Thursday, May 4, 2017

Does due process require termination of proceedings where a detained respondent is forcibly separated from his family with identical claims for asylum?  -YES   By: Geoffrey A. Hoffman


Does due process require termination of proceedings where a detained respondent is forcibly separated from his family with identical claims for asylum?  -YES by Geoffrey A. Hoffman

The University of Houston Law Center’s immigration clinic along with the University of Pittsburgh School of Law’s immigration clinic, Immigration Equality, Lawyer’s Committee for Civil Rights (LCCR), and the Florence Immigrant and Refugee Rights Project (FIRRP) filed an amicus brief before the Board of Immigration Appeals.  The appeal was filed by DHS after the IJ terminated proceedings. The case concerns an important issue of due process and family separation. With all the (deserved) attention being paid lately to the President’s executive orders, the travel ban, sanctuary city issues, increased immigration enforcement, border issues, expedited removal, DACA, and many other important issues, I am concerned that some more procedurally complicated but prevalent “systemic” issues can get lost in the shuffle. They may not be afforded the exposure they deserve.  To that end, I am going to use this opportunity to discuss the basic facts of this case which has implications for respondents’ due process rights. The respondent’s case on appeal is being handled by the Pennsylvania Immigration Resource Center (PIRC).  (The case is currently pending so no names or other identifying information will be disclosed to protect confidentiality.) 

            The case involved a man who arrived at a land border with his family members, a wife and their children, but was detained at the border after seeking admission.  The other family members were able to be released after they passed their credible fear interviews.  He also passed his credible fear interview but continued to be detained.  Since his family members were released, they were able to find pro bono counsel. They also were able to move to a new location in another state.  At the hearing before the IJ, the respondent asked for a change of venue to the new location where his wife and children were now staying, arguing that since they have all identical claims he needs to have them present to testify, and in addition they have evidence and access to documents, as well as the inefficiency of having two different immigration judges hear the exact same claim.  The IJ agreed and ordered the venue to be changed.

            A further hearing was held in the new venue with the new IJ.  However, DHS failed to physically move the respondent to that new venue due to their claim there was no bed space available. At the hearing, DHS counsel was present to represent the government. However, the respondent was not present since he had not been moved to the new location. DHS at the hearing moved to change venue back to the original location and stated that it would then decide to seek a further change of venue to wherever the respondent could be transferred due to the bed space issue. The change back to the original location was granted and the case was sent back.

            Once the case was back at the original location, the original IJ inquired about the status of the wife’s and children’s cases which were pending in the other location. The respondent’s case was continued.  At the next hearing, the IJ asked DHS if it would consider release to allow respondent to be present at his wife’s and childrens’ hearings.  DHS said it would consider release, but subsequently denied the request to release on parole or bond with no explanation. At that point at a subsequent hearing the IJ issued a written order terminating proceedings based on lack of due process where a respondent would otherwise be forced to proceed under such unfair and unjust circumstances.  DHS appealed to the BIA.

            The amicus brief was submitted to support the respondent’s position that DHS’s appeal challenging the authority of the IJ to terminate should be dismissed.  This issue is one which could have been ameliorated in several ways, all within the control of the agency.  First, it could have released respondent on parole or agreed to bond. Once released his case could have been placed on the non-detained docket in the new jurisdiction, once a change of venue was granted. Even if not released, DHS could have physically transferred the respondent to the new location, where at least his wife and children could have been able to testify in person, and he could have benefited from pro bono counsel, assuming counsel would have agreed to represent the entire family in one location.

            The amicus brief further argued that the IJ does have wide authority by regulation to take “any action,” consistent with applicable law, that is appropriate for the case. 8 C.F.R. § 1003.10(b). IJs have broad discretion to use docket management tools to protect the respondent’s right to procedural due process and to maximize judicial efficiency. See Matter of M-A-M-, 25 I&N Dec. 474, 479 (BIA 2011); Matter of Taerghodosi, 16 I&N Dec. 260, 263 (BIA 1977). As we know from M-A-M- in the mental competency context, termination is one of several possible procedural safeguards that are potentially available to protect the due process rights of vulnerable respondents.  The respondent’s brief pointed to the blatant due process violation which occurred when respondent was not even present at the new location and where the IJ granted DHS’s motion to return the case to the original venue.

            The amicus brief also argued that international and domestic laws protect applicants for asylum.  Under the egregious circumstances presented in the instant case, the basic right to apply for asylum and to have a full and fair hearing at which one can present their asylum claim was violated. The brief relied upon the 1967 protocols to the Refugee Convention, Article 8 of the American Convention on Human Rights, which also recognizes that every person must have the right to a hearing, with due guarantees and within a reasonable time.  Additionally, Article XXVI of the “American Declaration” provides for OAS member states’ particular obligation to safeguard the right to due process. The Inter-American Commission on Human Rights, created by the OAS Charter to promote the defense of human rights and to serve as the Charter’s primary human rights monitoring board, has affirmed that Article XXVI, applies to immigration proceedings.

            The amicus brief further pointed out alternatively that even were the IJ not able to terminate, which he was entitled to order in any event, the case could have been administratively closed.  Administrative closure under settled Board precedent is available even over one party’s objections, if certain factors are met.  See Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012).  A recent Board decision, dealing with administrative closure does not alter this analysis. See Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017).

            Finally, the amicus brief contained exhibits in the form of affidavits from LWCC, FIRRP and Immigration Equality attorneys with detailed facts about representative cases that the attorneys had seen.  The representative case had similar issues of family separation with tragic consequences. The point is this is not an isolated case, but one with a procedural history which has been played out all-too-often. Unfortunately, the respondent is still detained to date, even with the IJ’s grant of termination as the case has been appealed by DHS staying the judge’s order. The case represents a stark illustration of the dangers of ignoring obstacles to presenting full and fair hearings for asylum and related relief. With the professed frustration of EOIR and the government generally at the tremendous backlog of cases currently plaguing the courts, you would think the consolidation of cases with identical claims would not be a problematic and but a preferred solution. As with many of the problems associated with the immigration adjudicatory process, common sense is not consulted and red tape often presents implacable problems which beg credulity and boggle the mind. We now await the Board’s review. I remain hopeful that justice and our United States Constitution will prevail.

The redacted Amicus Brief is available online.

Geoffrey A. Hoffman, University of Houston Law Center, director of the Immigration Clinic (Institution for identification only. The views expressed are the author’s own and not necessarily those of the University’s or any other party).


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Very useful Professor. Thank you.

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