🗽⚖️ EXPERT URGES U.S. TO COMPLY WITH INTERNATIONAL NORMS ON GENDER-BASED PROTECTION — Current “Any Reason To Deny” Restrictive Interpretations & Actions Are A Threat To Women Everywhere & Unnecessarily Bog Down Already Burdened System With Unnecessary Legal Minutia, Says Professor Karen Musalo In New Article!

Karen Musalo
Professor Karen Musalo
Director, Center for Gender & Refugee Studies, Hastings Law

Read Karen’s newly-released article “Aligning United States Law with International Norms Would Remove Major Barriers to Protection in Gender Claims” in the 2024 Edition of the International Journal of Refugee Law. Here’s the abstract: 

A B ST R A CT

The protection of women and girls fleeing gender-based harms has been controversial in the United States (US), with advances followed by setbacks. The US interpretation of particular social group and its nexus analysis, both of which diverge from guidance by the United Nations High Commissioner for Refugees (UNHCR), is the most significant barrier to protection. It has become almost impossible for women and girls to rely upon the particular social group ground because of current requirements that social groups not only be defined by immutable or fundamental characteristics, but also be socially distinct and have particularity. Establishing nexus is also a significant obstacle, with the US requirement of proof of the persecutor’s intent. In the first month of his administration, President Biden issued an executive order on migration, which raised hopes that these obstacles to protection would be removed. The order committed to protecting survivors of domestic violence and to issuing regulations that would make the US interpretation of particular social group consistent with international standards. The target date for the regulations was November 2021, but they have yet to issue. This article examines how the evolution of the US interpretation of particular social group and nexus has diverged from UNHCR recommendations. It shows how protection has been denied in gender cases involving the most egregious of harms. The article concludes by providing recommendations for realignment with international standards, which set a benchmark for evaluating the promised Biden administration regulations on the issue.

Here’s a link to the article: https://academic.oup.com/ijrl/advance-article/doi/10.1093/ijrl/eeae009/7656821?utm_source=authortollfreelink&utm_campaign=ijrl&utm_medium=email&guestAccessKey=298cbf81-f24c-455a-9c94-4be57b8c649f

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Karen’s highly readable “spot on” article prompted this additional thoughtful comment from my friend and Round Table colleague Hon. “Sir Jefferey” Chase:

Hi Karen: Wonderful article! So clear, so logical, and just so correct! Thanks as always for this. (And I’m extremely honored to find myself in several of your footnotes – thank you!)

Along the same line of thinking, in December 2020 I wrote a blog post of my wish list for 2021: https://www.jeffreyschase.com/blog/2020/12/14/a-wish-list-for-2021.

One of the items was as follows:

Create a “Charming Betsy” Reg Requiring Adherence to International Law:Since 1804, the Supreme Court’s decision in Murray v. The Schooner Charming Betsy has required domestic statutes to be interpreted consistently with international law whenever possible.As the Supreme Court in INS v. Cardoza-Fonseca observed that in enacting the 1980 Refugee Act, “one of Congress’ primary purposes was to bring United States refugee law into conformance with the 1967 United Nations Protocol Relating to the Status of Refugees,” it would seem that interpreters of our asylum laws should look to international law interpretations of that treaty for guidance.Recent examples in which this has not been the case include the just-published “death to asylum” regulations that will completely gut the 1980 Refugee Act of any meaning; as well as regulations that bar asylum for conduct falling far, far short of the severity required to bar refugee protection under international law (which a federal district court blocked in Pangea v. Barr).

As the Board seems disinclined to listen to the Supreme Court on this point, it is hoped that the Biden Administration would codify the Charming Betsy doctrine in regulations, which should further require the BIA, Immigration Judges, and Asylum Officers to consider UNHCR interpretations of the various asylum provisions, and require adjudicators to provide compelling reasons for rejecting its guidance.

Do you think there is a way to use Karen’s article to make this into a talking point across the advocacy community? I think there’s merit to trying to normalize an idea over time. Just a thought.

