Immigration Law

JurisdictionUnited States,Federal
Publication year2021
CitationVol. 72 No. 4

Immigration Law

Bianca N. DiBella

Andrew J. Mueller

[Page 1203]

Immigration Law

by Bianca N. DiBella*

and Andrew J. Mueller**

This Article surveys cases from the United States Court of Appeals for the Eleventh Circuit from January 1, 2020 through December 31, 2020, in which immigration law was a central focus.1 During this time, the Eleventh Circuit decided hundreds of cases on immigration law related issues. The cases discussed herein are those that annunciate important issues, add flourishes to the existing standards and rules, offer important reminders of precedent and practice points, or otherwise illuminate the boundaries of the Eleventh Circuit's immigration jurisprudence. This Article discusses: (1) the standard of judicial review of administrative decisions; (2) the procedural and jurisdictional limitations in immigration cases; (3) asylum relief; and (4) other important immigration issues. Finally, it concludes with potential trends to watch in the Eleventh Circuit's next term.

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Little has changed this term regarding the Eleventh Circuit's standards of review for administrative proceedings. The Eleventh Circuit, despite some debate, is generally unwilling to review (or rule contrary to) an opinion issued by a U.S. official with congressional authorization to adjudicate immigration cases outside of the usual bureaucracy, such as the U.S. Attorney General and Secretary of Homeland Security.2

In Bourdon v. U.S. Department of Homeland Security,3 the Eleventh Circuit declined to review an administrative decision arising under 8 U.S.C. § 1154(a)(1)(A)(i),the Adam Walsh Act.4 Bourdon was convicted of a specified offense under the Act causing the government to flag and review any applications he filed for immigrant status on behalf of immediate family.5 Years later, he married a citizen of Vietnam and submitted an I-130 Petition for Alien Relative on her behalf.6 When the United States Citizenship and Immigration Services (USCIS) determined that Bourdon did not prove beyond a reasonable doubt that he posed no risk to his wife's safety, USCIS denied his petition, leading to a federal lawsuit that landed before the Eleventh Circuit.7

The dissent would have reviewed the Secretary of Homeland Security's decision denying Bourdon's application.8 In her dissent, Judge Beverly Martin9 argued that the statute's language granting "sole and

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unreviewable discretion" to the Secretary to make no-risk determinations was not the same as an "explicit preclusion of judicial review;" therefore, the Act contained no "explicit jurisdiction-stripping language" in Judge Martin's estimation, and the court was free to review the USCIS decision denying Bourdon's petition.10 Judge Martin also found no implicit preclusion of judicial review of a USCIS decision in the statute.11 The standard to review USCIS decisions, according to her dissent, was dictated by the Accardi doctrine: " [W]hen final agency action is committed to agency discretion," as in this case, according to Judge Martin, "an agency must abide by its own regulations," which failure thereof constitutes "the basis for judicial review of [its] actions."12

Judge Britt Grant, concurring with the majority, found that the statute's "sole and unreviewable" language applied to this case and other appeals of decisions issued pursuant to the Act.13 The most persuasive fact, in Judge Grant's opinion, was that "every circuit to consider this issue has disclaimed jurisdiction over claims like Bourdon's."14 Accordingly, she joined the majority of the court sitting en banc, and declined to exercise jurisdiction in the context of the statute.15 As a result, the Eleventh Circuit is unlikely to adopt the dissent's argument that the Accardi doctrine should apply in USCIS appeals—or that they should entertain those appeals at all.

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Often, federal court review of administrative immigration decisions serves as a procedural safeguard that can save or revive an immigration case. As the American Immigration Counsel opines, "[f]ederal court review adds an important layer of protection—courts can catch inadvertent government mistakes and help ensure that the government is properly interpreting and applying the immigration laws."16 But procedure is a double-edged sword:

At the same time, . . . the immigration removal system lacks nearly all of the procedural safeguards we rely on and value in the U.S. justice system. Immigrants facing deportation have neither a right to appointed counsel nor a right to a speedy trial. Harsh immigration laws may apply retroactively, unlawfully obtained evidence is often admissible to prove the government's case, and advisals of fundamental rights are given too late to be meaningful. Moreover, after receiving an order of removal, immigrants have limited ability to challenge their deportation in court. Given the potentially severe consequences of removal—which can range from permanent separation from family in the United States to being returned to a country where a person fears for his life—the lack of procedural safeguards deprives countless individuals of a fair judicial process.17

This term, with few exceptions, procedure worked against applicants for asylum. withholding of removal, and relief under the Convention against Torture (CAT).18 This part details some of those cases.

