(This article was originally posted on jeffreyschase.com by Jeffrey S. Chase. Jeffrey is a former Immigration Judge and senior legal advisor at the Board of Immigration Appeals.)
An Amicus brief was recently filed with the BIA on behalf of seven former immigration judges (including myself) and a former BIA board member in the case of Negusie v. Holder. (In addition to the former Board member, one of the included IJs also served as a temporary Board member). The case was remanded by the U.S. Supreme Court in order for the Board to determine whether there is a duress exception to the bar to asylum which applies to those who have persecuted others on account of a protected ground.
The context for the brief is as follows. After initially ceding a limited duress exception to the Board, DHS recently changed its position. In now opposing such exception, DHS relies in part on its contention that the complex analysis such determinations require would overburden the currently backloggedimmigration courts.
The amicus brief on behalf of the former IJs and Board member offers three primary points in rebuttal to this portion of DHS’s claim. First, the brief points out that the immigration courts’ present backlog is largely the result of policy decisions made by both EOIR and DHS itself. As the brief argues, it is disingenuous for DHS to create policies that contribute to the immigration courts’ backlog, and then argue to limit immigration judge’s decision-making authority as a means of alleviating its self-created burden. The brief adds that such “bureaucratic failures resulting in the immigration court backlog cannot be a reason to deny people their right to a fair and just outcome.”
The brief continues that immigration judges are equipped to undertake the type of complex, fact-intensive analysis that duress exception determinations would entail, based on the powers and duties presently conferred upon them by regulation. It additionally notes that immigration judges already adjudicate matters requiring a comparable level of complexity. The brief finally argues that the judges’ caseload would not be significantly impacted by the additional responsibility in light of the small number of cases in which the duress exception would arise, and the fact that the initial determination that the persecutor bar should apply (which must precede the duress exception inquiry) already entails a fact-intensive analysis, which largely overlaps with the factual and legal analysis then required to adjudicate the duress exception.
Having spent 22 years working for EOIR (including 12 years as an immigration judge), I believe that the new position taken by DHS is indeed disingenuous. Commonly cited causes of the present immigration court backlog are an increase in DHS raids and arrests, and the curtailing of the agency’s policy under the Obama administration of exercising prosecutorial discretion in order to not burden the immigration courts with low priority cases involving, e.g., families with no criminal records. Prosecutorial discretion has long been a hallmark of the criminal court system; its application in the immigration court context was favorably viewed by attorneys within both DHS and the private sector, as well as by immigration judges and the BIA.
To translate DHS’s position to the criminal context, imagine that prosecutors suddenly flooded the criminal court system with jaywalking cases, which they insisted all go to trial. Would an appeals court take seriously the district attorney’s argument that because the criminal courts were so overburdened, defendants should not be able to raise, e.g., motions to suppress statements unlawfully obtained by the government, on the grounds that the complex analysis they entail would overwhelm the overburdened judges?
It should further be noted that amici are in no way arguing for a liberal application of a duress exception (if one is found to apply); its brief does not address what the legal standard should be. The persecutor bar should be taken most seriously. But in considering a limited duress exception exception, I believe we must distinguish adults who have made informed decisions to commit unconscionable acts are from, e.g. the case of a child lacking both the ability to resist duress and to fully comprehend the nature of his/her actions. I attended a USCIS training a few years ago at which a country expert on Central America stated that gangs there were now recruiting boys as young as seven years old; Human Rights Watch and Human Rights First have noted that children being used as soldiers in Africa also include those as young as seven.
The amicus brief was filed by attorneys with the law firm of White & Case, LLP. It should be noted that this brief focused on the limited issue raised by DHS in its recent change of course. Other amicus briefs have been filed with the Board addressing additional issues relating to the feasibility of a duress exception. These include a brief submitted by AILA and the National Immigrant Justice Center (NIJC) on the broader issue of the availability of a duress exception under U.S. law; a brief filed by the Center for Gender and Refugee Studies (CGRS) of the University of California – Hastings College of Law on the need for a duress exception in light of the particular issues faced by vulnerable populations (including women and children), and a brief filed by the University of Idaho’s Immigration Clinic and the Harvard Immigration and Refugee Law Clinic, stating the position of international refugee law scholars.