Jeffrey S. Chase
Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges

I agree, Jeffrey! Ironically, as Karen shows, “normalizing” refugee and asylum processing to bring it into alignment with the Convention was one of the driving forces behind enactment of the Refugee Act of 1980. Indeed, it’s reflected in a key early interpretation of the Act by the Supremes in INS v. Cardoza-Fonseca (successfully argued by our friend and Round Table colleague Hon. Dana Marks, a “Founding Mother of U.S. Refugee Law”). In rejecting the USG’s restrictive interpretation, the Court consulted the U.N. Handbook while making the point that the refugee definition was to be applied generously so that even those with only a 10% chance of persecution could qualify.  

I also note that the abandonment of the “Acosta test,” which I relied on in Kasinga, in favor of a more convoluted, restrictive, and ultimately intellectually dishonest approach, went “into high gear” after the “Ashcroft purge” had removed the core of BIA Judges who spoke up for asylum rights and protection, even when in dissent!

Unfortunately, Administrations of both parties have feared honest and robust implementation of the Refugee Act that truly follows the “spirit of Cardoza and its BIA progeny, Matter of Mogharrabi.” They all have had their “favored” and “feared” groups of refugees and asylees, some more than others. 

This, of course, breeds huge inconsistencies and arbitrary adjudications, a problem exposed well over a decade ago by Professors Schoenholtz, Schrag, and Ramji-Nogales in their critical seminal work Refugee Roulette describing the largely unprincipled and politicized operation of our system for adjudicating protection claims. 

At some level, all Administrations have given in to the false idea that protection of refugees is politically perilous and that consequently the law should be interpreted and manipulated to “deter” the current “politically disfavored” groups of refugees. Not surprisingly, the latter are usually those of color, non-Christian religions, or from poorer countries where the mis-characterization of groups of legitimate refugees as “mere economic migrants” has become routine. Too often, the so-called “mainstream media” accepts such negative characterizations without critical analysis. 

Unfortunately, the Biden Administration has regressed from a somewhat enlightened beginning with the never-promulgated “gender based regulation” mentioned by Karen to a position of fear, desperation, and ultimately “false deterrence.” Apparently, they perceive that GOP nativist lies and shamless fear-mongering combined with their own failure to boldly reform and materially improve the asylum processing system under their control are “scoring points” with the electorate. 

The latest misguided proposal being considered in the White House would grotesquely miss the mark of addressing the real glaring problems with our asylum system at the border and beyond. That is the overly restrictive interpretations and applications of the refugee definition, too many poorly-qualified and poorly-trained adjudicators, over-denial leading to protracted litigation and inconsistent results, uninspiring leadership, and a stubborn unwillingness to set up the system in compliance with international rules so that significant numbers of qualified refugees applying at the border can be timely and properly admitted to the U.S. where, incidentally, their skills and determination can contribute greatly to our economy and our society.   

The latest bad idea is truncating the already overly-summary and poorly run asylum process in apparent hopes of more quickly denying more potentially valid claims with less consideration. See, e.g.,  https://www.politico.com/news/2024/05/08/biden-migrants-asylum-changes-00156865. Far from being a panacea for the much-feared and highly distorted “border issue,” it eventually will aggravate all of the problems highlighted by Karen.

One thing it won’t do, however, is stop forced migrants from coming to the United States, even if they must abandon our broken legal system to do so. That’s what forced migrants do! Pretending otherwise and misusing our legal protection system for rejection won’t “deter” the reality of forced migration. 

🇺🇸Due Process Forever!

PWS

05-08-24

 

🗽⚖️ PROVING OUR POINT, AGAIN: “Sir Jeffrey” & I Have Been Ripping The Garland BIA’s Contrived “Any Reason To Deny” Misinterpretations Of Nexus & PSG — 1st Cir. Is Latest To Agree With Us! — Espinoza-Ochoa v. Garland

Kangaroos
Turning this group loose on asylum seekers is an act of gross legal, judicial, and political malpractice by the Biden Administration and Merrick Garland!
https://www.flickr.com/photos/rasputin243/
Creative Commons License

