com/2014/06/26/opinion/immigration-judge-broken-system/index.html
104 Cong. Rec. S4457, S4461, https://www.congress.gov/104/crec/1996/05/01/CREC-1996-05-01-pt1-PgS4457.pdf.
Id. at 4492.
104 Cong. Rec. S4592, S4608, https://www.congress.gov/104/crec/1996/05/02/CREC-1996-05-02-pt1-PgS4592.pdf.
See EOIR FY 2016 Statistics Yearbook, https://www.justice.gov/eoir/page/file/fysb16/download, at p. K-3. Figure 17 is a chart showing the Immigration Court grant rate of affirmative cases referred by the USCIS Asylum Offices. The chart shows a grant rate of 72% in FY 2012, steadily increasing each year to 83% in FY 2016.
Per the USCIS website: A supervisory asylum officer reviews the asylum officer’s decision to ensure it is consistent with the law. Depending on the case, the supervisory asylum officer may refer the decision to asylum division staff at USCIS headquarters for additional review. https://www.uscis.gov/humanitarian/refugees-and-asylum/asylum/the-affirmative-asylum-process. Immigration Judges require no supervisory review before rendering their decisions."