PRACTICE ADVISORY 1 December 2015 PRESERVING THE ONE-YEAR FILING DEADLINE FOR ASYLUM CASES STUCK IN THE IMMIGRATION COURT BACKLOG By Sandra A. Grossman and Lindsay M. Harris 2 The immigration courts’ unprecedented backlogs are creating procedural and substantive challenges for attorneys trying to comply with the One-Year Filing Deadline (OYFD) in asylum cases. 3 These difficulties are most prevalent in scenarios where an asylum applicant is running up against the OYFD and Immigration and Customs Enforcement (ICE) has issued a charging document, but not yet filed it with the immigration court. Similar complications arise where a master calendar hearing is scheduled beyond the one- year filing deadline. As practitioners know, failure to meet the OYFD can have severe and lasting repercussions for applicants and their families. What steps should a practitioner take to comply with the OYFD under these circumstances? How can a practitioner best create a record for appeal if an immigration judge denies asylum for failure to meet the OYFD due to circumstances beyond the respondent’s control? This Practice Advisory answers these questions and discusses strategies and procedures for complying with the OYFD. What is the one-year filing deadline? In order to establish eligibility for asylum under the Immigration and Nationality Act (INA), the applicant must prove by “clear and convincing evidence” that the asylum application was filed within one year of the date of his or her last arrival in the United States unless one of two statutory exceptions, discussed below, applies. 4 Asylum applications may be filed either affirmatively with U.S. Citizenship and Immigration Services (USCIS) or, if the applicant is in removal proceedings, defensively 1 Copyright 2015. Click here for information on reprinting this Practice Advisory. This advisory does not substitute for individual legal advice supplied by a lawyer familiar with a client’s case. 2 Sandra Grossman is the Founder and Managing Partner of Grossman Law, LLC in Bethesda, Maryland. Lindsay M. Harris is a Legal Fellow with the American Immigration Council. The authors wish to acknowledge the assistance of Dree Collopy, Melissa Crow, Lisa Green, Laura Lynch, Jennifer Rotman, and Kate Voigt who provided helpful comments and editing. 3 The Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) of 1996 created the requirement that an asylum applicant must file their asylum application within one year of their last entry into the United States. 8 C.F.R. § 1208.4(a)(2)(A). 4 See 8 C.F.R. § 1208.4(a)(2)(i)(A).
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PRACTICE ADVISORY1 December 2015
PRESERVING THE ONE-YEAR FILING DEADLINE FOR
ASYLUM CASES STUCK IN THE IMMIGRATION COURT BACKLOG
By Sandra A. Grossman and Lindsay M. Harris2 The immigration courts’ unprecedented backlogs are creating procedural and substantive challenges for attorneys trying to comply with the One-Year Filing Deadline (OYFD) in asylum cases. 3 These difficulties are most prevalent in scenarios where an asylum applicant is running up against the OYFD and Immigration and Customs Enforcement (ICE) has issued a charging document, but not yet filed it with the immigration court. Similar complications arise where a master calendar hearing is scheduled beyond the one-year filing deadline. As practitioners know, failure to meet the OYFD can have severe and lasting repercussions for applicants and their families. What steps should a practitioner take to comply with the OYFD under these circumstances? How can a practitioner best create a record for appeal if an immigration judge denies asylum for failure to meet the OYFD due to circumstances beyond the respondent’s control? This Practice Advisory answers these questions and discusses strategies and procedures for complying with the OYFD.
What is the one-year filing deadline? In order to establish eligibility for asylum under the Immigration and Nationality Act (INA), the applicant must prove by “clear and convincing evidence” that the asylum application was filed within one year of the date of his or her last arrival in the United States unless one of two statutory exceptions, discussed below, applies.4
Asylum applications may be filed either affirmatively with U.S. Citizenship and Immigration Services (USCIS) or, if the applicant is in removal proceedings, defensively 1 Copyright 2015. Click here for information on reprinting this Practice Advisory. This advisory does not substitute for individual legal advice supplied by a lawyer familiar with a client’s case. 2 Sandra Grossman is the Founder and Managing Partner of Grossman Law, LLC in Bethesda, Maryland. Lindsay M. Harris is a Legal Fellow with the American Immigration Council. The authors wish to acknowledge the assistance of Dree Collopy, Melissa Crow, Lisa Green, Laura Lynch, Jennifer Rotman, and Kate Voigt who provided helpful comments and editing. 3 The Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) of 1996 created the requirement that an asylum applicant must file their asylum application within one year of their last entry into the United States. 8 C.F.R. § 1208.4(a)(2)(A). 4 See 8 C.F.R. § 1208.4(a)(2)(i)(A).
with Executive Office of Immigration Review (EOIR). Affirmative filings are mailed to a USCIS Service Center. Applicants should then receive a USCIS receipt notice as well as a notice from an Application Support Center (ASC) instructing them to appear for an appointment for the collection of biometric information. Applicants should retain their ASC biometrics confirmation as proof that biometrics were taken.5 Due to unprecedented backlogs in the processing of affirmative asylum claims, according to current processing times, USCIS may take up to four years to schedule an interview in an affirmative asylum case.6
In defensive filings, asylum applications must be filed in “open court” at a master calendar hearing.7 Attorneys also must comply with pre-filing instructions by sending the first three pages of the Form I-589, their Form G-28 Notice of Entry of Appearance, and a copy of DHS’s “pre-filing instructions” to the USCIS Nebraska Service Center (NSC). Applicants will then receive a USCIS receipt notice as well as an ASC notice instructing them to appear for an appointment for collection of biometric information. Applicants should retain their ASC biometrics confirmation as proof that biometrics were taken, and should be ready to provide the proof at their removal hearings. Immigration judges may not grant asylum without valid, unexpired biometrics and a complete background check performed by the Department of Homeland Security (DHS).
The clear and convincing evidence standard for showing compliance with the OYFD applies to both affirmative and defensive asylum filings.8 Clear and convincing evidence falls somewhere between the “preponderance of the evidence” standard (51% or more) and the “beyond a reasonable doubt” standard. 9 Some ways to establish clear and convincing evidence that an application has been filed within the OYFD include: a certified mail receipt where the mailing date will be considered the filing date,10 credible testimony, or documentary evidence that establishes when the applicant entered the
5 Due to extensive backlogs in processing asylum claims, biometrics are only valid for fifteen months. See DHS Procedures for Implementation of EOIR Background Check Regulations for Aliens Seeking Relief or Protection from Removal (August 22, 2011), available at http://www.uscis.gov/sites/default/files/USCIS/Laws/Laws%20Static%20Files/EOIR_Q_A%202011_FINAL.pdf (last visited Nov. 10, 2015). Following the expiration of biometrics, the applicant must request a second ASC appointment notice. In some jurisdictions, attorneys must proactively call ICE to request new ASC notices on their clients’ behalf. In other jurisdictions, respondents may simply appear at the local ASC with an immigration court hearing notice and will be allowed to have biometrics retaken. Practices to maintain current biometrics vary by jurisdiction. 6 See USCIS Affirmative Asylum Scheduling Bulletin, available at http://www.uscis.gov/humanitarian/refugees-asylum/asylum/affirmative-asylum-scheduling-bulletin (last visited Nov. 10, 2015). 7 EOIR Practice Manual, Chapt. 3.1. 8 See 8 C.F.R. § 1208.4(a)(2)(i)(A). To satisfy the standard, an applicant must provide enough proof to “produce in the mind of the court a firm belief or conviction” that the claim was timely filed. See Matter of Carrubbam, 11 I&N Dec. 914, 917 (BIA 1966). 9 Asylum Officer Basic Training: One Year Filing Deadline, 6 (March 23, 2009), available at http://www.uscis.gov/sites/default/files/USCIS/Humanitarian/Refugees%20%26%20Asylum/Asylum/AOBTC%20Lesson%20Plans/One-Year-Filing-Deadline-31aug10.pdf (last visited Nov. 10, 2015). 10 See 8 C.F.R. § 208.4(a)(2)(ii).
United States. 11 Attorneys should gather all available documentary and testimonial evidence to demonstrate compliance with the OYFD. What are the exceptions to the OYFD? The one-year filing deadline is subject to two statutory exceptions. An applicant may apply for asylum more than one year after entry by demonstrating “either the existence of changed circumstances which materially affect the applicant's eligibility for asylum or extraordinary circumstances relating to the delay in filing an application.”12
An applicant demonstrating changed circumstances must also demonstrate that the application was filed “within a reasonable period given those changed circumstances.”13 Similarly, an applicant demonstrating “extraordinary circumstances” must show that the application was filed “within a reasonable period given those circumstances.”14
Depending on the procedural posture of the claim and whether it is a defensive or affirmative filing, the asylum officer, the immigration judge (IJ), or the Board of Immigration Appeals (Board or BIA) will determine whether the applicant qualifies for an exception to the OYFD.15 Changed circumstances must have a material effect on an applicant’s eligibility for asylum. They include but are not limited to: changes in the applicant’s country of nationality or country of last habitual residence (for stateless individuals), changes in U.S. law, changes in activities in which an applicant has become involved outside his country of nationality, and the loss of a child-parent or spousal relationship to a principal asylum applicant via marriage, divorce, death, or attaining the age of 21.16 Extraordinary circumstances are defined as “events or factors directly related to the failure to meet the one-year deadline” and are especially relevant in the context of the immigration court backlogs. 17 Extraordinary circumstances may include but are not limited to: serious illness or mental or physical disability; legal disability (such as being an unaccompanied minor); ineffective assistance of counsel; maintaining Temporary Protected Status or other lawful immigrant or nonimmigrant status until a reasonable period of time before filing the asylum application; having timely filed an application that has been rejected for the applicant to make corrections; or the death or serious illness of an applicant’s legal representative or immediate family member. 18 Because problems
11 See Asylum Officer Basic Training Participant Workbook, pt. IV (March 23, 2009), available at http://www.uscis.gov/sites/default/files/USCIS/Humanitarian/Refugees%20%26%20Asylum/Asylum/AOBTC%20Lesson%20Plans/One-Year-Filing-Deadline-31aug10.pdf (last visited Nov. 10, 2015). 12 8 U.S.C. § 1158(a)(2)(D). 13 8 C.F.R. § 208.4(a)(4)(ii). 14 8 C.F.R. § 208.4(a)(5). 15 See 8 C.F.R. § 1208.4(a)(2)(ii). 16 See 8 C.F.R. § 208.4(a)(4)(i). 17 8 C.F.R. § 208.4(a)(5). 18 Id.
stemming from backlogs before the immigration courts are beyond the applicant’s control, they should similarly constitute an extraordinary circumstance that excuses the OYFD.
The USCIS Asylum Office’s Lesson Plan on the OYFD explains that other types of circumstances might also justify an extension if the applicant can show that they were “extraordinary and directly related to the failure to timely file.”19 These circumstances include: “severe family or spousal opposition, extreme isolation within a refugee community, profound language barriers, or profound difficulties in cultural acclimatization.”20 Any such factor or combination of factors must have compromised the applicant’s functioning severely enough to have generated a “significant barrier” to timely filing.21 Attorneys should carefully review their client’s cases to determine if any such factors, other than the EOIR backlog, played an outcome-determinative role in the failure to timely file.
Applicants bear the burden of convincing the IJ or asylum officer that the failure to timely file was not their fault.22 The BIA has set forth a three-part test to determine whether an applicant’s failure to file within the OYFD was due to an extraordinary circumstance. 23 First, the applicant must establish that an extraordinary circumstance actually exists. Second, the applicant must demonstrate how those circumstances directly relate to his or her failure to timely file the application. Third and finally, the applicant must prove that the delayed filing was reasonable under the circumstances. 24 These criteria should be easily satisfied where failure to comply with the OYFD is due to immigration court backlogs, as long as the asylum application has been submitted in a timely manner and the applicant (or the applicant’s attorney) presents evidence of other good faith efforts to file.
Timing plays an important role in arguing exceptions to the OYFD. Both extraordinary and changed circumstances may excuse an applicant from meeting the OYFD only if the asylum application is filed within a reasonable period of time.25 However, unlike changed circumstances, extraordinary circumstances must occur during the OYFD period, as they must directly relate to the applicant’s failure to timely file. 26 The BIA examines “reasonable time” disputes on a case-by-case basis but has found that “waiting six months or longer after expiration or termination of status would not be considered
19 Asylum Officer Basic Training: One Year Filing Deadline 13, (March 23, 2009), available at http://www.uscis.gov/sites/default/files/USCIS/Humanitarian/Refugees%20%26%20Asylum/Asylum/AOBTC%20Lesson%20Plans/One-Year-Filing-Deadline-31aug10.pdf (last visited Nov. 10, 2015). 20 Id. at 20. 21 Id. at 20. 22 Id. 23 Matter of Y-C-, 23 I&N Dec. 286 (BIA 2002). 24 Id. at 288. 25 8 C.F.R. § 208.4(a)(5) 26 See e.g., Dree K. Collopy, AILA’s Asylum Primer: A Practical Guide to U.S. Asylum Law and Procedure (7th ed. 2015), pp. 193-194.
reasonable.” 27 Attorneys should review the specific facts of their clients’ cases to determine whether, taking into account the totality of the circumstances, a bona fide argument exists for timely filing.28 What is the difference between lodging an asylum application and filing it in court? Asylum applicants are eligible to receive employment authorization documents (EAD) from USCIS 180 days after their asylum applications are filed in both affirmative and defensive cases. The 180-day waiting period is calculated according to the “asylum EAD clock,” which tracks the number of days since an asylum application has been filed. To facilitate USCIS’s adjudication of EAD applications, EOIR provides USCIS with access to the clock for cases pending before the immigration courts.29 USCIS will consider an application “filed” only when it has been submitted in open court. However, the asylum EAD clock starts after an application has been “lodged” with the immigration court. An application is “lodged” for purposes of determining eligibility for employment authorization, when an applicant or attorney submits an asylum application to the court clerk either in person or by mail.30 Pursuant to the “ABT Settlement Agreement,”31 EOIR accepts defensive filings at the immigration court window and stamps these applications “lodged not filed.”32 EOIR then transmits the “lodged not filed” date to USCIS.33 For detailed guidance on lodging an asylum application for employment authorization purposes, see Employment Authorization and Asylum: Strategies to Avoid Stopping the Asylum EAD Clock, American Immigration Council Practice Advisory (last updated February 5, 2014).
27 Matter of T-M-H- & S-W-C-, 25 I&N Dec. 193, 193 (BIA 2010) (noting “[s]horter periods of time would be considered on a case-by-case basis, with the decision-maker taking into account the totality of the circumstances”); but see Taslimi v. Holder, 590 F.3d 981 (9th Cir. 2010) (finding that asylum application filed nearly seven months after circumstances changed to be within a reasonable time). 28 Alternatively, some practitioners have also argued that the regulations providing applicants with a “reasonable time” to file after the changed circumstances occur are ultra vires. The statute only requires that “that the application has been filed within 1 year after the date of the alien’s arrival in the United States.” See INA § 208(a)(2)(B) The Act then allows for the changed and extraordinary circumstances exception. See INA § 208(a)(2)(D). Nowhere does the statute provide temporal limits on filing once an exception is met. 29 See EOIR Practice Manual, Chapt. 4(l), citing INA § 208(d)(2), § 208(d)(5)(A)(iii); 8 CFR § 1208.7. 30 See EOIR Practice Manual, Chapt. 4(i). 31 As part of a settlement of a nationwide class action lawsuit, B.H., et al. v. USCIS, et al., No. CV11-2108-RAJ (W.D. Wash.), EOIR and USCIS established certain procedures that affect the eligibility of some asylum applicants for employment authorization. The settlement agreement and other documents pertaining to and interpreting the agreement can be found here: http://www.legalactioncenter.org/litigation/asylum-clock. 32 See EOIR Practice Manual, Chapt. 4(i). 33 Id.