Dan Kowalski reports for LexisNexis Immigration Community: 

http://media.ca1.uscourts.gov/pdf.opinions/21-1431P-01A.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/big-psg-and-nexus-victory-at-ca1—espinoza-ochoa-v-garland

“Here, the IJ and BIA found, and the government does not dispute, that Espinoza-Ochoa credibly testified that he experienced harm and threats of harm in Guatemala that “constitute[d] persecution.” But the agency concluded that Espinoza-Ochoa was still ineligible for asylum for two reasons. First, it held that Espinoza-Ochoa had failed to identify a valid PSG because the social group he delineated, “land-owning farmer, who was persecuted for simply holding [the] position of farmer and owning a farm, by both the police and gangs in concert,” was impermissibly circular. Second, the IJ and BIA each held that, regardless of whether his asserted PSG was valid, the harm Espinoza-Ochoa experienced was “generalized criminal activity” and therefore was not on account of his social group. We conclude that the BIA committed legal error in both its PSG and nexus analyses. We first explain why Espinoza-Ochoa’s PSG was not circular and then evaluate whether his PSG was “at least one central reason” for the harm he suffered. Ultimately, we remand to the agency to reconsider both issues consistent with this opinion. … For all these reasons, we agree with Espinoza-Ochoa that legal error infected both the PSG and nexus analyses below. Accordingly, we GRANT the petition, VACATE the decision below, and REMAND for further proceedings consistent with this opinion.”

[Hats way off to Randy Olen!]

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You’ve been reading about this damaging, deadly legal travesty going on during Garland’s watch:

🌲UNDER YOUR TREE:  A GIFT 🎁 FROM “SIR JEFFREY” CHASE OF THE ROUND TABLE 🛡️— “Asylum In The Time Of M-R-M-S-“ — “One reaction to this decision would have involved explaining that the Board’s illogical holding was reached not by error but by design, in furtherance of a restrictionist agenda; asking why the current administration hasn’t changed the makeup of a BIA specifically constructed to do exactly that . . . . But such talk would be of no practical help. What those representing asylum applicants and those in government deciding those claims need now is a path to negotiate this latest obstacle and still reach the correct result.”

🤯 MISFIRES: MORE MIXED MOTIVE MISTAKES BY BIA — “Expert” Tribunal Continues Underperforming In Life Or Death Asylum Cases! — Sebastian-Sebastian v. Garland (6th Cir.) — Biden Administration’s “Solution” To Systemic Undergranting Of Asylum & Resulting EOIR Backlogs: Throw Victims Of “Unduly Restrictive Adjudication” Under The Bus! 🚌🤮

How outrageous, illegal, and “anti-historical” are the Garland BIA’s antics? The classic example of Marxist-Leninist revolutionary persecutions involve targeting property owners, particularly landowners. Indeed, in an earlier time, the BIA acknowledged that “landowners” were a PSG. See, e.g., Matter of Acosta, 19 I&N Dec. 211 (BIA 1985).

But, now in intellectually dishonest decisions, the BIA pretzels itself, ignores precedent, and tortures history in scurrilous attempts to deny obvious protection. These bad decisions, anti-asylum bias, and deficient scholarship infect the entire system. 

It makes cases like this — which could  and should have easily been granted in a competent system shortly after the respondent’s arrival in 2016 — hang around for seven years, waste resources, and still be on the docket. 

This is a highly — perhaps intentionally — unrecognized reason why the U.S. asylum asylum system is failing today. It’s also a continuing indictment of the deficient performance of Merrick Garland as Attorney General. 

Obviously, these deadly, festering problems infecting the entire U.S. justice system are NOT going to be solved by taking more extreme enforcement actions against those whose quest for fair and correct asylum determinations are now being systematically stymied and mishandled by the incompetent actions of the USG, starting with the DOJ!

🇺🇸 Due Process Forever!

