😎😎⚖️🗽📰 Dr. Triche Blog #1: Refugee Protection Resists Becoming the Weakest Link in Our Continuously Embattled “Rule of Law.”

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Featured cases:

Tista-Ruiz de Ajualip v. Garland, 114 F.4^th 487 (6^th Cir. 2024)

Al Otro Lado v. Mayorkas, ___ F.4^th ___, 2024 WL 4551637 (Oct. 23, 2024).

MEANINGLESS WORDS. …It is almost universally felt that when we call a country democratic we are praising it: consequently the defenders of every kind of regime claim that it is a democracy, and fear that they might have to stop using that word if it were tied down to any one meaning… George Orwell, Politics and the English Language.

I draft this first Courtside during a pivotal moment in US History.  Readers can barely power up any screen, anywhere, without seeing dire warnings that the “rule of law” is on the ballot; that the “rule of law.”  Hangs on a string.  But, those who advocate for the integrity of US refugee law have seen that string threaten to come unraveled for almost a decade.  And in this first of blogs, I offer two unequivocal rays of hope.  In two of its most vulnerable places—possibly even the most unlikely of places—the fragile thread has endured; the rule of law has held fast.

When I reference this “rule of law,” I’m invoking the idea that “words are supposed to carry meanings,” and great “danger lies in straining a text beyond the outermost limits of its natural elasticity.”[i] When words lose meaning, we don’t have rule of law, we have rule of people, with all that implies. At its core, protection for US refugees is not people-based; it is statutory.  It is comprised not by executive or political policies, but in the words of the US Immigration and Nationality Act.  Yet, as the subject of “immigration” endures focus-glare equal to the Eye of Sauron, in a constant stream of press, litigation, and politicization, the legal nature of the words in the statute become ever more vulnerable to deterministic and bad-faith interpretation.

Because they involve some of the most controversial aspects of current immigration law—that is, the arrival and protection of the most vulnerable of the world’s refugees—the words at issue in today’s two cases are particularly vulnerable to political appropriation.  As seen in our first case, Tista-Ruiz de Ajualip, survivors of severe domestic violence seek protection from persecution on account of “membership in a particular social group,” which is referenced at INA Section 101(a)(42)(A).  The phrase originated in the 1951 United Nations Convention Relating to the Status of Refugees,[ii]  and it is well known among scholars that its definition was not meaningfully discussed during drafting history of the Convention.  Indeed, it was not until the final drafting phase, at the Geneva Conference, that the Swedish delegate, Monsieur Petren, proposed (without further explanation) that “membership of a particular social group” should be added to the definition of refugee.[iii]  The amendment did pass, but the transcriber of the summary records indicates no discussion whatsoever regarding what “particular social group” meant to the delegate who approved its addition.[iv]

This flexible nature of the language of “particular social group” has a good side, for it has made room for the phrase to be interpreted consistently with developing human rights norms, especially regarding the rights of women.  Our illustrious Courtside founder, when he was Chairman of the BIA, initiated the use of the phrase for gender-based protection in the landmark case Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996).  As Judge Schmidt explains it, Kasinga constructed a PSG that the Board, sitting en banc, was willing to accept as a whole.  And, key to the case was the central tenet that “FGM can be a basis for asylum.”  21 I&N Dec. at 358.

Years later, after ongoing advocacy by Karen Musalo, Deborah Anker and others, PSG also became the vehicle through with the Board (in effect) ruled that severe domestic violence, when sufficiently unchecked by the State, may be a legitimate ground for asylum.  Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014).  But, especially in the domestic violence context, the case “law” regarding PSGs was vulnerable to an ongoing, seemingly endless parade of developing rules and “interpretations,” many of which seemed to defy the normal rules of logic.[v]  In 2018, the Board sacked refugee attorneys with an affirmative duty to articulate their PSGs—or lose them—in Matter of W-Y-C- & H-O-B-, 27 I&N Dec. 189 (BIA 2018).  This has led to attorneys regularly providing 5, 10 or even more “particular social groups,” in effort to provide the one an Immigration Judge might hook onto.  It has led to PSG formulations that might sound less than perfect, to put it mildly, such as the “Salvadoran women of childbearing age” proposition that unexpectedly led to the good result in Zometa-Orellana v. Garland, 19 F.4^th 970 (6^th Cir. 2021).  And, most importantly for this Blog, it has provided an opportunity for some executive adjudicators at EOIR to engage in decision making that arguably crosses the line from legal to political, divorcing too far from the words at hand, the words contained in the law itself.

This is why what the Sixth Circuit did a few weeks ago in Tista-Ruiz de Ajualip is so very remarkable.  The Court’s central holding is that the group “victims of domestic violence” does not, on its face, violate what’s known as the “circularity” rule.  The reasoning of the Court is what’s so remarkable, for it constitutes a strong assertion of integrity of the rule of law in the refugee context.  The Court holds that no PSG can be dismissed “in a perfunctory manner,” solely by looking at the words used in formulating it.  114 F.4^th at 498. Invoking Zometa-Orellana’s emphasis on “international obligations”, the Court says that any PSG analysis must utilize an independent review of the record “as a whole”, including country conditions.  Id..

