Dear Colleagues,Following up on U.S. District Court Judge Emmet Sullivan’s powerful decision in Grace v. Whitaker, which found major elements of Matter of A-B- and the related USCIS Policy Memorandum to be inconsistent with the law, we are pleased to share the instructions which the Court ordered USCIS and EOIR to provide asylum officers and immigration judges conducting credible fear interviews and reviews of negative credible fear findings. This guidance takes immediate effect and should be relied upon and cited to by advocates.
The Court declared that the following policies contained in Matter of A-B- and the related USCIS Policy Memorandum are arbitrary, capricious, and in violation of immigration law as applied to credible fear proceedings:
1. The general rule against claims relating to domestic and gang violence.
2. The requirement that a noncitizen whose claim involves non-governmental persecutors “show the government condoned the private actions or at least demonstrated a complete helplessness to protect the victim.”
3. The Policy Memorandum’s rule that domestic violence-based particular social group definitions that include “inability to leave” a relationship are impermissibly circular and therefore not cognizable.
4. The Policy Memorandum’s requirement that individuals must delineate or identify any particular social group in order to satisfy credible fear based on the particular social group protected ground.
5. The Policy Memorandum’s directive that asylum officers should apply federal circuit court case law only “to the extent that those cases are not inconsistent with Matter of A-B-.”
6. The Policy Memorandum’s directive that asylum officers should apply only the case law of “the circuit” where the individual is “physically located during the credible fear interview.”
While the Court’s order is limited to credible fear interviews in the expedited removal process, we urge advocates to use the Court’s reasoning in merits hearings before the Asylum Office and the Immigration Court, and on review before the BIA and circuit courts. Of the six findings above, only (4) and (6) are specific to the nature of the credible fear process, which is intended to be a low screening standard, providing the applicant with the benefit of the most advantageous case law. The other four findings (1,2,3, and 5) are more broadly based on Judge Sullivan’s interpretation of key statutory terms of the refugee definition, and his reasoning should be adopted and argued in the merits context as well.
Best,
KarenKaren MusaloBank of America Foundation Chair in International LawProfessor & Director, Center for Gender & Refugee Studies
U.C. Hastings College of the Lawtel: 415 565-4720 fax 415 581-8824SSRN Author Page: http://ssrn.c
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Thanks, Karen. The actual guidance memos can be found at the link in Karen’s e-mail.
The EOIR “guidance” asserts that it applies only in credible fear reviews. While technically true, as Karen more accurately points out, the rationale of Judge Sullivan’s findings 1, 2, 3, and 5 should apply equally in removal proceedings. Even if the “captive” BIA won’t listen the real, Article III Courts should. That’s why it’s critical to challenge all A-B- denials in the Circuits. And, as I noted before, no Circuit has yet had an opportunity to review A-B-.
Most, if not all, cases denied on the basis of Sessions’s flawed decision in Matter of A–B– should be subject to remand from the Article IIIs. Just another example of how Sessions continues to harm individuals who deserve Due Process, while contributing to the largely DOJ-made backlog and wasting the time of the Article III Courts.
PWS
01-13-19
Thanks for posting, Paul. Since “credible fear” is by definition the finding that there is a reasonable possibility of the claim being granted by an immigration judge, EOIR’s position makes no sense. As usual, EOIR has chosen to please its master, rather than logically and neutrally interpret and apply the law.
Thanks for pointing that out, Jeffrey. Of course, Kaaren and her brigade of the New Due Due Process Army deserve all of the credit.
EOIR is being totally disingenuous. But, that’s the norm under this Administration. By “bailing out” of Session’s misinterpretation and reinstituting Matter of A-R-C-G, DOJ could do justice, save lives at risk, and avoid endless litigation and more Circuit Court remands — another avoidable disastrous episode of “Aimless Docket Reshuffling” in the making.
Also, as you and I have heard through our “grapevines,” there are courageous and scholarly Immigration Judges out there who have figured out that A-B- is essentially “limited to its facts” and are granting well-documented domestic violence PSG cases very similar to A-B-. I’ve actually been pleasantly surprised by some of the names of Immigration Judges willing to do the right thing in the face of enormous, and sometimes “career threatening” pressure to “go along to get along” with the DOJ-EOIR charade.
But, as we might expect in such a dysfunctional system, the results are uneven. We’ve also herd “thorough our grapevines” that some of the “usual suspects” among Immigration Judges have “latched on” to A-B- as a way of summarily denying strong DV claims without any semblance of fairness, objectivity, or Due Process. Hopefully, those Immigration Judges eventually will be “spotted out by name” by the Circuit Courts in public opinions removing them from the cases in which they acted with such obvious bias.
Indeed, were the BIA a “functioning independent appellate body,” I believe there is already a strong case for orders directing the Chief Judge to remove certain Immigration Judges from the asylum docket until they are retrained in basic Due Process and asylum law. But, of course, that’s not going to happen in today’s “Clown Court.” 🤡🤡🤡🤡🤡
Best,
PWS😎
Thanks, Jeffrey! Of course, all credit goes to Karen and her fighting brigade of the “New Due Process Army.”
I agree that EOIR is being totally disingenuous.But, hey, what else is new?
When will they ever learn, when will they ever learn?
PWS
01-13-19