Archive for August, 2012

New revocation cases answer some questions but raise new ones.

Sunday, August 26th, 2012

Sometimes an issue in immigration law lays shrouded in mystery and then suddenly courts make a series of decisions to clarify what was opaque for decades. The issue of how the government goes about revoking asylum is one of those issues. I think the reason for the sudden burst of interest is that never before has USCIS or its predecessors had the fraud investigation capacities that they have now. What the procedures are for withdrawing asylum grants was never fully explored because never before has the government been so robust in its efforts to locate fraud in the asylum context after asylum has been granted.

 

A few pieces of background information:

 

Asylum is the status one gets when he is allowed to stay in the United States because of a fear of persecution based on a decision made by immigration authorities in the United States.

 

Refugee is the status one gets when he is allowed to stay in the United States because of a fear of persecution based on a decision made outside the United States by U.S. immigration authorities working abroad.

 

Inside the United States, asylum can be granted by USCIS or by the immigration court.

 

As for revoking asylum or refugee status, statutes and regulations allow for the revocation by USCIS or the immigration court – at least that was the common wisdom. The questions about this are:

 

  1. When is it that USCIS can revoke and when is it that the immigration court can revoke?
  2. If USCIS revokes and the person is sent to immigration court, can the immigration court review the revocation or only grant asylum anew?

 

Previously, the BIA  and the court of appeals  have held that when a refugee or an asylee becomes a permanent resident, the person can be deported because of conduct that ordinarily would not render an asylee or refugee removable.

 

In a confusing relatively recent case, answering the first question, above, the BIA held that an asylee or a refugee can be sent to immigration court to have these statuses rescinded, though it did not get into whether an asylee or refugee in immigration court can only have the status rescinded for conduct that an asylee or refugee can be rescinded for, or whether conduct that a regular non-asylee or non-refugee foreigner can be deported for can also lead to rescission and removal. I discussed this here.

 

Further developing the answer to the first question, the BIA ruled just this week in Matter of A-S-J- that when the immigration court granted asylum, then it is the immigration court that must revoke it. When it is USCIS that granted asylum, then either USCIS or the immigration court that can revoke it. Once the status is revoked, if the person is in immigration court, he can then pursue new relief. It may be asylum again or something else. The problem with seeking asylum again is that there are bars to asylum for people who initially lied to get asylum and also, the same situation that led to getting asylum may no longer exist. Could a person who was granted aslum because of persecution by Muamar al-Qadhafi get asylum now? Could a Soviet Jew? The problem with seeking some other form of relief is that there are bars to receiving nearly any other relief if a person filed a materially false asylum application, i.e., a frivolous one.

If asylum was revoked by USCIS, then the alien conceivably is sent to immigration court. Here the second question arises – can the immigration court review the revocation decision of USCIS or only adjudicate new forms of relief? Ordinarily, the immigration court is the place where decisions of the immigration agencies are reviewed in removal proceedings. If USCIS denies an application for asylum, adjustment of status, or the removal of the conditions on residence, these decisions can be reviewed by the immigration court. If ICE concludes that someone is deportable for some kind of illegal conduct or a claim of U.S. Citizenship, an immigration judge reviews these conclusions. In the Matter of A-S-J- decision, the BIA concluded that the immigration judge cannot review the revocation; just provide new relief if the alien is eligible.

 

In sum, what USCIS grants, USCIS can take away. What the immigration court grants and what USCIS grants, the immigration court can take away. What USCIS takes away, the immigration court cannot review.

 

Things get a little more complicated. Recently, the Ninth Circuit ruled in Nijjar v. Holder that USCIS cannot rescind an asylum grant at all. Only the immigration court can. The decision was not based on a logic or fairness concern, but because the statutes allowing for revocation delegate this authority to delgate to the Attorney General, where the immigration court is found, and not to the Secretary of Homeland Security, where USCIS is found. This holding turned on its head the axiom that after the government was re-structured in 2003 and the immigration agencies were reformulated (INS became CBP, ICE, and USCIS) and moved from the Department of Justice and placed in the then-new Department of Homeland Security, any reference to delegation to the Attorney General should be read Secretary of Homeland Security. The court saw a certain logic to this limitation on USCIS authority as denials of asylum are reviewed in the immigration court, where plenty of due process rights are provided, so too should revocations of asylum be held in this fairer forum. The Nijjar court wrote:

 

Terminations of asylum are grave enough so that Congress might sensibly intend just what it did, assigning the authority to the Attorney General, where a neutral arbiter, the immigration judge, rather than an asylum officer, would make the decision, and where the decision would be subject to appeal to the Board of Immigration Appeals, rather than being unappealable. That would be consistent with the procedure for when an asylum officer denies an application for asylum status, and must refer the denied application for asylum to an immigration judge for de novo consideration, subject to appeal.Reading the statute to mean what it says makes termination procedure parallel to denial procedure. Reading the statute as the government urges not only conflicts with its plain meaning but also creates an unfair anomaly. We can think of no reason why Congress would give an alien more procedural protection when his asylum application is denied in the first instance, than when his asylum status is granted but subsequently taken away.

 

The problem with all this clarification is that the concept of asylum being a “concluding status” is challenged. By “concluding status” I mean that when certain statuses are attained, a case is seen as over. To take away the status, one does not climb down the same tower one climbed up. For example, if a person becomes a permanent resident through USCIS and USCIS then asserts it made a mistake, it cannot revoke permanent residence. It must take the alien to immigration court where an immigration judge is the one who can rescind the permanent resident status or order removal of a person wrongly afforded status. If USCIS naturalizes someone and later concludes it should not have, it cannot revoke citizenship, but rather must refer the case to a federal district court for de-naturalization proceeding.

 

The same is not so for asylum – except for now in the Ninth Circuit. If USCIS grants asylum, it can take it back on its own. It is not a concluding status that only an immigration judge can mess with.  This is in distinction to other parts of the asylum process. If a person is in immigration court and has been removed and later new relief appears available, the person must return to the immigration court to seek reopening to pursue the new relief. This is because being ordered removed is not a concluding status. In contradistinction, if an immigration judge grants asylum, an alien does not need to return to the immigration court to later become a permanent resident. He can apply directly through USCIS because being granted asylum is a concluding event.

 

The new cases do not answer all questions. One wonders what would happen under this scenario. Abel is married to Bertie. Bertie is in removal proceedings. Abel is not. Abel is granted asylum by USCIS. Bertie is then granted asylum as a derivative beneficiary in immigration court. USCIS then revokes Abel’s asylum. What happens to Bertie’s status? Is it automatically revoked when Abel’s is or must that revocation occur in immigration court? If  the immigration court gets Bertie’s revocation case and it disagrees with what USCIS did to Abel, can Bertie keep her derivative asylum status when Abel, the principal, lost his? Discuss. Posted August 26, 2012.