United States: Matter of L-M-P, 27 I&N Dec. 265 (BIA 2018)
Matter of L-M-P, 27 I&N Dec. 265 (BIA 2018)
On 27 April 2018, the Board of Immigration Appeals published its decision in the case of a Guatemalan national who had previously been ordered removed from the United States, but who upon re-entry, expressed a fear of return to Guatemala and sought protection from deportation. The Immigration Judge, responsible for making the first instance determination in these matters, granted the application for asylum. Based on intervening precedent following that decision, the Department of Homeland Security filed a motion to reconsider the grant of asylum, relying on the language of the relevant regulation which establishes that where there has been a prior order of removal and the applicant is subject to reinstatement of the order, he or she cannot seek asylum, but instead is only eligible to apply for the lesser protection known as withholding of removal. Because applicable judicial precedent held that this regulation was reasonable, the Department of Homeland Security argued that the Immigration Judge should reconsider the grant of asylum.
In its decision, the Board of Immigration Appeals recognised the authority of the Department of Homeland Security to file a motion to reconsider in Immigration Court, a privilege which the Immigration Judge had understood did not exist. The Board of Immigration Appeals also agreed that an applicant who is subject to a reinstated order of removal is ineligible for asylum. Based on this analysis, the case was sent back to the Immigration Judge to determine whether the applicant qualified for the lesser relief of withholding of removal now that asylum was unavailable.
