Nijjar v. Holder

• Decision Date: 01 August 2012
• Docket Number: Nos. 07–74054,08–70933.,s. 07–74054
• Parties: Gurjeet Singh NIJJAR, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent. Paramjit Kaur Nijjar, Petitioner, v. Eric H. Holder Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

689 F.3d 1077

12 Cal. Daily Op. Serv. 8642

2012 Daily Journal D.A.R. 10,575

Gurjeet Singh NIJJAR, Petitioner,

v.Eric H. HOLDER Jr., Attorney General, Respondent.

Paramjit Kaur Nijjar, Petitioner,

v.Eric H. Holder Jr., Attorney General, Respondent.

Nos. 07–74054, 08–70933.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 11, 2011.

Filed Aug. 1, 2012.

Jaspreet Kalra Singh (argued), New York, NY, Jagdip Singh Sekhon (briefed), Oakland, CA, for the petitioners.

Rosanne Perry, Department of Justice, Washington, DC, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency Nos. A073–416–442, A075–250–758.

Before: PROCTOR HUG, JR., ANDREW J. KLEINFELD, and WILLIAM A. FLETCHER, Circuit Judges.

OPINION

KLEINFELD, Senior Circuit Judge:

We address whether the Department of Homeland Security has authority to terminate an alien's asylum status, and conclude that it does not. The issue arises out of structural changes to our immigration system made when the Department of Homeland Security assumed functions of the Immigration and Naturalization Service.

I.

Petitioners, Gurjeet Singh Nijjar and his wife, Paramjit Kaur Nijjar, are natives and citizens of India. Mr. Nijjar applied for asylum in 1995, based on political persecution he claimed to have suffered in India from 1991 to 1994, on account of his being a Sikh and a supporter of Khalistan. He claimed this persecution caused him to flee India in 1994. The Immigration and Naturalization Service granted his asylum application in 1996. He brought his wife and son into the United States as derivative asylees in 1997.

A few years later, in 2003, our immigration and asylum system underwent a major restructuring. Prior to 2003, two agencies within the Department of Justice—the Immigration and Naturalization Service (INS) ¹ and the Executive Office of Immigration Review (EOIR) ²—handled asylum applications. On March 1, 2003, the INS ceased to exist.³ Most of its functions were transferred to a new cabinet-level department, the Department of Homeland Security.⁴ Various agencies within the Department of Homeland Security became responsible for the immigration functions previously administered by the INS. One of the new Department of Homeland Security agencies, the United States Citizenship and Immigration Services (USCIS),⁵ administers asylum applications through its asylum officers.⁶ The EOIR, which remains an agency of the Department of Justice, also continues to administer asylum applications, through immigration judges.⁷

On November 25, 2003, Mr. Nijjar was notified that the INS (although it no longer existed) ⁸ intended to terminate his asylum status for fraud. He had stated in his asylum application (under the name Gurjeet Singh Nijjar) that he was persecuted in India from 1991 to 1994. “INS information, however, indicate [sic] that you were in the United States continuously from September 1987 under the name Gurjit Singh.” The letter instructed Mr. Nijjar to attend a termination interview with an asylum officer of the no longer existing INS on January 5, 2004, to respond to the allegation of fraud.

At Mr. Nijjar's request, the interview was rescheduled three times, but he neither appeared nor offered an excuse for not appearing. On November 29, 2004, the USCIS, of the Department of Homeland Security, sent Nijjar a “Termination Notice,” informing him that his asylum status had been terminated by the USCIS.⁹ No reason was given for the termination. Enclosed with the Termination Notice was a Notice to Appear, Form I–862, which placed Mr. Nijjar in removal proceedings. The Notice to Appear scheduled a hearing before an immigration judge.¹⁰

The problem that gives rise to this opinion is that Mr. Nijjar's “Termination Notice,” the written notification that his asylum status had been terminated, came from the USCIS. He argues that the USCIS, within the Department of Homeland Security, did not have authority to terminate his asylum status, and that only the Attorney General has such authority. Nijjar moved to terminate the removal proceedings on the ground that his asylum status had not properly been terminated. The immigration judge concluded that she lacked jurisdiction to review an asylum officer's termination of asylum status. Since Nijjar had no right to be in the United States except as an asylee, and asylum status had been terminated, she ordered him removed to India. The only basis for his wife and son being in the United States was as derivative asylees of Mr. Nijjar, so they were also ordered removed.