For purposes of the OYFD, a lodged asylum application is not considered “filed.”34 The asylum application must still be filed with an immigration judge at a master calendar hearing.35 Nevertheless, as explained below, “lodging” is one of several actions attorneys may utilize in seeking to comply with the OYFD. How can I preserve the OYFD where the immigration court does not schedule my client’s master calendar hearing or schedules it beyond the OYFD? Many practitioners face the scenario where a client has been served with a Notice to Appear (NTA) but the NTA has not been filed with the immigration court. Alternatively, even if is the NTA has been filed, an initial master calendar hearing may not be scheduled until after the OYFD has passed. In these situations, clients are best served by a multi-pronged strategy demonstrating that their failure to meet the OYFD is due to circumstances beyond their control. This strategy may include some or all of the steps discussed below. Filing the I-589 Application for Asylum with USCIS In cases where an NTA has been served on a client but not filed with the immigration court, attorneys should file the asylum application with the relevant USCIS Service Center. At a recent USCIS Asylum Division Quarterly Stakeholder Meeting, John Lafferty, Chief of the Asylum Division, indicated that asylum applications (Form I-589) sent to USCIS Service Centers will be rejected only if internal databases show that the NTA has been filed with the immigration court, thereby establishing jurisdiction with EOIR.36 Thus, the Service Center will accept the application if an NTA has not yet been filed with the court. If accepted, the application will be forwarded, along with the applicant’s A-file, to the relevant USCIS Asylum Office, which will then determine whether to adjudicate the case. Filing before USCIS may also constitute evidence of good faith efforts to meet the OYFD.
In some jurisdictions, submission of an application to USCIS may not excuse a late filing. In the Houston immigration court, for example, an IJ found that the extraordinary circumstances exception did not apply where the respondent had timely filed his application and biometrics request with USCIS, but the first available master calendar hearing date fell beyond the OYFD. The IJ found that counsel’s failure to file a Motion to Advance the Hearing date precluded a finding of extraordinary circumstances. As of November 2015, the case was pending before the Fifth Circuit Court of Appeals.
34 Id. Please note that some judges and immigration court jurisdictions do accept lodged applications as “filed” for the purposes of the OYFD. Please see footnote 38 below describing local practices across the nation. 35 U.S. Department of Justice, EOIR, Memorandum from Chief Immigration Judge O’Leary, “Operating Policies and Procedures Memorandum 13-03: Guidelines for the Implementation of the ABT Settlement Agreement,” Dec. 2, 2013; see also, EOIR Practice Manual, Chapter 3.1(b)(III)(A). 36 USCIS Asylum Division, Quarterly Stakeholder Meeting Agenda and Unofficial Notes, August 7, 2015, AILA Doc. No. 15111204, available at http://www.aila.org/infonet/uscis-asylum-division-liaison-minutes-08-07-15 (last visited Nov. 23, 2015).
Decisions such as these are prime example of the need for attorneys to follow a multi-pronged approach, combining many efforts, to preserve the OYFD. “Lodging” an asylum application with EOIR In cases where the NTA has been filed with the immigration court but the master calendar hearing is scheduled beyond the OYFD, the “lodging” procedure described above may constitute additional evidence of good faith efforts to meet the filing requirements. Indeed, the EOIR guidelines under the ABT Settlement Agreement specifically permit judges to “consider the legal effect of lodging an asylum application when considering whether an exception to the one-year bar applies.” 37 Policies and practices regarding whether lodging is in fact accepted as filing vary widely nationwide.38 If pursuing a “lodging” strategy, practitioners should comply with the requirements for lodging set forth in the EOIR Practice Manual.39 Additionally, given the firm deadlines involved, there is little room for error. EOIR rejects “defective filings” where for example, the I-589 is not signed by the applicant, the I-589 is not filed at the correct court location, or where the case is not pending before EOIR, among numerous other reasons.40 Similarly, an application that is submitted by mail or courier for lodging purposes may be rejected if it is not accompanied by a self-addressed, stamped, envelope; does not include a cover page; or does not include a prominent annotation on the top of the front page stating that is being submitted for the purpose of lodging.41 Filing a Motion to Advance the Hearing Date In cases where an NTA has been filed with the immigration court but the master calendar hearing is scheduled beyond the OYFD, attorneys should also consider filing a Motion to 37 U.S. Department of Justice, EOIR, Memorandum from Chief Immigration Judge O’Leary, “Operating Policies and Procedures Memorandum 13-03: Guidelines for the Implementation of the ABT Settlement Agreement,” Dec. 2, 2013 at 6. 38 AILA asylum liaison contacts across the country shared the lodging and filing practices at their local courts with the authors of this Practice Advisory. This informal polling yielded the following information which is provided for informational purposes only, is subject to change, and should not be relied upon as established practice in any matter or proceeding before EOIR: Judges at the immigration court in Arlington, VA have agreed (and communicated their agreement to local attorneys through pro bono liaison meetings with the court) that lodging constitutes filing for the purpose of meeting the OYFD and routinely permit an exception to the deadline where an applicant has lodged the I-589 within one year of his or her last entry into the United States. Judges in some courts, including Omaha, NE, Los Angeles, CA, New Orleans, LA, and Seattle, WA, accept lodging as filing but have not made any formal policy announcement to that effect. In other courts, including Denver, CO, Judges do not consider lodging as filing for the purposes of the OYFD. In Houston, TX court personnel informed practitioners that each immigration judge has discretion to determine whether lodging constitutes filing and that there is no official guidance. In Portland, OR, practitioners similarly report that there is no official rule regarding lodging as filing, but that Judges seem to often accept the lodged date as filed for the purposes of the OYFD. 39 See EOIR Practice Manual Chapter 4(i)(A). 40 Id. 41 Id.
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Advance the Master Calendar Hearing Date. Such a motion may constitute further evidence of good faith efforts to meet the OYFD and will preserve a record for appeal should an IJ find there are no extraordinary circumstances.
A Motion to Advance should “completely articulate” the reasons for advancing the hearing date, the negative consequences of not doing so, and the relief or remedy sought.42 Attorneys should explicitly state that the purpose of the motion is to enable the respondent to meet the OYFD. Motions should be accompanied by the respondent’s written pleadings, a copy of the asylum application (as well as any additional copies for family members included in the application), and supporting documentation. The motion must be filed with a cover page labeled “MOTION TO ADVANCE” and include a proposed order for the IJ to sign.43 While not required by the regulations or the EOIR Practice Manual, a Motion to Advance may help preserve arguments for appeal should an IJ refuse to accept an asylum application due to issues relating to the OYFD.
After filing a Motion to Advance the Hearing Date, an attorney should be ready to proceed if the motion is granted. Attorneys should prepare the asylum application and supporting documents for submission to the immigration court, along with evidence of their attempts to timely file. Such evidence may include a copy of the cover page with the “lodged not filed” stamp, the USCIS receipt and ASC notices, and a copy of the Motion to Advance.
Arguing that a Request for a Credible Fear Interview is an Application for Asylum
In a situation where a client has undergone or requested a credible fear interview, and then failed to file within one year of entry into the United States, the following argument may be made. Paragraph (1) of INA §208 provides that an application for asylum can be made “in accordance with this section or, where applicable, section 235(b) of this title.”44 The OYFD rule provides, of course, that subject to certain exceptions described in the statute, paragraph 208(1) shall not apply unless the application for asylum is made within one year of the applicant’s entry into the United States.45
INA §235(b), in turn, provides that when an inadmissible alien seeking admission “indicates either an intention to apply for asylum under INA§208 of this title or a fear of persecution, the officer shall refer the alien for an interview by an asylum officer under subparagraph (B).”46 INA §235(b) provides the process for consideration and review of the credible fear interview for applicants for admission. No particular form is required.
Once an applicant states that he or she is afraid to return, the applicant is deemed an applicant for asylum. The argument should be made that under the plain language of the
42 See EOIR Practice Manual Chapter 5.10(b). 43 See Id. at Chapter 5.2(b). 44 INA § 208(a)(1) (emphasis added). 45 INA § 208(a)(2)(B). 46 INA § 235(b)(1)(A)(ii).
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statute, a request for a credible fear interview under INA Section 235(b), made within one year of entry, constitutes an application for asylum. As such, practitioners should argue that any individual who has undergone or even simply requested a credible fear interview, is not subject to a bar to asylum raised by the OYFD. Again, practitioners and their clients are best served by a multi-faceted approach that, when applicable, incorporates this argument, as well as the other strategies cited herein. Under what circumstances should I appeal a denial of an asylum application based on failure to meet the OYFD? If an IJ denies asylum based on a failure to meet the OYFD, attorneys should consider appealing the decision to the Board and, if necessary, to the relevant court of appeals. The REAL ID Act limits judicial review of legal claims, with the exception of constitutional claims or questions of law.47 Courts have generally considered questions of timeliness and changed or extraordinary circumstances to be questions of fact, and therefore unreviewable. 48 Nevertheless, attorneys may argue that an IJ’s refusal to accept an asylum application is not a pure question of fact, but also an error of law that deprives an asylum applicant of his statutory and due process right to seek asylum.49 The Ninth Circuit has found jurisdiction to review the Board’s extraordinary and changed circumstances determinations. In Husyev v. Mukasey, for example, the Ninth Circuit concluded that EOIR had established a “meaningful standard” by which it could review the BIA's extraordinary circumstances determinations, “including review of the
47 See 8 U.S.C. § 1252(a) (“[n]othing ... in any ... provision of this chapter (other than this section) which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section.”). 48 See e.g., Diallo v. Gonzales, 447 F.3d 1274, 1281-82 (10th Cir. 2006); Sukwanputra v. Gonzales, 434 F.3d 627, 633-35 (3d Cir. 2006); Chen v. Gonzales, 434 F.3d 144, 154 (2nd Cir. 2006); Mehilli v. Gonzales, 433 F.3d 86, 93-94 (1st Cir. 2005); Vasile v. Gonzales, 417 F.3d 766, 768-69 (7th Cir. 2005); see also Chacon-Botero v. U.S. Attorney Gen., 427 F.3d 954, 957 (11th Cir. 2005) (holding that the REAL ID Act did not confer jurisdiction to review an IJ’s untimeliness ruling); Bosung v. Gonzales, No. 05-1555, 2006 WL 851092, at *1 (4th Cir. 2006) (unpublished opinion) (per curiam) (same). 49 See e.g., Almuhtaseb v. Gonzales, 453 F.3d 743, 748 (6th Cir. 2006) (modifying a previous holding to bar review of asylum applications denied for untimeliness “only when the appeal seeks review of discretionary or factual questions, but not when the appeal seeks review of constitutional claims or matters of statutory construction.”); Ramadan v. Gonzales, 479 F.3d 646, 648 (9th Cir. 2007) (holding that “jurisdiction over ‘questions of law’ as defined in the Real ID Act includes not only ‘pure’ issues of statutory interpretation, but also application of law to undisputed facts, sometimes referred to as mixed questions of law and fact.”); Nakimbugwe v. Gonzales, 475 F.3d 281, 284 (5th Cir. 2007) (“finding that “the IJ's determination was based entirely on his construction of a federal regulation, which is a question of law over which we now have jurisdiction.”); Lumataw v. Holder, 582 F.3d 78 (1st Cir. 2009) (holding that “the question of whether the IJ and BIA applied the correct filing deadline in assessing the timeliness of his asylum application, constitutes a ‘question of law’ underlying the agency's timeliness determinations.”); Mabasa v. Gonzales, 455 F.3d 740, 744 (7th Cir. 2006) (finding jurisdiction over Petitioners’ claims under the REAL ID Act on the basis that “they were not afforded a meaningful opportunity to be heard since the BIA wrongly analyzed their claim as one of extraordinary circumstances”); see also Dree K. Collopy, AILA’s Asylum Primer: A Practical Guide to U.S. Asylum Law and Procedure Ch. 12 (7th ed. 2015).
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‘reasonable period’ prong in particular.”50 In Taslimi v. Holder, the court applied similar reasoning to find it had jurisdiction to review whether the respondent had filed her asylum application within a reasonable period of time given the changed circumstances presented by her religious conversion.51 These cases suggest an argument that, given existing backlogs in the immigration courts, an IJ’s refusal to accept an asylum application under one of the exceptions to the OYFD constitutes an error of law that is subject to judicial review. What other arguments can I make to appeal a denial of an asylum application based on failure to meet the OYFD? Attorneys may also argue that denials of asylum applications for failure to meet the OYFD for purely technical reasons are too stringent and beyond the scope of Congressional intent. The exceptions to the OYFD were intended to be flexible and broad.52 At the time of enactment, Congress’ “paramount objective” was to prevent fraudulent claims.53 “Wide concern existed that undocumented immigrants were abusing the asylum process in order to obtain permission to work and access other societal benefits.”54 Nevertheless, even with these concerns, Congress sought to ensure that the U.S. “remain a safe haven” for legitimate asylum seekers fleeing persecution in their home countries.55 Recognizing this overriding goal, Senator Orrin Hatch, a proponent for the one-year bar, stated that he too was “committed to ensuring that those with legitimate claims for asylum are not returned to persecution, particularly for technical deficiencies.”56 Where asylum applicants have made good faith efforts to file asylum applications within a reasonable period of time, for example, by lodging, by filing a motion to advance the hearing date, filing an application with USCIS where possible, and other such strategies, it would be contrary to Congressional intent to reject such claims for failure to file within the OYFD. Strict application of the OYFD in this manner is rigid, does not prevent fraud, and denies protection to legitimate asylum seekers. The American Immigration Council and AILA are interested in tracking and potentially intervening as amicus in cases where immigration judges or the Board of Immigration Appeals have declined to find an exception to the OYFD even though a respondent’s
50 528 F.3d 1172, 1181 (9th Cir. 2008). 51 590 F.3d 981, 985 (9th Cir. 2010). 52 See Vahora v. Holder, 641 F.3d 1038, 1045 (9th Cir. 2011); see also, Karen Musalo and Marcelle Rice, The Implementation of the One-Year Bar to Asylum, 31 Hastings Int’l & Comp. L. Rev. 693, 696 (2008) [Hereinafter “Musalo, Implementation of the One-Year Bar to Asylum.”] 53 Vahora, 641 F.3d at 1045. 54 Musalo, Implementation of the One-Year Bar to Asylum at 695. 55 Vahora, 641 F.3d at 1045. 56 See 142 Cong. Rec. S11838 - 40 (daily ed. Sept. 30, 1996) (statement of Sen. Orrin Hatch) cited in Vahora, 641 F.3d at 1045.
