A Ninth Circuit court judge suggested that some people use a legal rule to their advantage that extends the time asylum seekers can stay in the U.S. This comment came after a divided court decision to reject an asylum claim. The judge explained that a 20-year-old precedent allows asylum seekers to raise new arguments in circuit courts instead of through the Board of Immigration Appeals (BIA).

The precedent, from a 2005 Ninth Circuit case called Abebe v. Gonzales, unintentionally encouraged asylum seekers to avoid mentioning problems with an immigration judge’s decision when appealing to the BIA. Instead, they wait until the higher courts review the case after the BIA has already approved the judge’s decision. The judge pointed out that all asylum seekers need to do to stay in the U.S. longer is stay quiet about any issues with the BIA’s decision.

If someone holds off on mentioning a problem with the BIA’s decision until the higher court reviews it, the case can be sent back to the BIA. This gives the person more time in the U.S. and more time to see how their case develops. This practice takes advantage of legal loopholes that let asylum seekers remain in the country.

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