CA9 on Authority to Terminate Asylum: Nijjar v. Holder

CA9 on Authority to Terminate Asylum: Nijjar v. Holder

"We address whether the Department of Homeland Security has authority to terminate an alien’s asylum status, and conclude that it does not. ... Congress did not confer the authority to terminate asylum on the Department of Homeland Security. Congress conferred that authority exclusively on the Department of Justice. ... Congress spoke directly to the precise question of who can terminate asylum, making its intent clear: “the Attorney General.”  That is, under Chevron, indeed the end of the matter.  When Congress assigns authority to one cabinet department, that department is not free to reverse the congressional determination by assigning it to another. ... Congress conferred authority on both the Attorney General and the Department of Homeland Security to give asylum, but only on the Attorney General to take it away. ... Congress has provided one way for asylum status to terminate: through the Attorney General. There is no statutory authorization for a second way. The regulations pursuant to which the Department of Homeland Security terminates asylum status, 8 C.F.R. § 208.24(a) and 8 C.F.R. § 1208.24(a), are ultra vires because the governing statute, 8 U.S.C. § 1158(c)(2), confers that authority exclusively on the Attorney General.  The Nijjars’ petitions for review of the BIA’s orders of removal are GRANTED, and the case is REMANDED for further proceedings consistent with this opinion." - Nijjar v. Holder, Aug. 1, 2012.