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Who can decide to cease withholding removal since hsa 2002 created dhs replacing ins and separated eoir in doj

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  • 1. Who Can Decide to Cease Withholding Removal Since HSA 2002 Created DHS Replacing INS and Separated EOIR in DOJ? By Joseph P. Whalen (August 21, 2012)Recently, the Ninth Circuit Court of Appeals played a little bit of catch-up on ajurisdictional issue in light of major changes that took place in the restructuring ofour immigration system. On August 1, 2012, the Ninth Circuit explained in Nijjarv. Holder 1, Nos. 07-74054 & 08-70933 (Published), that certain authorities hadfundamentally shifted. Principally, the Ninth Circuit found that certain authoritieshad shifted in the statute but that the regulations have not kept pace. This does notsurprise me one bit 2. “We address whether the Department of Homeland Security has authority to terminate an alien’s asylum status, and conclude that it does not. The issue arises out of structural changes to our immigration system made when the Department of Homeland Security assumed functions of the Immigration and Naturalization Service.”The Court spelled out its understanding of these major fundamental structuralchanges in the following passage found on pages 8514 and 8515 along with seven(7) footnotes. “............................ [I]n 2003, our immigration and asylum system underwent a major restructuring. Prior to 2003, two agencies within the Department of Justice—the Immigration and Naturalization Service (INS)1 and the Executive Office of Immigration Review (EOIR)2—handled asylum applications. On March 1, 2003, the INS ceased to exist.3 Most of its functions were transferred to a new cabinet-level department, the Department of Homeland Security.4 Various agencies within the Department of Homeland Security became responsible for the immigration functions previously administered by the INS. One of the new Department of Homeland Security agencies, the United States Citizenship and Immigration Services (USCIS),5 administers asylum applications through its asylum officers.6 The EOIR, which remains an agency of the Department of Justice, also continues to administer asylum applications, through immigration judges.7”1 http://www.slideshare.net/BigJoe5/nijar-v-holder-9th-cir-8-112-on-asylum-jurisdiction2 The Ninth Circuit addressed another long-ignored statutory shift and its misinterpretation inGorbach v. Reno between 1999 and 2001. The "administrative denaturalization" or "revocation"regulations at 8 CFR § 340.1 were invalidated on July 20, 2000, by the Ninth Circuit Court ofAppeals in the class action lawsuit Gorbach v. Reno, 219 F.3d 1087 (9th Cir. 2000), and resultedin a final injunction prohibiting the use of these regulations on February 14, 2001. Page 1 of 10
  • 2. The footnotes interspersed in the preceding excerpt from the Published Decision(as originally posted on 8/1/12) read as follows: 1 In 1940, the INS was transferred from the Department of Labor to the Department of Justice. Reorganization Plan No. V of 1940, 5 Fed. Reg. 2223, ch. 231, § 1 (June 14, 1940), reprinted in 5 U.S.C. app. at 545 (2006), and in 54 Stat. 1238 (1940) (codified at 8 U.S.C. § 1551). 2 The EOIR was created as a separate agency within the Department of Justice, effective February 15, 1983, through an internal reorganization which combined the Board of Immigration Appeals with the immigration judges, previously of the INS. Board of Immigration Appeals; Immigration Review Function; Editorial Amendments, 48 Fed. Reg. 8056-01 (Feb. 25, 1983); see also 8 C.F.R. §§ 1003.0(a)(1) (2011) (“Within the Department of Justice, there shall be an Executive Office for Immigration Review (EOIR), headed by a Director who is appointed by the Attorney General.”), 1003.1 (Board of Immigration Appeals), 1003.10 (immigration judges)). 3 Homeland Security Act of 2002, Pub. L. No. 107-296, §§ 471, 1502, 116 Stat. 2135, 2205, 2308 (codified at 6 U.S.C. §§ 291, 542); Department of Homeland Security Reorganization Plan, H.R. Doc. No. 108-16 (2002), set out as note under 6 U.S.C. § 542. 4 Homeland Security Act of 2002 §§ 441, 451, 116 Stat. at 2195 (codified at 6 U.S.C. §§ 251, 271). Functions under the immigration laws with respect to the care of unaccompanied alien minors transferred to the Department of Health and Human Services. Id. at § 462, 116 Stat. at 2202 (codified at 6 U.S.C. § 279). 5 Id. at § 451, 116 Stat. at 2195 (codified at 6 U.S.C. § 271). The agency was originally called the Bureau of Citizenship and Immigration Services (BCIS). The Department of Homeland Security officially changed the name of BCIS to USCIS, effective August 23, 2004. Name Change From the Bureau of Citizenship and Immigration Services to U.S. Citizenship and Immigration Services, 69 Fed. Reg. 60938-01 (Oct. 13, 2004). Both acronyms, BCIS and USCIS, continue to be used in the regulations. 6 8 C.F.R. § 208.9 (2011) 7 8 C.F.R. § 1208.2(b) (2011).This pickle gets ever more sour as we move along in the case decision. On page8516, the thrust of the petitioner’s argument is summed up as follows. “The problem that gives rise to this opinion is that Mr. Nijjar’s “Termination Notice,” the written notification that his asylum status had been terminated, came from the USCIS. He argues that the USCIS, within the Department of Homeland Security, Page 2 of 10
