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September 25, 2020

Comment on Proposed Immigration Court Appellate Rules

September 25, 2020

Human Rights First submits these comments in response to the Department of Justice (DOJ) Executive Office for Immigration Review (EOIR) Notice of Proposed Rulemaking published in the Federal Register on August 26, 2020. The proposed rule would strip critical due process protections from asylum seekers and immigrants with cases pending before the Board of Immigration Appeals (BIA) and the immigration courts.  

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Through this proposed rule, the administration would deny many asylum seekers a fair day in court and upend years of appellate practice. The proposed rule’s timing and simultaneous briefing requirements will make adjudication of BIA appeals even more burdensome and inefficient by requiring litigants to brief every colorable claim, rather than only those disputed by the government. Further, shortened time limits for appeal filings will make it far more difficult for immigrants to be represented by an attorney. The proposed rule would unfairly grant the government authority to submit evidence at the appellate stage, while preventing asylum seekers and immigrants from presenting new evidence favorable to their cases. These changes undermine critical due process protections and stray from well-established international norms of fair appellate procedures for asylum adjudication. Further, these proposals, including the creation of certification process of decisions for review by the EOIR Director from immigration judges that object to being overturned on appeal and referral of a large number of appeals pending at the BIA for decision by the EOIR Director, will only further politicize immigration court determinations. Despite DOJ’s proffered rationale for the rule of efficiency and speed, the proposed rule would in fact add substantially to the immigration court backlog by ending administrative closure and by extending and complicating the resolution of cases. 

The import of just and impartial immigration court and appellate proceedings cannot be overstated. For asylum seekers, a fair day in court can mean the difference between living in safety in the United States or being returned to a country where they fear persecution, torture or death. The proposed regulations, if codified, will result in the illegal deportation of refugees who qualify for asylum and other forms of humanitarian relief in violation of U.S. law and treaty obligations to refrain from returning refugees to danger. We urge DOJ to withdraw the proposed rules in their entirety. 

Human Rights First and Its Interest in This Issue 

For over 40 years, Human Rights First has provided pro bono legal representation to refugees seeking asylum in the United States and advocated for the protection of the human rights of refugees. Human Rights First grounds its work in the legal standards of the 1951 Refugee Convention, its Protocol, and other international human rights instruments, and we advocate adherence to these standards in U.S. law and policy. Human Rights First operates one of the largest and most successful pro bono asylum representation programs in the country. Working in partnership with volunteer attorneys at many of the nation’s leading law firms, we provide legal representation, without charge, to hundreds of refugees each year through our offices in California, New York, and Washington D.C. This extensive experience dealing directly with refugees seeking protection in the United States is the foundation for our advocacy and informs the comments that follow. 

Through our pro bono refugee representation program, Human Rights First and our volunteer lawyers know how difficult it already is for asylum seekers to find quality legal representation and to be granted protection in the United States. This rule would substantially limit the due process protections of the refugees we represent and gravely undermine those of the many asylum seekers who are unable to find or afford to retain competent legal counsel. By imposing shortened appeals filing deadlines and restricting remand and reopening of cases, the rule will multiply the barriers asylum seekers face in seeking to retain representation on appeal and will make it more difficult for Human Rights First to locate pro bono attorneys able to take on these cases. Had the provisions of the proposed rules been in place, many of our clients would have been denied the lifesaving protection provided by U.S. asylum law. 

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