Notice Needed?: Courts Split on Evidentiary Notice for Asylum Proceedings

A circuit split has developed concerning whether applicants for asylum are required to receive notice of evidence needed for removal proceedings. The split centers on a provision of the Immigration and Nationality Act (INA) concerning burden of proof in granting asylum.

The testimony of the applicant may be sufficient to sustain the applicant’s burden without corroboration, but only if the applicant satisfies the trier of fact that the applicant’s testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee. In determining whether the applicant has met the applicant’s burden, the trier of fact may weigh the credible testimony along with other evidence of record. Where the trier of fact determines that the applicant should provide evidence that corroborates otherwise credible testimony, such evidence must be provided unless the applicant does not have the evidence and cannot reasonably obtain the evidence.

8 U.S.C. § 1158(b)(1)(B)(ii).

The Law

Under the Immigration and National Act, the burden of proof is on the applicant to prove that removal will result in persecution based on the individual’s race, religion, or membership in a particular social group.

The core of the split concerns differing statutory interpretations of the above section, particularly the phrase, “where the trier of fact determines that the applicant should provide evidence that corroborates otherwise credible testimony, such evidence must be provided.”

Resolving this split is essential for two reasons: (1) it concerns constitutional issues of due process and (2) it concerns public policy as the Syrian refugee crisis could greatly increase the number of asylum applications processed. Therefore, it is essential to have a clear, uniform policy.

The Split

The Ninth Circuit has interpreted the statute as unambiguously requiring the Immigration Judge (IJ) to give notice to the applicant of evidence required for removal hearings.

A plain reading of the statute’s text makes clear that an IJ must provide an applicant with notice and an opportunity to either produce the evidence or explain why it is unavailable before ruling that the applicant has failed in his obligation to provide corroborative evidence and therefore failed to meet his burden of proof.

Ren v. Holder (Ninth Circuit, 2011).

The court arrives at this interpretation primarily based on the statute’s use of the future tense.

 “Congress’s use of a verb tense is significant in construing statutes.” United States v. Wilson, 503 U.S. 329, 333, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992). Here, the Act does not say “should have provided,” but rather “should provide,” which expresses an imperative that the applicant must provide further corroboration in response to the IJ’s determination. The applicant cannot act on the IJ’s determination that he “should provide” corroboration, of course, if he is not given notice of that determination until it is too late to do so.

Ren v. Holder.

In addition, the court considers the statute’s grammatical structure in determining Congressional intent.

Second, the grammatical structure of the controlling clause makes the provision’s meaning absolutely clear. The statute requires that corroborating evidence “must be provided” in the event that the IJ determines that it should be provided. Again, this language focuses on conduct that follows the IJ’s determination, not precedes it, as the phrase “must have been provided” would do, and as with the clause above, the statute’s future directed language means that the applicant must be informed of the corroboration that is required. Third, the statute goes on to excuse an applicant from satisfying the IJ’s request for corroboration if he “does not have the evidence and cannot reasonably obtain it.” This language is present-and future-oriented as well; the statute does not say “unless the applicant did not have the evidence and could not have reasonably obtained the evidence.” Therefore, if the IJ decides that the applicant should provide corroboration, the applicant must then have an opportunity to provide it, or to explain that he does not have it and “cannot reasonably obtain it.” It would make no sense to ask whether the applicant can obtain the information unless he is to be given a chance to do so.

Ren v. Holder,

In addition to textual interpretation, the court employs the canon of constitutional avoidance in construing the statute.

Moreover, even if the language had been ambiguous, the canon of constitutional avoidance requires us to come to the result discussed above. The canon “requires a statute to be construed so as to avoid serious doubts as to the constitutionality of an alternate construction.” Nadarajah v. Gonzales, 443 F.3d 1069, 1076 (9th Cir.2006). The REAL ID Act did not change our clear Fifth Amendment caselaw that requires a “full and fair hearing” in deportation proceedings. Campos–Sanchez v. INS, 164 F.3d 448, 450 (9th Cir.1999). We have previously observed that “demand[ing] [corroboration] immediately on the day of the hearing” would “raise [ ] serious due process concerns by depriving [an applicant] of his guarantee of a reasonable opportunity to present evidence on his behalf.” Marcos v. Gonzales,410 F.3d 1112, 1118 n. 6 (9th Cir.2005) A requirement that something be provided even before notice is given would raise even more due process concerns. This provides additional support for our interpretation of the statute, although we reiterate that the statutory text alone mandates our interpretation.

Ren v. Holder.

In contrast to the Ninth Circuit, the Sixth and Seventh Circuits have interpreted the statute as not requiring the IJ to give notice to the applicant of the evidence needed. The Seventh Circuit considers the statute itself provides notice to applicants of the evidence needed.

Finally, we add that the REAL ID Act clearly states that corroborative evidence may be required, placing immigrants on notice of the consequences for failing to provide corroborative evidence.

Raphael v. Mukasey (Seventh Circuit, 2008).