  • 3. did not have authority to terminate his asylum status, and that only the Attorney General has such authority. Nijjar moved to terminate the removal proceedings on the ground that his asylum status had not properly been terminated. The immigration judge concluded that she lacked jurisdiction to review an asylum officer’s termination of asylum status. ....” * * * * * “On appeal, the Board of Immigration Appeals agreed that the immigration judge lacked jurisdiction to review the asylum officer’s termination of Mr. Nijjar’s asylum status. Since the termination stood, the immigration judge’s order of removal was affirmed. ....”Continuing, but skipping along, and we find the following passage which I view asbeing of critical importance on page 8517. “There are two regulations addressing the termination of asylum status, 8 C.F.R. §§ 208.24 and 1208.24. The latter, a duplication of the former, was promulgated by the Department of Justice on February 28, 2003, one day before the INS ceased to exist, since with the creation of the Department of Homeland Security, asylum would now be administered by agencies in two cabinet departments, instead of one.11 The duplication of regulations was intended to be a “temporary measure,” “interim in nature.”12 Nearly a decade later, however, the regulations governing asylum termination have not been substantively changed, and are identical to the regulation that existed when asylum was handled by agencies in just one cabinet department (the INS and EOIR in the Department of Justice).” [Bolding added.]The accompanying footnotes are as follows. 11 Aliens and Nationality, Homeland Security, Reorganization of Regulations, 68 Fed. Reg. 9824 (Feb. 28, 2003) (codified at 8 C.F.R. pts. I, V). 12 Id. at 9825 (stating that the duplication of regulations, and division of authority, “should be understood as a temporary measure to ensure continuity,” and that “further division and elimination of a substantial number of sections is expected in the near future”).Now is time for a closer look at the two offending duplicative regulations and seehow their continued existence can no longer be tolerated as written. 8 CFR § 208.24/1208.24 (2004) 3 Termination of asylum or withholding of removal or deportation.3 The Termination Notice was written in 2004, but the controlling statute has since been altered and really appearsto deeply affect the implementing regulation such that it is now ultra vires. Unless the Executive Branch takes theinitiative to promulgate new rules, the Judicial Branch will have no choice but to dictate necessary changes. TheJudiciary is well-known to concentrate on the “heady issues” and turn a blind-eye to “practical considerations”. DHSand DOJ must consider yourselves “on notice” of impending disastrous consequences of legislation from the bench! Page 3 of 10
  • 4. (a) Termination of asylum by the Service. Except as provided in paragraph (e) of thissection, an asylum officer may terminate a grant of asylum made under the jurisdiction ofan asylum officer or a district director if following an interview, the asylum officerdetermines that: (1) There is a showing of fraud in the aliens application such that he or she was not eligible for asylum at the time it was granted; (2) As to applications filed on or after April 1, 1997, one or more of the conditions described in section 208(c)(2) of the Act exist; or (3) As to applications filed before April 1, 1997, the alien no longer has a well- founded fear of persecution upon return due to a change of country conditions in the aliens country of nationality or habitual residence or the alien has committed any act that would have been grounds for denial of asylum under § 208.13(c)(2).(b) Termination of withholding of deportation or removal by the Service. Except asprovided in paragraph (e) of this section, an asylum officer may terminate a grant ofwithholding of deportation or removal made under the jurisdiction of an asylum officer ora district director if the asylum officer determines, following an interview, that: (1) The alien is no longer entitled to withholding of deportation or removal because, owing to a fundamental change in circumstances relating to the original claim, the aliens life or freedom no longer would be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion in the country from which deportation or removal was withheld. (2) There is a showing of fraud in the aliens application such that the alien was not eligible for withholding of removal at the time it was granted; (3) The alien has committed any other act that would have been grounds for denial of withholding of removal under section 241(b)(3)(B) of the Act had it occurred prior to the grant of withholding of removal; or (4) For applications filed in proceedings commenced before April 1, 1997, the alien has committed any act that would have been grounds for denial of withholding of deportation under section 243(h)(2) of the Act.