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Jason Dzubow on Political Asylum

BIA Defies Ninth Circuit: IJs Lack Jurisdiction to Review Asylum Termination

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Earlier this month, the Ninth Circuit held that DHS does not have the
authority to terminate an alien's asylum status (I wrote about this here). 
The Court reasoned that although the regulations allow for DHS to
terminate asylum, the statute (upon which the regulations are based)
grants authority to terminate exclusively to the Attorney General (and
through him to the Immigration Judges).  Now the BIA has weighed in, and
they have reached the opposite conclusion-the Board held that DHS has
the authority to terminate asylum, and that the IJ has no authority to
review the termination. See Matter of A-S-J-, 25 I&N Dec. 893 (BIA 2012).



A BIA Board Member addresses the Ninth Circuit.



First, it strikes me as a strange coincidence that the Ninth Circuit
ruled on asylum termination a few weeks ago and now the BIA is
publishing a decision on the same issue.  The BIA publishes only about
40 decisions per year, and so it seems odd that they would publish a
decision on this same issue at the same time as the Ninth Circuit.  Call
me paranoid, but I feel like we should contact Oliver Stone about this
one (though perhaps the more prosaic explanation is that the BIA knew
about the Ninth Circuit case and was waiting for a decision there before
it issued its own decision on the matter).


In essence, the Board held that under the applicable regulations,
both the IJ and DHS have authority to terminate asylum in certain
circumstances.  However, these are two independent tracks.  According to
the BIA, the regulations do not give the IJ authority to review an
asylum termination by DHS.


The Board framed the issue as follows: "[W]hether an Immigration
Judge has jurisdiction under 8 C.F.R. § 1208.24(f) to review the DHS's
termination of an alien's asylum status pursuant to 8 C.F.R. §
208.24(a)."  The Board drew a bright-line distinction between the
regulations in section 1208 (which the Board held are for EOIR) and the
regulations in section 208 (for DHS).  The BIA concludes that


[T]he regulations for termination of
asylum status provide for either (1) USCIS adjudication, with the
possibility of the alien asserting a subsequent claim for asylum before
the Immigration Judge in removal proceedings or (2) Immigration Judge
jurisdiction to conduct an asylum termination hearing or to reopen the
proceedings for the DHS to pursue termination of asylum status.  The
regulations do not confer jurisdiction on the Immigration Judge to
review a DHS termination of an asylum grant under 8 C.F.R. 208.24(a).


What this means is that although the IJ does not have the authority
to review termination of asylum by DHS, the alien may re-apply for
asylum anew before the Judge.  The IJ does not have to accept the
determination by DHS concerning termination.  Rather, the IJ makes a de novo determination about the alien's eligibility for asylum.  So although A-S-J- may make it more difficult for the alien, it does not close the door to relief once DHS terminates asylum.


The dissenting Board Member points out that section 208 of the
regulations discusses the IJ's authority to terminate asylum, and so "it
is logical to infer that he also has the authority to restore asylum
status terminated by the DHS."  Although this would make sense from a
practical point of view-it would be more efficient to allow the IJ to
review a DHS termination rather than force the alien to re-apply for
asylum in Immigration Court-I am not so sure that it is "logical to
infer" that the IJ has the power to review a DHS termination,
particularly given that in other instances, the regulations specifically
grant such authority to the IJ.


Given the decision in the Ninth Circuit, I imagine the respondent in A-S-J- will file a petition for review to the U.S. Court of Appeals for the Second Circuit (or maybe a request for rehearing en banc
before the BIA).  Although asylum termination is fairly uncommon (as
far as I can tell), the issues of who has the authority to terminate a
grant of asylum and how that decision is reviewed are important.  I
expect we will see much litigation about these issues over the next few
years.


Originally posted on the Asylumist: www.Asylumist.com.

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