The case doubles down on what I (frankly) thought was the most vulnerable aspect of Zometa-Orellana v. Garland: that the point of a domestic-violence based adjudication is to comply with US “international obligations” to protect refugees (id. at 498) (italics in original (!)) The Court also repeats that failure to “exactly delineate a convoluted legal concept” (i.e., PSG), is not a grounds for denial of refugee protection (id. at 501), and that there is an “independent role” (read, power) for BIA and Immigration Judges to assess domestic-violence based claims consistently with international obligations—particularly during assessment of the proposed PSG. (id. at 500–502.)  In other words, the Court doubles down on the admonition that had already been implied in Zometa-Orellana: refugee law, is, law; the words contained therein are not to be used as a pretext to deny protection to domestic violence survivors who otherwise qualify as refugees under the CSR; and if the ”decision” being reviewed seems to do so, it will be reviewed, substantively, for signs of having crossed that line.

A final note for any advanced PSG practitioners who might be tuned in—there’s a good argument, in my opinion, that Tista-Ruiz can be invoked to assert that, as long as any one PSG is offered up in compliance with W-Y-C-/H-O-B-, , the IJ and/or the Board can delineate any cognizable group that it finds to exist on the record.  It’s worth remembering here that, in Kasinga, the PSG formulated by the Board, was “very similar to” but not the exact “formulation suggested by the parties.”  21 I&N Dec. at 365.

In these blogs, I do intend to stay in my own lane, which is individual removal defense.  But I can’t help noting that, as I went to press on this one, the Ninth Circuit also issued Al Otro Lado v. Mayorkas, ___ F.4^th ___, 2024 WL 4551637 (9^th Cir. 2024).  The case is a complex, substantial class-action suit that is deserving of its own individual treatment in another context.  But it also contains at least one prime example of a Court giving meaning to words.  The Ninth Circuit stood fast in the language and purpose of the INA, even in the context of border arrivals—the group in the hottest of flames under Sauron’s eye. Under INA Section 208(a)(1), any non-citizen “who arrives in the United States…may apply for asylum” under INA Section 208(a)(1).  In one of several controversial iterations of a “metering” program, Ports of Entry run by US Customs and Border Patrol had been sending arriving asylum seekers back into Mexico, claiming they had not yet “arrived” in the country.  The Ninth Circuit “conclude[d] that a noncitizen stopped by U.S. officials at the border is eligible to apply for asylum under” § 208(a)(1). Al Otro Lado v. Mayorkas, ___ F.4^th ___, 2024 WL 4551637, *10 (Oct. 23, 2024)

One of the intrepid litigators of Al Otro Lado, Melissa Crow, issued a statement in reaction to the decision, and I will let her observations take us out:

“Our government has a legal duty to provide a fair and meaningful legal process to all people seeking safety at our border, no matter what. Border agents cannot arbitrarily turn people back to Mexico, a practice that violates our laws, exacerbates chaos at the border, and places refugees directly in harm’s way.”[vi]

[i] Ben Saul, Defining Terrorism in International Law 55 (2006) (citations omitted).

[ii] July 28, 1951, 189 U.N.T.S. 150.  The US is bound by Articles 2 through 34 as a party to the 1967 Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 U.S.T. 6224, 606 U.N.T.S. 267 (‘Protocol’).  A Convention refugee is a person who, “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership in a particular social group or political opinion…is unable or…owing to such fear, is unwilling to return” home.  CSR Art. 1A(2).

[iii] Terje Einarsen, “Drafting History of the 1951 Convention and the 1967 Protocol”, in Andreas Zimmermann (ed), The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary 37, [52] (2011), citing UN Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons: Summary Record of the Twenty-second Meeting, 26 November 1951, A/CONF.2/SR.22, available at: http://www.refworld.org/docid/3ae68cde10.html [accessed 11 April 2016].

[iv] See id. at [52]-[54].

[v] See, e.g., Karen Musalo, A Short History of Gender Asylum in the United States: Resistance and Ambivalence May Very Slowly Be Inching Towards Recognition of Women’s Claims, Refugee Survey Quarterly, Vol. 29, No. 2 (2010); Blaine Bookey, Gender-Based Asylum Post-Matter of A-R-C-G-: Evolving Standards and Fair Application of the Law, 22 SW J. Intl. L 1, 4 (2016).  In addition, BIA decisions were and are subject to direct alteration by the Attorney General, and in 2018, Jeff Sessions blatantly attempted to end “claims pertaining to domestic violence or gang violence perpetrated by non-governmental actors” as a grounds for asylum.  Matter of A-B-I, 27 I&N Dec. 316, 310 (A.G. 2018), vacated, Matter of A-B-III-, 28 I&N Dec. 307 (A.G. 2021).

[vi] <https://ccrjustice.org/home/press-center/press-releases/ninth-circuit-upholds-rights-asylum-seekers-rules-metering> (accessed Oct. 27, 2024).