Summary
This Board of Immigration Appeals decision addresses whether an Immigration Judge properly pretermitted a respondent’s applications for asylum, withholding of removal, and Convention Against Torture protection without a full evidentiary hearing. The Board held that when factual allegations do not establish prima facie eligibility for relief and there are no disputed factual issues, an Immigration Judge may dismiss the applications without a merits hearing. Affirming the lower decision, the Board concluded that the respondent was afforded adequate due process and failed to demonstrate a protected ground for relief based on criminal extortion.
Topics
Practice areas
Questions Presented
- Whether an Immigration Judge may pretermit applications for asylum, withholding of removal, and CAT protection without a full evidentiary hearing when the undisputed factual allegations, viewed in the light most favorable to the respondent, do not establish prima facie eligibility.
- Whether pretermission under these circumstances violates the respondent's statutory, regulatory, or constitutional due process rights.
- Whether Matter of Fefe required an oral merits hearing before the applications could be adjudicated.
Holdings
- If the factual allegations underlying an application for asylum, withholding of removal, or CAT protection, viewed in the light most favorable to the respondent, do not establish prima facie eligibility, and no factual issues are disputed, an Immigration Judge may pretermit the application without conducting a full evidentiary hearing on the merits.
- The respondent did not establish a prima facie case for asylum, withholding of removal, or CAT protection because his allegations of criminal-gang extortion did not establish persecution or torture and he failed to identify a particular social group or other protected ground.
- Pretermission did not violate the respondent's statutory, regulatory, or due process rights because he appeared at a hearing, was represented by counsel, had an opportunity to plead, submit an application and supporting evidence, and identify any factual disputes or basis for relief.
- Matter of Fefe is no longer binding precedent and did not bar pretermission of the respondent's applications without a full oral merits hearing.
Key quotations
“If the factual allegations underlying a claim for asylum, withholding of removal, or protection under the Convention Against Torture, viewed in the light most favorable to the respondent, do not establish prima facie eligibility for relief or protection, an Immigration Judge may pretermit the applications without a full evidentiary hearing on the merits of the claim.” (233)
“Due process requires that respondents in immigration proceedings be given an “opportunity to be heard ‘at a meaningful time and in a meaningful manner.’”” (238)
Factual background
The respondent, a native and citizen of Peru, sought asylum, withholding of removal, and CAT protection based on extortion by criminal gangs. His application did not identify a particular social group or another protected ground, and it described no past harm beyond extortion or specific future violence. At a master calendar hearing, counsel confirmed that there were no disputed factual issues and did not articulate a particular social group or explain why a full evidentiary hearing was necessary.
Procedural history
The respondent was placed in removal proceedings, conceded removability, and filed a Form I-589 application for asylum and withholding of removal based on extortion by criminal gangs in Peru. After the Department of Homeland Security moved to pretermit the applications, the Immigration Judge determined that there were no disputed factual issues, found no prima facie eligibility for relief, pretermitted the applications, and ordered removal. The Board dismissed the appeal and affirmed the denial of relief.