Alicia Triche

Dr. Triche Blog #3: Constitutional and Legal Challenges to New Detention in Old Proceedings

Featured authority

Ortega v. Bonnar, 415 F.Supp.3d 963 (N.D. Cal. 2019)

Matter of Sugay, 17 I&N Dec. 637 (BIA 1981)

As I draft this, a flurry of new Executive Orders are raining down, and the Senate is scheduled to resume consideration on “S.5” (a.k.a. the Laken Riley Act). It’s a day of import, to say the least. And the first thing on my own mind is detention–specifically, potential attempts at re-detention, and/or new detention, of non-citizens who are already in the midst of removal proceedings.

In this blog, I’ll invoke what Judge Schmidt calls my “practical scholarship” skills to address the existing legal criteria for such re-detention, with a specific eye towards how it might be challenged. Here, we’re only considering the plight of non-citizens charged under section 236 of the Immigration and Nationality Act, which puts the authority and criteria for their detention at 8 U.S.C. § 1226(a)–(e). As a go-to introduction to this, and ICE detention in general, I highly recommend “A Guide to Obtaining Release from Immigration Detention,” which was published May 28, 2024 online by the National Immigration Project.[i]

As the NIP Guide so aptly explains, Immigration Court “removal” proceedings are instituted after an ICE-ERO officer decides whether to detain the individual and/or release them. Such release could be on bond, recognizance, or formal parole. According to the Vera Institute, immigration courts are facing a caseload of around 3.7 million—out of which around 18,500 are presently detained.[ii]

Statutory authority to detain is at INA section 236, which provides: “On a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States…” 8 U.S.C.A. § 1226(a) (Westlaw 2025). Various criteria for mandatory detention are contained at § 236(c), but if that hurdle is cleared, release can (and does) happen for the remainder of proceedings.[iii]

The practice of re-detention, has so far, been rarely invoked. If that changes, the first argument that can be levied against it is that, unless DHS/ICE has demonstrated a material change of circumstances, re-detention violates binding legal precedent.[iv] On its face, the INA does provide that “[t]he Attorney General at any time may revoke a bond or parole authorized under subsection (a), rearrest the alien under the original warrant, and detain the alien. 8 U.S.C.A. § 1226(b) (Westlaw 2025); see also 8 CFR 236.1(c)(9).[v] However, as the district court noted in habeas proceedings in Ortega v. Bonnar, 415 F.Supp.3d 963, 968 (N.D. Cal. 2019), the BIA has placed “a limitation on this authority…In practice, the DHS re-arrests individuals only after a “material” change in circumstances.” Id., citing Matter of Sugay, 17 I&N Dec. 637 (BIA 1981) (other citations omitted).

The Sugay rule is this: “where a previous bond determination has been made by an immigration judge, no change should be made by a [deciding officer] absent a change of circumstance.” Matter of Sugay, 17 I&N Dec. 637, 640 (BIA 1981). This tenet is still (and repeatedly) recognized by the BIA and by federal courts.[vi] For instance, in Zabaleta v. Decker, 331 F.Supp.3d 67 (S.D.N.Y. 2018), the Southern District of New York granted a habeas petition, citing Sugay. The Court ordered remand to the Board for “legal error in the components of the BIA’s determination that the petitioner was a danger to the community and a risk of flight.”

Habeas, incidentally, is the means by which detention is challenged in federal court. BIA bond denials do not directly reach the Courts of Appeal due to INA § 236(e), which provides no court shall set aside the executive’s “discretionary judgment …regarding the detention or release of any” noncitizen. However, district court habeas jurisdiction falls under 28 U.S.C.A. § 2241(c)(3), which provides for the writ where a petitioner “is in custody in violation of the Constitution or laws or treaties of the United States.” Like the Southern District of New York in Zabaleta, other district courts have regularly asserted habeas jurisdiction in cases brought by detained non-citizens. A go-to, excellent practice advisory on habeas (linked in the end-notes) is the NILA/ABA Nuts and Bolts of Habeas Corpus Petitions Challenging Immigrant Detention (Jul. 31, 2021).[vii]

