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BIA Remands of Immigration Judge Dan Pelletier’s Denial of Asylum Claims

Below is a summary of several BIA remand decisions Immigration Judge Dan Pelletier’s denial of asylum claims.

Two important notes.

First, In cases 4 through 10, IJ Pelletier denied unaccompanied children the right to apply for asylum before USCIS, which has initial jurisdiction under the Trafficking and Victims Protection Reauthorization Act. (See INA Section 208(b)(3)(C) INITIAL JURISDICTION- An asylum officer (as defined in section 235(b)(1)(E) ) shall have initial jurisdiction over any asylum application filed by an unaccompanied alien child (as defined in section 462(g) of the Homeland Security Act of 2002 (6 U.S.C. 279(g))), regardless of whether filed in accordance with this section or section 235(b) .)

In the earliest remand from the BIA, dated May 29, 2015, the BIA remanded the case to Judge Pelletier with clear instructions.

as USCIS is the agency vested with initial jurisdiction over the asylum applications of unaccompanied alien children, we would defer to USCIS’s determination of whether it retains jurisdiction over the initial adjudication of a respondent’s application. See section 208(b)(3)(C) of the Act. Therefore, we will remand the record to the Immigration Judge to await USCIS’s determination as to whether it has taken initial jurisdiction over this respondent’s application for asylum we will remand the record to the Immigration Judge to await USCIS’s determination as to whether it has taken initial jurisdiction over this respondent’s application for asylum.

The BIA remanded 4 additional cases to Judge Pelletier in June of 2015 with the same instructions.

Yet on June 19, 2015, nearly one month after Judge Pelletier was clearly instructed to continue matters to “await USCIS’s determination as to whether it has taken initial jurisdiction over the respondent’s application for asylum” he denied another unaccompanied child the right to apply for asylum before USCIS. See decision number 4 below, which was an appeal from a Pelletier denial of an asylum application on June 19, 2015.

Second, in decisions 1 and 2, where Respondent was ordered removed without an attorney, the BIA found the Immigration Judge failed  “provide to provide respondent’s with an opportunity to apply for” asylum and withholding of removal despite knowing both Respondents having previously expressed a fear of return to their native country.

Decision 2 was remanded by the BIA on June 24, 2014. Decision 1 was an appeal from the Judge’s removal order at a hearing on May 19, 2015.

As such, despite  the June, 2014  instructions from the BIA stating that he must provide Pro Se Respondents an opportunity to apply for asylum by providing them with Form I-589 and advising them of their right to an evidentiary hearing, Judge Pelletier was caught again in the same act on May 19, 2015–depriving Respondent of her basic right to apply for asylum.

1 Date of decision: August 25, 2015, Page 160 of FOIA release:

Basis for remand: “In the instant case, the Immigration Judge asked the respondent, who was not represented by an attorney, whether ‘there was any reason why she could not be returned to Honduras’ The Respondent replied, ‘The problem is the delinquency, the situation there is very difficult. The immigration judge did not further address the Respondent’s fear or address the relief of asylum or withholding of removal.’

The BIA thus remanded to “to provide the respondent an opportunity to apply for asylum and withholding of removal.”

2 Date of decision, June 24, 2014, P. 38.

Basis for remand: Respondent  not provided opportunity to present her asylum claim.

“The immigration judge’s decision states that he questioned the respondent and was unable to determine any relief for which she might be eligible. The immigration judge found that the respondent had testified previously that she did not have a fear of return to Guatemala. However, she actually had expressed such a fear at her hearing in Eloy on April 17, 2012 prior to her case being transferred to Atlanta. At the hearing held on February 23, 2013 the respondent’s reply to this assertion by the Immigration

3.    Date of decision May 17, 2016. Page 167 of FOIA release.

Basis for remand: IJ, in effect, 1. did not make a specific credibility finding; 2. Thoroughly evaluate and weigh the respondent’s supporting documentary evidence; 3. Carefully consider the respondent’s claim that she suffered past harm on account of her membership in the Pygmy tribe; 4. Evaluate whether the respondent would suffer future harm under the Makoumou tradition, particularly in light of her testimony regarding forced sexual contact with male tribe members.”

4. Date of decision November 24, 2015, Page 161 of FOIA release

Basis for remand: IJ did not advise or ensure that the asylum application was filed with USCIS, which has initial jurisdiction over unaccompanied alien children,

“We conclude that a remand is necessary for a determination whether this is a case in which USCIS would take initial jurisdiction over respondent’s application for asylum.”

 

5. Date of decision: October 16, 2015, 157.

Basis for remand:

IJ did not advise or ensure that the asylum application was filed with USCIS, which has initial jurisdiction over unaccompanied alien children,

“We conclude that a remand is necessary for a determination whether this is a case in which USCIS would take initial jurisdiction over respondent’s application for asylum.”

6. Date of decision August 27, 2015, Page 146 of FOIA:

Basis for remand: Id

7. Date of decision, June 19, 2015, Page 141 of FOIA.

Basis for remand: Id

8. Date of decision, May 29, 2015, Page 135 of FOIA

Basis for Remand: Id

9. Date of decision June 15, 2015, Page 131 of FOIA,

Basis for remand: Id

1o. Date of decision, June 17, 2015, Page 126 of FOIA,

Basis for remand: I’d

 11. Date of decision: July 24, 2015, Page 122 of FOIA,

Basis for remand: “after multiple remands, the efforts of the immigration judge, through no fault of his own, have not resulted in a transcript that is sufficient to allow appellate review. Under these unique circumstances, we must remand to afford the respondent a new hearing to present evidence in support of his asylum application and for the issuance of a new decision.

12. Date of decision, September 15, 2015, Page 89 of FOIA

Basis for remand: “Unfortunately, the Immigration Judge made few, if any, factual findings about the respondent’s experience in Mexico to support his determinations.

Footnote: For example, at several points in decision  the Immigration Judge refers to the kidnapping of the respondent, but provides no narrative as to what happened, and no other information about any other incidents that may have caused Respondent to fear returning to Mexico.”

13. Date of decision July 30, 2015, P.70

Basis for remand:

“In the case at bar, the Immigration Judge pointed out implausibilities in the respondent’s testimony and her documentary submission but did not make an express credibility determination (I.J. at 8-9). Instead, the Immigration Judge stated that the respondent did not sufficiently corroborate her claim that she suffered a forcible abortion from the Chinese government despite her mother’s corroboratory testimony (IJ. at 9). We will remand the record for explicit credibility determinations for the respondent and for her mother.”

 

 

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