On appeal, the Board of Immigration Appeals agreed that the immigration judge lacked jurisdiction to review the asylum officer's termination of Mr. Nijjar's asylum status. Since the termination stood, the immigration judge's order of removal was affirmed. Gurjeet and Paramjit Nijjar petition for review. We have jurisdiction over the Nijjars' petitions under 8 U.S.C. § 1252.

II.

The oddities about the government stationery used for the several letters and forms sent to Mr. Nijjar make the case something of a morass, if the words in these documents are taken literally. We assume for purposes of decision that the forms purporting to come from the defunct INS within the Department of Justice actually came from the USCIS within the Department of Homeland Security. We make this assumption because nothing else makes any sense. The communication that matters, the “Termination Notice” that terminated Mr. Nijjar's asylum status, is on the letterhead of an existing agency, USCIS, Department of Homeland Security.

There are two regulations addressing the termination of asylum status, 8 C.F.R. §§ 208.24 and 1208.24. The latter, a duplication of the former, was promulgated by the Department of Justice on February 28, 2003, one day before the INS ceased to exist, since with the creation of the Department of Homeland Security, asylum would now be administered by agencies in two cabinet departments, instead of one.¹¹ The duplication of regulations was intended to be a “temporary measure,” “interim in nature.” ¹² Nearly a decade later, however, the regulations governing asylum termination have not been substantively changed, and are identical to the regulation that existed when asylum was handled by agencies in just one cabinet department (the INS and EOIR in the Department of Justice).

The regulations provide that authority to terminate asylum is accorded to the same office that granted asylum. The regulations state: “an asylum officer [of the USCIS] may terminate a grant of asylum ... if following an interview, the asylum officer determines that: (1) There is a showing of fraud in the alien's application such that he or she was not eligible for asylum at the time it was granted.” ¹³ The regulations also state that when asylum status is terminated, the USCIS “shall initiate removal proceedings.” ¹⁴ And that is what was done with Mr. Nijjar. The USCIS placed him in removal proceedings after it terminated his asylum status. So far, all the procedural steps are in accord with the regulations.

During removal proceedings, the immigration judge held that she lacked jurisdiction to review the asylum officer's termination of asylum status for fraud. That determination was based on the language in 8 C.F.R. § 208.24, which states that “an asylum officer may terminate a grant of asylum,” and on the absence of any regulation providing for review of such a termination by the immigration judge in removal proceedings or otherwise. The Board of Immigration Appeals affirmed. The Third Circuit in Bhargava v. Attorney General, held that this view of jurisdiction was a correct interpretation of the regulation, because both the regulation and the statute “are silent with respect to an immigration judge's jurisdiction to review a termination of asylum by DHS.” ¹⁵ The Fifth Circuit in Qureshi v. Holder,¹⁶ following Bhargava, held that “[n]either the IJ nor the BIA has authority to review USCIS's decision to terminate asylum,” though the asylee may obtain review of questions of law (but not fact) underlying the termination. ¹⁷Qureshi in dictum also says that the alien may make a new application for asylum.¹⁸ Not addressed in Qureshi is that this hypothetical second asylum application would ordinarily be time-barred, ¹⁹ quite aside from whatever negative implication the fraud determination would have on the applicant's credibility in his second attempt to obtain asylum.

At this point, the answer to the question posed by this case is to deny the petition, citing Bhargava and Qureshi. But so far, all we have looked at are the regulations. We also have to ask where the asylum officer, of the USCIS, of the Department of Homeland Security, got its authority to terminate asylum status. And that is where we run into an insuperable problem. Congress did not confer the authority to terminate asylum on the Department of Homeland Security. Congress conferred that authority exclusively on the Department of Justice.

Congress expressly provided that “the Secretary of Homeland Security or the Attorney General may grant asylum....” ²⁰ But the subsection governing termination of asylum is not parallel, and does not say that either cabinet department may terminate asylum. The “termination of asylum” subsection of the statute says that asylum “may be terminated if the Attorney General determines” that any of several conditions are met.²¹

Fraud in the application is not mentioned explicitly, but is one of the “additional limitations ... under which an alien shall be ineligible for asylum” that the Attorney General is authorized to establish by regulation. ²² It is difficult to imagine that Congress left cabinet departments free to compete with each other and grab whatever authority they like. It is even more difficult to imagine that Congress intended so important a determination as terminating asylum status for fraud to be an unreviewable decision, made by an...