Asylum applicants deserve fair consideration of their requests. Their lawyers deserve to demand one without being threatened for doing their jobs. The Board should answer criticism with sound reasoning and fidelity to the law. This decision gives us every reason to keep asking questions.

Because the article that Marc submitted as evidence used anonymous sourcing? Please. In a decision where the BIA basically says "you can't prove it"? Come on. I’m not qualified to carry Marc’s briefcase. But I can read a statute, check a quotation, and distinguish asylum from CAT.

It's not exactly the same claim Percival makes for disciplining attorneys. But it's equally baseless. Marc Van Der Hout is perhaps the best immigration attorney in the country. The notion that his advocacy for his client and insistence of fairness and due process is an ethics violation is silly.

Whether the Board literally “got the memo” is of course unknowable. What we can see is troubling enough: similar premises, followed by a precedent directing early dismissal. And threats by DHS to discipline attorneys for abusing the system followed just days later by a BIA decision saying ...

The problem is institutional. DHS is a party before the BIA. The BIA is supposed to be neutral. But it broadly adopts the position DHS advocates in a threat letter sent to immigration attorneys. Yet now the enforcement agency’s rhetoric and the adjudicator’s reasoning converge. It's actually gross

The Board expressly identifies deterrence and conserving resources as benefits of that approach. That is the institutional convergence: DHS seeks to discourage filings; the Board turns presumed meritlessness into a reason to dispose of cases before a merits hearing.

The letter reportedly threatens consequences for lawyers filing meritless claims. The Board supplies an adjudicatory counterpart: at p. 150, it tells judges typically to pretermit these claims at master calendar. Enforcement pressure meets early dismissal.

The distinction between weak claims and dishonest ones is ignored by both Percival and the BIA. At p. 152, the Board acknowledges that this application may contain no false information, yet calls it patently meritless. Its broader discussion nevertheless treats such claims as abuse.

Then the backlog. The letter blames supposedly meritless claims for clogging the system. At pp. 148–49, the Board invokes scarce resources and delays for meritorious applicants. Administrative frustration becomes a rationale for prejudging categories of claims.

Next, motive. The Percival letter attributes meritless filings to efforts to obtain work permits, delay deportation, or secure release. At p. 149, the Board describes applicants with supposedly available protection as abusing asylum to remain in the United States. Two singers. One hymnal.

Asylum requires examining an individual’s circumstances. Broad judgments about a country cannot establish whether THIS applicant faces persecution or can obtain protection. Both documents make those generalizations do work that belongs to evidence. They don't just hint at it. It is explicit.

Start with geography. Percival’s letter reportedly argues that most Western Hemisphere countries lack conditions supporting asylum claims. B-S-A-N-, § B, targets developed democracies. Basically the same shortcut from geography to supposed meritlessness.

A qualification up front: I have no evidence that DHS instructed the Board or that the panel relied on the letter. I'm just making comparisons. “Got the memo” describes their alignment. The comparison is between the reported letter and the published decision. And the timing could be coincidence.

3 weeks ago. DHS’s general counsel sent AILA a letter attacking supposedly meritless asylum claims. Twenty-four days later, the BIA published Matter of B-S-A-N-. Read them together. The parallels concern whose claims deserve consideration and whose should be presumed abusive.

More to say on Matter of BSAN. I just compared it to the letter from DHS General Counsel last month to asylum attorneys, and it's so clear that the BIA "got the memo" Change the rules about who qualifies and then accuse people of filing frivolous claims bc they don't meet your new rules. Cute. 🧵

And the typos are embarrassing. I don't think it's asking too much. Surely they knew this sea change of a decision would be scrutinized. Couldn't proof read it? The substantive shortcuts are dangerous for sure. But this is a super unserious decision for such serious subject matter. Do better BIA.

The dereliction is concrete: adjudicators must assess evidence under legal standards. These authors instead declare entire classes of claims implausible and instruct judges to dispose of them before merits hearings. They presume the answer their job requires them to determine.