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master calendar hearing was scheduled beyond the deadline. Please submit your case via our online form.57 Conclusion The immigration court backlogs present serious challenges for asylum seekers. By pursuing the type of multi-pronged, proactive strategy described above, attorneys can assist their clients in complying with the OYFD and thereby safeguard their ability to apply for asylum. 58
57 Call for Examples: Denial of Asylum Based on Master Calendar Hearing Scheduled After One-Year Filing Deadline, August 4, 2015, AILA Doc. No. 15071403, available at https://liaison.formstack.com/forms/asylumfilingdeadline. 58 For additional practice pointers regarding the OYFD, see e.g., Dree K. Collopy, AILA’s Asylum Primer: A Practical Guide to U.S. Asylum Law and Procedure (7th ed. 2015), pp. 184-197.
a. General Process 3 b. Applications Lodged by Mail or Courier 4 c. Transmission of "Lodged not Filed" Date to USCIS 5
3. Filing the Defensive Asylum Application 5 C. Addressing ABT Implementation Issues 5
IV. The Immigration Judges' Responsibilities 6 A. Reasons for Adjournments 6 B. Offering Future Hearing Dates 6 C. Providing the 180-Day Asylum EAD Clock Notice 6 D. Consideration of an Exception to the One-Year Bar 6
V. Cases on Appeal or Remand 6 VI. Conclusion 7
Attachments: A. ABT Settlement Agreement B. 180-Day Asylum EAD Clock Notice
OPPM 13-03: Guidelines for Implementation of the ABT Settlement Agreement Page 2
C. Rejected Lodging Notice
I. Introduction
As part of a settlement of the nationwide class-action lawsuit B.H., et al. v. U.S. Citizenshipand Immigration Services, et al., No. CV11-2108-RAJ (W.D. Wash.) (referred to as the “ABTSettlement Agreement”), the Executive Office for Immigration Review (“EOIR”) and the U.S.Citizenship and Immigration Services (“USCIS”) agreed to change certain procedures that willaffect the eligibility of some asylum applicants for employment authorization documents(“EAD”). This Operating Policies and Procedures Memorandum (“OPPM”) provides guidanceon the implementation of the terms of the ABT Settlement Agreement, a copy of which is providedas Attachment A.
II. The ABT Settlement
The ABT Settlement Agreement resulted from a class action complaint challenging theFederal Government’s practices with respect to EADs for applicants for asylum. The suit wasfiled in the U.S. District Court for the Western District of Washington in 2011. The plaintiff classconsisted of all noncitizens in the United States who have been placed in removal proceedings,have filed a complete Form I-589, Application for Asylum and Withholding of Removal, and havefiled or will file a Form I-765, Application for Employment Authorization, pursuant to 8 C.F.R. §274a.12(c)(8).
EOIR is required to implement certain interim provisions of the agreement on December 3,2013. These interim provisions include:
(1) making the 180-Day Asylum EAD Clock Notice (a copy of which is provided asAttachment B) available at hearings;
(2) providing the 180-Day Asylum EAD Clock Notice to an asylum applicant when theapplicant lodges or files an asylum application;
(3) stamping defensive asylum applications as “lodged not filed” at the immigration courtfiling window and entering the lodged date into CASE, to be transmitted to USCIS; and
(4) making certain amendments to OPPM 11-02: The Asylum Clock. These changes havebeen made and the OPPM has been reissued as OPPM 13-02: The Asylum Clock.
III. Lodging Asylum Applications
Pursuant to the ABT Settlement Agreement, EOIR will accept defensive asylumapplications at the immigration court filing window as “lodged not filed” and will transmit the“lodged not filed” date to USCIS.
OPPM 13-03: Guidelines for Implementation of the ABT Settlement Agreement Page 3
A. Meaning of the Term “Lodged”
If a defensive asylum application is submitted outside of a hearing for the purpose oflodging the application, the asylum application will be stamped “lodged not filed” and returned tothe applicant, following the process laid out below. The lodged date is not the filing date and alodged asylum application is not considered filed. The requirement that an asylum application befiled before an Immigration Judge at a master calendar hearing will not change. See OPPM 13-02:The Asylum Clock; Revised OPPM 00-01: Asylum Request Processing. A respondent who lodgesan asylum application at an immigration court filing window must still file the application beforean Immigration Judge at a master calendar hearing. However, USCIS will consider the date onwhich an asylum application is “lodged not filed” for the purpose of calculating the time period forEAD eligibility.
B. “Lodged not Filed” Process
1. Defensive Asylum Applications Only
An asylum application that is first filed before an Immigration Judge at a master calendarhearing is known as a “defensive” application. Only a respondent who plans to file a defensiveasylum application, but has not yet done so, may lodge an asylum application. An asylumapplicant may only lodge an asylum application once. If an asylum application is lodged, it mustbe lodged before that application is filed before an Immigration Judge at a master calendar hearing.An applicant who already has an asylum application pending with the court may not lodge anasylum application. Accordingly, if a respondent filed an application with USCIS and USCISreferred that application to the court, the respondent may not lodge an asylum application.
2. Court Staff Responsibilities
a. General Process
If a respondent submits an asylum application at the immigration court filing window forthe purpose of lodging the application, court staff should make an initial determination as towhether the application may be lodged. In the following situations, court staff should reject theapplication:
o the Form I-589 does not have the applicant’s name;o the Form I-589 does not have the A-number;o the Form I-589 is not signed by the applicant (Part D on page 9 of the Form I-589);o the Form I-589 has already been lodged with the court;o the Form I-589 has already been filed with the court;o the Form I-589 was referred to the court from USCIS;o the Form I-589 is being submitted for lodging at the incorrect court location;o the case is pending before the Board of Immigration Appeals (“BIA”); oro the case is not pending before EOIR.
Such an application should not be stamped with the “lodged not filed” stamp or the court datestamp. Rather, the application should be rejected, and a copy of the 180-Day Asylum EADClockNotice need not be provided.
OPPM 13-03: Guidelines for Implementation of the ABT Settlement Agreement Page 4
Note that a Proof of Service is not required to lodge an application. Accordingly, staffshould not reject an application for lack of a Proof of Service.
After determining that the asylum application may be lodged, court staff should stamp theapplication with the “lodged not filed” stamp and with the court date stamp. Court staff will thenupdate the field “lodged not filed” date in CASE. Court staff should not place the lodgedapplication or a copy of it in the Record of Proceeding. The original stamped application shouldbe returned to the respondent along with a copy of the attached 180-Day Asylum EAD ClockNotice.
Once a “lodged not filed” date is entered into CASE, it should not be changed except inunusual circumstances, such as to correct a data entry error. The “lodged not filed” date shouldnot be changed when the asylum application is filed or when the Immigration Judge issues adecision on the asylum application.
In addition, court staff should ensure that the 180-Day Asylum EAD Clock Notice isavailable in all courtrooms during hearings.
b. Applications Lodged by Mail or Courier
A respondent may submit an asylum application by mail or courier for the purpose oflodging the application. Court staff should make an initial determination as to whether theapplication may be lodged. If the application has any of the defects described in subsection (a),above, it should be rejected using the Rejected Lodging Notice, a copy of which is provided asAttachment C. The Rejected Lodging Notice should be processed in the same manner as anyother rejection notice. If the application is rejected, a copy of the 180-Day Asylum EAD ClockNotice need not be included with the rejection notice.
In addition to the defects described in subsection (a) above, court staff should also rejectthe application in the following situations:
o The application is not accompanied by a self-addressed stamped envelope orcomparable return delivery packaging. In this situation the application should berejected using the Rejected Lodging Notice, a copy of which is provided as AttachmentC. The Rejected Lodging Notice should be processed in the same manner as any otherrejection notice. If the application is rejected, a copy of the 180-Day Asylum EADClock Notice need not be included with the rejection notice.
o The asylum application is not accompanied by a cover page or does not include aprominent annotation on the top of the front page of the form stating that it is beingsubmitted for the purpose of lodging. In this situation the application should berejected using a regular Rejected Filing Notice, not the Rejected Lodging Notice. Ifthe application is rejected, a copy of the 180-Day Asylum EAD Clock Notice need notbe included with the rejection notice.
If an asylum application submitted by mail or courier meets the requirements for lodging,court staff should process the application as described in subsection (a), above.
OPPM 13-03: Guidelines for Implementation of the ABT Settlement Agreement Page 5
c. Transmission of “Lodged not Filed” Date to USCIS
Once a date is entered into the “lodged not filed” field in CASE, it will be provided toUSCIS electronically. No additional action is necessary by court staff.
3. Filing the Defensive Asylum Application
As noted above, even if a respondent lodges an asylum application at an immigration courtfiling window or by mail or courier, the respondent still must file the application before anImmigration Judge at a master calendar hearing in order to apply for asylum. See section III(A)(Meaning of the Term “Lodged”), above. Whether or not a respondent lodged an asylumapplication does not affect the respondent’s eligibility to file a defensive asylum application at amaster calendar hearing.
When a respondent files an asylum application, the judge should make sure the respondentreceives a copy of the 180-Day Asylum EAD Clock Notice. See section IV (The ImmigrationJudges’ Responsibilities), below. In addition to providing the 180-Day Asylum EAD ClockNotice, the judge and court staff should follow the existing process for reviewing and accepting acomplete asylum application as filed. See Revised OPPM 00-01: Asylum Request Processing;OPPM 13-02: The Asylum Clock.
C. Addressing ABT Implementation Issues
Under the terms of the ABT Settlement Agreement, there is a separate Individual ABTClaim Review process for asylum applicants who believe they have not received the reliefdescribed in the Agreement. Applicants will have access to the Individual ABT Claim Reviewprocess before EOIR for the following claims only:
o The lodging claim – The clerk at the immigration court filing window refused to either1) stamp a respondent’s asylum application “lodged not filed,” or 2) after properlystamping a respondent’s asylum application “lodged not filed,” return the stampedapplication to the respondent.
o The notice claim – The respondent did not receive the 180-Day Asylum EAD ClockNotice when he or she lodged or filed a defensive asylum application, or the notice wasnot made available at all hearings before the Immigration Court.
To submit a complaint under the Individual ABT Claim Review process, an asylum applicant mustcomplete an ABT Claim Form and send it to EOIR’s Office of General Counsel.
Asylum applicants requesting review of an asylum clock issue outside of the IndividualABT Claim Review process should follow the administrative procedures set forth in section VII(Addressing Asylum Clock Requests) of OPPM 13-02: The Asylum Clock. Applicants claimingthat USCIS failed to fulfill one of its obligations under the ABT Settlement Agreement should filean ABT Claim Form with USCIS, following the instructions on the form.
OPPM 13-03: Guidelines for Implementation of the ABT Settlement Agreement Page 6
IV. The Immigration Judges’ Responsibilities
This section describes the responsibilities of the Immigration Judges.
A. Reasons for Adjournments
The judge is responsible for deciding the reason for each adjournment. If at a hearing, thejudge must make the reason(s) for the case adjournment clear on the record. See OPPM 13-02:The Asylum Clock.
B. Offering Future Hearing Dates
Judges should follow the guidelines set forth in OPPM 13-02: The Asylum Clock whenoffering future hearing dates. Generally, when setting a non-detained case from a master calendarhearing to an individual calendar hearing, a minimum of 45 days must be allowed, even if the180-day adjudications deadline is imminent. Generally, when setting a detained case from amaster calendar hearing to an individual calendar hearing, a minimum of 14 days should beallowed. These time periods may be shortened if requested by the applicant.
C. Providing the 180-Day Asylum EAD Clock Notice
When the applicant files a defensive asylum application in court, the judge must make itclear on the record that the applicant received a copy of the 180-Day Asylum EAD Clock Notice.See section III(B)(3) (Filing the Defensive Asylum Application), above.
D. Consideration of an Exception to the One-Year Bar
The Immigration Judge adjudicates whether an asylum application was filed within oneyear after the date of the applicant=s arrival in the United States and, if not, whether an exception tothis filing deadline applies. See INA § 208(a)(2)(B); 8 C.F.R. § 1208.4. Legal determinationsregarding the effect of lodging an asylum application are within the province of the presidingImmigration Judge. For example, judges may consider the legal effect of lodging an asylumapplication when considering whether an exception to the one-year bar applies.
V. Cases on Appeal or Remand
As discussed in OPPM 13-02: The Asylum Clock, EOIR=s asylum adjudications clockpermanently stops when the judge issues a decision granting or denying the asylum application, asthe decision constitutes “final administrative adjudication of the asylum application, not includingadministrative appeal” under section 208(d)(5)(A)(iii) of the Immigration and Nationality Act.Therefore, EOIR’s asylum adjudications clock does not run during any appeal of the decision tothe BIA, during judicial review before the Federal courts, or if a case has been remanded to theImmigration Court. However, if an applicant is applying for asylum for the first time during aremanded proceeding, then the clock starts and stops as usual.
The ABT Settlement Agreement does not require any change in EOIR’s proceduresrelating to cases during any appeal of a decision to the BIA, during judicial review before the
OPPM 13-03: Guidelines for Implementation of the ABT Settlement Agreement Page 7
Federal courts, or if a case has been remanded to the Immigration Court. However, immigrationcourt staff should be aware that USCIS’s procedures relating to calculation of work authorizationeligibility after a remand have changed. Pursuant to the ABT Settlement Agreement, if a decisionis appealed to the BIA and the BIA remands it to a judge for adjudication of an asylum claim,USCIS will include the total number of days between the Immigration Judge’s initial decision onthe asylum application and the date of the BIA’s remand order in determining the applicant’seligibility for work authorization. USCIS will also include the total number of days accruedfollowing the remand order, excluding any delays requested or caused by the applicant, indetermining the applicant’s eligibility for work authorization.
Accordingly, if an asylum applicant believes that he or she is eligible for workauthorization after his or her case is remanded to the Immigration Court, the applicant shouldcontact USCIS.
VI. Conclusion
This OPPM provides guidance on the implementation of ABT Settlement Agreement inproceedings before EOIR. If you have any questions, please contact your Assistant ChiefImmigration Judge or Mark Pasierb, Chief Clerk, Office of the Chief Immigration Judge.
E-Service Fact Sheet (Rev. 7/15/15) Page 1
Office of the Chief Counsel U.S. Department of Homeland Security Immigration and Customs Enforcement New York, NY
OFFICE OF THE CHIEF COUNSEL, NEW YORK ELECTRONIC SERVICE FACT SHEET
The Office of the Chief Counsel, New York, will begin the use of electronic service (E-Service) effective May 31, 2015. Participation is voluntary and is a substitute for in-person service and service through regular mail.
E-mail Addresses: The following existing email box addresses will continue to be operational: x For Requests for Prosecutorial Discretion: [email protected] x For Joint Motions to Reopen (non-detained): [email protected] x For Joint Motions to Reopen (detained): [email protected]
Please direct other E-Service filings to the following email box addresses: x For 26 Federal Plaza Court Cases: [email protected] x For Varick Street Court Cases: [email protected] x For Ulster/Downstate Court Cases: [email protected]
Terms and Conditions of Use:
1. E-Service is limited to the following types of documents filed with either the Immigration Judge or the Board of Immigration Appeals:
a. Requests for Prosecutorial Discretion b. Motions b. Briefs c. Applications d. Exhibits in Support of Relief Applications e. EOIR and DHS Forms (EOIR-28, EOIR-26, etc.)
