Attorney General Barr to Review Persecutor Barr Questions

On June 17, 2020, Attorney General William P. Barr directed the Board of Immigration Appeals (BIA) to refer one of its decisions to him for review, published as Matter of A-M-R-C-, 28 I&N Dec. 7 (A.G. 2020) [PDF version].

The Attorney General's referral deals with an asylum claim. To that effect, he asked interested lawyers and legal organizations to submit amici briefs on a variety of issues relating to the case. First, however, he began with a threshold question. That is, would any delay caused by the referral impermissibly prejudice the respondent by denying him the ability to prove his defenses, in accord with the Supreme Court decision in Costello v. United States, 365 U.S. 265, 283 (1961) [PDF version].

The Attorney General then asked for briefs on several questions regarding the case itself. First, he asked whether the Board erred as a matter of discretion in finding that there was not probable cause that the respondent had committed a “serious nonpolitical crime” overseas, as set forth in INA 208(b)(2)(A)(iii). Specifically, the Attorney General is seeking opinions on whether the Board erred in finding that the respondent's in absentia conviction was for an offense not “disproportionate to the objective” or “of an atrocious or barbarous character.”

The Attorney General asked amici to address whether the Board erred in determining that the respondent was not subject to the persecutor bar to asylum eligibility at 8 CFR 1208.13(c)(2)(i)(E).

Finally, the Attorney General asked whether the Board applied the correct legal standard in concluding that the respondent's in absentia trial, which resulted in the convictions that raised questions about his eligibility for asylum, suffered from due process problems even though the U.S. Department of State had found that the trial satisfied due process.

The parties have until July 17, 2020, to file their briefs. Interested amici have until July 31, 2020. The parties may then submit reply briefs on or before July 31, 2020.

Without more information, it is hard to determine the particulars of the Attorney General's review. However, from the broad questions, it is clear that the review may result in a significant new precedent in cases involving a foreign conviction as evidence suggesting that an alien may be subject to a mandatory asylum bar.