Immigration Judge: Removal Denied on Technicality

October 8, 2020

IRLI and network of attorneys show that illegal alien received adequate notice

WASHINGTON—At the invitation of the Board of Immigration Appeals (BIA), the Immigration Reform Law Institute (IRLI), on behalf of the Federation for American Immigration Reform (FAIR), has filed a brief in an appeal of an immigration judge’s order denying removal of an alien who did not show up for his asylum hearing.

As IRLI points out in its brief for FAIR, the government served the alien, who had been returned to Mexico to wait for his hearing, with notice of the hearing, and that notice is all that Congress requires. The government also provided the alien with directions about how to present himself at a port of entry for transportation to the hearing, but did not have a certificate stating that it had provided those directions. Finding the lack of a certificate unfair, the immigration judge denied removal.

In its brief, IRLI shows that, under Supreme Court precedent, due process for aliens crossing the border consists of whatever procedures Congress mandates. And Congress has only mandated a notice of hearing containing information, chiefly the time and place of the hearing, that was provided in this case. It has not mandated that the government provide aliens with directions to their hearings, or certify that it has, though in practice it does provide such directions to aliens waiting in Mexico. Thus, IRLI argues, the immigration judge overstepped his authority by grafting an extra requirement of a certificate onto the statute.

Attorneys United for a Secure America (AUSA), a national network of attorneys seeking to improve immigration law enforcement, also filed a brief in the case. The AUSA brief emphasized the lack of any statutory basis for the immigration judge’s decision. AUSA is a project of IRLI.

“Many aliens returned to Mexico to wait for their asylum hearings do not really want asylum hearings,” said Dale L. Wilcox, executive director and general counsel of IRLI. “What they wanted was to disappear into the United States to ‘wait’ for their hearings—at which they would never show up—here. Thankfully, that strategy has been thwarted by the administration’s Wait in Mexico policy. It would be useless to make the government re-serve the alien in this case with information he has already received, only to have him not show up again. We hope the BIA does not impose this policy, which would beyond its authority, too, and reverses this immigration judge.”

The case is Amicus Invitation No. 20-04-09 (BIA).

For additional information, contact: Brian Lonergan • 202-232-5590 • [email protected]