2. General inquiries and specific questions should be directed to the duty attorney at:
x (212) 264-8572 3. All messages delivered to the E-Service mailbox other than those including documents for service
will be deleted without being read. 4. Attachments cannot exceed 10 Megabytes (MB) of data storage.
5. All pages must be clearly scanned.
E-Service Fact Sheet (Rev. 7/15/15) Page 2
6. Subject lines/document names.
a. The subject line must include (in this order): A-number; document type/s;
Immigration Judge; and next hearing date (if available). Do not include any other information in the subject line.
i. Examples: 1. A123456789; MTR and G-28; IJ Morace; NHD unassigned 2. A987654321; EOIR-28; IJ unknown; NHD-06-15-16 3. A999999999, Evidence Packet, IJ Sichel, NHD- 8-23-16
b. Documents must be named (in this order): A-number, document type.
i. Examples: 1. A123456789-MTR 2. A987654321-EOIR 28 3. A999999999-Evidence
7. Documents must be saved as standard Portable Document Format (PDF) files only, and
must be attached to the email correspondence. OCC will not access documents through hyperlinks to storage servers, file drop-boxes, “cloud” servers, or other sources.
8. The body of the email must include the following information:
a. Alien's A-Number b. The full title of the document being filed c. Attorney's Name, Mailing Address, Telephone Number and Email address
Note: Electronic correspondence containing only attachments and without text in the body of the email will not be opened by OCC and will be deemed improperly served.
9. Within 5 business days, an email will be sent to the sender if the filing is rejected. Otherwise,
the auto-reply will serve as your receipt of filing.
10. By serving documents electronically through this system, the alien and his representative consent to receipt of service of ICE submissions by electronic service in accordance with DHS policies.
11. Acceptance of electronic correspondence in compliance with this agreement constitutes
proper service as required under 8 C.F.R. § 1003.32 and waives objections relating to service requirements under Immigration Court Practice Manual Chapter 3.2(c).
12. By serving documents electronically through this system, the alien and his representatives
consent to these Terms and Conditions of Use. 13. Participants in E-Service acknowledge and agree to a limited waiver of data security that shall
only attach to the electronic service and transmittal of documents that may contain sensitive personally identifiable information (SPII). Participants in E-Service should be aware however that U.S. Immigration and Customs Enforcement (ICE) cannot ensure that information transmitted outside of the DHS network will remain secure during transmission. Please be
E-Service Fact Sheet (Rev. 7/15/15) Page 3
advised that this waiver applies to both your receipt of information transmitted by ICE and the transmission of information from you to ICE. Please also be advised that 1) from the time information leaves the DHS network until receipt by your email system and 2) during the time that information is being transmitted by your email system to the DHS network, the information contained within the email, including but not limited to SPII, is not necessarily secure against interception. You are strongly encouraged to encrypt any documents containing SPII prior to sending to OCC via email and to send passwords under separate cover. By participating in E-Service you expressly agree to assume the risk that SPII might be intercepted during transmission to or from the DHS network and as a result be obtained by or disclosed to third-parties.
14. Emails that do not comply with the Terms and Conditions of Use may be rejected and ICE may object to the admission of the documents into the record. Violation of the Terms and Conditions of Use or misuse of the E-Service mailbox will result in suspension of E-Service access and rejection of future E-Service filings.
E-Service Fact Sheet (Rev. 7/15/15) Page 4
Office of the Chief Counsel U.S. Department of Homeland Security Immigration and Customs Enforcement New York, NY
Frequently Asked Questions – E-Service
Q1: What is E-Service?
A1: E-Service is the electronic service of documents between the OCCs and the private bar and respondents through a dedicated OCC email address.
Q2: Does E-Service allow for the electronic filing of documents on the immigration court?
A2: No. Although the Executive Office for Immigration Review (EOIR) is working on a plan to allow for electronic filing of documents in the future, currently EOIR accepts only EOIR Form 27 (Notice of Entry of Appearance before the Board) and EOIR Form 28 (Notice of Entry of Appearance before the Immigration Court) electronically. EOIR’s Office of the Chief Administrative Hearing Officer (OCAHO), is also conducting a voluntary pilot program to test an electronic filing system in cases filed with OCAHO.
Q3: How will the public be made aware of E-Service?
A3: Each OCC has created a local OCC E-Service Fact Sheet to be distributed to the local chapter of the American Immigration Lawyers Association (AILA), NGOs, and made available in immigration court. This OCC E-Service Fact Sheet will provide all the details necessary for serving documents electronically on the local OCC.
Q4: What types of documents will be accepted through E-Service?
A4: OPLA’s goal is to accept all documents through E-Service that are filed with the EOIR and served on the OCCs; however, due to varied local resource constraints, each OCC will determine the documents they are able to accept electronically during this initial roll out. Please consult the local OCC E-Service Fact Sheet for a list of documents that will be accepted.
Q5: What format should documents be sent?
A5: Documents being served must be in either Adobe Acrobat (PDF) or Microsoft Word format, and must be attached to the email correspondence. OCCs cannot access documents through hyperlinks to storage servers, file drop-boxes, “cloud” servers, or other non-attachment sources.
Q6: Is E-Service of documents filed with EOIR mandatory?
A6: No. E-Service is a voluntary option for those individuals who would like to take advantage of
E-Service Fact Sheet (Rev. 7/15/15) Page 5
serving documents on an OCC electronically. However, by serving documents electronically, individuals consent to receipt of documents via e-mail in the case which is the subject of the e-Service. It should further be noted that in some locations OCCs have established rules requiring certain requests from local attorneys that are not filed with EOIR to be electronically sent to the OCC. These documents can include Joint Motions to Reopen and requests for prosecutorial discretion.
Q7: Is E-Service consistent with the Immigration Court Practice Manual and 8 C.F.R. 1003.32, which provides that service must be done in person or by first class mail?
A7: Yes. The use of E-Service is purely voluntary and serves as a mechanism to improve the speed and efficiency of receiving EOIR filings for both respondents and the government. As part of each local OCC E-Service Fact Sheet, respondents and their counsel consent to receive E-Service from the government only in those cases where they have availed themselves of E-Serving the government. In so doing, DHS, respondents, and their counsel also agree that acceptance of electronic correspondence in compliance with the E-Service Fact Sheet constitutes proper service as required under 8 C.F.R. § 1003.32 and waives objections relating to service requirements under Immigration Court Practice Manual Chapter 3.2(c).
Q8: How will ICE protect sensitive personally identifiable information (SPII) in electronically
serving personal e-mail addresses?
A8: Pursuant to DHS policy, ICE is committed to protecting SPII. To this end, all documents sent from ICE to a personal e-mail address as part of E-Service will be encrypted with a password.
Q9: Are there data security risks associated with participation in e-Service?
A9: Participants in E-Service acknowledge and agree to a limited waiver of data security that shall only attach to the electronic service and transmittal of documents that may contain sensitive personally identifiable information (SPII). Participants in E-Service should be aware however that U.S. Immigration and Customs Enforcement (ICE) cannot ensure that information transmitted outside of the DHS network will remain secure during transmission. Please be advised that this waiver applies to both your receipt of information transmitted by ICE and the transmission of information from you to ICE. Please also be advised that 1) from the time information leaves the DHS network until receipt by your email system and 2) during the time that information is being transmitted by your email system to the DHS network, the information contained within the email, including but not limited to SPII, is not necessarily secure against interception. By participating in E-Service you expressly agree to assume the risk that SPII might be intercepted during transmission to or from the DHS network and as a result be obtained by or disclosed to third-parties.
Q10: What type of proof will be given from the OCCs confirming receipt of electronically served documents?
A10: OCC E-Service mailboxes will generate an auto-reply advising the sender that their submission was received.
12-2163Lin v. Lynch
BIABrennan, IJ
A 088 517 180UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2015
Argued: August 25, 2015 Decided: February 11, 2016
LORETTA E. LYNCH, United States Attorney General,Respondent.
- - - - - - - - - - - - - - - - - - - - - -
Before: NEWMAN, WALKER, and JACOBS, Circuit Judges.
Petition for review of the April 30, 2012, decision of
the Board of Immigration Appeals, reversing a decision of an
Immigration Judge that had approved an application for
asylum.
Petition granted and case remanded. Judge Jacobs
concurs in the grant of the petition for review and remand
to the BIA for further consideration with a separate
opinion.
1
Gerald Karikari, Law Offices ofGerald Karikari, P.C., NewYork, NY, for Petitioner.
Ashley Y. Martin, United StatesDepartment of Justice, (StuartF. Delery, Principal DeputyAssistant Attorney General,Mary Jane Candaux, AssistantDirector, on the brief),Washington, DC, for Respondent.
JON O. NEWMAN, Circuit Judge.
This petition to review a decision of the Board of
Immigration Appeals (“BIA”) requires consideration of the
standard of review for a court of appeals considering the
BIA’s determination that an Immigration Judge’s (“IJ”)
findings of fact are clearly erroneous. This issue arises
on a petition by Wu Lin for review of the BIA’s decision of
April 30, 2012, denying his application for asylum. We
conclude that, although the BIA recognized its obligation to
apply the “clear error” standard of review to the IJ’s
findings of fact, it erred in its application of that
standard and provided an insufficient basis for rejecting
the IJ’s findings. We therefore grant the petition for
review and remand to the BIA for further consideration.
2
Background
Wu Lin is a native and citizen of the People’s Republic
of China. In August 2007 he entered the United States
without authorization. Lin was apprehended in Texas a few
days after his entry. In September 2007, an official of the
Department of Homeland Security (“DHS”) conducted a so-
called “border interview” to determine whether Lin
“indicate[d] either an intention to apply for asylum . . .
or a fear of persecution,” Immigration and Nationality Act
§ 235(b)(1)(A)(I), 8 U.S.C. § 1225(b)(1)(A)(i). Under oath,
Lin stated that he would be imprisoned if returned to China.
Asked why, he answered, “I was working for the birth control
department in China and I let two women go . . . without
having the procedure.”
As a result of the border interview, Lin was referred
for a so-called “credible fear” interview conducted in
September 2007 by an asylum officer to determine whether Lin
“ha[d] a credible fear of persecution,” 8
U.S.C. § 1225(b)(1)(B)(ii), which means “a significant
possibility . . . that the alien could establish eligibility
for asylum,” 8 U.S.C. § 1225(b)(1)(B)(v). Lin testified
that his reason for believing that he would be persecuted if
returned to China was that he was arrested and fined when he
3
“went to reason with the people in the family planning”
after they forced his girlfriend to have an abortion. The
asylum officer asked Lin why he had told the Border Patrol
that he feared imprisonment because he had helped two women
escape from the birth control department. He answered,
“[W]hen I was there with them, they told me I did not have
to say me [sic] the whole story there, but to tell it to the
immigration officer.” Lin added, “I released two women that
were nine months pregnant.
Lin filed a written application for asylum in July
2008. Abandoning his claims made at the border and credible
fear interviews, Lin wrote that he had been persecuted by
the Chinese government by beatings and detention because of
his practice of Falun Gong. He explained the recantation of
his previous claims by stating that he had been instructed
by the snakeheads (smugglers) on the way to the United
States to say certain things and that if he did not say what
he was told he would be sent back to China and have to pay
the smuggling fees. Lin’s testimony before the IJ repeated
what he had written in his asylum application.
In an oral decision, the IJ credited Lin’s testimony.
He found that Lin had “reasonably explained” his previous
versions and was “satisfied” with Lin’s explanation.“
4
[T]his is an example,” the IJ stated, “of the power of the
snakeheads to whom he owed money and to whom he owed his
presence and entry into the United States.” Then, evidently
contemplating an appeal by DHS, the IJ added, “This is an
example for any reviewing Court of the power of the
snakeheads over [asylum seekers] who are coming to America.”
The IJ said he “g[a]ve great weight to the fact that [Lin]
came forward voluntarily to withdraw those statements and to
explain why he said those statements.” With respect to
Lin’s current claim, the IJ said he credited Lin’s practice
of Falun Gong and the detention and beatings he had suffered
while detained in China. The IJ also found that Lin had
“produced reasonably available evidence to support his
claim,” referring to a letter from Lin’s father, a letter
from his co-practitioner in China, a copy of the dismissal
notice from his employer, a sworn affidavit from his uncle,
and several identity documents. The IJ exercised his
discretion to grant Lin asylum.
DHS appealed the IJ’s decision to the BIA. The BIA
began its opinion by recognizing that its regulations
required it to review an IJ’s findings of fact under the
“clearly erroneous” standard. See 8 C.F.R.
5
§ 1003.1(d)(3)(i). The BIA stated, “There is clear error in
a factual finding when we are left with the definite and
firm conviction that a mistake has been made.” In re Wu Lin,
No. A088 517 180, at 1 (B.I.A. Apr. 30, 2012). The BIA
ruled that the IJ had “committed clear error in crediting
[Lin’s] explanation for his repeated lies to immigration
officials.” In re Wu Lin, No. A088 517 180, at 2. The BIA
also stated, “[W]e find clear error in the [IJ’s]
determination that [Lin’s] third asylum claim based on his
practice of Falun Gong was credible.” Id. at 3. Based on
these rulings, the BIA reversed the IJ’s grant of asylum.
We consider the BIA’s reasons for these rulings below.
Discussion
In nearly all the petitions for review of asylum claims
that reach this Court, the BIA has affirmed an IJ’s denial
of asylum. In the pending petition for review, however, the
BIA, applying the “clear error” standard of review, has
reversed an IJ’s grant of asylum.1 The initial issue for us
is what standard of review should we apply to the BIA’s
ruling that an IJ’s findings of fact are clearly erroneous.
1 If the BIA grants asylum, either by affirming an IJ’sgrant of asylum or by reversing an IJ’s denial of asylum,DHS is not authorized to seek review in this Court.
6
This is an issue that rarely arises in judicial review
of agency decisions because an agency’s use of a “clear
error” standard to review findings of fact is itself rare.
Under the Administrative Procedures Act, “[o]n appeal from
or review of the initial decision, the agency has all the
powers which it would have in making the initial decision
except as it may limit the issues on notice or by rule.” 5
U.S.C. § 557(b). Thus, most agencies reviewing findings of
fact are entitled to find facts, i.e., “use the powers
[they] would have in making the initial decision.”
However, the BIA is subject to a different regime. The
Department of Justice (“DOJ”), acting pursuant to the
“except” clause of section 557(b), has required the BIA,
which is a constituent entity within DOJ,2 to review an IJ’s
findings of fact under the “clear error” standard: “Facts
determined by the immigration judge, including findings as to
credibility of testimony, shall be reviewed only to determine
whether the findings of the immigration judge are clearly
erroneous.” 8 C.F.R. § 1003.1(d)(3)(i). DOJ also prohibited
the BIA from making findings of fact: “Except for taking
administrative notice of commonly known facts such as
2 “There shall be in the Department of Justice a Boardof Immigration Appeals . . . .” 8 C.F.R. § 1003.1(a)(i).
7
current events or the contents of official documents, the
Board will not engage in factfinding in the course of
deciding appeals.” Id. § 1003.1(d)(3)(iv).