PWS

12-28-23

  

☠️ 9TH CIR. PELTS BIA WITH MORE ROTTEN TOMATOES 🍅! — Attempt To Deport Refugee Woman Entitled To Asylum, Withholding & CAT Thwarted! — BIA Wrongly Conflates Registered Nurse With Taxi Driver In Insane Misogynistic Bid To Return Mexicana Refugee To Death!⚰️👎🏽

Woman Tortured
“Taxi to Falls Church, anyone?”
Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons

 

Plancarte Sauceda v. Garland, 9th Cir., 08-20-21, (Panel = Fletcher, Watford, Collins; Opinion = Fletcher)

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/20/19-73312.pdf

Court staff summary:

. . . .

Citing Matter of Acosta, 19 I. & N. Dec. 211 (BIA 1985), the Board concluded that “female nurses” were not a cognizable “particular social group” because being a nurse, like being a taxi driver, is not an immutable characteristic. The panel held that the Board erred by simply citing Matter of Acosta, and failing to provide any meaningful analysis about the immutability of “female nurses.” The panel explained that in contrast to Acosta, Plancarte cannot avoid compulsion by the cartel simply by changing jobs, because even if she ceased employment as a nurse, she would still be a nurse, as she has received specialized medical training and has a professional license as a nurse. Moreover, the cartel targeted Plancarte precisely because of her specialized nursing skills, and threatened her and her family with torture and death to force her to use those skills to provide medical treatment to the cartel. Thus, regardless of whether she would continue to work as a licensed nurse, Plancarte lacks “the power to change” the immutable nursing characteristics—her medical knowledge and nursing skills—that make her important to the cartel. The panel therefore granted the petition with respect to Plancarte’s asylum and withholding of removal claims, and remanded for consideration of the other required characteristics of her proposed particular social group of “female nurses.”

Turning to Plancarte’s CAT claim, the panel concluded that the Board’s decision ignored uncontradicted record evidence showing both acquiescence and direct involvement by government officials. The panel held that substantial evidence therefore compelled the conclusion that there was official involvement and acquiescence in the cartel forcing Plancarte to provide medical treatment to cartel members. The panel granted the petition with respect to CAT, and remanded for a determination whether the likelihood of

4 PLANCARTE SAUCEDA V. GARLAND

torture if Plancarte were returned to Mexico is sufficient to warrant CAT relief.

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

Welcome to the “any reason to deny culture” at Garland’s EOIR! 

In addition to the gross errors noted by the panel, I also think that there is a winning argument that being a registered nurse is “fundamental to identity” and therefore not something we should require an individual to change. Put it in today’s COVID context, for Pete’s sake!

Think that being a lawyer isn’t “fundamental” to the identity of a BIA Appellate Judge, an Immigration Judge, or an Article III Judge? Only when these “judges” are thinking of ways to deny protection to others do they engage in such obvious intellectual dishonesty and absurd reasoning! 

This is the type of case that should have been a “quick grant” and a precedent for other grants of protection in a functioning justice system! Instead it’s an disaster! One that just happens to have been “outed” by a conscientious Court of Appeals panel — something no person of color can count on! It should be no mystery why this maliciously incompetent system creates huge, growing, out of control backlogs while squandering public resources and destroying lives!

  • Immigration Court  — Failure
  • BIA — Failure
  • OIL — Failure
  • Garland — Failure

And this gang is going to be in charge of setting precedents and protecting due process and human rights of women and other asylum seekers under the Administration’s proposed “streamlined” asylum system? Absurd! It will be a death sentence for far too many refugees! 

Congrats to Vallerye Allyn Anderson for saving a life here! Her outstanding performance and understanding of human rights were far superior to that of any “judge” or other DOJ lawyer involved in this case. So, why are the wrong judges still making life or death decisions at EOIR without competent “adult supervision” from qualified judges at the BIA with expertise in asylum law and the guts to apply it correctly, humanely, and generously? See, e.g., Cardoza-Fonseca, Mogharrabi, Kasinga. Just hope that Vallerye and others like her will pursue EOIR judgeships until the disgraceful, deadly, two-decade old “progressive expert lockout from the 21st Century Immigration Judiciary” finally ends and quality, courage, and due process prevail!

