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IMMIGRATION OCTOBER 24, 2025 | The Indian Eye 34

Board of Immigration Appeals Allows Immigration

Judges to Disregard Party Stipulations

BY CYRUS MEHTA plementing the Convention ten application and be believ- adjudicating an asylum or dent judgment and discretion
Against Torture. The IJ re- ably presented. The Board, adjustment application. Stip- and may take any action con-
he Board of Immigra- jected the stipulation and set however, held that Matter of ulations indeed encourage ef- sistent with their authorities
tion Appeals in Matter the case for hearing to take Fefe is no longer binding pre- ficiency and allow the parties under the Act and regulations
Tof J-H-M-H held on testimony. The respondent ceded as it predated the en- to focus on the essential aspect that is necessary or appropri-
October 7, 2025 that even if did not testify in support of actment of INA 240(b)(4)(B) of the case. Under the Trump ate for the disposition or al-
the parties in a case – the non- the claim and sought to rely in 1996. This provision allows administration, an IJ may not ternative resolution of such
citizen respondent and the on the contents of the appli- noncitizens to examine evi- want to go along with a stip- cases.” However, this regula-
government – have stipulated cation, the personal state- dence against them, present ulation out of fear that he or tion does not preclude a stip-
to certain aspects of the case, ment and the stipulation. The evidence on their own behalf she may get fired. Or a newly ulation from being consid-
Immigration Judges exercise IJ denied relief under CAT. and to cross-examine witness- appointed military judge in- ered binding on the parties.
independent judgment and In their appeal, the es. Yet, the Board recently experienced in immigration The BIA in Matter of
are not required to accept respondent relied on the held in September 2025 in law who may not be favorably J-H-M-H has unfortunately
party stipulations. In this case, Board’s 1989 decision in Mat- Matter of H-A-A-V- that an inclined to grant relief or ben- empowered IJs to disregard
the respondent and the DHS ter of Fefe, which held that at IJ may pretermit an asylum efits may want to override a stipulations, which in turn
submitted a joint memoran- a minimum an asylum appli- application without a full stipulation. would undermine efficiency
dum in October 2023 before cant take the stand, be placed evidentiary hearing on the Stipulations are espe- and result in more backlogs.
the Immigration Judge stip- under oath and be questioned merits of the claim and also cially critical in protecting If there is no case or contro-
ulating that the respondent whether the information in held that Matter of Fefe is no vulnerable clients with men- versy between the govern-
identified as a transgender the written application is longer binding precedent. It tal competency issues. They ment and the respondent,
woman, that the testimony complete, and that the exam- is paradoxical that the Board could include both children the IJ ought not be playing
would be consistent with the ination of the respondent will affirmed an IJ’s insistence to and adults with diminished any role. This decision pro-
written materials submitted, be brief only where the parties hold a hearing despite a joint capacity. If they risk facing motes more inefficiency and
and that the respondent was have stipulated that the appli- stipulation in Matter of J-H- substantial harm, a joint stip- backlogs in an already dys-
eligible for deferral of remov- cant’s oral testimony would M-H– but affirmed an IJ’s ulation where the parties can functional system. Immi-
al under the regulations im- be consistent with their writ- ability to pretermit an asylum agree to the respondent’s gration practitioners must be
application in Matter of eligibility for asylum and re- prepared to go through a full-
H-A-A-V- without a full lated relief can serve as an fledged hearing even if there
evidentiary hearing on adequate protective mea- has been a stipulation in case
the merits of the claim. sure if the respondent may an IJ insists on a full hearing.
What does this case be unable to testify due to On the other hand, under
mean for future cases? diminished capacity. A law- Matter of H-A-A-V-, as IJ’s
We often stipulate with yer who represents a client have the power to pretermit
the DHS attorney on with diminished capacity is asylum applications without
various aspects of the required to seek protective a full evidentiary hearing,
case. For example, there action if the client will face practitioners must submit
could be a stipulation harm under ABA Model Rul comprehensive applications
on the bona fides of the 1.14, and a stipulation would to ensure that the respondent
marriage in a review of be one way to protect the cli- can establish prima facie eli-
the I-751 petition in im- ent with diminished capacity. gibility, and in the event of

migration court. The The Board cited the reg- a pretermination, there is
parties may stipulate that ulation at 8 CFR 1003.10(b) a sufficient basis in the re-
allegations made by a for- to uphold the IJ disregard- cord to appeal the decision.
eign government through ing the stipulation in Matter [This blog is for
an Interpol Red Notice of J-H-M-H: “In deciding informational purposes only
against the respondent the individual cases before and should not be considered
have no basis and should them…immigration judges as a substitute for legal advice]
not be considered when shall exercise their indepen-
m of ___________________________________________________________________________________________________________________________________
CYRUS D. MEHTA & PARTNERS PLLC Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing Partner of
Cyrus D. Mehta & Partners PLLC in New York City. Mr. Mehta is a member of AILA’s Administrative Litigation
Task Force; AILA’s EB-5 Committee; former chair of AILA’s Ethics Committee; special counsel on immigration

matters to the Departmental Disciplinary Committee, Appellate Division, First Department, New York; member
of the ABA Commission on Immigration; board member of Volunteers for Legal Services and board member of

  New York Immigration Coalition. Mr. Mehta is the former chair of the Board of Trustees of the American Immi-
   
­ gration Council and former chair of the Committee on Immigration and Nationality Law of the New York City
€
‚   Bar Association. He is a frequent speaker and writer on various immigration-related issues, including on ethics,
and is also an adjunct professor of law at Brooklyn Law School, where he teaches a course entitled Immigration
and Work. Mr. Mehta received the AILA 2018 Edith Lowenstein Memorial Award for advancing the practice of
immigration law and the AILA 2011 Michael Maggio Memorial Award for his outstanding efforts in providing
pro bono representation in the immigration field. He has also received two AILA Presidential Commendations in
2010 and 2016. Mr. Mehta is ranked among the most highly regarded lawyers in North America by Who’s Who
2 6th Floor Legal – Corporate Immigration Law 2019 and is also ranked in Chambers USA and Chambers Global 2019 in

    immigration law, among other rankings.

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