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Victory for due process of aliens

immigration lawyer

Even Aliens are Entitled to Due Process

Victory for Due Process Rights of Aliens.

Question: I have heard that some new case just came down as a victory for a person filing for asylum. Is that true.

Immigration lawyer

Immigration Lawyers California

Answer: Yes.
For years due process rights,
These people who come into the United States are at the mercy of the laws of the United States.
Many aliens apply for asylum in order to avoid having to return to their own countries which have persecuted them.
They will leave everything behind and come to the United States with nothing else than the clothes on their backs.
They are desperate people who are looking for refuge.
Once they come to the United States,
They have one year to apply for asylum.
And decided by the asylum officer.
If that officer denies the case,
Or sent to the Immigration Judge.
In other words,
When the alien loses at the asylum officer level,
(now known as removal) proceedings.
The Immigration Judge will be able to hear the case de novo.
Many times an alien will attempt the first try at asylum by themselves,
And then, only after they lose at the asylum officer level will they secure counsel.
If the Immigration Judge denies the case,
To the Board of Immigration Appeals.
Lately, the Board of Immigration Appeals has been issuing summary decisions which are basically two to three lines long.
These decisions many times will not give any type of reasoning,
And why the alien’s case was denied.
However, the Ninth Circuit Court of Appeals has just issued a decision which not only verifies certain due process rights still available for aliens,
But criticizes the Board of Immigration Appeals on this particular decision.
In this case the Court had to decide whether the Board of Immigration Appeals erred in dismissing an appeal when the petitioner
(the person applying for asylum),
Dutifully followed all regulations and procedures pertaining to filing his Notice of Appeal, but the Board of Immigration Appeals itself deprived him of the opportunity to timely file his brief by sending the briefing schedule and transcripts of proceedings to the wrong address.
The Immigration and Naturalization Service (“INS”) contended that the Board of Immigration Appeals decision,
Dismissing petitioner’s appeal from the denial of asylum solely on adverse credibility grounds,
The Board of Immigration Appeals failure to provide.
In other words,
The Immigration Judge denied the asylum claim only and solely because he had found the alien not to be credible.
The Court ruled that because these minimal due process requirements are clear and fundamental,
By an adverse credibility determination unsupported by substantial evidence,
That they would grant the petition.
The path they took to grant the petition was full of statements,
To the Board of Immigration Appeals,
Making process in this case.
In this case, the alien had timely filed an appeal to the Board of Immigration Appeals.
However, he had moved subsequent to filing the Notice of Appeal.
Over one year later, the Board of Immigration Appeals had sent the briefing schedule to the alien’s old address.
Once the alien had received notification of the briefing schedule the date for the filing of the brief had passed.
The Board of Immigration Appeals denied his request and ruled that his asylum will be denied because of the inconsistent testimony which they had refused to allow him to brief in order to explain why such inconsistencies might have occurred.
The Court stated that the alien provided a credible account of persecution on political and religious grounds.
The alien, Singh fled his native India after suffering persecution due to his support of religious and political rights for the Sikh minority in the Punjab province of India.
He entered the United States without inspection in November of 1995 and filed an application for asylum.
On September 26, 1996, the Immigration and Naturalization Service commenced deportation proceedings against him.
In his asylum application, and during seven subsequent hearings before an Immigration Judge held over the course of more than four years, Singh described his activism on behalf of the Sikh separatist movement in Punjab, including his membership in the All India Sikh Student Federation (“AISSF”) and his support of the Akali Dal Party.
At the age of nineteen,
Singh became involved with the AISSF
after an attack on the Sikh Golden Temple,
In January of 1992,
Indian police again arrested Singh without a warrant.
Beaten with a bamboo stick, punched, kicked, and threatened with death if he did not end his affiliation with the AISSF.
The police told him he was arrested
because of his association with Sikh militants,
even though he adamantly denied any such association.
The Board of Immigration Appeals ruled that they found three inconsistencies (even though they did not let the alien explain those inconsistencies.)
The Court went on to rule that the Board of Immigration Appeals refusal to allow Singh to file a brief explaining his allegedly inconsistent testimony violated his right to due process.
They ruled that the Board of Immigration Appeals must provide a petitioner with a reasonable opportunity to offer an explanation of any perceived inconsistencies that form the basis of a denial of asylum. Denying Singh the opportunity to file a brief plainly violates this well-established due process right.
the Court stated that the Board,
after sending the briefing schedule and transcript to an incorrect address,
justified denying Singh’s motion to file a late brief by asserting that the motion was untimely.
However, to comport with due process requirements,
the notice afforded aliens about deportation proceedings,
Must be reasonably calculated to reach them.
The Court stated that notice mailed to an address different from the one Singh provided could not have conceivably been reasonably calculated to reach him.
As Singh was not afforded notice of the deadline, the Board of Immigration Appeals reasoning that his motion was untimely is patently insufficient.
Singh’s testimony took place over the course of seven hearings spread out over four years, during some of which he was so fatigued that the hearing had to be continued “in deference to the respondent’s condition.”
After reviewing Singh’s testimony alongside his explanatory brief, the Court concluded that the testimony was remarkably consistent given the circumstances.
The Board of Immigration Appeals decision to the contrary was not supported by substantial evidence, and could only be a result of its refusal to entertain Singh’s brief.
Because the Board of Immigration Appeals denied him the opportunity to do just that, they reversed its determination that Singh is not credible.
In its final ruling, the Court held that because the adverse credibility decision was the sole basis for the denial of asylum, substantial evidence compelled them to find that Singh is eligible for asylum.
They remanded the case back to the Board of Immigration Appeals to exercise its discretion, accepting Singh’s testimony as credible, to determine whether to grant asylum.