People For the American Way

Trump Judge Eric Miller Would Have Denied Asylum Based On an Incomplete Record

News and Analysis
Trump Judge Eric Miller Would Have Denied Asylum Based On an Incomplete Record

Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties.

In the July 2019 case of Xingli v. Barr, a Ninth Circuit panel remanded a denial of asylum by the Bureau of Immigration Appeals because a large portion of the administrative record was missing. Trump judge Eric Miller dissented.

Xingli Wang had a hearing before an immigration judge (IJ), who didn’t believe his testimony. Wang appealed to the BIA, which upheld the IJ even though a large portion of the hearing transcript was missing—including the portions that the IJ had cited as her reason for not believing him. Even though Wang disputed the IJ’s characterization of his testimony, the BIA opinion stated that he didn’t and simply accepted the IJ’s negative characterization.

Wang appealed to the Ninth Circuit. Normally, the court would examine the record to determine if the BIA’s conclusion was supported by substantial evidence. But that was impossible, since the relevant part of the record was missing. So the panel’s action was no surprise: In a brief opinion authored by George W. Bush nominee Jay Bybee, the court remanded the case back to the BIA. This did not even need an oral argument.

But Judge Miller dissented and would have denied Wang’s appeal. Disagreeing with the majority, he considered the incomplete transcript enough evidence to uphold the IJ’s conclusion about Wang’s credibility. In addition, he characterized the incompleteness of the transcript as a discrete legal argument that Wang had failed to preserve at the administrative level by specifically urging the BIA not to make a ruling without the full record. As a result, Miller wrote that the court could not consider the matter.