Friday July 24, 2020

Three-Member BIA Panel Says IJ Must Determine Citizenship for Asylum

by Scott Girard

Appeals to the Board of Immigration Appeals (BIA) may seem increasingly futile due to changes by the current administration, but they are necessary and sometimes fruitful. This is especially true for pro se clients. In a recent three-member panel unpublished decision, the BIA held that judges must make citizenship inquiries before adjudicating asylum applications.

This case involved an unadjusted refugee who was illiterate and spoke little English. Our client represented himself at immigration court and had no idea what happened at his trial. He hired us after the judge denied his case. According to the Immigration Judge’s (IJ) brief decision, it only looked like a weak asylum case that would be dismissed on appeal. However, the IJ failed to consider the most important question first. What country is he a citizen of? Here, based on simple research, it was apparent that our client was not a citizen of any country. He was stateless. He was born in a refugee camp and his parent’s were stripped of their citizenship status in their birth country after they fled as refugees. The IJ did not make this inquiry and assumed our client was a citizen of the his parent’s country. The IJ denied his asylum application, calling it merely “fear of the unknown.” However, as a stateless individual, he was likely to suffer economic persecution.

After reviewing the court file, it also showed our client previously filed an application for adjustment of status, but it was denied because he didn’t respond to a Request for Evidence (RFE). The attorney for the DHS filed the adjustment application with the court along with the Notice to Appear. The IJ failed to even acknowledge the previous adjustment application. Instead, he just focused on the asylum application.

On appeal, we presented evidence that our client was not a citizen of his parent’s country and the Board accepted it. Normally, new evidence is not accepted on appeal. However, pro se respondents are often given leeway, especially when it involves important issues like establishing citizenship. We argued the case should be sent back to the IJ to reconsider his asylum application. We also argued that the judge should have decided on his adjustment of status application. The Board issued a three-member panel decision granting the appeal, mainly on the issue of his asylum denial. The Board was convinced by the evidence that he was a stateless individual and remanded the case to the IJ to reconsider the asylum application and also consider the adjustment application. The Board did not decide whether the judge made an error by ignoring the adjustment of status application. However, on remand, the IJ ultimately granted the application for adjustment of status that he ignored the first time around.

Link to BIA Decision: Redacted BIA Decision

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