Whether challenged via habeas or directly before the IJ/BIA, on a basic level, detention must occur within the parameters of the executive branch’s delegated authority to detain. INA section 236(a) authorizes “detention pending a decision on whether the alien is to be removed” (emphasis added). In a handful of cases that should be reviewed by any practitioner seeking to challenge an individual detention, the Supreme Court has indicated the power to detain is tethered to the reasonable exercise of this authority. Zadvydas v. Davis, 533 U.S. 678 (2001); Demore v. Kim, 538 U.S. 510 (2003); Nielsen v. Preap, 139 S.Ct. 954 (2018); see also Jennings v. Rodriguez, 138 S.Ct. 830, 846 (2018) (indicating that mandatory detention under INA § 236(c) has a “definite termination point”).

Considering this, litigators challenging detention have made direct constitutional arguments, rooted in the Fifth Amendment. The idea is that if the purported “reasons” for detention become too far-fetched from their legitimate (removal) goal, that detention violates procedural due process. In a post-Nielsen v. Preap Practice Advisory, the ACLU puts it this way: “Where an individual has lived peaceably in the community for years, and may well have strong family ties and a high likelihood of prevailing in her removal hearing, mandatory detention is no longer adequately linked to the government’s interest in preventing flight risk and danger.”[viii] This is because (the advisory cites), “Due process requires that immigration detention “‘bear[] a reasonable relation to the purpose for which the individual was committed.’” Demore v. Kim, 538 U.S. 510, 527 (2003), citing Zadvydas v. Davis, 533 U.S. at 690–91.

Similar arguments have been successful where detention was too prolonged to be considered reasonably tethered to the purpose of effecting removal. In 2020, the Northern District of Georgia directly utilized Mathews v. Eldridge, 424 U.S. 319 (1976), to hold that a habeas petitioner’s detention violated due process. J.G. v. Warden, Irwin County Detention Ctr., 501 F.Supp.3d 1331, 1336 (M.D. Ga. 2020). As part of the balancing test, the Court stated “prolonged immigration proceedings have stalled [the petitioner’s] removal case.” Both the NIP and the ACLU practice advisories contain numerous other examples of cases, both pre- and post Jennings v. Rodriguez, which ruled that detention was unconstitutional due to prolonged proceedings.

Importantly, many of these recent constitutional challenges have been successful despite directly contravening the “mandatory” detention requirements contained in the present version of 236(c). Demonstrably, then, the constitution—especially the Fifth Amendment and the celebrated liberty interest therein—has prevailed above the INA in cases of conflict. Should Laken Riley indeed come to pass, these cases can be invoked again—as can principals against retroactivity. It’s a bit of an aside, but I’m thinking here of the Fifth Circuit case of Lopez-Ventura v. Sessions, 907 F.3d 306, 313 (5^th Cir. 2018), in which the Fifth Circuit refused to presume the INA’s definition of “controlled substance” applied retroactively, and stated that presumption against retroactivity was “a legal doctrine centuries older than our Republic.”

As I was preparing today’s blog, I remembered an old 2016 Federal Lawyer column that I wrote when home raids first entered the news. I found an e-interview I did with pro bono attorney Katie Shepherd, who was managing the “CARA” project at family detention centers. At the time, she stated, ICE was engaged in a wholesale policy shift from “a policy of deterrence through deportation to a policy of deterrence through detention.”[ix] Public rhetoric has, of course, shifted since that time, and now we are looking at a policy of terror and retribution, in which detention is but one tool. My hope is that everyone will remember that our constitution is still here; and that, even very recently, it’s been applied in the context of non-citizen detention. In the midst of this blog, I snuck in a primer on all the essential legal standards governing challenges to detention. I hope, though, that not everyone reading will have to use it.

End Notes

[i] https://nipnlg.org/sites/default/files/2024-05/2024_Guide-Obtaining-Release-Imm-Detention.pdf (accessed Jan. 20, 2025).

[ii] https://tinyurl.com/3sjb2u4j (accessed Jan. 20, 2025).

[iii] The general criteria for release is that “such release would not pose a danger to property or persons, and that the alien is likely to appear for any future proceeding.” 8 C.F.R. § 1236.1(c)(8) (ecfr.gov) (accessed Jan. 20, 2025).