The court also considers the burden that requiring notice would have on the Department of Homeland Security.

To hold that a petitioner must receive additional notice from the IJ and then an additional opportunity to provide corroborative evidence before an adverse ruling, would necessitate two hearings-the first to decide whether such corroborating evidence is required and then another hearing after a recess to allow the alien more time to collect such evidence. This would add to the already overburdened resources of the DHS, and such an approach would seem imprudent where the law clearly notifies aliens of the importance of corroborative evidence.

Raphael v. Mukasey.

The Sixth Circuit, in the most recent decision of the three, elected to follow the Seventh Circuit’s interpretation over the Ninth Circuit’s interpretation.

The court challenged the Ninth Circuit’s “plain reading” of the statute,

This text does not suggest that the alien is entitled to notice from the IJ as to what evidence the alien must present. Even if it could be said that the statute is silent on the issue, and thus possibly could allow for such a construction (and we conclude it does not), it is plainly erroneous to say that the statute unambiguously mandates such notice.

Gaye v. Lynch (Sixth Circuit, 2015).

Looking Forward

This split is unlikely to be resolved until the appointment of a ninth justice to the Supreme Court. Immigration and asylum have been important issues in the 2016 presidential race. As statutory interpretation often divides the Supreme Court, it is unlikely a divided, eight-member Supreme Court will elect to review the split. Therefore, the next president is likely to appoint the justice that will make the final determination on whether applicants for asylum must be provided notice.

Ice, Ice, Baby!: A Split About Federal Jurisdiction in Expedited Removal Procedures

You Know What’s Coming…

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Under the Immigration and Nationality Act, “any alien who is convicted of an aggravated felony at any time after admission is deportable.”

Non-citizens with legal status who are convicted of an aggravated felony are afforded a hearing before an Immigration Judge. They are allowed to plead their case and have their day in court.

For non-citizens without legal status, they undergo an expedited process of removal without a hearing. This expedited process is known as administrative removal.

Administrative Removal

In administrative removal, an Immigration and Customs Enforcement (ICE) Officer examines the evidence and determines whether or not the felony occurred. If the officer believes the evidence is lacking, then the non-citizen proceeds with regular removal proceedings in front of an Immigration Judge. If the officer believes the non-citizen committed the felony, the person is served a removal notice.

The non-citizen can challenge their aggravated felony determination through the agency or through the courts. However, this removal is not reviewable by an Immigration Judge. Instead, circuit courts have the jurisdiction to review administrative removal determinations.

Recently, however, there has been confusion within the courts about whether or not a circuit court has jurisdiction to hear a challenge when the non-citizen has not exhausted all the agency remedies.

Typically, a court may review a final order of removal against a non-citizen only if “the alien has exhausted all administrative remedies available to the alien as of right.” 8 U.S.C. § 1252(d)(1). When a non-citizen has an opportunity to raise a claim in administrative proceedings but does not do so, he fails to exhaust his administrative remedies as to that claim. See Massis v. Mukasey, 549 F.3d 631, 638 (4th Cir. 2008).

The question plaguing the circuit courts is whether the DHS’s expedited removal procedures allow aliens to contest only the factual basis for their removal, and not to raise legal arguments. If so, then a non-citizen has an arguable claim that he has not failed to exhaust his remedy; in other words, because there was no remedy to exhaust, the non-citizen is entitled to appellate review.

Circuit Split

In 2015, the Fourth Circuit set out to answer the question of whether a court has jurisdiction to hear a challenge when the non-citizen has not exhausted all agency remedies. Etienne v. Lynch.

In Etienne, the Fourth Circuit had to decide whether they had jurisdiction to hear a challenge from Etienne, a non-citizen from Haiti convicted of an aggravated felony, regarding his expedited removal procedure, when he had failed to challenge the legal basis of his removal before the agency.

According to the Fourth Circuit, the answer was: yes.

The Fourth Circuit held that the appellate courts do have the authority to consider an alien’s petition for review, even if they have not exhausted administrative avenues. The court reasoned that under the current immigration regulations, non-citizens can only challenge their aggravated felony convictions on factual findings. There is no avenue for a non-citizen to challenge their conviction on legal conclusions aside from the circuit courts. Therefore, the Fourth Circuit held that it was appropriate for the circuit courts to review administrative removal determinations. The Fourth Circuit supported their decision by citing the Fifth Circuit’s decision in Valdiviez-Hernandez v. Holder, where the Fifth Circuit also held that the circuit court had jurisdiction to review an expedited removal.

However, the Fourth Circuit’s decision in Etienne, and the Fifth Circuit’s decision in Valdiviez, directly contrasts with the Eleventh Circuit’s 2014 decision in Malu v. U.S. Attorney General.

In Malu, the Eleventh Circuit held that the court lacked jurisdiction because the non-citizen failed to exhaust the administrative avenues available within the agency. The Eleventh Circuit believed that the administrative proceedings did provide an opportunity for aliens to challenge factual allegations and legal conclusions. Therefore, it held that the circuit courts do not have jurisdiction to review until the alien has exhausted all available agency remedies.

