Introduction: Matter of E-F-H-L-, 27 I&N Dec. 226 (A.G. 2018)

On March 5, 2018, Attorney General Jeff Sessions issued a published immigration precedent decision in the Matter of E-F-H-L-, 27 I&N Dec. 226 (A.G. 2018) [PDF version]. By this decision, Attorney General Sessions referred the Board’s published decision in Matter of E-F-H-L-, 26 I&N Dec. 319 (BIA 2014) [PDF version] to himself and then vacated the decision. In this article, we will briefly examine the 2014 Matter of E-F-H-L- decision, the Attorney General’s decision to vacate, and what this means going forward.

Background of the Case

The 2014 Matter of E-F-H-L- decision involved a respondent who had conceded removability at the onset of removal proceedings and requested relief from removal by applying for asylum and withholding of removal. The Immigration Judge denied the respondent’s application for asylum and withholding of removal without holding an evidentiary hearing. The Immigration Judge’s reason for the denial was that the respondent had failed to make a prima facie (on its face) case that he was eligible for asylum and/or withholding of removal.

The respondent appealed from the Immigration Judge’s decision. The Board ruled in favor of the respondent, holding that “[i]n the ordinary course of removal proceedings, an applicant for asylum or for withholding or deferral of removal is entitled to a hearing on the merits of those applications, including an opportunity to provide oral testimony and other evidence, without first having to establish prima facie eligibility for the requested relief.” To this effect, the Board followed Matter of Fefe, 20 I&N Dec. 116 (BIA 1989) [PDF version].

The Board “remand[ed] the record for the Immigration Judge to conduct a hearing on the merits of the respondent’s applications for asylum and withholding of removal.” However, on remand, the respondent withdrew his application for asylum and withholding of removal with prejudice. Subsequently, the Immigration Judge administratively closed removal proceedings on the motion of both the respondent and the Government in order to allow for the adjudication of a Form I-130, Petition for Alien Relative, which had been filed on behalf of the respondent.

Attorney General Sessions Vacates Decision

Attorney General Sessions noted that the Board had remanded the case solely for the purpose of the conduct of an evidentiary hearing on the respondent’s applications for asylum and withholding of removal. Because the applicant withdrew his applications with prejudice, Sessions concluded that “the Board’s decision is effectively mooted.” For this reason, he vacated the Board’s decision and directed that the matter be recalendared and restored to the docket of the Immigration Court.

Effect of the Decision

The reason for Attorney General Sessions’ vacature of the 2014 Matter of E-F-H-L- decision was that ground for the Board’s remand had been mooted. The Board had order remand in order for the respondent to receive an evidentiary hearing on his application for asylum and withholding of removal. However, the respondent had then withdrawn his applications with prejudice, meaning that the purpose for the remand no longer existed. The Attorney General also directed that the matter be recalendared and rescheduled for further proceedings in Immigration Court after the Immigration Judge had administratively closed removal proceedings to allow for the adjudication of a Form I-130 filed on the respondents’ behalf.

The point on recalendaring is noteworthy in light of the Attorney General’s recent decision in Matter of Castro-Tum, 27 I&N Dec. 187 (A.G. 2018) [see article]. In Matter of Catsro-Tum, Attorney General Sessions referred a case to himself for review of a variety of issues having to do with the authority of Immigration Judges to grant administrative closure at all. As of March 6, 2018, the Attorney General has yet to issue a follow-up decision on the issue.

Attorney General Sessions’ vacature said nothing of the main holding in Matter of E-F-H-L- that a respondent is entitled to an evidentiary hearing on claims for asylum, withholding of removal, and/or deferral of removal without having to first make a prima facie showing of eligibility for the requested relief. Accordingly, the effect of the vacature appears to have to do with the purpose for the remand being mooted, not the Board’s underlying decision on the merits. Attorney General Sessions’ decision also puts the case back on the calendar after it had been administratively closed on the motion of the parties.

The decision suggests that, going forward, if the purpose for a remand from the Board no longer exists, the remand order may be rendered moot. Additionally, the decision may suggest forthcoming changes regarding an Immigration Judge’s authority to grant administrative closure on remand when the record was remanded for a specific purpose. We will continue to follow the issue going forward and post further information as it becomes available.