The BIA Issues A Decision That Is One Giant Leap Backwards In Refugee And Asylum Law
A legal fiction underpinning administrative law, the Chevron Doctrine, is that federal agencies are best suited to interpreting federal statutes and thus agency decisions interpreting the laws they administer are afforded a great deal of deference. The doctrine, derived from Chevron U.S.A., Inc. v. NRDC, an environmental law case. The Chevron decision held that federal environmental agencies are better able to interpret environmental laws than federal courts and thus their decisions deserve great deference. The Chevron doctrine applies to immigration law and assumes that the Board of Immigration Appeals is best able to interpret immigration law. Then, along comes a case like a case the BIA published on April 12, 2012, Matter of D-K-, that puts seriously in doubt the fiction that the BIA knows what it is doing.
Matter of D-K- is a case that deals with the confluence of two areas of immigration law, asylum/refugee law and removal law. Asylum/refugee law deals with the process by which America provides protection to foreigners who face persecution in their own countries. Removal law deals with expelling non-citizens who have committed immigration or criminal violations.
Asylees and refugees have had special protections under immigration law. For example, while other non-citizens can lose their status and be removed from the United States for a broad range of immigration and criminal violations found at INA §§ 212 and 237, asylees and refugees can lose their status only for a limited set of bad acts, such as having been persecutors themselves, having committed “particularly serious crimes which constitute a danger to the community of the United States,” having committed serious nonpolitical crimes outside of the United States, or if they are a danger to the security of the United States. See, INA §§ 208(b)(2) and 208(c)(2). Further, for most foreign persons to become permanent residents of the United States, a broad range of criminal and illegal immigration conduct found at INA § 212(a)(2) create bars to receiving permanent residence. For an asylee or a refugee to become a permanent resident, nearly all of these reasons to bar becoming a permanent resident either do not apply or are waived for humanitarian purposes, for purposes of family unity, or when it is otherwise in the public interest. See INA § 209(c).
The reasons for this leniency is because under treaty, the United States is bound to protect asylees and refugees and because the United States takes its role as protector of the politically oppressed seriously. As a matter of common sense, it would be absurd for the United States to grant protection for an oppressed person and then turn around and deport that person back to the very country that will harm him for a minor offense, like, say, smoking some marijuana, or helping to bring or trying to help to bring another equally-oppressed relative into the United States illegally.
Procedurally, to protect asylees and refugees, before an asylee or refugee can be deported, first the Department of Homeland Security must strip him of his status under these lenient provisions. Then, the alien can be sent to the immigration court for a review of the determination and the ability to seek any relief that may be available before removal can occur.
The natural progression for an asylee or refugee is to change status from asylee to refugee to permanent resident and then to United States citizen. A question that emerged was what happens to the lenient treatment of an alien under the asylum and refugee laws when the alien changes status to that of a permanent resident. Is he still an an asylee or refugee subject to lenient treatment or a permanent resident, subject to the stricter laws regarding removal? This issue arose in a 2006 case, Kaganovich v. Gonzales, a case with which I am not unfamiliar. The court of appeals could have gone two ways. One way to look at is that Mr. Kaganovich came to the United States as a refugee, so whatever he did later as far as becoming a permanent resident, he should still receive the unique protections governments that adhere to human rights treaties are supposed to afford to refugees in their midst. The other way to look at it is that when Kaganovich became a permanent resident, he received new rights and benefits, and the cost for them is the forfeiture of the unique protections he had as a refugee. He was still welcome to seek asylum in immigration court if he continued to have a fear of persecution if he were deported to his home country. The Ninth Circuit Court of Appeals took the second approach.
Then came Matter of D-K-. In this case, the alien was a refugee who never became a permanent resident. He got convicted for drug trafficking and was sent directly to immigration court before his refugee status was stripped. He contended that he should not have been sent to immigration court until his refugee status was stripped from him. In Matter of D-K-,The BIA disagreed, concluding that this step was not necessary and he could be ordered removed by an immigration judge for his crime even though he was still a refugee. It should be noted that drug trafficking is an offense that is particularly serious and so his refugee status easily could have been rescinded before he was sent to immigration court.
The huge problem is what are the ramifications of Matter of D-K-. If a refugee or an asylee is sent to immigration court, is he subject to the full gamut of removability offenses at INA §§ 212 and 237 or is he subject to the more limited set of offenses found at INA §§ 208(b)(2) and 208(c)(2)? The BIA does not impose any constraints on an immigration judge in Matter of D-K-. So, if a refugee is in immigration court faced with a conviction for possessing a joint of marijuana, or assisting his cousin who was subject to persecution to enter the United States, or perhaps shoplifted aspirin twice for a sick child, is he subject to the strict rules that could lead to his deportation or is he protected because his actions are not particularly serious? If the former is true, that he is subject to removal for small stuff, the BIA radically changed the asylum/refugee laws of this country, seriously eroded the protections America has traditionally provided to the persecuted in its midst, and probably mandated the violation of treaty obligations. Does the decision in Matter of D-K- address any of this? No. Did the writers of Matter of D-K- think of any of this? Care about any of this?? It does not seem so. The case promises to lead to a lot of confusion, a lot of suffering, and a lot of litigation. This does not seem to be the work of an agency’s adjudicative body afforded great deference because of its presumed expertise in immigration law.
Jonathan D. Montag is a State Bar of California certified Immigration and Nationality Law Specialist. He is a former chairman of the State of California Immigration and Nationality Law Advisory Commission of the Board of Legal Specialization. He was an AILA San Diego Chapter Chair. Mr. Montag has successfully argued cases before the District Court for the Southern District of California and the Ninth Circuit Court of Appeals and testified as an expert in the District Court for the Southern District of California and the California State Bar Court. Mr. Montag was named a 2005 Attorney of the Year by California Lawyer Magazine and has been named to the San Diego Super Lawyers list for immigration in 2007-2011.
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