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DUE PROCESS IN REMOVAL PROCEEDINGS

RIGHT TO A FULL & FAIR HEARING

An alien who faces removal is entitled to a full and fair removal hearing under both the Act and the Due Process Clause of the Fifth Amendment. See Santos-Alvarado v. Barr, 967 F.3d 428, 439 (5th Cir. 2020) (“The Fifth Amendment’s Due Process Clause protects individuals in removal proceedings.” (citation omitted)); Vetcher v. Barr, 953 F.3d 361, 370 (5th Cir. 2020) (stating that “removal proceedings must be conducted according to standards of fundamental fairness”), petition for cert. filed (U.S. June 26, 2020) (No. 19-1437); Matter of M-A-M-, 25 I&N Dec. 474, 479 (BIA 2011) (“Included in the rights that the Due Process Clause requires in removal proceedings is the right to a full and fair hearing.”); see also section 240(b)(4)(B) of the Act, 8 U.S.C. § 1229a(b)(4)(B) (2020) (providing that “the alien shall have a reasonable opportunity to examine the evidence against the alien, to present evidence on the alien’s own behalf, and to cross-examine witnesses presented by the Government”).

ESTABLISHING VIOLATION OF DUE PROCESS

To establish that due process rights were violated, the respondent must prove that there was a deficiency or violation and that he was prejudiced by it. See Okpala v. Whitaker, 908 F.3d 965, 971 (5th Cir. 2018) (“To prevail on a claim regarding an alleged denial of due process rights, an alien must make an initial showing of substantial prejudice.”); Matter of D-, 20 I&N Dec. 827, 831 (BIA 1994) (per curiam) (noting that an alien has been denied a fair hearing “only if he has been prejudiced by some deficiency so as to deprive him of due process”); Matter of Santos, 19 I&N Dec. 105, 107 (BIA 1984) (stating that “an alien must demonstrate that he has been prejudiced by a violation of a procedural rule or regulation before his deportation proceeding will be invalidated”). The respondent has not shown that his rights were violated or that he suffered prejudice in his removal proceedings.

Matter of E-F-H-L-, 26 I&N Dec. 319 (BIA 2014)

In Matter of E-F-H-L-, 26 I&N Dec. 319 (BIA 2014) the BIA decided on June 12, 2014 that an alien must have a full and fair hearing, introducing testimony, before an immigration judge could make a decision on his application for asylum, withholding of removal or deferral of removal.  The case arose out of a application for asylum before an immigration judge in Texas.  In that case, the immigration judge denied the respondent’s applications for asylum and withholding of removal without first holding a individual hearing.  Instead, the immigration judge found that the respondent’s written asylum application as submitted to the court and the alien’s pre-hearing brief in support of his petition did not demonstrate the alien’s prima facie (Latin for “first look at” – or “first sight”) for relief.  Therefore, simply on the basis of his first impressions, the immigration judge determined that the alien was not entitled to a hearing on the merits of his applications and denied his applications for relief.

The Board struck down the immigration judge’s decision.  In its holding in E-F-H-L-, the Board referenced its prior holding in Matter of Fefe, 20 I&N Dec., 116 (BIA 1989).

The Board held that even though the immigration judge has the authority to control the scope of an evidentiary hearing in the interest of efficiency, such authority must, at a minimum include an opportunity for the applicant to present evidence and witnesses in his or her own behalf.

In Matter of Fefe, the Board found that “an essential aspect of the asylum adjudication process” required a full oral examination of the applicant.  This was necessary to protect the integrity of the asylum process itself, and provide fairness to the parties. In addition, a 9th Circuit case, Oshodi v. Holder, 729 F.3d 883 (9th Cir. 2013) (en banc – Latin for “before the entire court”) held that an alien’s fifth amendment due process right to a full and fair hearing was violated when the immigration judge denied relief solely on an adverse credibility finding after refusing to allow the alien to testify to the content of his applications.

Under E-F-H-L-, and the prior Board decision in Matter of Fefe, as cited above, any move by the immigration judge to cut short a removal proceeding should be strongly and vigorously questioned and objections placed on the record for appeal. This includes an immigration judge’s decision to deny an applicant a full and fair hearing with presentation of witnesses and evidence, and an opportunity to present the applicant’s story, and be subject to direct and cross examination. The immigration judge cannot simply reject an applicant’s application based on an analysis that the applicant has not made a prima facie case for the relief sought.  Such reasoning is in violation of the immigration statute, applicable BIA precedential case law, and contrary to the due process protections in the United States Constitution.

VIRTUAL PROCEEDINGS DO NOT VIOLATE DUE PROCESS

The Act and its implementing regulations specifically provide for hearings via video conference. See section 240(b)(2)(A)(iii) of the Act (providing that a removal “proceeding may take place . . . through video conference”); 8 C.F.R. § 1003.25(c) (2020) (“An Immigration may conduct hearings through video conference to the same extent as he or she may conduct hearings in person.”). This authority has been consistently recognized by the courts of appeals. See Vilchez v. Holder, 682 F.3d 1195, 1199 (9th Cir. 2012) (recognizing that video conference hearings are explicitly authorized by statute); Aslam v. Mukasey, 537 F.3d 110, 114 (2d Cir. 2008) (per curiam) (acknowledging that the statutory authority accorded to Immigration Judges to conduct hearings via video conference includes taking the testimony of witnesses); Rapheal v. Mukasey, 533 F.3d 521, 531 (7th Cir. 2008) (stating that “Congress specifically authorized proceedings by means of a video conference” and rejecting the alien’s challenge to the constitutionality of the implementing regulation).