Vallerye Allyn Anderson
Vallerye Allyn Anderson ESQ
Sacramento, CA
PHOTO: LexisNexis

🇺🇸Due Process Forever! Failure to “clean house” of Miller Lite White Nationalism, it’s acolytes, go along to get along toady enablers, and to bring common sense, long overdue, obvious, recommended, available progressive human rights reforms and better judges and leaders to EOIR — An ongoing national disgrace!🤮

PWS

08-22-21

DAVID G. SAVAGE @ LA TIMES: REFUGEE ROULETTE CONTINUES – But, It’s Not What You Might Think – The “Outliers “ Are All On The Anti-Asylum Side In A System Systematically Biased Against Asylum Seekers From The Northern Triangle!

http://enewspaper.latimes.com/infinity/article_share.aspx?guid=73fad225-44bc-4757-97fa-b9369552de1e

By David G. Savage

WASHINGTON — Central Americans who travel north to plead for entry at the U.S. border are taking their chances on an immigration system that is deeply divided on whether they can qualify for asylum if they are fleeing domestic violence or street crime, rather than persecution from the government.

The law in this area remains unclear, and the outcome of an asylum claim depends to a remarkable degree on the immigration judge who decides it.

And sitting atop the immigration court system is Atty. Gen. Jeff Sessions, a longtime advocate of much stricter limits on immigration who has recently taken an interest in reviewing asylum cases.

Lawyers say they are troubled by a legal system in which decisions turn so much on the views of individual judges.

Among the 34 immigration judges in Los Angeles, two granted fewer than 3% of the hundreds of asylum claims that came before them in the last five years, while another judge granted 71% of them. The disparity is even greater in San Francisco, where the judge’s rate of granting asylum claims ranged from 3% to 91%.

Overall, asylum seekers would do much better in San Francisco, where 32% were denied between 2012 and 2017, compared with a 68% denial rate in Los Angeles during the same period, according to data from the Transactional Records Access Clearinghouse at Syracuse University.

This is not news to immigration lawyers. A decade ago, several law professors published a study called “Refugee Roulette” that revealed how asylum cases depend heavily on the views of individual judges. “The level of variation was shocking. And it hasn’t changed,” said Georgetown University professor Philip Schrag.

Judge Ashley Tabaddor from Los Angeles, president of the National Assn. of Immigration Judges, discounts the statistics. “They’re not reliable,” she said, since judges may have very different caseloads. Some judges hear claims from people who have been detained for crimes, while others hear mostly claims from juveniles, she said.

“We are human. Different people can have different views about the same set of facts,” she said.

Several Los Angeles lawyers who have won or lost asylum cases in recent months said the identity of the judges played an important role. “It’s astounding how much variation there is from judge to judge. The system is in need of repair. It’s an embarrassment,” said Joseph D. Lee, a partner at Munger, Tolles & Olson.

He represented an El Salvador mother who fled north with her three children after gang members shot and killed her husband’s brother in front of her family and then threatened to do the same to her relatives.

“The Central American cases can be difficult to win. Some judges are pretty hostile to gang-related claims,” he said. His client’s claim was denied, and he plans to appeal. “Your chance of winning an asylum claim shouldn’t turn on the luck of the draw on which judge you get. But that is exactly how it works,” he said.

It may soon become much harder to win such claims. Under an unusual feature of the law, the attorney general, as the nation’s top law enforcement officer, also oversees the immigration courts. He can overrule their decisions and announce new rules that are binding on them.

In March, Sessions announced he would review the question of whether women fleeing domestic violence or other “private criminal activity” can rely on this to win asylum.

Last fall, Sessions spoke to a meeting of immigration judges and complained America’s “generous asylum” system has become “overloaded with fake claims.… The credible fear process was intended to be a lifeline for persons facing serious persecution. But it has become an easy ticket to illegal entry into the United States.”

In the last week, the American Bar Assn., faith-based groups and a coalition of immigration law professors have submitted “friend of the court” briefs to Sessions urging him not to reverse years of precedent involving women fleeing abuse and terror.

But veteran immigration judges are not optimistic. Sessions “just wants more people to be removed,” said Paul W. Schmidt, a retired immigration judge from Virginia and an outspoken critic of the attorney general. “He will make it a lot harder for Central Americans to get asylum.”