DOJ has explained that “[t]he [Justice] Department’s
adoption of the ‘clearly erroneous’ standard encompasses
the standards now commonly used by the federal courts with
respect to appellate court review of findings of fact made
by a trial court.” Board of Immigration Appeals: Procedural
Reforms to Improve Case Management, 67 Fed. Reg. 54878-01,
54890 (Aug. 26, 2002). Those standards are set forth in
Rule 52(a)(6) of the Federal Rules of Civil Procedure:
“Findings of fact, whether based on oral or otherevidence, must not be set aside unless clearlyerroneous, and the reviewing court must give dueregard to the trial court's opportunity to judgethe witnesses' credibility.”
So when the BIA reviews an IJ’s findings of fact, it must
accept them unless they are clearly erroneous, and the BIA
must give “due regard” to the IJ’s opportunity to judge a
witness’s credibility.
Before determining how we should review a BIA ruling
that an IJ’s findings of fact are clearly erroneous, we
endeavor to consider what “clear error” review means. We
are not encouraged in this task by Judge Learned Hand’s
8
observation that “[i]t is idle to try to define the meaning
of the phrase, ‘clearly erroneous,’” United States v.
or the Supreme Court’s later acknowledgment that “the
meaning of the phrase ‘clearly erroneous’ is not
immediately apparent,” Anderson v. City of Bessemer, 470
U.S. 564, 573 (1985).
The most frequently expressed statement of the meaning
of “clear error” review was first provided by the Supreme
Court in United States v. U.S. Gypsum Co., 333 U.S. 364,
395 (1948): “A finding is ‘clearly erroneous’ when although
there is evidence to support it, the reviewing court on the
entire evidence is left with the definite and firm
conviction that a mistake has been committed.” The Court
has repeatedly used this formulation. See, e.g., Anderson,
470 U.S. at 573; McAllister v. United States, 348 U.S. 19,
20 (1954). The BIA itself repeated a portion of this
formulation when it rejected, under the “clear error”
standard, the IJ’s findings in this case. “There is clear
error in a factual finding when we are left with the
definite and firm conviction that a mistake has been made.”
In re Wu Lin, No. A088 517 180, at 1 (B.I.A. Apr. 30,
2012).
9
The “definite-and-firm-conviction” formulation provides
little, if any, guidance as to the circumstances that would
permit a reviewing court to conclude that a factfinder has
committed “clear error.” Indeed, the formulation can be
misleading if it is misunderstood to mean that a reviewing
court can reject a finding of fact simply because the court
subjectively believes that the factfinder was mistaken.
The formulation purports to be an explanation of when a
factfinder has committed “clear error,” but the key
question is what constitutes “clear error.”
The Supreme Court’s most quoted attempt to explain
“clear error” identifies what the phrase does not mean:
“[C]ertain general principles governing theexercise of the appellate court’s power tooverturn findings of a district court may bederived from our cases. . . . This standard[“clear error” review] plainly does not entitle areviewing court to reverse the finding of thetrier of fact simply because it is convinced thatit would have decided the case differently. Thereviewing court oversteps the bounds of its dutyunder Rule 52(a) if it undertakes to duplicate therole of the lower court. In applying the clearlyerroneous standard to the findings of a districtcourt sitting without a jury, appellate courtsmust constantly have in mind that their functionis not to decide factual issues de novo. If thedistrict court’s account of the evidence isplausible in light of the record viewed in itsentirety, the court of appeals may not reverse iteven though convinced that had it been sitting asthe trier of fact, it would have weighed theevidence differently.”
10
Anderson, 470 U.S. at 573-74 (citation and internal
quotation marks omitted).
Some examples of clear error can be readily imagined.
There might be no evidence at all to support a finding of
fact. Or the finding might be controverted by indisputable
evidence, as when indisputable evidence establishes that an
asylum witness claiming to have been beaten was at a
location far from where he claimed the beating occurred.
Of course, such extreme examples of clear error are not
likely to arise. A more likely example might arise where
an IJ has obviously misunderstood the testimony of a
witness and based a finding of fact on that
misunderstanding. Situations might also arise where the
evidence opposed to the claimant’s version, though not
indisputable, has overwhelming persuasive force. How
overwhelming the opposing evidence must be will often be a
close question for the entity applying clear error review
and for the court reviewing a clear error conclusion. What
is not in doubt, however, is that the phrase “clear error”
is to be taken literally: the error must be clear.
One aspect of “clear error” review that has been
generally recognized is that it is less deferential to a
factfinder than “substantial evidence” review. In
11
Dickinson v. Zurko, 527 U.S. 150, 152-53 (1999), Justice
Breyer explained a significant difference between appellate
court application of the “clear error” standard to a bench
trial judge’s finding of fact (what he called “court/court
review”) and its application of the “substantial evidence”
standard to an agency’s finding of fact (what he called
“court/agency” review). “Traditionally, this court/court
standard of review has been considered somewhat stricter
(i.e., allowing somewhat closer judicial review) than the
APA's court/agency standards.” Id. at 153 (citing 2 Kenneth
Culp Davis & Richard J. Pierce, Jr., Administrative Law
Treatise § 11.2 (3d ed. 1994)). In other words, even if
there is substantial evidence to support a finding of fact,
a reviewing court or an agency like the BIA can conclude,
with sufficient justification, that a “clear error” has
been committed.3 A leading treatise agrees: “If the
3 In Easley v. Cromartie, 532 U.S. 234, 246-57 (2001),the Supreme Court, reviewing for clear error the findingsof fact of a three-judge district court in areapportionment case, made a meticulous analysis of thetestimony of several witnesses before concluding that clearerror had occurred. The Court’s approach might have beeninfluenced by the Court’s reluctance to interfere with astate legislature’s reapportionment decisions. “The Courtalso has made clear that the underlying districtingdecision is one that ordinarily falls within alegislature’s sphere of competence.” Id. at 242.
12
findings of fact are against the clear weight of the
evidence or the appellate court otherwise reaches a
definite and firm conviction that a mistake has been made
by the trial court, the appellate court will set the
findings aside even though there is evidence supporting
them that, by itself, would be considered substantial.” 9C
Charles Alan Wright & Arthur R. Miller, Federal Practice
and Procedure § 2585 (3d ed. 2007). With this
understanding of “clear error” review, we now turn to how
a court reviews a court or an agency decision rejecting a
finding of fact upon “clear error” review.
The most familiar context in which an appellate court
reviews another tribunal’s application of a “clear error”
standard to a finding of fact is the Supreme Court’s review
of a court of appeals decision that a district court’s
finding of fact is clearly erroneous. In this three-
layered context, the Supreme Court puts itself in the shoes
of the court of appeals and makes a de novo decision as to
whether it has a definite and firm conviction that a
mistake has been made. See Anderson, 470 U.S. at 577;
13
McAllister, 348 U.S. at 20-21.4 However, in the three-
layered context of court review of an agency’s application
of the “clear error” standard to an IJ’s finding of fact,
we have no authority to displace the BIA and apply the
“clear error” standard to an IJ’s finding of fact.
Courts of appeals conduct three-tiered court/agency
review in other contexts that are somewhat analogous to our
review of the BIA’s application of the “clear error”
standard, but these contexts are sufficiently different to
be unhelpful to our inquiry. The first concerns the Tax
Court. The Tax Court by rule has adopted a highly
deferential standard for reviewing a Special Trial Judge’s
recommended findings of fact. “[T]he findings of fact
recommended by the Special Trial Judge shall be presumed to
be correct.” Tax Ct. R. 183(d). Whether or not this
standard is as deferential as “clear error” review, Courts
of Appeals are statutorily instructed to review a Tax
4 Where the Supreme Court reviews a decision of a courtof appeals that has upheld a finding of a trial court, theCourt generally applies what it calls “the two-court rule,”declining to reexamine the finding. See, e.g., Graver Tank& Mfg. Co. v. Linde Air Products Co., 336 U.S. 271, 275(1949) (“A court of law, such as this Court is, . . .cannot undertake to review concurrent findings of fact bytwo courts below in the absence of a very obvious andexceptional showing of error.”).
14
Court’s findings “to the same extent as decisions of the
district courts in civil actions tried without a jury,” 26
U.S.C. § 7482(a)(1), i.e., under the “clear error”
standard. We have no similar authority with respect to BIA
application of the “clear error” standard.
The second context concerns the Court of Appeals for
Veterans’ Claims. That Court applies “clear error” review
to a factual determination of the Board of Veterans’
Appeals. See 38 U.S.C. § 7261(a)(4). However, the Court of
Appeals for the Federal Circuit, which reviews rulings of
the Court of Appeals for Veterans’ Claims, is explicitly
precluded from reviewing a challenge to a factual
determination. See 38 U.S.C. § 7292(d)(2).
With no special guidance from these two possible
analogies, we are left with our traditional approach to
reviewing a ruling of law – de novo review. The BIA’s
application of “clear error” review is the application of
a legal standard to findings of fact and as such is a
ruling of law. See Kabba v. Mukasey, 530 F.3d 1239, 1245
(10th Cir. 2008). However, de novo review does not mean
that we can redetermine de novo whether we think the IJ has
committed clear error. It means that we must determine
15
whether the BIA has provided sufficient justification for
its conclusion that the IJ has committed clear error. It
also means that we must make sure that the BIA has not
violated the prohibition against making its own findings of
fact.
Sometimes the distinction between a BIA’s permissible
ruling that an IJ has committed clear error and the BIA’s
prohibited finding of fact might appear to turn on how the
BIA explains its decision. If the BIA says it “finds” that
the evidence establishes the opposite of what an IJ has
found, the BIA would appear to be finding a fact, which it
is not permitted to do. On the other hand, if the BIA says
that, after considering the entire record, it concludes
that the IJ has committed clear error in making a finding
of fact and provides a legally sufficient explanation for
its conclusion, its ruling will ordinarily be upheld.
We do not mean to imply that a BIA ruling “finding” a
fact to be the opposite of what an IJ had found must always
be rejected merely because the BIA used the terminology of
factfinding. Reviewing courts sometimes say that they
“find” that something is so, e.g., that a party’s legal
contention is invalid, even though they are not finding a
16
fact but, instead, stating a ruling of law. If, for
example, a reviewing court ascertains as a matter of law
that the evidentiary record cannot sustain an IJ’s factual
finding and therefore compels the conclusion reached by the
BIA, rejecting the BIA’s ruling merely because the BIA used
the wrong terminology in expressing a legally compelled
result would be senseless. At the same time, the BIA
should be mindful that careless use of factfinding
terminology when its intention is to rule, with
explanation, that an IJ’s factfinding was clearly erroneous
can cause confusion and unnecessary remands.
Just as we require an IJ to give “specific, cogent
reasons” to support rulings, see Cao He Lin v. U.S. Dep’t
of Justice, 428 F.3d 391, 400 (2d Cir. 2005) (internal
quotation marks omitted), we expect the BIA to supply
cogent reasons for its rulings. See Vitug v. Holder, 723
2006). We rejected the BIA’s ruling. See id. at 514-15.
We noted that, although the IJ had explained why he
discounted inconsistencies between the applicant’s hearing
testimony and his prior credible fear interview, the BIA
“gave no explanation for why it rejected the IJ’s reasons
for discounting [that] interview.” Id. at 514. The BIA, we
ruled, “started anew, conducting its own credibility
analysis.” Id.
Similarly, in Sherpa v. Holder, 374 F. App’x 104 (2d
Cir. 2010), where the BIA rejected an IJ’s finding that the
applicant was credible, we rejected the BIA’s ruling
because the BIA had “reached its own credibility
determination.” Id. at 105. In Padmore v. Holder, 609 F.3d
62 (2d Cir. 2010), we ruled that the BIA had engaged in
impermissible factfinding in determining, contrary to an
IJ’s ruling, that cancellation of removal was not
18
warranted. See id. at 68-69.5
In the pending matter, the IJ found as a fact that Lin
was credible in testifying about his persecution because of
his Falun Gong activity. The IJ also was “satisfied” with
Lin’s explanation for his false statements at the border
and credible fear interviews. The IJ specifically credited
Lin’s testimony that he feared being returned to China and
forfeiting money unless he gave the two prior statements as
instructed by the snakeheads. That threat, the IJ found,
“is an example . . . of the power of the snakeheads.”
In rejecting the IJ’s findings, the BIA first stated
the indisputable fact that Lin had presented three
different asylum claims, i.e., his release of two women at
the family planning office, his opposition to his
girlfriend’s abortion, and his persecution for practicing
Falun Gong.
The BIA ruled that Lin’s explanations for the first two
claims, which he recanted at his hearing, “are not
5 In Shao v. Mukasey, 546 F.3d 138 (2d Cir. 2008), wefound no error in the BIA’s finding of subsidiary factsbearing on whether Ji Wen Shi, one of the three asylumclaimants, had an objectively reasonable fear ofpersecution because the parties had consented tofactfinding by introducing new evidence before the BIA. Seeid. at 162.
19
plausible or consistent.” The BIA offered two reasons for
this ruling. First, “[Lin] has not demonstrated that he
would not have had to pay the smuggling fees regardless of
whether he was successful on his asylum claim.” [Id.] The
BIA gave no indication as to how Lin might have
demonstrated that the snakeheads would have delivered on
their threat. We cannot imagine that the BIA expected Lin
to call the snakeheads as witnesses. There is no
indication that their whereabouts at the time of the
hearing was known. More important, the issue, pertinent to
Lin’s credibility, was not whether the snakeheads would
have carried out their threat, but whether Lin believed
that they would, and gave his false versions because of
that belief.
We can readily understand the BIA’s skepticism that Lin
was being truthful in stating his third reason for seeking
asylum after stating, at his border and credible fear
interviews, two reasons that were false. Prior false
testimony is often a basis for disbelieving a witness’s
later testimony. But the issue for the BIA was not whether
Lin was telling the truth when he gave his third reason for
seeking asylum. That was an issue of fact for the IJ. The
20
issue for the BIA was whether it had sufficient
justification for ruling that the IJ had clearly erred in
finding that Lin’s third reason was truthful.
The IJ not only found that the third reason was
truthful, but explained why he so found. First, he counted
in Lin’s favor the fact that Lin came forward and
acknowledged the falsity of his two prior reasons. Second,
he deemed entirely plausible Lin’s explanation that he gave
false reasons because he was threatened by the snakeheads
to do so. See Kabba, 530 F.3d at 1246 (“[T]he IJ found that
[the claimant] offered a legitimate explanation. This was
a factual finding entitled to deference on review.”).
Third, he considered Lin’s demeanor supportive of the
truthfulness of his hearing testimony. See Fed. R. Civ. P.
52(a) (“[T]he reviewing court must give due regard to the
trial court's opportunity to judge the witnesses'
credibility.”).
In view of the IJ’s explanation for his finding, the
BIA did not provide us, as a reviewing court, with a
supportable basis for its conclusion that Lin’s explanation
for his initial false testimony was not “plausible” and its
consequent ruling that the IJ committed clear error.
21
The BIA also deemed Lin’s explanations “inconsistent.”
The first example of a claimed inconsistency was that when
asked to explain his false versions before the IJ, he first
testified that he “had no idea about American laws” when he
was apprehended at the border, but later testified that he
was informed about asylum law before the critical fear
interview. These statements, however, are not
inconsistent. Nothing in the record undermines Lin’s
unsurprising testimony that he knew nothing about American
law when he was apprehended at the border. That lack of
knowledge is not inconsistent with his testimony that after
his release from custody, which preceded his credible fear
interview, he “consult[ed] with a lawyer” and “then I
realized American law protects people from being
persecuted.” Thus, the record refutes the BIA’s first
claimed inconsistency.
