Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
[T]he Board in Matter of A-A-R- impermissibly reinterpreted the evidence in a very selective way in order to reach a different conclusion than that reached by the trier of fact. As the Fourth Circuit recently held in reversing the Board, “In conducting clear error review, the BIA may not reweigh evidence or ‘substitute[ ] its own judgment for that of the IJ.’”
For all of the above reasons, a prediction that A-A-R- will not withstand circuit court scrutiny would not be clearly erroneous.
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Thanks, Jeffrey, my friend and colleague, for your scholarly exposition of the BIA’s result-oriented sophistry. It’s no coincidence that in erroneously reversing a solid CAT grant to El Salvador the BIA chose, as it seldom does in other than a negative context, to reject a very viable form of mandatory protection, to a country currently in the news, which is available without regard to criminal record, alleged gang membership, and /or discretionary factors.
By choosing to designate it as a rare precedent, the “captive” BIA appears to be fulfilling the political demands of the Trump Administration to be able to argue, contrary to the Supremes, that no fair hearings are necessary in similar cases of illegal removals because an ultimate negative result is foreordained by precedent (even though that is clearly wrong, even under A-A-R-).
Administration lawyers have even gone to the extraordinary extent of trying to— so far unsuccessfully — submit and argue that bogus “predictive denials” — basically the DHS’s position without any opportunity to challenge — can be relied upon by a reviewing Article III court to deny the return of individuals wrongfully deported. What a complete crock and insult to the rule of law, as well as to the judges to which these disingenuous arguments are addressed! 🤬🤮
While “third country removals” are possible for those granted withholding of removal or deferral of removal under the CAT, proper legal procedure and due process require that 1) the DHS seek to reopen the case for designation of a new country of removal (unless such alternative country was previously designated and named in the Immigraton Judge’s order), and 2) the respondent be given a reasonable opportunity to raise any protection claims relating to that country.
⚖️ Due Process Forever!
PWS
05-21-25