One of the most devastating parts of the proposed regulations overhauling asylum law issued on June 15 is a new rule allowing immigration judges to deny asylum applications without an evidentiary hearing. The regulation states that the judge can “pretermit” legally insufficient applications, meaning deny them without even giving the asylum seeker a chance to testify. This rule defies the most basic notions of fairness.
Most asylum seekers do not have legal counsel and must navigate complex immigration laws alone. If an asylum seeker does not know how to frame his or her claim in exactly the right way, a judge could reject it as legally inadequate under the new rule.
This concern is especially relevant for asylum claims based on “membership in a particular social group,” which is the most complicated ground for asylum. It is extremely difficult for attorneys, and nearly impossible for a layperson, to understand the convoluted requirements for establishing a “particular social group.” For example, if a group is defined too broadly, it is rejected as not being “particular,” but if it is defined too narrowly, it is rejected for not being “socially distinct.”
Some asylum seekers are lucky enough to have an attorney who can submit a detailed legal brief addressing such complex issues, and fewer still will be able to hire an expert who can opine on a social group. But most will be left to their own devices. It is unreasonable to expect an unrepresented individual, especially one who may not speak English, or may not be literate in any language, or may be a child, to navigate the complexities of the “particular social group” definition alone.
Additionally, whether an asylum application is legally adequate is often inextricably intertwined with an evaluation of the facts. For example, whether a proposed social group is cognizable is a legal question, but underlying it are factual questions about the group. An immigration judge has a statutory duty to help develop the record by asking the applicant questions, which can help draw out the facts needed to establish eligibility for asylum. But if the asylum application is denied without a hearing, important facts may be overlooked.
The new regulation has clearly been in the works for some time, as Attorney General Sessions helped cleared the way for it in 2018 by vacating a 2014 decision by the Board of Immigration Appeals called Matter of E-F-H-L-, which confirmed that immigration judges must provide asylum seekers with “an opportunity to provide oral testimony.”
In an extraordinary move, the Attorney General directed the Board to refer the case to himself several years later, after the respondent had withdrawn his asylum application to proceed with a family-based petition. Even more bizarre was the Attorney General’s decision to do this after the Department of Homeland Security had already agreed to administratively close the case, taking it off the judge’s docket. The Attorney General then asserted that because the asylum application had been withdrawn, the Board’s decision was “effectively mooted.” These legal gymnastics were clearly a pretext to vacate a decision protecting an asylum seeker’s right to testify.
Not only does the new regulation defy common-sense notions of fairness, but it tramples roughshod over another decision by the Board of Immigration Appeals called Matter of Fefe that has existed for over 30 years. That decision recognizes an asylum’s seekers right, “at a minimum,” to “take the stand.” There, the Board found that a full oral examination of the applicant is “an essential aspect of the asylum adjudication process for reasons related to fairness to the parties and to the integrity of the asylum process itself.” The immigration judge had rejected a proposed social group and then denied asylum without a hearing. The Board held that was impermissible.
In justifying the new regulation, the U.S. Department of Homeland Security and Department of Justice note that Matter of Fefe relied on regulations that no longer exist. What they neglect to mention, however, is that the current regulations contain language that is materially the same, requiring a decision to be made “after an evidentiary hearing,” as the Board pointed out in Matter of E-F-H-L-.
No doubt, the proposed regulation will be challenged in federal court as violating not only the Immigration and Nationality Act, which guarantees a reasonable opportunity to present evidence, but also constitutional due process, which requires fundamental fairness. Summary judgment must be kept out of immigration court, where life-or-death decisions are already made with minimal protections.
Fatma Marouf is a Professor of Law and Director of the Immigrant Rights Clinic at Texas A&M School of Law.
Suggested citation: Fatma Marouf, Denying Asylum Without a Hearing Violates Due Process, JURIST – Academic Commentary, July 17, 2020, https://www.jurist.org/commentary/2020/07/fatma-marouf-denying-asylum-violates-due-process/.
This article was prepared for publication by Matthew Fischer, JURIST’s Associate Editor. Please direct any questions or comments to him at commentary@jurist.org
