Infringement on Rights of Torture Survivors and Other Asylum Seekers to have an Evidentiary Hearing before Immigration Judges

The Torture Abolition and Survivors Support Coalition International (TASSC) condemns a number of recent attempts to infringe on the rights of asylum seekers including torture survivors, to document and claim their fear to return back in their countries and seek safety in the USA.

Recently, the Attorney General referred the decision of the Board of Immigration Appeals in Matter of E-F-H-L-, 26 I&N Dec. 319 (BIA 2014), to himself for review and vacated that decision. In this case, the immigration judge decided that an asylum applicant’s claim did not deserve a merits hearing. Instead of a hearing at which he would have had the opportunity to testify, present witnesses, file evidence, and present legal arguments, the immigration judge simply denied the case on the written application alone. The case was appealed and the BIA concluded that all asylum applicants have a right to a hearing, and remanded the case back to the immigration judge for that purpose.

By the time the record arrived back in immigration court, the respondent was now eligible to obtain lawful permanent residence based on a relative petition. Because USCIS (and not the immigration judge) has the authority to decide the visa petition, both the asylum applicant and DHS agreed to administratively close proceedings in order to allow USCIS to adjudicate the petition (which often takes some time) without having such effort delayed by removal proceedings, or wasting the court’s time by holding unnecessary status hearings. Ordinarily, once the visa petition is decided one way or the other, the parties will move the immigration judge to recalendar the case.

AG Sessions Decision in this Case:

Last week, AG Sessions inserted himself into this matter. In his recent decision, on March 5, 2018 (https://www.justice.gov/eoir/page/file/1040936/download) he vacated the original BIA decision in this case. This may have two negative consequences for future asylum decisions - 1) by vacating the BIA opinion, he also vacated the BIA precedent, which held that asylum and withholding of removal applicants were ordinarily entitled to an evidentiary hearing; 2) he further ordered an end to administrative closure, and that the case be placed back on the IJ’s active hearing calendar, where time and taxpayer money can be wasted on unnecessary hearings, since this case may be resolved through the pending visa petition.

Impact of Decision:

The immediate practical impact of this decision is unclear. It remains to be seen whether this decision will serve as a precedent to deny evidentiary hearings to other asylum seekers in immigration court. This decision may also make it harder for an asylum applicant to administratively close a case when the applicant has other forms of relief pending and thus increase the immigration court's docket. Furthermore, this case also raises questions regarding the AG Session's authority to refer cases to himself and make decisions regarding cases that are pending in immigration court. While the actual impact of this decision to other asylum cases remains to be seen, decisions like this suggest that due process rights of asylum seekers are under attack under the current administration.

As an organization helping survivors of torture, we know that the uncertainty created by the Trump administration can be very retraumatizing and we hope that the community will reject this set of harmful decisions about asylum seekers who are fleeing persecution in different countries.