(c) Procedure. Prior to the termination of a grant of asylum or withholding of deportationor removal, the alien shall be given notice of intent to terminate, with the reasonstherefor, at least 30 days prior to the interview specified in paragraph (a) of this sectionbefore an asylum officer. The alien shall be provided the opportunity to present evidenceshowing that he or she is still eligible for asylum or withholding of deportation orremoval. If the asylum officer determines that the alien is no longer eligible for asylum orwithholding of deportation or removal, the alien shall be given written notice that asylumstatus or withholding of deportation or removal and any employment authorization issuedpursuant thereto, are terminated. Page 4 of 10
  • 5. (d) Termination of derivative status. The termination of asylum status for a person who was the principal applicant shall result in termination of the asylum status of a spouse or child whose status was based on the asylum application of the principal. Such termination shall not preclude the spouse or child of such alien from separately asserting an asylum or withholding of deportation or removal claim. (e) Removal proceedings. When an aliens asylum status or withholding of removal or deportation is terminated under this section, the Service shall initiate removal proceedings, as appropriate, if the alien is not already in exclusion, deportation, or removal proceedings. Removal proceedings may take place in conjunction with a termination hearing scheduled under § 208.24(f). (f) Termination of asylum, or withholding of deportation or removal, by an immigration judge or the Board of Immigration Appeals. An immigration judge or the Board of Immigration Appeals may reopen a case pursuant to § 3.2 or § 3.23 of this chapter for the purpose of terminating a grant of asylum, or a withholding of deportation or removal. In such a reopened proceeding, the Service must establish, by a preponderance of evidence, one or more of the grounds set forth in paragraphs (a) or (b) of this section. In addition, an immigration judge may terminate a grant of asylum, or a withholding of deportation or removal, made under the jurisdiction of the Service at any time after the alien has been provided a notice of intent to terminate by the Service. Any termination under this paragraph may occur in conjunction with an exclusion, deportation, or removal proceeding. (g) Termination of asylum for arriving aliens. If the Service determines that an applicant for admission who had previously been granted asylum in the United States falls within conditions set forth in § 208.24 and is inadmissible, the Service shall issue a notice of intent to terminate asylum and initiate removal proceedings under section 240 of the Act. The alien shall present his or her response to the intent to terminate during proceedings before the immigration judge.[62 FR 10337, Mar. 6, 1997. Redesignated at 64 FR 8490, Feb. 19, 1999 and futher redesignatedand amended at 65 FR 76136, Dec. 6, 2000]The current promulgation history note in the e-CFR for § 1208.24, as of August 20,2012 reads:[62 FR 10337, Mar. 6, 1997. Redesignated at 64 FR 8490, Feb. 19, 1999 and futherredesignated and amended at 65 FR 76136, Dec. 6, 2000]The current promulgation history note in the e-CFR for § 208.24, as of August 20,2012 reads:[62 FR 10337, Mar. 6, 1997. Redesignated at 64 FR 8490, Feb. 19, 1999 and futherredesignated and amended at 65 FR 76136, Dec. 6, 2000; 76 FR 53785, Aug. 29,2011] Page 5 of 10
  • 6. The current e-CFR versions of the regulations vary in a strange way 4. Theintroductory text shown above as (a) and (b) are no longer present in the Chapter I(DHS) version but remain in the Chapter V (EOIR) version.So let’s take a look at the latest FR Notice at 76 FR 53785, Aug. 29, 2011. Here iswhat is found in the USCIS Business Transformation Rule, Increment I: ■ 51. Section 208.24 is amended by: ■ a. Revising paragraph (a) introductory text; ■ b. Revising paragraph (b) introductory text; and by ■ c. Revising the term ‘‘§ 3.2 or § 3.23 of this chapter’’ to read 8 CFR 1003.2 and 8 CFR 1003.23’’ and by revising the term ‘‘the Service’’ to read ‘‘USCIS’’, wherever the term appears in paragraph (f). The revisions read as follows: § 208.24 Termination of asylum or withholding of removal or deportation. (a) Termination of asylum by USCIS. Except as provided in paragraph (e) of this section, an asylum officer may terminate a grant of asylum made under the jurisdiction of USCIS if, following an interview, the asylum officer determines that: ***** (b) Termination of withholding of deportation or removal by USCIS. Except as provided in paragraph (e) of this section, an