[iv] As the Second Circuit puts it bluntly, “[t]he BIA is required to follow its own precedent.” Paucar v. Garland, 84 F.4th 71, 80 (2d Cir. 2023).

[v] “When an alien who, having been arrested and taken into custody, has been released, such release may be revoked at any time in the discretion of the district director, acting district director, deputy district director, assistant district director for investigations, assistant district director for detention and deportation, or officer in charge (except foreign), in which event the alien may be taken into physical custody and detained. If detained, unless a breach has occurred, any outstanding bond shall be revoked and canceled.”

[vi] See, e.g., Matter of Garvin-Noble, 21 I&N Dec. 672, 699 (BIA 1997) (applying Sugay, describing “the authority of the Service to revoke or redetermine a bond or terms of release when circumstances involving a threat to the community come[] to light even after the Immigration Judge or the Board has rendered a decision.”

[vii] https://cilacademy.org/wp-content/uploads/2021/08/Practice-Advisory-Nuts-and-Bolts-Imm-Detention-Habeas.pdf (accessed Jan. 20, 2025).

[viii] ACLU & Asian Americans Advancing Justice, Practice Advisory: Constitutional Challenges to Mandatory Detention after Nielsen v. Preap (Jul. 2019), https://www.aclu.org/sites/default/files/field_document/2019_07_06_preap_advisory.pdf (accessed Jan. 20, 2025).

[ix] Email interview with Katie Shepherd, CARA Pro Bono Project, Mar. 3, 2016. The “CARA” project was a coalition group of numerous agencies, including the Catholic Legal Immigration Network and the American Immigration Lawyers Association. https://wafmag.org/2016/06/cara-family-detention-pro-bono-project/ (accessed Jan. 20, 2025).

Dr. Triche Blog #2: Stare Decisis, the Board of Immigration Appeals, and the Attorney’s General’s “Certification” Power: Strategies for Preservation of the Rule of Law (When and if the Deluge Ensues)

Dr. Alicia Triche
Superlawyer, Co-Editor, immigrationcourtside.com
Memphis, TN

Dr. Triche Blog #2: Stare Decisis, the Board of Immigration Appeals, and the Attorney’s General’s “Certification” Power: Strategies for Preservation of the Rule of Law (When and if the Deluge Ensues)

Featured authority:

8 C.F.R. § 1003.1(h) (ecfr.gov) (accessed Dec. 21, 2024)[i]

Hon. Alberto R. Gonzalez & Patrick Glen, Advancing Executive Branch Immigration Policy Through the Attorney General’s Review Authority, 101 Iowa L. Rev. 841 (2016)[ii]

Overruling precedent is never a small matter. Stare decisis—in English, the idea that today’s Court should stand by yesterday’s decisions—is “a foundation stone of the rule of law.” Justice Elena Kagan, Kimble v. Marvel Entertainment, LLC, 576 U.S. 446, 455 (2015).[iii]

Under current immigration law, the Attorney General has independent and direct power to set national precedent. 8 C.F.R. § 1003.1(h)(1)(i) says the “Board shall refer to the Attorney General …all cases… [t]he Attorney General directs the Board to refer to him.” This is commonly referred to as “certification” power. It means that precedential decisions carry an equally binding effect, whether or not they are issued by the Board of Immigration Appeals itself, or by the Attorney General,[iv] personally.

What this has done, in recent years, is to set up many of the more contentious issues dealt with by the Board for a continuous game of admin-law ping pong. For example, in the domestic violence-based asylum context, three different Attorneys General issued three different “Matter of A-B-s” between 2018 and 2021. Each of those substantively altered—or, in the last case, restored—the Board’s own decision from 2014.[v] The substantive criteria for family-based asylum claims—meaning when and if family membership constitutes a “particular social group”—underwent similar oscillation during the same short period.[vi] The ball has also gone back and forth on the Immigration Judge’s authority to terminate[vii] and to administratively close.[viii] Finally, AG Garland vacated former AG Barr’s troubling requirement that the BIA revisit every required element of a persecution-based claim, whether or not the issue had been raised on appeal.[ix]

At the time they occurred, those above which were AG Garland decisions were viewed favorably by removal defense advocates, myself included. Ping-pongy as they might seem at first glance, Garland’s certification decisions were actually much-needed course-corrections. They were issued in response to what had been, at the time, an unprecedented and far-reaching activism. The certification power had been used, for the first time, to pro-actively, substantively, restrict the rights of noncitizens. And there is every reason to believe that, whoever the new Attorney General may be, the use of the certification power is about to be used that way again, and its frequency will increase exponentially.

