Latest BIA Decision Unwinds Biden Admin Restrictions on Enforcement

On October 7, the Board of Immigration Appeals (BIA) — the DOJ tribunal that reviews immigration judge (IJ) decisions in removal proceedings — issued an opinion rejecting an appeal of an IJ order denying humanitarian protection to an alleged transgender Honduran national. The impact of Matter of J-H-M-H- is much bigger than that single case; it’s an attempt to unwind Biden administration “priorities” that restricted enforcement and skewed decisions in cases involving hundreds of thousands of facially removable aliens. And it gives IJs the one thing every judge wants: the right to render independent judgments.

The Mayorkas Guidelines

As I’ve explained many times in the past, the Biden administration from Day 1 restricted ICE enforcement efforts in a series of policy memos, the last issued by DHS Secretary Alejandro Mayorkas on September 30, 2021 (the “Mayorkas Memo”).

That memo was formally captioned “Guidelines for the Enforcement of Civil Immigration Law”, and its implicit intent was to use so-called “priorities” to impede the ability of ICE officers and lawyers to investigate, detain, prosecute, and deport removable aliens (collectively “enforcement action”).

Relying on what it described as DHS’s inherent “prosecutorial discretion” authority, the Mayorkas Memo directed ICE officers and attorneys to not take enforcement action (including prosecutions) until after they considered various “aggravating” and “mitigating” factors, with limited exceptions.

The aggravating factors were general and objective, relating largely to aliens’ criminal histories.

The mitigating factors, by contrast, were individualized and subjective, requiring ICE officers and lawyers to consider the alien’s age, health, eligibility for relief from removal, and — interestingly — whether any of the alien’s family members were in the military or worked for the government, before acting.

The states of Texas and Louisiana challenged those guidelines, alleging they violated detention mandates in the Immigration and Nationality Act (INA), and in June 2022, a federal district court judge enjoined the further implementation of the Mayorkas memo.

That injunction remained in effect until the Supreme Court tossed the states’ claims in June 2023, finding they lacked standing to force the administration to comply with the INA’s detention mandates.

In the Laken Riley Act, the first law passed in its current session, Congress reversed that decision legislatively by giving state attorneys general standing to sue to force DHS to detain criminal aliens.

The Kerry Doyle Memo

On April 3, 2022, then-ICE Principal Legal Advisor (“PLA”, the agency’s de facto general counsel) Kerry Doyle issued a directive implementing the Mayorkas guidelines (“Doyle Memo”), and again, it leaned heavily into so-called “prosecutorial discretion”.

The PLA’s ICE attorneys represent the interests of the American people in immigration court, and in her memo she directed them to “remain mindful that ‘immigration enforcement obligations do not consist only of initiating and conducting prompt proceedings that lead to removals at any cost. Rather, as has been said, the government wins when justice is done’.” (Cleaned up.)

That subjective “justice is done” standard sounds great in theory, but it was deleterious in practice.

As an October 2024 report from the House Judiciary Committee concluded, “Through the Doyle Memo, the Biden-Harris Administration gave ICE attorneys a playbook for ensuring countless cases disappear from the immigration court docket or, as the Doyle Memo framed it, ‘efficiently removing nonpriority cases from the docket altogether’.” (Cleaned up.)

As per the committee, more than 700,000 cases involving removable aliens were dismissed, terminated, or administratively closed under the Mayorkas and Doyle Memos, “allowing those aliens to stay in the country indefinitely without facing immigration consequences”.

That’s a shocking waste of limited government resources, but the following passage in that report is most relevant to understanding the BIA’s opinion in Matter of J-H-M-H-:

In nonpriority cases in which immigration court proceedings have already begun, the Doyle Memo instructed ICE attorneys to seek to dismiss proceedings or “consider alternative forms of prosecutorial discretion, including administrative closure, stipulations to issues or relief, continuances, not pursuing an appeal, joining motions to reopen, and stipulations in bond hearings.” In both cases, ICE attorneys’ actions ensure that an alien will not be removed from the United States. [Emphasis added.]

The Stipulations in Matter of J-H-M-H-

Aliens in removal proceedings are referred to as “respondents”, and the respondent in Matter of J-H-M-H- is a Honduran national who claimed a fear of torture in his home country as a “transgender woman”.

In October 2023, while removal proceedings were ongoing, J-H-M-H- and ICE filed a joint memorandum with the IJ stipulating that “the respondent identifies as a transgender woman, that the testimony would be consistent with the written materials submitted, and that the respondent was eligible for deferral of removal under the regulations implementing the CAT”.

CAT Deferral

“CAT” in that context refers to the U.N. Convention Against Torture, which as I’ve recently explained provides humanitarian protection to alien respondents under final orders of removal, barring their deportation to a specified country or countries.

The BIA’s opinion does not specify the ground under which J-H-M-H- was found to be removable from the United States, but it’s likely pretty serious.

