Board of Immigration Appeals Issues Decision on Jurisdiction to Revoke Asylum

Facts

The respondent (herein referred to as ASJ) is a native and citizen of Albania who entered the U.S. on March 15, 1997 and was granted asylum on October 29, 1997.  On January 5, 2007, almost ten years after obtaining asylee status, ASJ filed for adjustment of status.  Subsequent to this application, the Department of Homeland Security (DHS) terminated ASJ’s asylee status, alleging that ASJ bribed a former asylum officer in exchange for the approval of his asylum application.  After termination of his asylee status, ASJ was served a Notice to Appear and placed in removal (deportation) proceedings.

Immigration Judge’s Decision

In removal proceedings, ASJ filed a motion to terminate the proceedings arguing that DHS failed to demonstrate fraud in terminating his asylee status.  In considering this motion, the immigration judge reasoned that he had jurisdiction to review DHS’ termination of asylee status and authority to reinstate such status.  The immigration judge agreed with ASJ’s motion, terminated removal proceedings, and restored his asylee status.  DHS appealed the immigration judge’s decision to the Board of Immigration Appeals (BIA or Board).

BIA Ruling

The BIA overturned the immigration judge’s decision, holding that the immigration judge did not have jurisdiction to review DHS’ termination of ASJ’s asylee status.  The Board explained that regulations provide two avenues for terminating a grant of asylum, one before DHS and the other before the immigration judge.

DHS alone can terminate an individual’s asylee status if that status was initially granted by an asylum officer or district director, not an immigration judge, and the individual is not and has never been in removal proceedings.  The grant of asylum may be terminated by DHS upon a showing of fraud.  DHS will issue a notice of intent to terminate asylum, interview the individual regarding asylum eligibility, and if warranted, issue a final written notice of termination.  Once the individual’s asylum has been terminated, removal proceedings will begin, and the individual can seek asylum again before the immigration judge.  The immigration judge cannot, however, question or review DHS’ termination of the prior asylum grant.

An immigration judge can terminate an individual’s asylee status if that status was originally granted by an immigration judge or if the individual is currently in removal proceedings.  If the individual is in removal proceedings, DHS can issue a notice of intent to terminate asylum, but the immigration judge will make the final determination on whether to terminate asylee status.  If the individual was previously granted asylum by an immigration judge, DHS may seek to reopen proceedings to request that asylum be terminated.  Here again, the immigration judge would make the determination on whether to terminate an asylum grant.

In ASJ’s case, his asylum was granted by an asylum officer.  Furthermore, between the time when ASJ was granted asylum and when DHS terminated his asylee status, he was never placed in removal proceedings.  Thus, jurisdiction over the termination of ASJ’s asylum lies solely with DHS.  The BIA determined that the immigration judge did not have authority to review this decision.  The decision of the immigration judge was vacated, and removal proceedings were reinstated.  The BIA did note that ASJ could apply for asylum de novo before the immigration judge.