The BIA’s second example of a claimed inconsistency in
Lin’s testimony was his statement that he did not talk with
his attorney while he was in custody and his later
statement that he was represented by an attorney while in
custody. Again, there is no inconsistency. It is
regrettable, but not uncommon, that a person in custody has
not spoken to his lawyer until after his release from
22
custody. Lin also testified that, while in custody, the
lawyer’s “assistant telephone[d] me,” but the record does
not indicate that the assistant was a lawyer. The BIA’s
second claimed inconsistency is not supported by the
record.
On this record, the BIA’s “clear error” rejection of
the IJ’s findings is not adequately supported and must
itself be rejected. On remand, the BIA will have to either
accept the IJ’s findings or, if it can, provide a
supportable basis for rejecting them.
Conclusion
The petition for review is granted, and the case is
remanded for further consideration consistent with this
opinion.
23
DENNIS JACOBS, Circuit Judge, concurring in the grant of the petition for reviewand remand to the BIA for further consideration:
Petitioner has advanced three successive reasons for needing asylum.
Each is an archetypal asylum narrative: (1) helping women escape an abortion
fear of future persecution . . . requires that the alien present credible testimony
that he subjectively fears persecution and establish that his fear is objectively
reasonable.”).
It is not objectively reasonable to believe that snakeheads conduct their
business on honorable principles, that they give refunds, that any undertakings
by them can be enforced in any forum, or even that they can be found for
enforcement of contract obligations.
Additionally or alternatively, Lin claims that he failed to advance his Falun
Gong claim because he “had no idea about American laws.” CAR at p.4. The
plausible inference is that, if Lin had known that practicing Falun Gong was a
valid basis for an asylum claim, he would have made it in his initial interviews.
7
But Lin was given an open‐ended opportunity to tell the immigration officials
about any fear he had about being sent to China. He was advised:
U.S. law provides protection to certain persons who face persecution, harmor torture upon return to their home country. If you fear or have a concernabout being removed from the United States or about being sent home,you should tell me so during this interview because you may not haveanother chance.
CAR at pp.197, 295.
The BIA and the majority opinion consider whether Lin made any
inconsistent statements about speaking to a lawyer. But those questions bear
only upon when Lin would have become aware that Falun Gong was his ticket to
stay in the United States. So it does not matter whether Lin made any
inconsistent statements about speaking to or being represented by a lawyer.
Nothing about his supposed ignorance of our law accounts for why he did not
express a supposedly truthful fear of persecution for practicing Falun Gong,
either on September 3 or September 13, 2007. He was told to tell the truth, the
interviews were conducted in Mandarin (which Lin said was his best language),
and there is no evidence that Lin failed to understand the questions. See Yun Zui
Guan v. Gonzales, 432 F.3d 391, 398‐99 (2d Cir. 2005) (noting factors to determine
reliability of asylum and credible fear interviews, including whether alien
8
understood the questions posed and whether those questions elicited details of
an asylum claim).
Ignorance of American asylum law cannot assist Lin unless he was
ignorant of the obligation to tell the truth, notwithstanding that that obligation
was impressed upon him by immigration officials. In another context, we have
held that “even an alien who is unfamiliar with the technicalities of immigration
law can, under certain circumstances, be expected to comprehend that he has
received ineffective assistance without being explicitly told so by an attorney.”
Rashid v. Mukasey, 533 F.3d 127, 132 (2d Cir. 2008). It makes no sense to impose
on aliens stricter requirements to know that their lawyer is being ineffective than
for knowing their own reasons for being afraid to return to their home country.
Cf. Cheek v. United States, 498 U.S. 192, 199 (1991) (“The general rule that
ignorance of the law or a mistake of law is no defense . . . is deeply rooted in the
American legal system.”).
In any event, truth is not a quirk of American procedure.
* * *
I understand entirely the reasons why the BIA formed a “definite and firm
conviction” that a mistake has been made. For that reason, however, the remand
9
will entail no heavy lifting on the part of the BIA, and when it comes to reasoned
dispositions, more cannot hurt.
10
14‐2343Lora v. Shanahan
In the1
United States Court of Appeals2
For the Second Circuit3
________4
5
August Term, 20146
No. 14‐2343‐pr 7
8
ALEXANDER LORA,9
10
Petitioner‐Appellee,11
12
v.13
14
CHRISTOPHER SHANAHAN, in his official capacity as New York Field15
Officer Director for U.S. Immigration and Customs Enforcement;16
DIANE MCCONNELL, in her official capacity as Assistant Field Office17
Director for U.S. Immigration and Customs Enforcement; THOMAS S.18
WINKOWSKI, in his official capacity as Principal Deputy Assistant19
Director of U.S. Immigration and Customs Enforcement; JEH20
JOHNSON, in his official capacity as Secretary of the U.S. Department21
of Homeland Security; LORETTA E. LYNCH, in her official capacity as22
the Attorney General of the United States;1 and the U.S. DEPARTMENT23
OF HOMELAND SECURITY,224
25
Respondents‐Appellants.26
______27
28
Appeal from the United States District Court29
for the Southern District of New York.30
No. 14 Civ. 2140(AJP) Andrew J. Peck, Magistrate Judge.31
1 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Loretta E. Lynch isautomatically substituted for former Attorney General Eric H. Holder, Jr.2 The Clerk of the Court is directed to amend the caption as set forth above.
________1
2
Argued: April 20, 20153
Decided: October 28, 20154
________5
Before: KEARSE, PARKER, and WESLEY, Circuit Judges.6
________7
The government appeals from a judgment of the United States8
District Court for the Southern District of New York (Peck, Andrew9
J., M.J.)3 granting Alexander Lora’s petition for a writ of habeas10
corpus. Lora was detained pursuant to section 1226(c) of the11
Immigration and Nationality Act (“INA”), 8 U.S.C. § 1226(c), which12
mandates detention, while their removal proceedings are pending,13
of non‐citizens who have committed certain criminal offenses. 14
Because section 1226(c) is ambiguous, we defer to the Board of15
Immigration Authority’s (“BIA’s”) interpretation that detention need16
not be immediate in order to be mandatory. We also find that the17
statute applies even if the non‐citizen is not released from a custodial18
sentence. However, we hold that reading section 1226(c) to permit19
indefinite detention raises significant constitutional concerns, and to20
avoid them, we construe the statute to contain an implicit temporal21
limitation on the length of time a detainee can be held before being 22
afforded an opportunity to seek bail. Affirmed.23
________24
CHRISTOPHER CONNOLLY (Sarah S. Normand, on25
the brief), Assistant United States Attorneys for26
Preet Bharara, United States Attorney for the27
Southern District of New York, for Respondents‐28
Appellants.29
30
3 The parties consented to Magistrate Judge Andrew Peck’s jurisdiction over the case under 28 U.S.C. §636(c). (Dkt. Entry No. 9.)
2
REBECCA A. HUFSTADER, Legal Intern, LUIS ANGEL1
REYES SAVALZA, Legal Intern, (Alina Das and2
Nancy Morawetz, on the brief), Washington Square3
Legal Services, Inc., NYU Law School, New York,4
NY; Bridget Kessler, Brooklyn Defender Services,5
Brooklyn, NY, on the brief, for Petitioner‐Appelleee.6
AHILAN ARULANANTHAM, ACLU Immigrants’7
Rights Project, Los Angeles, CA; Judy Rabinovitz8
and Anand Balakrishnan, ACLU Immigrants’9
Rights Project, New York, NY; Alexis Karteron10
and Jordan Wells, New York Civil Liberties11
Union Foundation, New York, NY, on the brief, for12
Amici Curiae American Civil Liberties Union; New13
York Civil Liberties Union.14
Andrea Saenz, Immigration Justice Clinic,15
Benjamin N. Cardozo School of Law, New York,16
NY, for Amici Curiae the Bronx Defenders; Detention17
Kathryn O. Greenberg Immigration Justice Clinic;20
Make the Road New York; National Immigrant Justice21
Center; National Immigration Project of the National22
Lawyers Guild; Neighborhood Defender Service of23
Harlem; New Sanctuary Coalition of New York City;24
Northern Manhattan Coalition for Immigrant Rights.25
Farrin R. Anello, Immigrants’ Rights/International26
Human Rights Clinic, Seton Hall University27
School of Law, Newark, NJ, for Amici Curiae28
Professors of Immigration and Constitutional Law.29
________30
31
3
BARRINGTON D. PARKER, Circuit Judge1
________2
In 1996, with the passage of the Illegal Immigration Reform3
and Immigrant Responsibility Act (“IIRIRA”), Congress significantly4
expanded the categories of non‐citizens subject to mandatory5
detention pending their removal proceedings.4 Under section6
1226(c) of the revised INA, the Department of Homeland Security7
(“DHS”) is required to detain aliens who have committed certain8
crimes “when [they are] released.” The section contains no explicit9
provision for bail.5 When the constitutionality of section 1226(c) was10
challenged in Demore v. Kim, 538 U.S. 510 (2003), statistics showed11
that removal proceedings were completed within forty‐seven days in12
eighty‐five percent of cases in which aliens were mandatorily13
detained. Id. at 529. Emphasizing the relative brevity of detention in14
most cases, the Court concluded that detention during removal15
proceedings was “constitutionally permissible.” Id. at 531. 16
However, the passage of the IIRIRA, which, among other17
things, expanded the definition of criminal aliens and required states18
to provide notice of aliens who violate state criminal laws, combined19
with a simultaneous rise in immigration to the United States, has20
resulted in an enormous increase in the number of aliens taken into21
custody pending removal.6 By 2009, Immigration and Customs22
4 Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Div. C, §§ 303, 305, 110 Stat.3009–585, 3009–598 to 3009–599; 8 U.S.C. § 1226(c),1231(a) (1994 ed., Supp. V).5 Congress adopted section 1226(c) in an effort to strengthen and streamline the process of removingdeportable criminal aliens “against a backdrop of wholesale failure by the INS to deal with increasingrates of criminal activity by aliens” and “evidence that one of the major causes of the INS’ failure toremove deportable criminal aliens was the agency’s failure to detain those aliens during their removalproceedings.” Demore v. Kim, 538 U.S. 510, 518–19 (2003). 6 See U.S. Department of Justice, Office of the Federal Detention Trustee, Detention Needs Assessment andBaseline Report: A Compendium of Federal Detention Statistics 14 (2001),http://www.justice.gov/archive/ofdt/compendium_final.pdf (“The number of aliens ordered detained andtaken into the custody of the INS pending removal from the United States or other outcome of animmigration proceeding increased from 72,154 during FY 1994 to 188,547 during FY 2001.”).
4
Enforcement (“ICE”) was imprisoning close to four hundred1
thousand aliens every year, two‐thirds of whom were subject to2
mandatory detention under section 1226(c).7 Not surprisingly, the3
time that each immigrant spends in detention has also risen4
substantially. In 2001, the average time an alien was detained from5
the initiation of removal proceedings to release or entry of a final6
order of removal was approximately thirty‐nine days.8 In 2003, the7
average detention time for most section 1226(c) detainees was8
approximately forty‐seven days. See Demore, 538 U.S. at 529. Since9
then, the situation has worsened considerably. ICE has not provided10
statistics regarding the length of time that mandatory detainees11
spend in detention. It is clear, however, that today, a non‐citizen12
detained under section 1226(c) who contests his or her removal13
regularly spends many months and sometimes years in detention14
due to the enormous backlog in immigration proceedings.9 There15
are thousands of individuals in immigration detention within the16
jurisdiction of this Court who languish in county jails and in short‐17
term and permanent ICE facilities.18
No doubt an appreciable number of these detainees have19
criminal records that subject them to mandatory deportation. Many20
in this group are dangerous or have no ties to a community.21
Congress was quite clear that it wanted such individuals detained22
pending deportation. On the other hand, this group includes non‐23
citizens who, for a variety of individualized reasons, are not24
dangerous, have strong family and community ties, are not flight25
7 See Dora Schriro, U.S. Department of Homeland Security, Immigration and Customs Enforcement,Immigration Detention Overview and Recommendations 2 (2009),http://www.ice.gov/doclib/about/offices/odpp/pdf/ice‐detention‐rpt.pdf (stating that, as of reportʹspublication date, over 370,000 noncitizens had been detained in the preceding fiscal year and estimatingthat 66% of detained noncitizens are held pursuant to mandatory detention).8 Detention Needs Assessment and Baseline Report: A Compendium of Federal Detention Statistics, supra note 6,at 15 n.41.9 See Mark Noferi, Cascading Constitutional Deprivation: The Right To AppointedCounsel For Mandatorily Detained Immigrants Pending Removal Proceedings, 18 Mich. J. Race & L. 63, 80–82(2012) (discussing how immigrants may face prolonged detention as average case processing times nowexceed one year).
5
risks and may have meritorious defenses to deportation at such time1
as they are able to present them. 2
One such detainee is Alexander Lora, a lawful permanent3
resident (“LPR”) and citizen of the Dominican Republic, who was4
convicted of drug related offenses, sentenced to probation, and taken5
into custody by ICE agents pursuant to section 1226(c), over three6
years into his five‐year probation term. After four months in7
immigration custody, Lora petitioned for a writ of habeas corpus. 8
He contended, among other things, that he was eligible to apply for9
bail because the mandatory detention provision of section 1226(c)10
did not apply to him because he had not been taken into custody11
“when released” and that indefinite incarceration without an12
opportunity to apply for bail violated his right to due process. 13
His petition was granted by the District Court (Peck, M.J.). 14
Magistrate Judge Peck agreed with Lora’s statutory argument, did15
not reach his constitutional argument, and ordered that Lora be16
afforded a bail hearing. At that hearing, the government did not17
contest his eligibility for bail. Following the parties’ stipulation that18
Lora, who was gainfully employed and had substantial family ties to19
his community, was not dangerous and posed no risk of flight, the20
immigration judge (“IJ”) ordered Lora’s release conditioned on his21
posting a $5000 bond. This appeal followed. 22
The main issue of statutory construction driving this appeal is23
whether, as Lora argues and the District Court ruled, the “when24
released” provision of section 1226(c) applies only if the government25
takes an alien into immigration custody immediately following his26
release from a custodial sentence or whether, as the government27
argues, an alien is subject to mandatory detention even if DHS does28
not detain him immediately upon release. On this issue we agree29
with the government and conclude that Lora was subject to30
mandatory detention under section 1226(c). 31
6
However, we agree with Lora’s constitutional argument. 1
While the Supreme Court has held “that the Government may2
constitutionally detain deportable aliens during the limited period3
necessary for their removal proceedings,” Demore, 538 U.S. at 526, it4
has made clear that the indefinite detention of a non‐citizen “raise[s]5
serious constitutional concerns” in that “[f]reedom from6
imprisonment—from government custody, detention, or other forms7
of physical restraint—lies at the heart of the liberty that [the Due8
Process] Clause protects,” Zadvydas v. Davis, 533 U.S. 678, 682, 6909
(2001). Following this guidance, we hold that, in order to avoid10
significant constitutional concerns surrounding the application of11
section 1226(c), it must be read to contain an implicit temporal12
limitation. In reaching this result, we join every other circuit to have13
considered this issue.10 Specifically, we join the Ninth Circuit in14
holding that mandatory detention for longer than six months15
without a bond hearing affronts due process. See Rodriguez v.16
District Court’s decision to grant the petition.18
BACKGROUND19
Lora entered the United States as a lawful permanent resident20
(“LPR”) from the Dominican Republic in 1990 when he was seven21
years old. For the next nineteen years, Lora lived continuously in22
Brooklyn, New York where he has a large family network, including23
his U.S. citizen fiancée, chronically‐ill U.S. citizen mother, LPR24
father, and U.S. citizen brother and sister. Lora has two sons whom25
he supports: a two‐year‐old son who is a U.S. citizen and lives in the26
United States and an eight‐year‐old son who lives in the Dominican27
Republic. During the nearly two decades that Lora has spent in this28
country, he attended school and worked in grocery stores to support29
himself and his family.30
10 The government, too, agrees that aliens cannot be detained indefinitely. Gov’t Reply Br. at 25. 11 Lora was detained for five‐and‐a‐half months, and it is certain that, were he to be returned to custody,his total period of detention would exceed six months.
