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Benchslap: Second Circuit Schools BIA on Rules, Notice and Reading

By Gabriella Khorasanee, JD | Last updated on

If the Second Circuit was personified, and had a hand, the slap it gave the Board of Immigrations Appeals ("BIA") would have left a hand print on the BIA's cheek. Why? Well ...

Ellya Indradjaja Seeks Asylum

Ellya Indradjaja is a Chinese Christian who is a native, and citizen, of Indonesia. She spent many years studying her religion outside of Indonesia, and when she returned to Indonesia to practice and minister her faith, she was met with persecution. She did not report incidents to the police, believing they would do nothing to help her.

In March 2007, Indradjaja entered the U.S. on a B-2, non-immigrant visitor, visa. While she was here, she realized that she could practice and minister her religion without the threat of persecution, harassment and threats. As a result in February 18, 2008, she applied for asylum.

In response to her application, the Government initiated deportation proceedings, authorized by 8 U.S.C. § 1227(a)(1)(B), because she had outlasted her stay. Though finding her case sympathetic, the Immigration Judge held that she did not establish a "well-founded fear of future persecution." She appealed to the BIA, who affirmed.

Motion to Reopen Proceedings

Three months later, Indradjaja made a timely motion to reopen her removal proceedings citing "new and previously unavailable evidence," including an affidavit of an expert witness and articles about the increasing threats in Indonesia to Chinese Christians. The BIA denied her motion to reopen on two grounds: (1) she did not submit an affidavit or sworn statement; and (2) because the expert's affidavit did not include copies of underlying source material.

On appeal, the Second Circuit vacated the BIA's decision and remanded for further proceedings because the rules the BIA relied on, simply did not exist. There is no mandate that an affidavit must be submitted, as there is no rule requiring experts to include underlying source materials. The court found that holding Indradjaja to requirements that she had no notice of, and no opportunity to respond to, was an abuse of discretion.

Lessons for the BIA

The BIA should take note that due process notice requirements apply to proceedings. Rather than relying on rules -- that are not actually rules -- the BIA should rely on established law, without reading its own requirements into them. Immigrants have enough obstacles already, without having to foresee what rules the BIA may craft out of thin air. The Second Circuit also admonished the BIA for not accurately reading, and giving full consideration to, the articles submitted.

Note to the BIA: Reading is Fundamental.

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