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New BIA Decisions on Asylum

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By Tatyana Delgado

The BIA recently issued two asylum-related decisions focused on access to merits hearings and evidentiary burdens within the context of asylum terminations based on fraud. 

Merits Hearings in Immigration Court

On June 12, 2014, the BIA issued Matter of E-F-H-L, 26 I&N Dec. 319 (BIA 2014).  The BIA held that, in removal proceedings, asylum or withholding or deferral of removal applicants are entitled to merits hearings without first having to show prima facie eligibility for these forms of relief. 

In Matter of E-F-H-L, the Immigration Judge (IJ) declined to hold a merits hearing for an asylum and withholding of removal applicant.  The IJ concluded that the respondent’s proposed particular social group would not make him eligible for asylum.  On appeal, the BIA analyzed INA § 240(b)(4)(B), which provides, in part, that respondents in removal proceedings must have a reasonable opportunity to present evidence on their behalf.  Implementing regulations provide that immigration courts will decide applications for asylum and withholding of removal “. . . after an evidentiary hearing to resolve factual issues in dispute.”  8 CFR § 1240.11(c)(3).  Thus, the BIA remanded the case so that the IJ may conduct a merits hearing. 

Termination of Grant of Asylum based on Fraud

In Matter of P-S-H, 26 I&N Dec. 329 (BIA 2014), the BIA considered the DHS’s evidentiary burden within the context of fraud-based asylum terminations.   The BIA concluded that the DHS must prove, by a preponderance of the evidence, that (1) fraud existed in the asylum application, and (2) the fraud was such that, in light of the truth, the applicant was not eligible for asylum at the time of asylum grant.  However, the DHS is under no obligation to prove that the asylum applicant was aware of the fraud.    

In Matter of P-S-H, the DHS sought to reopen removal proceedings to terminate a grant of asylum based on fraud.  The IJ reopened proceedings and terminated the respondent’s asylum grant after a finding of fraud in the asylum application.  The BIA analyzed 8 CFR § 1208.24(a)(1) and (f), which provides that DHS must establish that “there was a showing of fraud in the alien’s application such that he or she was not eligible for asylum at the time it was granted.”  The BIA agreed with the IJ’s finding of fraud in the application, but nevertheless remanded the case.  The IJ must now conduct further analysis on whether the DHS met its burden of showing ineligibility for asylum in light of the truth.   

In addition, the BIA acknowledged that the Eighth Circuit Court of Appeals has reached a different conclusion on the issue of whether the DHS has to show that the applicant committed and was aware of the fraud.  In Ntangsi v. Gonzales, 475 F.3d 1007 (8th Cir. 2007), the appellate court held that the DHS must show that: (1) applicant committed fraud in asylum application, (2) applicant was aware of the fraud, and (3) the fraud was such that applicant did not qualify for asylum at time it was granted.  The Ntangsi decision fell in line with a prior Eighth Circuit case, Hailemichael v. Gonzales, 454 F.3d 878 (8th Cir. 2006). 

The BIA and Eighth Circuit decisions are at odds with each other.  The BIA respectfully disagreed with the Eighth Circuit’s conclusion that the DHS must show that the asylum applicant committed and was aware of the fraud.  The BIA noted that Matter of P-S-H arises in the Ninth Circuit, so the Eighth Circuit’s decisions are not binding.