Nijjar v. Holder
689 F.3d 1077
9th Cir.2012Background
- Nijjar, a native and citizen of India, sought asylum in 1995 based on Sikh political persecution from 1991–1994; asylum granted in 1996, derivatives included his wife Paramjit Kaur Nijjar and their son.
- In 2003, the INS was dissolved and DHS assumed most immigration functions; USCIS administers asylum applications and EOIR (immigration judges) administers asylum proceedings.
- On November 25, 2003, Nijjar was notified that the INS intended to terminate his asylum status for fraud, based on alleged discrepancy about residence and timing.
- Nijjar did not attend the termination interview; on November 29, 2004 DHS (USCIS) issued a Termination Notice terminating his asylum status without providing a reason.
- A Notice to Appear enclosed with the Termination Notice directed Nijjar to appear before an immigration judge; the government notes inconsistencies in agency stationery but proceeds with removal proceedings under removal laws.
- The IJ and BIA concluded the IJ lacked jurisdiction to review the termination, and Nijjar and his wife were ordered removed; the issue on appeal is whether DHS had authority to terminate asylum and whether the termination is reviewable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Who may terminate asylum status under the statute | Nijjar argues only the Attorney General may terminate asylum. | Government argues DHS via USCIS can terminate under regulations. | Attorney General has exclusive termination authority; DHS termination ultra vires. |
| Is there jurisdiction to review termination of asylum by DHS | Nijjar seeks review of termination; IJ lacked jurisdiction to review. | Regulatory procedure allows review only for underlying questions of law; termination not reviewable. | No review of DHS termination; issues limited to underlying legal questions. |
| Do regulations authorizing termination by DHS survive statutory construction | Regulations correctly authorize termination under 8 C.F.R. § 208.24 and § 1208.24. | Regulations are invalid as they exceed DHS authority. | Regulations are ultra vires; statute confines termination to the Attorney General. |
| Effect of REAL ID Act amendments on termination authority | REAL ID Act curtails/clarifies termination authority. | Amendments show DHS may grant but not terminate; terminations stay with AG. | REAL ID Act reinforces exclusive termination authority of Attorney General; DHS cannot terminate. |
Key Cases Cited
- Bhargava v. Attorney General of the U.S., 611 F.3d 168 (3d Cir. 2010) (review of asylum termination by DHS limited; authority reserved to AG)
- Qureshi v. Holder, 663 F.3d 778 (5th Cir. 2011) (neither IJ nor BIA may review DHS termination; review for law only; second asylum possible)
- Gorbach v. Reno, 219 F.3d 1087 (9th Cir. 2000 (en banc)) (Congressional intent governs delegation; not to undo words)
- Amalgamated Transit Union v. Laidlaw Transit Servs., Inc., 435 F.3d 1140 (9th Cir. 2006) (reading statutory text to avoid scrivener’s error; remedial construction)
- Singh v. Gonzalez, 403 F.3d 1081 (9th Cir. 2005) (asylum interview procedures; de novo consideration on referral)