Looking Forward

As stated prior, equality and predictability are essential to the law, particularly in the immigration context, where slight differences in law may be the difference between deportation and legal residency. Thus, as long as the courts remain divided about this question of federal jurisdiction, there will be inefficiency and injustice in the immigration system. While it seems unlikely that the Supreme Court will provide clarity on this issue any time soon, a resolution is necessary in order for the immigration system to not only run more effectively, but fairly and predictably—for all parties, in all locales.

A Split that Splits: Moral Turpitude in the Circuits

Imagine: you’re a non-citizen sitting before an immigration judge, waiting to hear if the burglary you just committed means you’re going to be deported.  Then imagine your lawyer told you your chances of deportation hinge on how the immigration judge defines “moral turpitude.”

I know, right?

“Moral Turpitude”

It sounds bad, huh?  Well, it’s not “meaningless,” as Judge Posner of the Seventh Circuit claimed.  Arias v. Lynch (2016).  Rather, it has many meanings, depending on which federal circuit court of appeals you ask.  Everyone recognizes that immigration law is hard.  It’s hard because you’re dealing with humans and oftentimes making decisions that have profound effects on the lives of these humans. (Thank goodness other practices of law don’t have these issues, too.)

It’s very important that our courts come to a consensus about what exactly moral turpitude means.  A lack of agreement means that a non-citizen in Illinois might be deported for the same crime that a non-citizen in Texas wasn’t deported for.  This is kind of a big deal, constitutionally speaking, because due process, equal protection, life, liberty—I think you get the point. 

The Split

The circuits are split between a two-step test and a three-step test.

The Third, Fourth, Fifth, Ninth, and Eleventh Circuits follow the two-step test, as described in Prudencio v. Holder (4th Cir. 2012):

  • (1) “[W]e first apply the categorical approach…This analysis requires that we examine the statutory elements of the crime, and not consider the facts or conduct of the particular violation at issue.”
  • (2) “[If] the categorical approach does not resolve our inquiry… we proceed under the modified categorical approach… Under the modified categorical approach, we review the record of conviction to determine whether the crime of which [the defendant] was convicted qualifies as a crime involving moral turpitude.”

The Seventh and Eighth Circuits follow the three-step test, as descried in Mata-Guerrero v. Holder (7th Cir. 2010):

  • (1) “First, the immigration judge should focus on the statute’s actual scope and application and ask whether, at the time of the alien’s removal proceeding, any actual (not hypothetical) case existed in which the statute was applied to conduct that did not involve moral turpitude, including the alien’s own conviction….
  • (2) “If that evaluation of a “realistic probability” does not resolve the question, the judge should proceed to a “modified categorical” approach, examining the record of conviction, including documents such as the indictment, the judgment of conviction, jury instructions, a signed guilty plea, or a guilty plea transcript….
  • (3) “Then, where those records of conviction also fail to shed light on the question, the Attorney General instructs that the immigration judge should consider any evidence beyond those records “if doing so is necessary and appropriate to ensure proper application of the Act’s moral turpitude provisions.”

Why This Matters

For non-citizens, this split can be the difference between staying in the country or being deported. Consider the Arias case linked above. In the case, the non-citizen was charged with falsely using a social security number in order to find work. The Seventh Circuit had not decided prior whether such a violation constituted moral turpitude. It noted, however, that the circuits were split on the matter:

The Fifth and Eighth Circuits have said yes (including opinions regarding the closely related subparagraph, § 408(a)(7)(A)). Guardado‐Garcia v. Holder, 615 F.3d 900, 901–02 (8th Cir. 2010); Lateef v. Department of Homeland Security, 592 F.3d 926, 929 (8th Cir. 2010) (§ 408(a)(7)(A)); Hyder v. Keisler, 506 F.3d 388, 392 (5th Cir. 2007) (§ 408(a)(7)(A)). The Ninth Circuit has said no. Beltran‐Tirado v. I.N.S., 213 F.3d 1179, 1184 (9th Cir. 2000).

Circuits are split not just on how to define moral turpitude, but on what crimes even constitute moral turpitude. This is an obvious consequence of a system of law that requires a phrase as empty as “moral turpitude” to bear a Sisyphean load. And remember: the Fifth and Ninth Circuits use the same test to define moral turpitude—that those circuits cannot decide on what crimes constitute moral turpitude underscores just how entangled and ill-defined the law has become.

Looking Forward

For a legal system that fetes both equality and predictability, the fact that neither non-citizens nor the State knows what the exact consequences are when a crime is committed is nonsensical and illogical. Non-citizens should have the heads up as to what will occur if they commit a crime.  Part of this includes defining, once and for all, what our law means by “moral turpitude.” And, if we can’t, maybe it’s time we cut the turpitudinous knot.