Attorney General Sessions Vacates BIA Decision That Provided Asylum Seekers With A Hearing

In Matter of E-F-H-L-, 27 I. & N. Dec. 226 (A.G. Mar. 5, 2018), Attorney General Jeff Sessions vacated Matter of E-F-H-L-, 26 I&N Dec. 319 (BIA 2014) and issued the following order:

In this matter, the respondent conceded removability at the outset of removal proceedings and requested relief from removal pursuant to an application for asylum and withholding of removal. The presiding Immigration Judge determined, without holding an evidentiary hearing, that the respondent’s application failed as a matter of law to make a prima facie case that he was eligible for asylum and withholding of removal, and he denied the application. The respondent appealed on the merits to the Board. The Board remanded, holding that a respondent applying for asylum and withholding of removal was ordinarily entitled to a full evidentiary hearing. The respondent subsequently withdrew his application for asylum and withholding of removal with prejudice. On the parties’ motion, the Immigration Judge administratively closed removal proceedings to allow the adjudication of a Petition for Alien Relative (Form I-130) filed on behalf of the respondent.

Because the application for relief which served as the predicate for the evidentiary hearing required by the Board has been withdrawn with prejudice, the Board’s decision is effectively mooted. I accordingly vacate the decision of the Board in this matter, and I also direct that this matter be recalendared and restored to the active docket of the Immigration Court.

This effectively allows Immigration Judges to render decisions in asylum cases without affording non-citizens a right to a hearing, which is deeply problematic, and a violation of basic due process rights.

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