THE HILL: Nolan Says Sessions Got It Right In Matter of A-B- — Not Me!

http://thehill.com/opinion/immigration/392409-sessions-domestic-abuse-decision-didnt-change-asylum-law-just-applied-it

Nolan writes:

. . . .

This isn’t the first time The Board of Immigration Appeals has considered domestic violence and rejected victims of domestic violence as a particular social group. The Board did it in “Matter of R-A-” in 1999.

The Board held that R-A- was not eligible for asylum for two reasons. First, her claimed social group — “Guatemalan women who have been involved intimately with Guatemalan male companions, who believe that women are to live under male domination” — did not qualify as a “particular social group” for asylum purposes.

And second, that she has not established that her husband abused her because he perceived her to be a member of this group.

Attorney General Janet Reno intervened and vacated that decision — rendered it void — so it could be reconsidered in light of a proposed regulation that would clarify some of these concepts, but no final rule was ever promulgated.

The case was resolved without further consideration by the Board when R-A- and DHS jointly stipulated that she was eligible for asylum. Nevertheless, the Board and the federal courts continued to treat the R-A- analysis as persuasive.

In a later case, “Matter of A-R-C-G-”, the Board abandoned the reasoning from the R-A- analysis and held that depending on the facts and evidence in an individual case, “married women in Guatemala who are unable to leave their relationship” can constitute a particular social group for asylum purposes. But the finding was based primarily on government concessions, as opposed to basing it on an application of Board precedent.

Sessions found that the Board decided A-R-C-G-’s case without performing the rigorous analysis required by Board precedents by basing its decision on concessions from the DHS attorney that the respondent had suffered past persecution, that she was a member of a qualifying particular social group, and that her membership in that group was a central reason for her persecution instead of adjudicating these issues.

Sessions concluded therefore that A-R-C-G-’s case was wrongly decided and should not have been issued as a precedential decision. Accordingly, he overruled it.

Having overruled A-R-C-G-’s case, he had to vacate the Board’s decision in the A-B- case too. The Board’s cursory analysis of the respondent’s “particular social group” in that case consisted mainly of a general citation to A-R-C-G-’s case and country condition reports.

He remanded the case to the immigration judge for further proceedings consistent with this opinion, reiterating that an applicant for asylum on account of membership in a particular social group must demonstrate:

1. Membership in a particular social group that is composed of members who share a common immutable characteristic, is defined with particularity, and is socially distinct;
2. That membership in that group is a central reason for the alleged persecution; and
3. That the alleged harm is inflicted by the government of her home country or by persons that the government is unwilling or unable to control.

The Board decisions applying asylum to domestic abuse victims may be morally correct, but they are legally indefensible.

************************

Read Nolan’s complete article over at The Hill at the above link.

I respectfully dissent. See Matter of R-A-, 22 I&N Dec. 906, 922 (BIA 1999) (Judge Guendelsberger, dissenting, joined by Schmidt, Chairman, and Judges Rosenberg, Villageliu, Moscato). The “Gang of Five” had it right then and continue to be right today.

I’ve been one of those fighting the battle for a correct interpretation of asylum law, particularly as it applies to abused women and other vulnerable groups, for two decades. It’s discouraging to have to re-fight a war we already won once. But, we’re all going to hang in there until justice and the humane, protective values behind the 1952 Convention and the Refugee Act of 1980 prevail. And, after we’re gone, members of the New Due Process Army will continue the fight until justice for the most vulnerable among us prevails.

PWS

06-17-18