That’s because there are two different forms of CAT protection: CAT withholding of removal under 8 C.F.R. § 1208.16; and CAT deferral of removal under 8 C.F.R. § 1208.17.

The standards governing both forms of CAT (at 8 C.F.R. § 1208.18) are largely the same, but whereas an alien granted CAT withholding automatically is released from DHS custody, the department can continue to detain aliens granted CAT deferral.

If “patriotism is the last refuge of a scoundrel” as Samuel Johnson contended, CAT deferral isn’t that much different, and in fact respondents can only seek that protection if they aren’t eligible for any other form of “relief” from removal.

Specifically, CAT deferral is only available to aliens barred from receiving CAT withholding because they are barred from receiving “statutory withholding” under section 241(b)(3)(B) of the INA, i.e.: (1) they are persecutors; (2) “having been convicted by a final judgment of a particularly serious crime” they are “a danger to the community of the United States”; (3) they “committed a serious nonpolitical crime outside the United States”; or (4) “there are reasonable grounds to believe” they are “a danger to the security of the United States”.

In other words, had Osama bin Laden been brought here alive and placed in removal proceedings, he likely would have sought (and probably would have received) CAT deferral.

“Aggravated felonies” as defined in section 101(a)(43) of the INA are, by statute, “particularly serious crimes”.

My guess — given that J-H-M-H- was placed into removal proceedings notwithstanding the restrictions in the Mayorkas Memo, was seeking only deferral on appeal, and did not challenge the IJ’s denial of his “statutory withholding” application — is that he has a serious conviction, though the BIA’s opinion does not address that fact.

The BIA’s Opinion

Those aren’t the only reasons I think J-H-M-H- had a serious criminal conviction. The other reason is that the IJ here rejected the parties’ joint stipulation and set the matter over for a hearing on the merits of the respondent’s CAT deferral claim.

But J-H-M-H- didn’t take the IJ up on that offer: “Although given multiple opportunities to do so, the respondent did not testify in support of the claim, seeking to rely on the contents of the application, the personal statement, and the stipulation agreement.”

Consequently, on March 25, 2024, the IJ denied J-H-M-H-‘s CAT deferral application, effectively ordering the respondent removed.

In yet another action undoubtedly spurred on by the Mayorkas and Doyle Memos, both the respondent and ICE filed a joint motion asking the IJ to reconsider his decision, which he denied on May 1, 2024, though at that point (by regulation) the IJ no longer had jurisdiction over the case.

That’s because while that reconsideration motion was pending with the immigration court, J-H-M-H- appealed the IJ’s decision to the BIA.

Anecdotally, I’ve heard that under the Biden administration, the Executive Office for Immigration Review (EOIR), the DOJ component that oversees the immigration courts and the BIA, “strongly encouraged” IJs to accept such stipulations.

While I’m not saying those rumors are true (a point current leadership may want to clarify), if they are, this IJ really put himself on the line by rejecting the parties’ stipulations and their reconsideration motion.

Regardless, the BIA blessed the court’s stance, relying on (and reiterating) the regulatory principle that IJs must not only “exercise their independent judgment and discretion” but are also allowed to “take any action consistent with their authorities under the [INA] and regulations that is necessary or appropriate for the disposition or alternative resolution of” their cases.

Just to close the loop on that opinion, the BIA examined the evidence in the case and assumed that the respondent is a transgender woman and also that the respondent had suffered past harm in Honduras but nonetheless concluded the respondent had failed to establish eligibility for CAT deferral.

On those bases, the Board dismissed both the respondent’s appeals of the IJ’s removal order and the motion to reconsider.

Empowering the Immigration Court

In recent weeks, advocates have claimed that actions DOJ has taken under Trump II — replacing EOIR’s leadership and terminating immigration judges — are undermining the law, the immigration courts, and the administration’s own priorities.

I’m not privy to the department’s employment decisions, and therefore refrain from weighing in on those actions, but I will dispositively state is that in its recent opinions, the BIA is empowering the courts, not weakening them.

The key takeaway from Matter of J-H-M-H- is that regardless of what the parties argue or agree between themselves to, or what the administration in charge desires, IJs are ultimately responsible for their decisions — and thus are not only free, but expected, to use their own independent judgment.

In that vein, as I recently reported, the BIA in its September 11 opinion in Matter of H-A-A-V- authorized IJs to dispense with full evidentiary hearings when respondents file asylum applications “that are incomplete or where [the respondent] is ineligible for relief”.

Most other judges — state and federal — have long been allowed to dismiss or rule summarily when claims or defenses are incomplete or otherwise deficient, but that was the first precedent that extended that authority to IJs.

Simply put, these opinions give IJs greater control over their decisions, courtrooms, and dockets, and nothing is more important to any judge.

Lawyers make sacrifices when they become immigration judges; many take pay cuts, the hours can be unpredictable, and testimony can be emotionally harrowing. But in its most recent opinion, the Board of Immigration Appeals gives those jurists what they really want: the freedom to make their own decisions.