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Recent BIA Decisions on Asylum and Withholding

By Debbie Smith

The BIA issued several decisions on in the past several months addressing various asylum and withholding of removal issues.  The issues addressed included the following: the particularly serious crime standard; internal relocation requirements for asylum; the commission of a serious nonpolitical crime outside the United States; and authority to terminate and review the termination of asylum status.

The Particularly Serious Crime Bar to Asylum

On November 13, 2012, the BIA issued a decision, Matter of M-H, 26 I&N Dec. 46 (BIA 2012),  that an offense need not be an aggravated felony to be considered a particularly serious crime, and applied this decision to cases pending nationwide.  The immigration statute at INA §§ 208(b)(2)(A)(ii) and 241(b)(3)(B)(ii) provides that an individual convicted of a particularly serious crime is not eligible for asylum or withholding of removal.  In Matter of N-A-M, 24 I&N Dec. 336 (BIA 2007), the BIA held that an individual is barred from a grant of asylum and withholding of removal when convicted of particularly serious crime, whether or not such crime is an aggravated felony.

However, prior to Matter of M-H, the BIA did not specify whether it would apply its own rule to cases that arose in the Third Circuit Court of Appeals.  The reason for this was that the Third Circuit's rule was contrary to that of the BIA.  The 3d Circuit held that an offense must be an aggravated felony to be a particularly serious crime in order to bar an individual from withholding of removal. Alaka v. Attorney General of the U.S, 456 F.3d 88 (3d Cir. 2006).  In Matter of M-H, the BIA rejected the Third Circuit rule.  Relying on the Supreme Court case of Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967 (2005), the BIA found that the Third Circuit must accord deference to the BIA's decision because the Third Circuit did not determine that the statute's language was unambiguous. Therefore, the BIA rule that an individual need not be convicted of an aggravated felony in order for the particularly serious crime bar to prevent a grant of asylum and withholding of removal now applies to all immigration cases.

Internal Relocation Requirements for Asylum Applicants

In a decision dated October 4, 2012, the BIA reviewed whether DHS demonstrated that an asylum applicant from Sri Lanka could avoid future persecution by relocating to another part of the country, and whether it would be reasonable to expect him to do so. Matter of M-Z-M-R, 26 I&N Dec. 28 (BIA 2012).  The regulations at 8 CFR § 1208.13(b)(1)(i)(B) provide a two-step approach for evaluating whether an applicant can relocate to another part of his or her country and whether such relocation is reasonable.  Where an asylum applicant has established past persecution, DHS must demonstrate, by a preponderance of the evidence, that there is a specific area of the country where the applicant will not be subject to persecution and that it would be reasonable to require such internal relocation.  DHS must overcome the presumption that the applicant has a well-founded fear of persecution by proving by a preponderance of evidence both parts of the two-prong test.  In Matter of M-Z-M-R, the BIA required the Immigration Judge to make findings of fact and law on the issues of the applicant's ability to relocate and the reasonableness of relocation.

What specific type of findings should the Immigration Judge make regarding internal relocation?  The circumstances regarding an applicant's stay in a relatively safer part of the country should be explored – in what capacity was he hiding, whether authorities continued to search for him during that time, and whether the safer location is currently accessible to him.  Under the standards of Matter of M-Z-M-R, the Immigration Judge must first make findings of both fact and law regarding whether the applicant is able to internally relocate and then address whether requiring relocation under all the circumstances to expect the applicant to do so.

Commission of a Serious Nonpolitical Crime Outside the United States

The BIA considered what type activities may constitute a serious nonpolitical crime outside the United States. in its September 11, 2012 decision, Matter of E-A, 26 I&N Dec. 1 (BIA 2012). Pursuant to the immigration statute, INA §§ 208(b)(2)(A)(ii) and 241(b)(3)B)(iii), an applicant is barred from a grant of asylum and withholding of removal if "there are serious reasons for believing that the alien committed a serious nonpolitical crime" outside the United States.  In making this evaluation, the BIA interpreted the language "serious reasons for believing" to be equivalent to probable cause.

The BIA also looked at whether the criminal conduct is of an atrocious nature, and whether the seriousness of the criminal acts outweighs the political aspect of the conduct ad asked the following questions: were the acts directed at the government or political organization, were the acts directed toward changes of the political organization of the state, and was there a link between the crime and its political purpose?  The BIA compared the conduct of the applicant in Matter of E-A to that of the applicant in INS v. Aguirre-Aguirre, 526 U.S. 415 (1999), where the Court affirmed the BIA decision that the "violence and destructiveness of the crimes, and their impact on civilians, were disproportionate to acknowledged political objectives." Id. at 431.

In Matter of E-A, the asylum applicant was active in the Democratic Party of Cote d'Ivoire and on five or six occasions participated as a member of this political organization in burning passenger buses and cars, throwing stones, pushing baskets of food off the heads of merchants as they walked on the streets, and throwing merchandise off merchants' tables in the market.  Although no one was ever hurt as a result of the applicant's activities, the BIA concluded that these activities were disproportionate to their political character and constituted a serious nonpolitical crime when reviewed cumulatively.  The BIA rejected the applicant’s argument that the activities were not individually so serious as to represent a serious nonpolitical crime.  Rather the BIA insisted on reviewing the actions in the aggregate.

Authority to Terminate and Review Termination of Asylum

The BIA's decision, Matter of A-S-J, 25 I&N Dec. 893 (BIA 2012), finding that the Immigration Judge lacks jurisdiction to review the termination of asylum status, was issued on August 24, 2012, just a few weeks after the Ninth Circuit Court of Appeals opinion in Nijjar v. Holder, 689 F.3d 1077 (9th Cir. 2012).  In a footnote, the BIA acknowledged that the Ninth Circuit's decision in Nijjar held that DHS does not have statutory authority to terminate asylum status but rather asylum status may only be terminated by the Attorney General and the Executive Office for Immigration Review.

In concluding that the statute prohibited DHS from terminating asylum status, the Ninth Circuit found that the regulations were ultra vires because the statute clearly confers the authority to terminate asylum status on the Attorney General alone.  Therefore, the regulations upon which the BIA relied to conclude that the Immigration Judge lacks jurisdiction to review the termination of asylum status were the same regulations that the Ninth Circuit had determined were in direct conflict with the statute and ultra vires a few weeks prior to the BIA decision.  In its decision, the Ninth Circuit noted that "[T]erminations of asylum are grave enough so that Congress might sensibly intend just what it did, assigning the authority to the Attorney General, where a neutral arbiter, the immigration judge, rather than as asylum officer, would make the decision, and where the decision would be subject to the Board of Immigration Appeals, rather than being unappealable." Id. at 1085.

The conflict between BIA and Ninth Circuit decisions means that in the 11 states and territories under the jurisdiction of the Ninth Circuit, the Attorney General, not DHS, has jurisdiction to terminate asylum and review the termination of asylum.  In all other circuit court jurisdictions, there is no review of the DHS determination to terminate asylum.