The Board of Immigration Appeals, or BIA, recently issued a decision, Matter of Andrade Jaso & Carbajal Ayala, 27 I&N Dec. 557 (BIA 2019), which may limit the availability of cancellation of removal for some noncitizens. Under section 240A(b) of the Immigration and Nationality Act, or INA, noncitizens who have been in the United States for at least ten years, can demonstrate good moral character, and can show exceptional and extremely unusual hardship to a qualifying U.S. citizen or lawful permanent resident, or LPR, relative, may be able to obtain lawful permanent residence. This form of relief, non-LPR cancellation of removal, is only available in removal proceedings. As a result, and given the limited immigration options for many noncitizens who have been in the United States for extended periods of time, some practitioners have filed affirmative asylum applications as a means to have their client placed in removal proceedings.
Filing a non-meritorious asylum application is not advisable and can subject the practitioner who does so to disciplinary proceedings. In this context, it is important to understand that a “meritorious” asylum application does not necessarily mean that the claim is likely to succeed, but rather that it “is well-grounded in fact and is warranted by existing law or by a good faith argument for the extension, modification, or reversal of existing law or the establishment of new law, and is not interposed for any improper purpose.” 8 CFR § 1003.102(j)(1). In many cases where practitioners have filed asylum for a client with the goal of triggering removal proceedings to pursue cancellation, the practitioner submits an asylum application that does not allege any actual fear of return to the home country, making the application clearly non-meritorious.
The attorney in Matter of Andrade Jaso & Carbajal Ayala filed affirmative asylum applications on behalf of his clients and then advised them not to attend the asylum interviews, which resulted in the asylum office issuing Notices to Appear. At the first master calendar hearing, the same attorney withdrew his clients’ applications for asylum and submitted applications for cancellation of removal. The attorney for Immigration and Customs Enforcement, or ICE, then moved to dismiss the proceedings without prejudice, arguing that under 8 CFR § 239.2(a)(7) the “[c]ircumstances of the case have changed after the notice to appear was issued to such an extent that continuation is no longer in the best interest of the government,” 27 I&N Dec. at 558. Of course, the only circumstance that had changed was that ICE counsel saw that the respondents filed applications for cancellation of removal rather than asylum. This “selective dismissal” seems to contradict the Department of Homeland Security’s current position that all undocumented persons, regardless of security risk or conviction history, are enforcement priorities for removal. In the motion to terminate in Andrade Jaso & Carbajal Ayala, ICE apparently argued that the tactic used by the attorney in the case was “an abuse of the asylum process.” The immigration judge terminated the proceedings and the BIA upheld the termination as proper.
This decision should not affect noncitizens with meritorious asylum claims that they intend to pursue, even if the noncitizens also wish to pursue cancellation of removal if their cases are referred to immigration court. Noncitizens may file affirmatively for asylum, even after being in the United States for more than ten years, if they have a potential exception to the one-year filing deadline, and/or if they have a claim for withholding of removal or protection under the Convention Against Torture. But practitioners who file non-meritorious asylum cases solely to pursue cancellation of removal may no longer be able to pursue cancellation for their clients.
Notably over the course of the past year, some asylum offices have implemented pilot projects that allow represented non-citizens filing asylum applications more than ten years after their arrival in the United States to waive their interview at the asylum office and be placed directly into removal proceedings. Notes from a 2018 U.S. Citizenship and Immigration Services asylum stakeholders’ meeting show that the asylum offices sent notices to approximately 6,000 people with pending asylum applications, and over 20 percent of those who received a notice waived the asylum interviews. After Matter of Andrade Jaso & Carbajal Ayala, it is possible that in cases where practitioners waive the asylum interview in hopes of having their clients placed into removal proceedings to pursue cancellation the immigration judge will terminate removal proceedings preventing clients from pursing that relief. Importantly, Matter of Andrade Jaso & Carbajal Ayala does not require that such cases be terminated; it merely recognizes that the immigration judge may do so if ICE moves for termination.
Practitioners who take on representation of respondents in removal proceedings who have filed non-meritorious asylum applications with other counsel or a “notario” should make it clear to the immigration judge that it was a different representative who pursued the strategy of filing for asylum without intending to actually pursue the claim. In Matter of Andrade Jaso & Carbajal Ayala, the BIA emphasizes that “this same attorney, immediately withdrew their asylum applications and applied for cancellation of removal,” 27 I&N Dec. at 557 (emphasis added). This decision is a punitive measure by a BIA that increasingly seems to coordinate with ICE. Using the guise of curbing “asylum abuse,” the BIA’s decision will prevent noncitizens who have been in the United States for many years and have strong family ties from regularizing their status.