Panel Grapples With Role of Judges in Pro Se Asylum Cases

A detainee talks on the phone in his pod at an immigration detention center in Lumpkin, Ga. (AP Photo/David Goldman, File)

RICHMOND, Va. (CN) — The Fourth Circuit heard debate over the duty immigration judges have to develop a record for pro se asylum applicants during a remote hearing Tuesday.

While immigration and courts that oversee the system have come under heightened scrutiny during the Trump administration, the appellate hearing explored what kinds of questions judges in such courts should ask to figure out if an immigrant qualifies for asylum as a member of a particular social group, known as a PSG.

It’s an issue other federal appeals courts have explored, and now the Fourth Circuit has a chance to chime in. 

“The immigration judge has a duty to develop the record. In practical terms, it means when a pro se applicant testifies about the nature or fear of their persecution, the immigration judge needs to come in and ask questions – who are you afraid of? Who is going to hurt you?” argued attorney Susan Baker Manning with the Washington-based firm Morgan Lewis. “This is deposition 101.”

U.S. Circuit Judge Diana Gribbon Motz, a Bill Clinton appointee, said she understood the argument but wasn’t exactly sure what the three-judge panel could order the lower court to do if they sided with asylum seeker Miguel Arevalo-Quintero and remanded the case. 

“Do we give the pro se person more benefit than if they have a lawyer?” she asked, opining that she’d seen more bad immigration lawyers than qualified ones during her decades as a judge. 

She added that giving pro se filers an added benefit “seems, on the whole, bad for applicants.” 

This question of equity between asylum seekers with or without representation was a sticking point throughout the hearing. 

“The judge has a general duty to make sure the record is clear and the record is touched upon,” Manning, Arevalo-Quintero’s attorney, said. She added other circuits have ruled on the issue but those decisions haven’t resulted in a clearly defined rule or standard.

Her client is asking the Richmond-based appeals court to vacate a Board of Immigration Appeals decision denying his challenge to deportation. The denial was based on a finding that he never claimed to be a member of a certain PSG, specifically “current gang members who are threatened for wanting to leave the gang,” according to his brief to the Fourth Circuit.

Manning argues immigration judges must ask questions to develop the record for pro se applicants like Arevalo-Quintero about their PSG affiliations. She isn’t alone in her push for a different standard for pro se immigrants applying for asylum.  

In an amicus brief, a group of retired immigration judges and former members of the Board of Immigration Appeals point to a Fifth Circuit opinion that says immigration judges have a duty to “seek clarification” and “ensure that the [PSG] being analyzed is included in his or her decision.”  

Immigration judges “must remain neutral, but that does not mean that they are passive bystanders during immigration court hearings,” the brief states. “The regulations require IJs, for example, to explain the factual allegations and charges in ‘non-technical’ language.” 

Adina Appelbaum, program director for the Capital Area Immigrants’ Rights Coalition’s Immigration Impact Lab, helped link Arevalo-Quintero with Manning after seeing some of the details of his case.  

She said the majority of asylum seekers are pro se, and while the deference given to pro se applicants versus those with a lawyer is a complicated issue, it can be evened out by the judges themselves. 

“There’s no clear requirement, prior to this case, about what duty is before the judge,” she said in a phone interview. “If someone has counsel, hopefully they’ll hit those elements, but the judge can ask questions during testimony if the counsel’s not developing the record sufficiently.” 

For the government’s part, Department of Justice attorney Jenny Chong Lee stuck more to merits of the underlying deportation case.  

She said Tuesday that Arevalo-Quintero, who was arrested in a vacant apartment with two other undocumented people, was growing marijuana plants and the other two men were linked to the gang MS-13. This, Lee argued, was all the judge needed to hear to find Arevalo-Quintero should be removed. 

“The immigration judge does not have a duty to create the applicant’s claim for them, their job is to develop the record and that’s what was done in this case,” she said. 

Motz was joined on the panel by U.S. Circuit Judges James Wynn, a Barack Obama appointee, and Dennis Shedd, a George W. Bush appointee. They did not signal when they intended to issue a ruling.

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