Under the Immigration and Nationality Act (“INA”), a refugee seeking asylum must prove she “(1) has a well-founded fear of persecution; (2) on account of a protected ground [e.g., race, religion, nationality, membership in a particular social group, or political opinion]; (3) by an organization that the Salvadorian government is unable or unwilling to control” Hernandez-Avalos v. Lynch, 784 F.3d at 949 (4th Cir. 2015).

Odalis Mireida Chicas-Machado, a native citizen of El Salvador, faced escalating persecution from MS-13 gang members during her walks to and from church. Chicas-Machado v. Garland, 73 F.4th 261, 263 (4th Cir. 2023). Due to harassment from gang members to have her abet their activity—and their subsequent death threats when she refused—she sought asylum in the United States, contending that her religious beliefs and activities with the church made her a target. Id. at 264. However, both the Immigration Judge and the Board of Immigration Appeals (“BIA”) denied her application, questioning the nexus between her persecution and religion, as well as the viability of her proposed social groups. Id. Chicas-Machado sought review of the decision, emphasizing the life-threatening circumstances she fled in pursuit of safety and protection. Id.

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 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.

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.