asylum officer may terminate a grant of withholding of deportation or removal made under the jurisdiction of USCIS if the asylum officer determines following an interview that:Moving on to something even more current, on August 21, 2012, the Ninth Circuitremanded the unpublished case of: Huyen Thi NGUYEN v. HOLDER, No. 08-72789. In this case, the Court noted that “[f]ollowing oral argument, thegovernment filed a motion to remand to the BIA for further consideration of thedenial of Nguyen’s withholding of removal and CAT claims. Nguyen opposedthat motion but did not identify a more appropriate alternative course. We deny thegovernment’s motion as moot, in light of this disposition, which grants therequested remand in part.” n.2 [Bolding added.]I am struck by the opportunity afforded to the BIA by this remanded case. The casewas in fact, remanded “...FOR FURTHER PROCEEDINGS...” but without thefamiliar proviso of “consistent with this decision”. In light of (or perhaps “in spiteof”) the fact that this remand came from the same Court, and in a closely-relatedyet distinct context which normally overlaps asylum, can the BIA opine a bit onthis related issue?4 Someone might want to alert NARA about it. It looks like an error at the printer has beencarried forth. (?) Page 6 of 10
  • 7. Who now has the legal authority to decide when to cease withholding of removal? INA § 241[8 USC § 1231] FN1 Detention And Removal Of Aliens Ordered Removed * * * * * (b) Countries to Which Aliens May Be Removed.- * * * * * (3) Restriction on removal to a country where aliens life or freedom would be threatened.- (A) In general.-Notwithstanding paragraphs (1) and (2), the Attorney General may not remove an alien to a country if the Attorney General decides that the aliens life or freedom would be threatened in that country because of the aliens race, religion, nationality, membership in a particular social group, or political opinion. (B) Exception.-Subparagraph (A) does not apply to an alien deportable under section 237(a)(4)(D) or if the Attorney General decides that- (i) the alien ordered, incited, assisted, or otherwise participated in the persecution of an individual because of the individuals race, religion, nationality, membership in a particular social group, or political opinion; (ii) the alien, having been convicted by a final judgment of a particularly serious crime, is a danger to the community of the United States; (iii) there are serious reasons to believe that the alien committed a serious nonpolitical crime outside the United States before the alien arrived in the United States; or (iv) there are reasonable grounds to believe that the alien is a danger to the security of the United States. FN 1 Added by §305(a) of IIRIRA . Former section 241 of INA was redesignated as section 237 and moved. If the Secretary of Homeland Security is supposed to defer to the Attorney General in questions of law, and she is so required by the proviso found in INA § 103 (a)(1) [8 USC § 1103(a)(1)], then the BIA can weigh in on the following as applied to the question posed here and in the recent remand. 8 USC § 1551 NoteABOLITION OF IMMIGRATION AND NATURALIZATION SERVICE AND TRANSFER OF FUNCTIONS The Immigration and Naturalization Service was abolished by section 291(a) of Title 6, Domestic Security, upon completion of all transfers from the Immigration and Naturalization Service as provided for by chapter 1 of Title 6. Page 7 of 10
  • 8. Functions of the Commissioner of Immigration and Naturalization performed under theBorder Patrol program, the detention and removal program, the intelligence program, theinvestigations program, and the inspections program, and all personnel, assets, and liabilitiespertaining to such programs, were transferred to the Under Secretary for Border andTransportation Security of the Department of Homeland Security by section 251 of Title 6 andthe Department of Homeland Security Reorganization Plan of November 25, 2002, as modified,set out as a note under section 542 of Title 6. Functions of the Commissioner of Immigration and Naturalization relating to adjudications ofimmigrant visa petitions, adjudications of naturalization petitions, adjudications of asylum andrefugee applications, adjudications performed at service centers, and all other adjudicationsperformed by the Immigration and Naturalization Service, and all personnel, infrastructure, andfunding provided to the Commissioner in support of such functions, were transferred to theDirector of the Bureau of Citizenship and Immigration Services of the Department of HomelandSecurity by section 271(b) of Title 6 and the Department of Homeland Security ReorganizationPlan of November 25, 2002, as modified. Functions performed by the Statistics Branch of the Office of Policy and Planning of theImmigration and Naturalization Service with respect to the functions of the Commissionerreferred to in the two preceding paragraphs were transferred to the Under Secretary forManagement of the Department of Homeland Security