Matter of W-Y-C-& H-O-B-, 27 I&N Dec. 189 (BIA Jan. 19, 2018)
BIA HEADNOTE:
“(1) An applicant seeking asylum or withholding of removal based on membership in a particular social group must clearly indicate on the record before the Immigration Judge the exact delineation of any proposed particular social group.
(2) The Board of Immigration Appeals generally will not address a newly articulated particular social group that was not advanced before the Immigration Judge.”
PANEL: BIA Appellate Immigraton Judges MALPHRUS, MULLANE, and LIEBOWITZ
OPINION BY: Judge Garry D. Malphrus
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The Impact of the BIA’s Decision in Matter of W-Y-C- & H-O-B-
In Matter of W-Y-C-& H-O-B-, 27 I&N Dec. 189 (BIA Jan. 19, 2018), the Board of Immigration Appeals held that “an applicant seeking asylum…based on membership in a particular social group must clearly indicate on the record before the Immigration Judge the exact delineation of any proposed particular social group.” My question is: “why?”
Delineating a particular social group is very complicated, even for experienced immigration lawyers. When I put together the advanced asylum panel for the 2016 Immigration Judges’ legal training conference, an asylum specialist from the Department of Justice’s Office for Immigration Litigation (“OIL”) chose to lecture the immigration judges on a common error in the crafting of proposed social groups. It is worth noting that OIL (which defends immigration judge decisions when they are appealed to the U.S. circuit courts) felt that immigration judges needed such instruction. Prior to this decision, the BIA had issued 8 precedent decisions defining particular social groups since 2006. Two of those decisions (issued in 2014) were required in order to clear up confusion caused by the language of the previous four decisions on the topic.
When describing the concept of asylum to non-attorney clients, I have completely given up on trying to explain to them what a particular social group is. I’ve noticed that during asylum interviews, the DHS asylum officers have reached the same conclusion; they simply ask the asylum applicants if they were a member of “a group,” with no attempt to explain the unique properties of particular social groups. Let’s also remember that there are many unaccompanied children applying for asylum, and that some are not represented because EOIR has opposed efforts to require the agency to assign them counsel.
The impact of requiring asylum applicants to clearly delineate such a complex term of art is significant. Many of the “surge” cases filed by individuals fleeing violence in Central America are asylum claims based on membership in a particular social group. With some 660,000 cases presently overwhelming the immigration court system, the decision in W-Y-C- & H-O-B- should help speed adjudication by allowing immigration judges and the BIA to issue boilerplate denials where social groups are not clearly delineated, and further prevent time-consuming remands where better defined groups are proposed on appeal (perhaps after a pro se respondent was able to obtain counsel). But at what cost is this efficiency achieved?
Our adversarial system presents court decisions as entailing a winner and loser. However, there are no winners when someone entitled to asylum is nevertheless denied and ordered deported. This point was underscored by a recent article in The New Yorker, documenting that for many, deportation is truly a death sentence (Sarah Stillman, “When Deportation is a Death Sentence,” Jan.18,2018 https://www.newyorker.com/magazine/2018/01/15/when-deportation-is-a-death-sentence).
In a recent blog post concerning the treatment of children in immigration court, I referenced Matter of S-M-J-, a BIA precedent decision from 1997 (21 I&N Dec. 722). The decision contains the following words of wisdom: “Although we recognize that the burden of proof in asylum and withholding of removal cases is on the applicant, we do have certain obligations under international law to extend refuge to those who qualify for such relief.” Noting the shift from the non-adversarial nature of affirmative Asylum Office interviews (then a part of the INS, now within DHS) to the adversarial immigration court proceedings, the Board concluded that “a cooperative approach in Immigration Court is particularly appropriate.”
This approach underscores a major difference between asylum and other types of legal status. A person applying for lawful permanent status through, for example, cancellation of removal or via an immigrant visa is not an LPR until they are granted such status by an immigration judge or DHS. However, as the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status states at paragraph 28, “A person is a refugee within the meaning of the 1951 Convention as soon as he fulfills the criteria contained in the definition…Recognition of his refugee status does not therefore make him a refugee but declares him to be one. He does not become a refugee because of recognition, but is recognized because he is a refugee.”
Paragraph 205 of the UNHCR Handbook delineates the duties of the asylum applicant and the adjudicator. While the applicant’s duties involve truthfully providing detailed facts, supporting evidence where available, and “a coherent explanation of all of the reasons invoked” in his asylum application, the adjudicator, in addition to ensuring that the applicant presents his or her claim as fully as possible and then assessing credibility and evaluating the evidence, must also “relate these elements to the relevant criteria of the 1951 Convention, in order to arrive at the correct conclusion as to the applicant’s refugee status.”