A. Exhaustion

While not annunciating a new principle of law, the Eleventh Circuit reminded litigants of an old precedent: it will not entertain an appeal of an issue not raised before the Board of Immigration Appeals (BIA).19

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Adding a flourish to that rule, even if the BIA considers a given issue sua sponte, the Eleventh Circuit will not entertain it if the petitioner did not himself raise it.20 In Srikanthavasan v. U.S. Attorney General,21 Srikanthavasan, a Sri Lankan native, petitioned for review of the BIA's dismissal of his application.22 Srikanthavasan challenged, among other things, the BIA's decision adopting the IJ's finding that Sri Lanka was "able and willing to protect him from persecution" and rejecting his claim for relief under the CAT.23

The court declined jurisdiction to review Srikanthavasan's appeal on this point, citing the oft-cited provision of the Immigration and Nationality Act (INA), 8 U.S.C. § 1252,24 which mandates that the judiciary cannot review a claim where the petitioner has failed to exhaust "all administrative remedies available to [him] as of right."25 The court elaborated that "the exhaustion doctrine exists to 'avoid premature interference with the administrative processes' . . . . Reviewing a claim 'that has not been presented to the [BIA], even when the [BIA] has considered the underlying issue sua sponte, frustrates these objectives.'"26 As a result, the court dismissed Srikanthavasan's CAT claim, making clear that it will not overturn the BIA's decision on an issue it decided to take up and adjudicate.27

B. Procedural Due Process

Srikanthavasan also petitioned the Eleventh Circuit to review whether he was afforded proper due process.28 Despite Srikanthavasan's claim that the IJ improperly curtailed his counsel's questioning, the court

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was not convinced.29 The IJ told Srikanthavasan's counsel to ask only a "few" questions in light of the documentary evidence he had already submitted.30 The court held the IJ's decision was within its discretion—the right to a "fair [hearing] in a fair tribunal" had not been curtailed, and he had not been "deprive[d] of his right to present a fair case."31 Put simply, an IJ need not "address every piece of evidence."32

C. Discretionary Relief from Removal and Subject Matter Jurisdiction

The Eleventh Circuit recounted its precedent regarding jurisdiction to hear appeals of discretionary decisions under the INA in Patel v. U.S. Attorney General.33 Although, when the court had interpreted a predecessor version of 8 U.S.C. § 1252(a)(2)(B),34 it had drawn a distinction between "appellate review of discretionary decisions" and "review of non-discretionary legal decisions that pertain to statutory eligibility for discretionary relief," its prior precedent became "unmoored from the current statutory language."35

The court overruled all prior precedent regarding appeals under § 1252, and held that it is "precluded from reviewing 'any judgment regarding the grant[] of relief under [8 U.S.C. §§] 1182(h), 1182(i), 1229b, 1229c, or 1255' except to the extent that such review involves constitutional claims or questions of law."36 In supporting its opinion, the court detailed extensively the history of Congress's regulation of immigration and the Executive Branch's discretionary powers in the same arena since 1875.37 Its conclusion was simple: "Congress made a deliberate choice to delegate to the Executive Branch, and specifically to the Attorney General, the authority to allow deportable aliens to remain in this country in certain specified circumstances."38 In this circumstance, the court determined that Congress stripped it of its

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jurisdiction to review administrative factual determinations under § 1252(a)(2)(B)(i).39 As a result, the court overruled prior inconsistent case law, requiring "at least a colorable constitutional violation" to invoke jurisdiction to hear constitutional claims or questions under § 1252(a)(2)(D).40


Part III provides a sample of cases that highlight the finer points of the analysis for asylum relief.41 In particular, this term, several applicants were denied asylum for want of credibility and corroboration of past persecution, failing to demonstrate a nexus between the alleged persecution and a protected ground, failing to define a cognizable particular social group (PSG), and being unable to demonstrate a well-founded fear of future persecution.

A. Credibility

Absent corroborative evidence, consistency in an applicant's story is key to his or her success. In Ratnam...

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