by section 341(b)(2) of Title 6 and theDepartment of Homeland Security Reorganization Plan of November 25, 2002, as modified. Functions under the immigration laws of the United States with respect to the care ofunaccompanied alien children that were vested by statute in, or performed by, the Commissionerof Immigration and Naturalization (or any officer, employee, or component of the Immigrationand Naturalization Service) were transferred to the Director of the Office of RefugeeResettlement of the Department of Health and Human Services by section 279(a) of Title 6 andthe Department of Homeland Security Reorganization Plan of November 25, 2002, as modified. Personnel of the Department of Justice employed in connection with the functions transferredby part E (§271 et seq.) of subchapter IV of chapter 1 of Title 6 (and functions that the Secretaryof Homeland Security determines are properly related to the functions of the Bureau ofCitizenship and Immigration Services), were transferred to the Director of the Bureau ofCitizenship and Immigration Services by section 275(b)(2) of Title 6 and the Department ofHomeland Security Reorganization Plan of November 25, 2002, as modified. Personnel of theDepartment of Justice employed in connection with the functions transferred by section 279 ofTitle 6 were transferred to the Director of the Office of Refugee Resettlement by section279(f)(3) of Title 6 and the Department of Homeland Security Reorganization Plan of November25, 2002, as modified. For treatment of references to any agency, officer, or office, etc. the functions of which were transferred to the Department of Homeland Security, see sections 552(d) and 557 of Title 6. [Emphasis Added.] Page 8 of 10
  • 9. From the U.S. Government Printing Office, www.gpo.gov 6 U.S.C. United States Code, 2011 Edition Title 6 - DOMESTIC SECURITY CHAPTER 1 - HOMELAND SECURITY ORGANIZATION SUBCHAPTER XII - TRANSITION Part B - Transitional Provisions§ 552 Savings provisions(d) References References relating to an agency that is transferred to the Departmentin statutes, Executive orders, rules, regulations, directives, or delegationsof authority that precede such transfer or the effective date of thischapter shall be deemed to refer, as appropriate, to the Department, to itsofficers, employees, or agents, or to its corresponding organizationalunits or functions. Statutory reporting requirements that applied inrelation to such an agency immediately before the effective date of thischapter shall continue to apply following such transfer if they refer tothe agency by name.§557 Reference With respect to any function transferred by or under this chapter(including under a reorganization plan that becomes effective undersection 542 of this title) and exercised on or after the effective date ofthis chapter, reference in any other Federal law to any department,commission, or agency or any officer or office the functions of whichare so transferred shall be deemed to refer to the Secretary, otherofficial, or component of the Department to which such function is sotransferred.(Pub. L. 107–296, title XV, §1517, Nov. 25, 2002, 116 Stat. 2311.) Page 9 of 10
  • 10. From the U.S. Government Printing Office, www.gpo.gov 6 U.S.C. United States Code, 2011 Edition Title 6 - DOMESTIC SECURITY CHAPTER 1 - HOMELAND SECURITY ORGANIZATION SUBCHAPTER XI - DEPARTMENT OF JUSTICE DIVISIONS Part A - Executive Office for Immigration Review§521. Legal status of EOIR (a) 1 Existence of EOIR There is in the Department of Justice the Executive Office for Immigration Review, which shall be subject to the direction and regulation of the Attorney General under section 1103(g) of title 8. (Pub. L. 107–296, title XI, §1101, Nov. 25, 2002, 116 Stat. 2273.) EFFECTIVE DATE Pub. L. 107–296, title XI, §1104, as added by Pub. L. 108–7, div. L, §105(a)(3), Feb. 20, 2003, 117 Stat. 531, provided that: “The provisions of this subtitle [subtitle A (§§1101–1104) of title XI of Pub. L. 107–296, enacting this part and amending section 1103 of Title 8, Immigration and Nationality] shall take effect on the date of the transfer of functions from the Commissioner of Immigration and Naturalization to officials of the Department of Homeland Security [functions transferred Mar. 1, 2003]”. 1 So in original. No subsec. (b) has been enacted.§522. Statutory construction Nothing in this chapter, any amendment made by this chapter, or in section 1103 of title 8, shall be construed to limit judicial deference to regulations, adjudications, interpretations, orders, decisions, judgments, or any other actions of the Secretary of Homeland Security or the Attorney General. (Pub. L. 107–296, title XI, §1103, Nov. 25, 2002, 116 Stat. 2274.) REFERENCES IN TEXT This chapter, referred to in text, was in the original “this Act”, meaning Pub. L. 107–296, Nov. 25, 2002, 116 Stat. 2135, known as the Homeland Security Act of 2002, which is classified principally to this chapter. For complete classification of this Act to the Code, see Tables. Page 10 of 10