7
In July 2009, while working at a grocery store, Lora was1
arrested with one of his co‐workers and charged with several New2
York state offenses relating to cocaine possession. In July 2010, Lora3
pled guilty to criminal possession of cocaine with intent to sell,4
criminal possession of cocaine with an aggregate weight of one5
ounce or more, and criminal use of drug paraphernalia in violation6
of New York Penal Law §§ 220.16, 220.50. Lora was sentenced to7
five years of probation. He was not sentenced to any period of8
incarceration and he did not violate any of the conditions of his9
probation. 10
On November 22, 2013, over three years into his probation11
term, ICE agents arrested Lora in an early morning raid in the12
Brooklyn neighborhood where he was living at the time. After the13
agents took Lora into custody, he was transferred to Hudson County14
Correctional Center in Kearny, New Jersey, where he was detained15
without bond. Lora was charged with removability under INA §16
237(a)(2)(B), 8 U.S.C. § 1227(a)(2)(B), for having been convicted of a17
crime involving a controlled substance, and INA § 237(a)(2)(A)(iii), 818
U.S.C. § 1227(a)(2)(A)(iii), for having been convicted of an19
aggravated felony, namely, trafficking in a controlled substance as20
defined in INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B). DHS took21
the position that Lora’s removal charges rendered him subject to22
mandatory detention under section 1226(c) and that he was not23
eligible for a bail hearing.24
While his removal proceedings were pending, Lora moved in25
New York state court to set aside his conviction. His motion was26
granted on consent and in March 2014, his original plea and sentence27
were vacated. Lora was then permitted to plead to a minor28
offense—a single count of third degree possession of a controlled29
substance—and was re‐sentenced to a conditional discharge30
imposed nunc pro tunc to July 21, 2010. With this new sentence, Lora31
now has a strong argument for cancellation of removal under 1226(c)32
because third degree possession is a Class B felony under N.Y. Penal33
8
Law § 220.16(12) and does not qualify as an aggravated felony for1
immigration purposes under 8 U.S.C. §§ 1227(a)(2)(A)(iii); 1228b.12 2
However, he is still technically subject to mandatory detention under3
section 1226(c) because he had been convicted of a crime involving a4
controlled substance under 8 U.S.C. § 1227(a)(2)(B)(i). In March5
2014, Lora requested that he be permitted to file an application for6
cancellation of removal and that he be afforded a bail hearing. The IJ7
granted Lora’s request to file for cancellation of removal but denied8
Lora’s request for a bail hearing.13 9
At the same time, Lora filed a petition for a writ of habeas10
corpus, challenging his continued detention. Lora argued that he11
was not subject to mandatory detention under section 1226(c), which12
requires an alien to be taken into DHS custody “when the alien is13
released” because DHS did not take him into custody at the precise14
time “when” he was released on his underlying convictions, but15
years later, and that he could not have been detained when he was16
“released” because he was never incarcerated or kept in physical17
custody following his triggering conviction. Lora also argued that18
his continued imprisonment without a bail hearing raised19
constitutional concerns under the Due Process Clause of the Fifth20
Amendment in light of his substantial defenses to removal and the21
strong possibility of his indefinitely prolonged detention. Finally,22
Lora raised the alternative argument that his continued detention23
12 See 8 U.S.C. § 1229b(a) (“The Attorney General may cancel removal in the case of an alien who isinadmissible or deportable from the United States if the alien‐‐(1) has been an alien lawfully admitted forpermanent residence for not less than 5 years, (2) has resided in the United States continuously for 7 yearsafter having been admitted in any status, and (3) has not been convicted of any aggravated felony.”). Lora was admitted to the United States in 1990, has worked and resided in this country ever since, andhas strong family ties and responsibilities including serving as the primary caretaker of his U.S. citizenson. See March 26, 2014, Declaration of Talia Peleg, Esq. (“Given Mr. Lora’s residence in the United Statesas a green card holder, his strong family and community ties here, and other relevant factors, it is myopinion that he has a strong defense to his deportation.”).13 Lora’s cancellation of removal proceedings are still pending, but because he is no longer detained, hisremoval proceedings have been taken off of the expedited track. Due to a backlog in non‐detainedremoval proceedings, his merits hearing on his application for cancellation of removal is currentlyscheduled for January 2018.
9
was not in the public interest, and that he should be released on1
parole.2
The District Court granted Lora’s petition, holding that3
section 1226(c)’s “clear language” requires that DHS detain aliens4
immediately upon their release from criminal custody, and because5
Lora was not detained until years after the criminal conviction that6
formed the basis of his removal charge, he was not subject to7
mandatory detention. In the alternative, the District Court also8
found that Lora was not subject to mandatory detention because he9
did not serve a post‐conviction custodial sentence in connection with10
his criminal offense and so was never “released” from custody. The11
District Court directed the government to provide Lora with an12
individualized bail hearing by May 15, 2014, which was the date of13
his next hearing before the IJ. The government did not seriously14
dispute that Lora was neither a flight risk nor a danger to the15
community and the IJ ordered that Lora be released from custody16
after posting a $5000 bond. Insofar as the record reveals, since being17
admitted to bail, Lora remains gainfully employed, tied to his18
community and poised to contest his removability once DHS clears19
its backlog sufficiently to afford him a hearing. 20
The government appeals, contesting the District Court’s21
interpretation of section 1226(c). The government maintains that,22
even though Lora no longer stands convicted of an aggravated23
felony, he is still deportable and subject to mandatory detention as a24
result of his conviction under a law relating to a controlled25
substance. Notably, the government does not take the position that26
it should be permitted to hold immigrants indefinitely. Rather, it27
contends that due process requires a “fact‐dependent inquiry” as to28
the allowable length of detention and there should be no bright‐line29
rule for when detention becomes presumptively unreasonable. 30
Gov’t Reply Br. at 25.31
32
10
DISCUSSION1
When the government seeks removal of an alien, an IJ can2
ordinarily conduct a bail hearing to decide whether the alien should3
be released or imprisoned while proceedings are pending. 4
However, 8 U.S.C. § 1226(c) requires the mandatory detention, for5
the duration of their removal proceedings, of aliens convicted of6
certain crimes. The portion of section 1226(c)(1) applicable to Lora7
provides: 8
9
(1) Custody10
The Attorney General shall take into11
custody any alien who . . . 12
(B) is deportable by reason of having13
committed any offense covered in section14
1227(a)(2)(A)(ii),(A)(iii), (B), (C), or (D) of15
this title [i.e. specified offenses including16
controlled substance offenses]; . . . when the17
alien is released, without regard to whether18
the alien is released on parole, supervised19
release, or probation, and without regard to20
whether the alien may be arrested or21
imprisoned again for the same offense.22
23
(2) Release24
The Attorney General may release an alien25
described in paragraph (1) only if the26
Attorney General decides . . . that release of27
the alien from custody is necessary [for28
certain witness protection purposes], and29
the alien satisfies the Attorney General that30
the alien will not pose a danger to the31
safety of other persons or of property and is32
likely to appear for any scheduled33
proceeding. . . . 34
11
1
8 U.S.C. § 1226(c)(1)–(2) (emphasis added). 2
Thus, detention without a bail hearing under section 1226(c) is3
mandatory unless DHS determines that an alien falls within a4
narrow witness‐protection exception not applicable here. See 85
U.S.C. § 1226(c)(2). However, the clause in paragraph (1), “when the6
alien is released,” has been the source of persistent confusion and7
extensive litigation in this Circuit and elsewhere. 8
This case calls for us to decide: (1) whether an alien is subject9
to mandatory detention only if he or she has been sentenced to and10
“released” from prison or some form of physical custody; and (2)11
whether an alien is subject to mandatory detention if there is a gap12
between the alien’s being on post‐conviction release and his or her13
confinement by DHS.14 Although these are issues of first impression14
for this Court, other circuits as well as numerous district courts, both15
within and outside of this Circuit, have addressed the issue but16
remain divided on how to apply section 1226(c).1517
Meaning of “Released”18
The government argues that the Court should reject the19
District Court’s holding that Lora is not subject to mandatory20
detention because he was never “released” from a post‐conviction21
sentence of incarceration. The government relies on two BIA cases22
14 Because this appeal raises questions of law as to the interpretation of 8 U.S.C. § 1226(c), we review theDistrict Courtʹs decision on how to interpret the statute de novo. See Puello v. Bureau of Citizenship &Immigration Servs., 511 F.3d 324, 327 (2d Cir. 2007). 15 Compare Olmos v. Holder, 780 F.3d 1313, 1324 (10th Cir. 2015) (holding that even if there was a delay afteralien was released before the alien was taken into immigration custody, mandatory detention stillapplies), and Sylvain v. Att’y Gen. of U.S., 714 F.3d 150, 156–61 (3d Cir. 2013) (holding that immigrationofficials do not lose authority to impose mandatory detention if they fail to do so “when the alien isreleased”), and Hosh v. Lucero, 680 F.3d 375, 378–84 (4th Cir. 2012) (holding that a criminal alien who is notimmediately taken into immigration custody after his release from criminal custody is not exempt fromsection 1226(c)’s mandatory detention provision), with Castañeda v. Souza, 769 F.3d 32 (1st Cir. 2014)(interpreting “when” as signifying that DHS can subject an alien to mandatory detention only if it detainsthe alien at or around the time the alien is released from criminal custody), reh’g en banc granted, opinionwithdrawn, Jan. 23, 2015.
12
in which the Board determined that the word “released” in section1
1226(c) includes pre‐conviction release from arrests.16 See In re2
Kotliar, 24 I. & N. Dec. 124, 125 (2007) (“[W]e have held that an alien3
who is released from criminal custody[,] . . . including from an arrest4
preceding a conviction, . . . is subject to mandatory detention.”); In re5
West, 22 I. & N. Dec. 1405, 1410 (2000). West and Kotliar also suggest6
that the alien must be released from some form of physical custody7
for § 1226(c)(1) to apply. See, e.g., West, 22 I & N. Dec. at 1410 (“[W]e8
construe the word ‘released’ . . . to refer to a release from physical9
custody.”). The government urges that, consistent with these cases,10
“released” can refer to a release from pre‐conviction confinement,11
such as an arrest. 12
Because we find that section 1226(c)(1) unambiguously13
mandates detention in this circumstance for other reasons, we need14
not confront the BIA decisions or the government’s interpretation of15
them. See Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S.16
837, 842–43 (1984). “[D]eference to [an agencyʹs] statutory17
interpretation is called for only when the devices of judicial18
construction have been tried and found to yield no clear sense of19
congressional intent.” Gen. Dynamics Land Sys., Inc. v. Cline, 540 U.S.20
581, 600 (2004) (citing INS v. Cardoza–Fonseca, 480 U.S. 421, 446–4821
(1987)). A natural reading of the statute suggests that the term22
“released” in section 1226(c) means not incarcerated, not imprisoned,23
not detained, i.e., not in physical custody. See Demore, 538 U.S. at 51324
(“Congress[ was] justifiably concerned that deportable criminal25
aliens who are not detained continue to engage in crime and fail to26
appear for their removal hearings . . . .”). Thus, detention is27
mandated once an alien is convicted of a crime described in section28
1226(c)(1) and is not incarcerated, imprisoned, or otherwise29
detained. This interpretation avoids nullifying the provision in30
section 1226(c)(1) that DHS “shall take into custody any alien who . .31
. is inadmissible [or] is deportable by reason of having committed [a32
16 The Third Circuit has deferred to the BIA’s interpretation and has held that a pre‐conviction releasefollowing arrest satisfies section 1226(c)’s release requirement. See Sylvain, 714 F.3d at 161.
13
certain type of crime] . . . when the alien is released, without regard to1
whether the alien is released on parole, supervised release, or probation”2
U.S. at 844). The government argues that, because the statute is33
15
ambiguous, the District Court should have followed the BIA’s1
reasonable interpretation. We agree.2
At the first step of the Chevron inquiry, we have little trouble3
concluding that it is ambiguous whether “when . . . released” should4
be given the “duty‐triggering” construction or the “time‐limiting”5
construction. The BIA agrees. Rojas, 23 I. & N. Dec. at 120. And the6
Supreme Court has long recognized that the word “when” may7
alternatively mean “the precise time when a particular act must be8
performed,” or “the occurrence which shall render that particular act9
necessary.” United States v. Willings, 8 U.S. 48, 55 (1807).10
As the BIA recognized, it is unclear from the text of section11
1226(c) whether the “when . . . released” clause is part of the12
definition of aliens subject to mandatory detention. Rojas, 23 I. & N.13
Dec. at 120. Section 1226(c) requires that DHS take custody of aliens14
convicted of four categories of predicate criminal or terrorist acts and15
offenses (“A” through “D”) when they are released and that DHS16
may not “release an alien described in paragraph (1)” unless that17
alien falls under an exception for protected witnesses. But it is not18
clear whether the phrase “an alien described in paragraph (1)” refers19
to the aliens described in categories “A” through “D,” as the20
government argues, or to aliens who both qualify under these21
subcategories and were taken into immigration custody “when . . .22
released” from custody, as Lora argues. Noting this difficulty, the23
Tenth Circuit has described how the “when . . . released” phrase can24
be considered adverbial, modifying the opening verb phrase “the25
[DHS] shall,” or it can be considered adjectival, modifying the noun26
phrases in categories (A) through (D). See Olmos, 780 F.3d at27
1318–19. 28
Because we find that Congress has not directly spoken on the29
meaning or application of “when . . . released” in this statute, we30
must consider whether the BIA’s interpretation of section 1226(c) is31
permissible and thus entitled to Chevron deference. See Khouzam v.32
Ashcroft, 361 F.3d 161, 164 (2d Cir. 2004). In Rojas, the alien argued33
16
that he was not subject to mandatory detention under section 1226(c)1
because immigration authorities did not take him into custody until2
two days after his release. To resolve the statute’s ambiguity, the3
BIA used four separate approaches to analyze section 1226(c): (1) the4
ordinary meaning of the statute’s language, although that language5
was ambiguous;17 (2) the overall statutory context and goals; (3) the6
statute’s predecessor provisions; and (4) practical considerations. 7
Rojas, I. & N. Dec. at 121–24. The BIA, while not deciding whether8
“when . . . released” meant immediately upon release or something9
else, concluded that “the duty to detain is not affected by the10
character of an alien’s release from criminal incarceration,” id. at 121,11
and “that [the alien was] subject to mandatory detention pursuant to12
section [1226(c)] of the Act, despite the fact that he was not taken13
into [immigration] custody immediately upon his release from state14
custody,” id. at 127.18 Consistent with Chevron, we are not convinced15
that the interpretation is “arbitrary, capricious, or manifestly16
contrary to the statute.“ Adams, 692 F.3d at 95 (internal quotation17
marks and citation omitted). As the BIA explained in Rojas, “[i]t is18
difficult to conclude that Congress meant to premise the success of19
its mandatory detention scheme on the capacity of [DHS] to appear20
at the jailhouse door to take custody of an alien at the precise21
moment of release.” 23 I. & N. Dec. at 128. 22
Moreover, the BIA’s interpretation of section 1226(c) follows 23
Supreme Court precedent establishing that statutes providing “that24
the Government ‘shall’ act within a specified time, without more,”25
are not “jurisdictional limit[s] precluding action later.” Barnhart v.26
17 See Rojas, 23 I. & N. Dec. at 120 (“We find the statutory provision, when read in isolation, to besusceptible to different readings.”).18 As the Supreme Court explained in Demore, 538 U.S. at 518, Congress adopted section 1226(c) inresponse to its frustration with criminal aliens’ ability to avoid deportation if they were not already inDHS custody when removal proceedings were completed and its concern that criminal aliens who are notdetained continue to commit crimes. See S. Rep. No. 104‐48, 1995 WL 170285, at *14, *23 (1995). The BIArelied on this history and concluded, “we discern that the statute as a whole is focused on the removal ofcriminal aliens in general, not just those coming into [INS] custody ‘when . . . released’ from criminalincarceration.” Rojas, 23 I. & N. Dec. at 122 (second alteration in original).