It is this last requirement upon the adjudicator that is at odds with the Board’s decision in W-Y-C- & H-O-B-. Under the decision, an asylum applicant may already have satisfied all of the refugee requirements (which of course includes establishing a well-founded fear of suffering persecution if returned to their country of nationality), yet be denied asylum and ordered deported to suffer serious harm simply because they lacked the legal sophistication to articulate a very complicated formula for delineating a particular social group. Why wouldn’t the present Board invoke a cooperative approach as required by the nature of asylum and its international law obligations, as an earlier BIA did in Matter of S-M-J-? Why shouldn’t the immigration judge (perhaps with assistance from the DHS attorney) step in where the applicant is not able and analyze the facts presented pursuant to the relevant case law to help formulate a particular social group (as some IJs do at present)?
In summary, the Board’s recent decision will allow immigration judges to deny asylum to credible applicants who clearly meet the refugee criteria. By setting a nearly impossible standard for non-attorneys (including children) to meet, it can result in those deserving of protection being sent to countries where they may face rape, torture, or death.
Why?
Copyright 2017 Jeffrey S. Chase. All rights reserved.
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OK. Let’s make this real simple. As opposed to asylum, which is discretionary, withholding of removal based on fear on account of a “particular social group” is mandatory relief under the Act. The BIA is saying that even if the Respondent were entitled to mandatory withholding of removal based on a “particular social group,” they will refuse that mandatory protection if the respondent failed to articulate each and every specific element of the “PSG” before the Immigration Judge!
And, just how would unrepresented children and other unrepresented individuals, many in detention, be able to articulate all of the complex elements of a PSG? (And that’s even before the Trump/Gonzo/White Nationalist proposal to illegally strip undocumented children of any Due Process rights and let them be deported at will by CBP!)
Clearly, in Matter of W-Y-C-& H-O-B-, the BIA has abandoned any pretense its essential mission of “guaranteeing fairness and due process for all.” I’m sure that becoming “Conductors on Gonzo’s Deportation Railroad” will be career enhancing for the BIA Judges. But, in actuality, they should be ashamed!
And, what are the views of the other dozen or so BIA Appellate Judges who weren’t on this panel. Do they all agree with this travesty of justice? Is there nobody in this “Gang of 15” willing to stand up for Due Process and fairness for vulnerable asylum seekers? It raises the question of “Why have a BIA at all if it can’t and won’t protect fairness and due process for asylum seekers?”
I dissent!
PWS
01-26-18
Both Paul and Jeff articulate so well the deep flaws in this recent decision. To the extent the decision justifies denial of cases for the mere fact that the Respondent (or his/her attorney) is too “unsophisticated” to articulate each and every complex and confusing requirement for a PSG, this decision is a violent attack on due process for our most vulnerable immigrants. As a former IJ, it took all of my intellectual resources to simply understand the shifting and often ill-articulated and seemingly contradictory requirements for PSG developed by the Board and appellate courts over many years. To explain them to attorneys, much less respondents, much much less children, is extremely difficult and at times impossible. (Certainly, EOIR’s claim that children can be taught asylum law well enough to represent themselves doesn’t extend to a concept many, if not most, attorneys don’t even fully understand!?) To expect these same attorneys and unrepresented respondents to articulate perfectly how the facts of their case fit within those requirements without any explanation from the judge is laughable. To compare the facts with the law and come up with a decision is the JUDGE’S job! While I understand the need for a rule that judges fully consider whatever social group is presented by respondent or his/her counsel, it is inherent in the role of a judge to also consider the facts vis a vis ANY particular social group which meets the definition and is supported by the facts. Not to do so violates IJ’s and EOIR’s obligations under both international and federal law and their moral obligations as well. I hope all IJ’s will read this case narrowly, but fear that many are not sophisticated enough to do so.
Well-said, Carol! This is how “Due Process dies.” Historically, the BIA’s role was supposed to be insuring justice and fairness for migrants, many of them unrepresented or under-represented.
By contrast, today’s BIA seems to see its role as slapping a thin legal veneer on injustice so that DHS and Sessions can meet their White Nationalist inspired “Deportation Goals.”
So, back to my point of why have an Appellate Board that’s afraid to (or unable to) stand up for it’s own judicial role or the rights of others? As some advocates have told me privately, in many locations they feel like everyone at EOIR and DHS are “on the same side.” Just like “Gonzo enforcement” is stripping legitimacy from ICE enforcement, EOIR’s kowtowing to Sessions and the restrictionists is robbing it of public respect.
Might not make any difference in the short run. But in the long run, lost respect is difficult, sometimes impossible, to regain. And, once the Trumpsters are gone, that’s going to be a huge problem for both ICE and EOIR going forward. I also think that at some point, the Article III’s will pick up on the BIA’s lack of independent expertise and stop giving full “Chevron deference.”
Thanks for sharing your views.
Best,
Paul