The Executive Office for Immigration Review has proposed yet another rule that stacks the deck against noncitizens, including asylum seekers, by setting up an unforgiving system where the smallest misstep leads to near-certain deportation and the path to protection is narrowed to a pinprick. By limiting the ability to reopen a matter that was erroneously decided, making it almost impossible to stop – or “stay” – a deportation to avert irreparable harm, preventing noncitizens from fixing their cases after legal representatives make mistakes, and requiring noncitizens to pursue their own deportation, noncitizens seeking to exercise their legal rights to seek protection face detention and deportation. What’s more, those who become eligible for other immigration benefits after a mistake has occurred could be barred from seeking that relief under this rule. The rule also takes away one of the few methods that remain for families to regularize the status of a noncitizen family member without enduring indefinite separation.
The rule would hurt NIJC clients like Hector,* who entered the United States as a child and was placed in removal proceedings. Hector was released into the care of his uncle, who consulted with an attorney who told him Hector could never win his case, even though Hector qualified for asylum. Because of the attorney’s bad advice, Hector’s uncle refused to take Hector to immigration court, and Hector was ordered deported when he did not attend. Under this rule, Hector would be prevented from reopening his case because he does not know the identity of the attorney with whom his uncle consulted.
The rule would also hurt asylum seekers like NIJC’s client, Abril,* who fled to the United States after she was persecuted on account of her sexual orientation. A non-attorney notary public filed an asylum application for Abril, but then did not inform her when a notice for a court hearing arrived at the notary’s office. Abril was ordered deported when she did not attend court. NIJC filed a motion to reopen her proceedings based on her asylum claim. Following the motion to reopen, Abril was the victim of abuse by her U.S. citizen wife. Under the new rule, even though Abril now meets the legal requirements under the Violence Against Women Act, she would not be able to pursue VAWA relief in court because her motion to reopen was based on her asylum claim.
By curtailing due process and limiting access to relief, EOIR seeks to ensure that errors in immigration proceedings can almost never be cured and deportation is a near certainty in matters where the just result would be reopening a case to allow a noncitizen their day in court. NIJC’s full comment on these regulations is here.
Lisa Koop is NIJC's associate director of legal services.