17
Peabody Coal Co., 537 U.S. 149, 158 (2003). “[I]f a statute does not1
specify a consequence for noncompliance with statutory timing2
provisions, the federal courts will not in the ordinary course impose3
their own coercive sanction.” United States v. James Daniel Good Real4
Prop., 510 U.S. 43, 63 (1993); see also United States v. Montalvo‐Murillo,5
495 U.S. 711 (1990) (holding that the government may detain6
criminal defendants leading up to trial even if they do not comply7
with the relevant statute’s command that a judicial officer “shall”8
hold a bail hearing “immediately upon the person’s first9
appearance” before the officer); Sylvain, 714 F.3d at 157–59 (applying10
Barnhart and Montalvo‐Murillo to section 1226(c) and concluding that11
“the government retains authority under [section 1226(c)] despite12
any delay”).13
Finally, the BIA’s interpretation has the added benefit of14
accounting for practical concerns arising in connection with15
enforcing the statute. Particularly for criminal aliens in state16
custody, it is unrealistic to assume that DHS will be aware of the17
exact timing of an alien’s release from custody, nor does it have the18
resources to appear at every location where a qualifying alien is19
being released. State and local law enforcement may also have20
difficulty determining citizenship, since records of arrests and21
convictions may be incomplete in this regard. Accordingly, we join22
the Third, Fourth, and Tenth Circuits in holding that DHS retains its23
authority and duty to detain an alien even if not exercised24
immediately upon the alien’s release.19 Regardless of whether25
release or merely sometime after release, we adopt the “duty‐27
triggering” construction, and hold that an alien may be subject to28
19 See, e.g., Sylvain, 714 F.3d at 161 (“[E]ven if the statute calls for detention ‘when the alien is released,’ . . .nothing in the statute suggests that officials lose authority if they delay.”); Hosh, 680 F.3d at 382 (“Thenegligence of officers, agents, or other administrators, or any other natural circumstance or human errorthat would prevent federal authorities from complying with § 1226(c), cannot be allowed to thwartcongressional intent and prejudice the very interests that Congress sought to vindicate.”).
18
mandatory detention even where DHS does not immediately detain1
the alien after release from criminal custody.20 2
Because the District Court decided in Lora’s favor on statutory5
grounds, it did not reach his constitutional argument.21 As noted,6
Lora also argued below and argues to this Court that his indefinite7
detention without being afforded a bond hearing would violate his8
right to due process. We agree. Significantly, the distance between9
Lora and the government on this issue is not large: the government10
does not advocate for indefinite detention nor does it contest the11
view that, in order to avoid serious constitutional concerns, an12
implicit time limitation must be read into section 1226(c).13
It is well‐settled that the Fifth Amendment entitles aliens to14
due process in deportation proceedings. Reno v. Flores, 507 U.S. 292,15
306 (1993). “[T]he Due Process Clause applies to all ‘persons’ within16
the United States, including aliens, whether their presence here is17
lawful, unlawful, temporary, or permanent.” Zadvydas, 533 U.S. at18
693 (considering a challenge to post‐removal detention). As noted,19
more than a decade ago, in Zadvydas, the Supreme Court signaled its20
concerns about the constitutionality of a statutory scheme that21
ostensibly authorized indefinite detention of non‐citizens. Id. Two22
years later, when the court upheld the constitutionality of section23
20 Lora also argues that the BIA’s analysis is unreasonable in light of the constitutional concerns it raisesby giving the government limitless authority to deny bond hearings. However, in making this argument,Lora misconstrues Justice Kennedy’s concurrence in Demore, which observed that due process concernscould arise if there was an unreasonable delay by ICE in deportation proceedings. 538 U.S. at 532(Kennedy, J., concurring). Justice Kennedy’s observations were relevant to how long an alien is kept incustody, not when the custody must start or whether there may be a gap between release from criminalcustody and commencement of immigration custody. Id. at 532–33. 21 The issue was briefed by the parties below, and we may affirm a district court’s decision “on any basisfor which there is a record sufficient to permit conclusions of law, including grounds upon which thedistrict court did not rely.ʺ See Mauro v. S. New England Telecomms., Inc., 208 F.3d 384, 387 n.2 (2d Cir.2000) (per curiam) (internal quotation marks omitted).
19
1226(c) in Demore v. Kim, it emphasized that, for detention under the1
statute to be reasonable, it must be for a brief period of time. See,2
e.g., 538 U.S. at 528 (detention permissible because, as compared to3
Zadvydas, “the detention here is of a much shorter duration”). 4
Justice Kennedy explained in his concurrence that “[w]ere there to be5
an unreasonable delay by the INS in pursuing and completing6
deportation proceedings, it could become necessary then to inquire7
whether the detention is not to facilitate deportation, or to protect8
against risk of flight or dangerousness, but to incarcerate for other9
reasons.” Id. at 532–33 (Kennedy, J., concurring). 10
These cases clearly establish that mandatory detention under11
section 1226(c) is permissible, but that there must be some12
procedural safeguard in place for immigrants detained for months13
without a hearing. Accordingly, we join every other circuit that has14
considered this issue, as well as the government, in concluding that15
in order to avoid serious constitutional concerns, section 1226(c)16
must be read as including an implicit temporal limitation. See, e.g.,17
Rodriguez, 715 F.3d at 1137 (“[I]n several decisions over the past18
decade . . . we have consistently held that Demore’s holding is limited19
to detentions of brief duration.”); Diop v. ICE/Homeland Sec., 656 F.3d20
highly fact‐specific nature” of the balancing framework). Under this7
approach, every detainee must file a habeas petition challenging8
detention, and the district courts must then adjudicate the petition to9
determine whether the individual’s detention has crossed the10
“reasonableness”threshold, thus entitling him to a bail hearing. 11
In contrast, the second approach, adopted by the Ninth12
Circuit, is to apply a bright‐line rule to cases of mandatory detention13
where the government’s “statutory mandatory detention authority14
under Section 1226(c) . . . [is] limited to a six‐month period, subject to15
a finding of flight risk or dangerousness.” Rodriguez, 715 F.3d at16
1133. We believe that, considering the relevant Supreme Court17
precedent, the pervasive confusion over what constitutes a18
“reasonable” length of time that an immigrant can be detained19
without a bail hearing, the current immigration backlog and the20
disastrous impact of mandatory detention on the lives of immigrants21
who are neither a flight risk nor dangerous, the interests at stake in22
this Circuit are best served by the bright‐line approach.23
First, Zadvydas and Demore, taken together, suggest that the24
preferred approach for avoiding due process concerns in this area is25
to establish a presumptively reasonable six‐month period of26
detention. In Zadvydas, the Court held that six months was a27
“presumptively reasonable period of detention” in a related context,28
namely post‐removal‐determination detention. 533 U.S. at 700–0129
(finding that there was “reason to believe . . . that Congress30
previously doubted the constitutionality of detention for more than31
six months”). After that point, “once the alien provides good reason32
to believe that there is no significant likelihood of removal in the33
21
reasonably foreseeable future, the Government must respond with1
evidence sufficient to rebut that showing.” Id. In Demore, the Court2
held that section 1226(c) authorized mandatory detention only for3
the ”limited period of [the alien’s] removal proceedings.” 538 U.S. at4
531. At that time (2003), the “limited period” referred to “last[ed]5
roughly a month and a half in the vast majority of cases in which6
[section 1226(c) was] invoked, and about five months in the minority7
of cases in which the alien cho[se] to appeal.” Id. at 529–30; see8
Rodriguez, 715 F.3d at 1138 (“As a general matter, detention is9
prolonged when it has lasted six months and is expected to continue10
more than minimally beyond six months.”). 11
Secondly, the pervasive inconsistency and confusion exhibited12
by district courts in this Circuit when asked to apply a13
reasonableness test on a case‐by‐case basis weighs, in our view, in14
favor of adopting an approach that affords more certainty and15
predictability. Notably, the Supreme Court has recognized that 16
bright‐line rules provide clear guidance and ease of administration17
to government officials. See, e.g., Zadvydas, 533 U.S. at 700–0118
(adopting six‐month rule “for the sake of uniform administration,”19
while also noting that it would limit the need for lower courts to20
make “difficult judgments”). Compare, e.g., Martin v. Aviles, No. 1521
Civ. 1080(AT)(AJP), 2015 WL 3929598, at *2–3 (S.D.N.Y. June 15,22
2015) (holding an alien for over a year without a bond hearing23
violated his due process rights), and Minto v. Decker, No. 14 Civ.24
07764(LGS)(KNF), 2015 WL 3555803, at *7 (S.D.N.Y. June 5, 2015)25
(“Because Petitioner’s detention has exceeded twelve months—in the26
absence of any evidence that Petitioner might be a flight risk or a27
danger to the community—he is entitled to an individualized bond28
hearing.”), and Monestime v. Reilly, 704 F. Supp. 2d 453, 458 (S.D.N.Y.29
2010) (ordering bond hearing after eight months detention), and30
Scarlett v. DHS, 632 F. Supp. 2d 214, 223 (W.D.N.Y. 2009) (five years31
detention unreasonable), with Johnson v. Orsino, 942 F. Supp. 2d 39632
(S.D.N.Y. 2013) (fifteen month detention not unreasonable), and33
Luna‐Aponte v. Holder, 743 F. Supp. 2d 189, 194 (W.D.N.Y. 2010)34
22
(nearly three years of detention not unreasonable). Adopting a six‐1
month rule ensures that similarly situated detainees receive similar2
treatment. Such a rule avoids the random outcomes resulting from3
individual habeas litigation in which some detainees are represented4
by counsel and some are not, and some habeas petitions are5
adjudicated in months and others are not adjudicated for years. 6
Moreover, while a case‐by‐case approach might be workable7
in circuits with comparatively small immigration dockets, the8
Second and Ninth Circuits have been disproportionately burdened9
by a surge in immigration appeals and a corresponding surge in the10
sizes of their immigration dockets.22 With such large dockets,11
predictability and certainty are considerations of enhanced12
importance and we believe that the interests of the detainees and the13
district courts, as well as the government, are best served by this14
approach. 15
Finally, without a six‐month rule, endless months of16
detention, often caused by nothing more than bureaucratic backlog,17
has real‐life consequences for immigrants and their families. Lora is18
one such example. As noted, he is a LPR who has resided in and19
been extensively tied to his community for twenty‐five years. 20
During his years in this country, Lora has remained gainfully21
employed and has attended school. He is in jeopardy of removal as22
a consequence of what now stands as a conviction in 2009 for third23
degree possession of a controlled substance for which he received a24
conditional discharge. No principled argument has been mounted25
for the notion that he is either a risk of flight or is dangerous. 26
Instead, the record suggests that Lora is an excellent candidate for27
cancellation of removal pursuant to 8 U.S.C. § 1229b(a). He is the28
primary caretaker of a two‐year‐old U.S. citizen son who was placed29
in foster care while Lora was in detention; he has no arrest record30
aside from this non‐violent drug offense conviction; he has been31
22 See John R.B. Palmer, The Nature and Causes of the Immigration Surge in the Federal Courts of Appeals: APreliminary Analysis, 51 N.Y. L. Sch. L. Rev. 13, 14 (2006).
23
gainfully employed for over two decades while he has resided in the1
United States.23 2
For these reasons, we hold that, in order to avoid the3
constitutional concerns raised by indefinite detention, an immigrant4
detained pursuant to section 1226(c) must be afforded a bail hearing5
before an immigration judge within six months of his or her6
detention. Following the Ninth Circuit, we also hold that the7
detainee must be admitted to bail unless the government establishes8
by clear and convincing evidence that the immigrant poses a risk of9
flight or a risk of danger to the community. Rodriguez, 715 F.3d at10
1131.2411
CONCLUSION12
For the foregoing reasons, we AFFIRM the judgment of the13
District Court.14
23 Amici in this case cite multiple other examples of immigrants whose lives and whose families’ liveshave been upended by DHS’s enforcement of section 1226(c) without judicially imposed proceduralsafeguards. There is the case of a LPR who was arrested by ICE, without warning, nearly nine years afterthe most recent conviction for which ICE charged him as deportable, and five days before his girlfriendgave birth to their second child. He was detained for eleven months without a bond hearing before hishabeas petition was finally decided while his companion struggled to raise his three children in ahomeless shelter. See Baker v. Johnson, No. 14 Civ. 9500(LAP), 2015 WL 2359251 (S.D.N.Y. May 15, 2015). Amici also cite the example of an immigrant from Trinidad and Tobago who was detained by ICEwithout bond following his arrest on a dismissed criminal charge for seven months before the districtcourt ordered that he be provided with a bond hearing. See Straker, 986 F. Supp. 2d 345. During thoseseven months, his daughter was left without a primary caretaker. The fact that there are over 30,000immigrants in ICE custody in the United States on an average day and many of those individuals areparents and primary caregivers of U.S. citizen children gives some indication of section 1226(c)’s scopeand potential impact. We are confident that the government also does not wish for the type of outcomesdescribed above and does not favor a regime that perpetuates them.24 In the present case, the length of Lora’s detention fell just shy of the six‐month mark: he was detainedby ICE on November 22, 2013, and granted bond on May 8, 2014. Because of the length of Lora’s appeal,this Court sees no reason to remand this case so as to implicate the six‐month rule.