The dispute begins with the words of the asylum law. In the Refugee Act of 1980, Congress adopted the United Nations standard and said people may seek asylum if they are “unable or unwilling to return” to their home country “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”

Under the law, asylum seekers are treated differently than, for example, refugees from a war-torn nation or immigrants seeking work.

Four of those terms in the asylum law are clear enough: race, religion, nationality and political opinion. But lawyers and judges have struggled to decide what counts as “membership in a particular social group.”

Courts have agreed that gays and lesbians can count as a social group, since they have suffered persecution in many societies. Some judges have also said women and girls fleeing sexual abuse and violence can seek asylum because their society views women as the property of men — and with no hope for protection from their government.

But the question becomes harder when considering the gang violence that has spread through some Central American countries. For example, people who testified against violent gangs or resisted them in other ways have sought asylum on the grounds they are members of a particularly endangered social group.

“These cases are challenging,” said Nareeneh Sohbatian, a Los Angeles lawyer at Winston & Strawn who supervises asylum claims. “We talk a lot about this. If they are targeted because of a gang, it can be difficult to show it was caused by their membership in a particular social group.”

Jenna Gilbert, managing attorney for Human Rights First in Los Angeles, said it is clear the asylum law does not protect people fleeing “generalized violence.” A claim “needs to be tied to the one of the protected categories,” she said. “The cases are very fact-dependent.”

But the odds of winning asylum are not good for Central Americans. In the last five years, China had the largest number of asylum seekers in the U.S. immigration courts, and only 20% of their claims were denied. Ethiopians did even better, with only 17% denied. By contrast, the highest denial rates arose from claims brought by natives of Jamaica (91%), the Philippines (90%), Mexico (88%), El Salvador (79%), Honduras (78%) and Guatemala (75%).

Andrew Arthur, a former immigration judge who works at the Center for Immigration Studies, which favors stricter enforcement, said it is not surprising that Sessions will reconsider rulings on asylum in cases of domestic violence. “Right now, the law is very unclear. The phrase ‘particular social group’ is vague. A lot of these claims are compelling, but that doesn’t mean it is ‘persecution’ under the law. If a gang wants to recruit me, that’s not persecution.”

Last month, Sessions criticized a caravan of Central American asylum seekers approaching the border as a “deliberate attempt to undermine our laws and overwhelm our system. There is no right to demand entry without justification. Smugglers and traffickers and those who lie or commit fraud will be prosecuted to the fullest extent of the law.”

People who present an asylum claim at the border must only show they have a “credible fear” of persecution if they were to return home. Most asylum seekers are allowed to stay and make their claim.

Sessions said he would send more prosecutors and judges to the border area to resolve these claims quickly, rather than let them linger for many months or years.

Meanwhile, lawyers are also rushing to represent the asylum seekers. “Unfortunately, the Trump administration has waged a yearlong campaign to undermine asylum seekers and demonize those who only wish to live in safety with the families,” said Gilbert of Human Rights First. “We’re proud to assist these individuals who are fleeing unspeakable horror as they try to rebuild their lives.”

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It’s really not that complex.