This is problematic on a conceptual level, because the nature of the certification power is rooted in DHS’s power over the “administration and enforcement” of the Immigration and Nationality Act. 8 U.S.C. § 1103(a)(1) (2024). It is within this context that the INA provides a “ruling by the Attorney General with respect to all questions of law shall be controlling.” 8 U.S.C. § 1103(a)(1).[x] In other words, the Department of Justice, as a whole, is supposed to be enforcing immigration laws set by Congress. It is solely within the purview of Congress to decide the substantive criteria for who is to be let into (or deported out of) the country—including, for example, the legal criteria for asylum and refugee status. The “executive” branch, which includes, of course, the Department of Justice, is meant to be just that–the executor of Congressional intent.

In 2016, however, former Attorney General Alberto Gonzalez advocated that the certification power should be used to advance “policy” preferences of a presidential administration. Citing Obama’s creation of the DACA program, Gonzalez stated that certification, like DACA, was also within “the executive branch’s scope of action in advancing its conception of immigration policy in the face of a recalcitrant Congress.”[xi] He went on to state, “the referral authority is unquestionably an appropriate and efficacious mechanism for advancing a wide variety of legal interpretations and policy initiatives.”[xii]

To the extent that certification is divorced from the enforcement authorized at INA § 101(a)(3), it is ultra vires—and should be challenged as such. But, setting that aside, using certification power as an instrument of policy raises even larger concerns, for it constitutes an existential threat to the legitimacy of the BIA as a legal body. The BIA is an institution that issues legal precedent, and purports to derive legitimacy through the basic legal principles of due process and stare decisis. Stare decisis is not just an aspirational principle; it is a judicial necessity, “because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” Payne v. Tennessee, 505 U.S. 808, 827 (1991) (citations omitted). If the BIA endlessly flip-flops, it becomes increasingly difficult to discern the content of the law, substantively; and even when that can be done, it detracts from the institution’s authority. It shreds the “rule of law,” because decisions of the BIA are not based in agreed-upon words passed by Congress or regulation, but by people (i.e., the Attorneys General). It shreds due process, because neither the IJs making the decisions, or the non-citizens fighting against removal, have any settled expectation of the standards which are to apply in each case.

Nonetheless, it seems almost inevitable that, if the BIA remains intact, certification is coming—and coming fast. And, this begs the question, can anything be done, at the individual level, to defend basic concepts of due process and the rule of law? I do have several suggestions. The first one is to hold fast to the concept that there is a “rule of law,” even at the BIA, and that it is discernible. The basic requirements for legal briefing have not changed, and foremost among those is the duty to find—and accurately represent—the complete landscape of binding legal authority that is relevant to a given issue. Certification zig-zags are not the only reason that the sheer amount of words that comprise US immigration law are increasing to a degree we have never before seen in legal history.

In short, without a good head-start, it is growing beyond the capacity of any one lawyer to discern the complete legal landscape on a given subject. In such an environment, practice advisories, legal treatises, CLE panels and webinars are now essential resources. It is now the duty of every appellate writer to keep apprised of these resources. Some of my own go-tos are the Center for Gender and Refugee Studies, the American Immigration Council, the Anker/Chase treatise (The Law of Asylum in the United States), and the National Immigration Project; I also (at this time) keep up with LinkedIn, stay on Dan Kowalski’s e-mail list, listen (when I can) to Kevin A. Gregg’s “Immigration Review” podcast. To keep on top of which resources are out there; and, more importantly, what is happening overall, I participate in AILA and FBA committees, where I am apprised of who is doing the latest research and/or litigation on important ongoing issues as they arise.

