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BIA Holds that Immigration Judge May Not Review DHS’s Termination of Asylum Status

By Sarah Bronstein

In Matter of A-S-J-, 25 I&N Dec. 893 (BIA 2012), the Board of Immigration Appeals decided that an Immigration Judge does not have jurisdiction to review the termination of an asylee’s asylum status by the Department of Homeland Security.   The implication of this decision is that a non-citizen whose asylum status has been terminated by DHS does not have the right to seek review of that decision.  The former asylee’s only recourse is to reapply for asylum in removal proceedings before an Immigration Judge where the former asylee faces a very high burden to demonstrate eligibility for asylum.  

The respondent in this case was granted asylum in 1997 by the former INS.  After several years as an asylee, he applied for adjustment of status in 2007.  Shortly thereafter DHS issued a notice of intent to terminate asylum status alleging that the Respondent had committed fraud in his application for asylum.   The respondent appeared at an interview pertaining to the notice to terminate, and DHS proceeded with the termination of his asylum status.  DHS issued a notice to appear charging the respondent with deportability under INA sec 237(a)(1)(A) as an alien who was inadmissible at the time of entry . 

In removal proceedings, the Immigration Judge held that he had authority to review DHS’s termination of asylum status under 8 CFR §1208.24(f).  Upon review, the Immigration Judge found that DHS had failed to demonstrate by a preponderance of the evidence that the respondent had committed fraud in his asylum application.  The Immigration Judge terminated removal proceedings and reinstated the respondent’s asylum status.  DHS appealed the decision to the BIA.  Matter of A-S-J-, 25 I&N Dec. 893, 895 (BIA 2012).

The regulations set forth the ways in which asylum status may be terminated.  The regulation at 8 CFR §208.24 states that where there is a finding of fraud such that the applicant was not eligible for asylum at the time it was granted, a DHS asylum officer may terminate asylum status that was granted by DHS.  The regulation also states that after terminating asylum status, DHS will initiate removal proceedings where appropriate.  The regulation at 8 CFR §1208.24 states that where DHS has issued a notice of intent to terminate the asylum status of an individual in removal proceedings, the Immigration Judge has jurisdiction to terminate asylum status.  In addition, if the grant of asylum was made by an Immigration Judge or the BIA, DHS may seek reopening before the Immigration Judge or the BIA in order to request that asylum be terminated. 

The Immigration Judge in this case asserted that because the regulations allow an Immigration Judge to terminate the asylum status of an individual in removal proceedings after notice of intent to terminate such status has been served on the individual by DHS, one can infer that Immigration Judges also have authority to review a decision by DHS to terminate asylum status.  On appeal, the BIA reviewed other contexts in which the regulations grant authority to the Immigration Judge to either review DHS’s denial or allow the individual to renew the application.  The BIA found that because the regulations set forth a system for termination of asylum status and do not specifically grant authority to the Immigration Judge to review DHS’s decision to terminate asylum status, the Immigration Judge does not have the authority to do so.  Id. at 899.