Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
KEY EXCERPT:
III.E. Limitation on Immigration Judge Review
We strongly oppose the proposal to severely restrict the right of those denied asylum by USCIS to a full de novo merits hearing before an Immigration Judge.Given these significant increases in efficiency mentioned above, the proposed restrictions are unnecessary to reduce the backlog.Regardless, even if EOIR and DHS disagree with this assessment, regulations may neither contradict the Congressional intent of statutes they seek to interpret, nor deny due process in the name of efficiency.Yet the proposed rule would violate both of these principles in the changes they propose to the Immigration Court procedures.
EOIR and DHS claim that the statutory language of 8 U.S.C. § 1225(b)(1), requiring “further consideration of the application for asylum” to those found to have a credible fear of persecution, is ambiguous.In fact, the legislative history of that statute demonstrates that Congress intended for all of those found to possess a credible fear of persecution to be afforded full Immigration Court hearings. At a 1996 hearing on the bill, Senator Alan Simpson (R-WY) assured that “[a] specially trained asylum officer will hear his or her case, and if the [noncitizen] is found to have a ‘credible fear of persecution,’ he or she will be provided a full—full—asylum hearing.”EOIR and DHS are asked to note Sen. Simpson’s repetition of the word “full.”
This same sentiment was echoed by Senator Patrick Leahy (D-VT), who stated that those who establish credible fear “get a full hearing without any question,” 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.”The regulatory proposal is thus improperly violative of Congressional intent.
As to due process, 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.”Our own experience supports this conclusion.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.
Having heard as Immigration Judges many cases referred from the Asylum Office, we believe that the right to a full de novo court hearing, in which attorneys were free to offer documents and briefs, and to present testimony as they saw fit, was the reason for the large disparity in outcomes. The current system itself recognizes this; it is why asylum officers, who need not be attorneys, 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.
We can vouch from our experience on the bench to the importance of hearing live testimony in reaching the correct decision.We decided many cases in which in-person demeanor observations were instrumental to our credibility findings.Credibility is often a threshold issue in applications for asylum and related relief.In 2005, Congress specifically amended the criteria Immigration Judges may rely on in deciding credibility.While those criteria include their observations of the “demeanor, candor, or responsiveness of the applicant or witness” (observations which cannot be made unless testimony is witnessed), there is no provision in the statute for reaching credibility findings by reviewing an asylum officer’s opinion on the topic.The court in Oshodi cited language in a House conference report on the REAL ID Act of 2005, containing the following quote: “An immigration judge alone is in a position to observe an alien’s tone and demeanor, to explore inconsistencies in testimony, and to apply workable and consistent standards in the evaluation of testimonial evidence. He [or she] is, by virtue of his [or her] acquired skill, uniquely qualified to decide whether an alien’s testimony has about it the ring of truth.”
We can 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.Some of us teach trial advocacy skills to immigration attorneys, where we emphasize the importance of attorneys formulating a theory of their case, and then presenting documentary evidence and testimony in a manner best designed to support that theory.During our time on the bench, we looked forward to hearing well-presented claims from competent counsel; good attorneys increased efficiency, and usually led us to reach better decisions.And as former asylum officers have indicated that the concept of imputed political opinion was not available to them as a basis for granting asylum, questioning in support of such theory will not be covered in an asylum office interview.
But under the proposed procedures, attorneys are largely relegated to passive observer status.At asylum office interviews, attorneys are only provided a brief opportunity to speak after the interview has been completed.And in cases referred to the Immigration Court, the new restrictions may prevent attorneys from presenting any testimony at all.
As to the criteria that must be met in order to supplement the record before the Immigration Judge, 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.
******************************
Read our full commentary,, including some parts of the proposal we endorse, here:
Comments NPRM Credible Fear procedures 10-19-21
Many, many, many thanks to “Sir Jeffrey” Chase for collecting the “sentiments of the group” and preparing these cogent comments under extreme pressure!
🇺🇸Due Process Forever!
PWS
10-20-21