My second suggestion is less of a strategy, and more of an observation. The AG’s future certifications are now subject to Loper-Bright Enterprises v. Raimondo, 144 S.Ct. 2244, 2273 (2024), which of course held: “Chevron is overruled. Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the APA requires.” Part of the reasoning behind Loper-Bright is specifically to discourage agency flip-flopping. Id. at 2288 (Thomas, J., concurring). My hope is that, especially in light of Loper-Bright, when a Court of Appeals has spoken directly on an issue, the BIA is unlikely to get away with invoking Brand X in the end. (I’m thinking, for example, of the recent Sixth Circuit decisions mandating a version of the but-for nexus test, directly rejecting Matter of M-R-M-S-).[xiii]

My final thought is simple; perhaps deceptively so. Just don’t stop appealing. Keep using the system, keep insisting that the BIA be “legal,” not political; keep discerning and asserting the state of the law and the contents of jurisprudence; keep insisting upon due process and the basic rule of law. As Judge Schmidt said in his keynote to FBA-National in 2019—“take your appeals to the BIA and the Circuit Courts of Appeals”.[xiv]

[i] https://www.ecfr.gov/current/title-8/chapter-V/subchapter-A/part-1003/subpart-A/section-1003.1 (accessed Dec. 23, 2024).

[ii] Available at https://ilr.law.uiowa.edu/print/volume-101-issue-3/advancing-executive-branch-immigration-policy-through-the-attorney-generals-review-authority (accessed Dec. 21, 2024).

[iii] Citations omitted.

[iv] Such decisions appear side in the “Immigration and Nationality” reporter, but they are labeled as “A.G.”, rather than BIA, in the parentheticals.

[v] Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018) [A-B- I], Matter of A-B-, 28 I&N Dec. 199 (A.G. 2021) [A-B- II], Matter of A-B-, 28 I&N Dec. 307 (A.G. 2021) [A-B- III], Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014).

[vi] Matter of L‑E-A-, 27 I&N Dec. 40 (BIA 2017) [L-E-A- I], Matter of L-E-A-, 27 I&N Dec. 581 (A.G. 2019) [L-E-A- II], Matter of L-E-A-, 28 I&N Dec. 304, 05 (2021) [L‑E-A- III].

[vii] Matter of Coronado-Acevedo, 28 I&N Dec. 648 (A.G. 2021), overruling Matter of S-O-G- & F-D-B-, 27 I&N Dec. 462 (A.G. 2018).

[viii] Matter of Cruz-Valdez, 28 I&N Dec. 326 (A.G. 2021), overruling Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018).

[ix] Matter of A-C-A-A-, 28 I&N Dec. 351 (A.G. 2021) [A-C-A-A-II-], vacating 28 I&N Dec. 84 (A.G. 2020) [A-C-A-A-I].

[x] In full, paragraph (1)(a) provides: “The Secretary of Homeland Security shall be charged with the administration and enforcement of this chapter and all other laws relating to the immigration and naturalization of aliens, except insofar as this chapter or such laws relate to the powers, functions, and duties conferred upon the President, Attorney General, the Secretary of State, the officers of the Department of State, or diplomatic or consular officers: Provided, however, That determination and ruling by the Attorney General with respect to all questions of law shall be controlling.”

[xi] Hon. Alberto R. Gonzales & Patrick Glen, Advancing Executive Branch Immigration Policy Through the Attorney General’s Review Authority, 101 Iowa L. Rev. 841, 846 (2016).

[xii] Id. at 897.

[xiii] Mazariegos-Rodas v. Garland, 117 F.4^th 860 (6^th Cir. 2024) (rejecting the dicta in Matter of M-R-M-S-, 28 I&N Dec. 757 (BIA 2023), and essentially adopting the “but-for” nexus standard, 17 F.4^th at 876–78).

[xiv] https://immigrationcourtside.com/appellate-litigation-in-todays-broken-and-biased-immigration-court-system-four-steps-to-a-winning-counterattack-by-the-relentless-new-due-process-army/ (accessed Dec. 21, 2024).

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

😎😎⚖️🗽📰😎😎⚖️

Dr. Alicia Triche
Superlawyer, Co-Editor, immigrationcourtside.com
Memphis, TN

🗽📰

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).

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