  • Under the BIA’s seminal precedent decision in Matter of Acosta, 19 I&N Dec. 285 (BIA 1985) resisting gang recruitment is undoubtedly a characteristic that is “fundamental to identity” therefore making an individual a member of a “particular social group” (“PSG”) for asylum purposes.
    • Undoubtedly, this conduct is threatening to a gang’s existence and power and is “at least one central reason” why forced recruitment and other forms of harm are used, among other things, to overcome this fundamental characteristic of the PSG.
    • Therefore, the vast majority of those fleeing the Northern Triangle over the years because of various forms of resistance to gangs should have qualified for asylum under the Acosta test.
    • However granting most of these cases might have been perceived as “opening the floodgates” and therefore career threatening to the BIA.
  • Following the “Ashcroft Purge,” which removed almost all of the Appellate Judges on the BIA who consistently stood up for the rights of migrants and asylum seekers, the BIA came up with bogus requirements of “particularity” and “social visibility/social distinction” to facilitate the denial of most asylum grants to individuals from the Northern Triangle.
    • To do this, the BIA actually had to intentionally and disingenuously misapply criteria developed by the UNHCR to expand the protection available on the basis of a particular social group to instead restrict the group entitled to protection.
      • With the “due process” group of judges removed by Ashcroft, the BIA was able to get away with this with no visible internal resistance.
  • However even under the BIA’s new “bogus test” almost all experts agree that individuals resisting gang recruitment in countries where “go along to get along (and live)” is the norm would be both a well-defined “particularized” group and highly “socially distinct.”
    • Consequently, the BIA and a number of anti-asylum Immigration Judges simply resorted to intentionally misconstruing country conditions and making biased “no nexus” findings or largely bogus “adverse credibility rulings” to keep the Northern Triangle grant rate unrealistically low.
    • A great way to maximize denials is to hold individuals in detention or game the system so that they can’t obtain competent representation and/or “fail to appear” in Immigration Court thereby denying them the relief that the likely could win in a truly fair, unbiased system.
    • Remarkably, the article quotes a source who espouses one of the many DHS “enforcement myths” —  that forced recruitment can’t be a basis for asylum. 
      • This is nonsense.  Even under BIA’s intentionally restrictive precedents, the factual reasons why the respondent is being recruited (“nexus”) are important.
      • But, as a practical matter, no detained, unrepresented applicant has any realistic chance of understanding the law and developing the factual record necessary to support relief.
  • Also, in the Northern Triangle gangs have infiltrated the system to the extent that it is almost impossible to separate “political motives” from supposedly “criminal ones/”
    • Individuals are forcibly recruited as punishment for a variety of reasons including family membership, having been witnesses against gangs, actual or imputed political opinion, and actual or imputed religious views.
    • With competent lawyers, time to prepare,  and an attentive Court of Appeals, most credible gang-related cases should qualify for asylum.
      • Without lawyers or the chance to develop and document a case, the chances for success are almost nil.
  • Even though the system is already heavily rigged against bona fide asylum applicants from the Northern Triangle, Attorney General Jeff Sessions has made it clear that he intends to further misconstrue the law to make it virtually impossible for refugees fleeing the Northern Triangle to qualify for asylum
  • Given the total corruption of the governments in the Northern Triangle and the serious infiltration by gangs, a fair process should result in a “blanket precedent” that would give almost everyone credibly fleeing gang threats in the Norther Triangle at least “temporary withholding of removal” under the Convention Against Torture (“CAT”).
  • No, the problem is not just that different Immigration Judges have different opinions. It’s that both the composition of the Immigration Court and the administrative case-law have been consciously “rigged” to deny those seeking protection from the Northern Triangle the protection to which they should be entitled under both U.S. and international law. 
    • Yes, I of all people certainly agree that judges can and should have differing views and philosophies,
    • But, at some point, “differences” become “biases.”
    • There is no way that those judges whose grant rates are below 10% can actually be applying asylum law in the generous manner set forth by the Supreme Court in Cardoza-Fonseca or the BIA itself in Matter of Mogharrabi.
    • Nor are they properly applying the “benefit of the doubt” as it’s supposed to be given according to the UNHCR in systems based on the 1952 Geneva Convention on Refugees.
    • No, I wouldn’t “fire” any current Immigration Judges (although I might over time make everyone re-compete for their jobs in a true merit-based selection system). But we do need:
      • An independent Article I U.S. Immigration Court, free from the pernicious political influence that the DOJ has been applying for many years.
      • A real merit selection system for future Immigration Judges that emphasizes expertise in immigration and asylum law and proven ability to deal fairly, effectively, and objectively with the public and which utilizes panels with some members from outside the Federal Government who practice before the Immigration Courts.
      • An Appellate Division that functions like a true independent Appellate Court, with a diverse membership, that will rein in those judges who are biased against asylum seekers and not applying Cardoza-Fonseca.
      • As I’ve pointed out before, things simply can’t happen under the highly biased, xenophobic Jeff Sessions. He is the “perfect storm” of why the Immigration Judiciary must be removed from the DOJ.
    • As a historical aside, an unfortunate harbinger of things to come, the BIA actually misapplied their own “immutability/fundamental to identity” test to the facts in Acosta!
      • Of course “taxi drivers in San Salvador” were a PSG! Ask any New Yorker whether being a taxi driver is “fundamental to identity!”
      • Occupational identification, at all levels of society, is one of the most powerful indicators of self-identity and one that we seldom ask individuals to involuntarily change. Think that “truck drivers” aren’t a “PSG?” Just walk into the next Pilot Truck Stop you see on the Interstate in your little black judicial robe and shout that next to the Drivers” Lounge or rest rooms. I think you would find some “strong dissenters.”
      • Or how about going before a group of judges and telling them that being a judge isn’t “fundamental to identity!” I remember when a somewhat “tone-deaf” (but in retrospect, perhaps clairvoyant) invited speaker at one of our past Annual Immigration Judges’ Conferences referred to us as “just highly paid immigration inspectors working for the Attorney General.” He barely got out alive!
      • The BIA ruling in Acosta was “doubly absurd” in the context of 1985. The U.S. was then actively engaged in supporting the Government of El Salvador against the guerrillas.  The BIA suggested that the taxi drivers in San Salvador could merely quit their jobs en masse or participate in the guerrillas taxi strike called by the guerrillas. Both of which would have crippled the country of El Salvador and seriously undermined the government we were supporting!
      • In short, the BIA has a long ugly history of twisting the law and the facts against legitimate asylum seekers, particularly those from Latin America.
        • Jeff Sessions, well-known for his long history of xenophobia, racially charged attitudes and actions, and bias against nearly every non-White-male-straight-right-wing-Christian social group in America is on the cusp of making things even worse for vulnerable refugees entitled to our protection by abusing his power as AG and stripping the hard earned asylum rights from abused womenwho had to labor through 15 years of wrong BIA decisions, outrageous political maneuvering at the DOJ, and task avoidance at the BIA to win their hard-earned rights in A-R-C-G- in the first place!
        • Only cowards pick on the vulnerable and the dispossessed!

