Nijjar v. Holder

Congress authorized both the Department of Homeland Security and the Department of Justice to grant asylum, but conferred the authority to terminate asylum only upon the Department of Justice.

Gurjeet Singh Nijjar applied for asylum in the United States in 1995. The Department of Justice (“DOJ”) granted Mr. Nijjar’s application in 1996. In 2003, Congress also tasked the Department of Homeland Security (“DHS”) with a role in administering immigration and asylum systems. In 2003, Mr. Nijjar was notified that the DHS intended to terminate his asylum status for fraud. In 2004, the DHS placed Mr. Nijjar in “removal proceedings.” An immigration judge cited DHS regulations in declining to hear the case for lack of jurisdiction. The Board of Immigration Appeals (“BIA”) agreed that the immigration judge lacked jurisdiction and affirmed the DHS’s removal order. The Ninth Circuit declined to adopt Third or Fifth Circuit precedent interpreting regulations as providing DHS asylum officers with an unappealable termination right. Instead, the Court considered what powers Congress had conferred upon the DHS. The Ninth Circuit held that “Congress did not confer the authority to terminate asylum on the [DHS]. Congress conferred that authority exclusively on the Attorney General.” The Court explained the statute expressly conveyed power to both the DOJ and DHS to grant asylums but expressly granted the authority to terminate asylums only to the Attorney General. The Court cited subsequent amendments to this statute that maintained this distinction. The Ninth Circuit found nothing illogical in Congress providing the DHS with the authority to grant asylum but not the power to terminate that grant. The Court explained that grants of asylum were likely more numerous than terminations and those terminations were “grave,” and therefore Congress “might sensibly” have conferred this authority solely in the DOJ. Petition GRANTED and REMANDED.