Eventually, long after I’m gone, I’m sure the “truth will out.” However, that will be little help to those currently being railroaded through the travesty that passes for justice in today’s U.S. Immigration Courts or those who have been denied justice in the past.

PWS

05-06-18

HON. JEFFREY CHASE: Stripped By Ashcroft Of The Appellate Judges Who Understood Asylum Law & Stood Up For The Rights Of Refugees, An Emasculated BIA (With No Meaningful Deliberation Or Dissent) Intentionally Misconstrued The “Particular Social Group” Category To Screw Asylum Seekers! — READ MY LATEST “MINI-ESSAY” –“ARBITRARY AND CAPRICIOUS”  — How The BIA Intentionally Misconstrued Asylum Law To Deny Particular Social Group Protection, While The Obama Administration Turned Its Back On Due Process For Refugees!

https://www.jeffreyschase.com/blog/2017/9/14/particular-social-group-errors-in-the-bias-post-acosta-analysis

Jeffrey writes:

Particular Social Group: Errors in the BIA’s Post-Acosta Analysis

In 2006, the Board of Immigration Appeals published its decision in Matter of C-A-, the first in a line of cases creating significant restrictions on what constitutes a cognizable particular social group in claims for asylum. It is worth noting that three years earlier, then Attorney General John Ashcroft purged the BIA of its five most liberal members; two other Board members who clearly would have been removed as well left just prior to the purge. Therefore, the ensuing line of BIA precedents addressing particular social group issues were something of a one-sided affair, with no liberal voices to temper or dissent from the majority.

 

Back in 1985, the Board decided Matter of Acosta, in which it set forth the applicable standard for particular social group determinations.  Not surprisingly, particular social group has proven more difficult for courts to interpret than the other four grounds of race, religion, nationality, and political opinion.  This is because one doesn’t start out asking the question “what is a race?” or “what is a religion?”  Those terms are generally understood.  Not so with particular social group, which as I learned it, was a last-minute creation designed to cover those clearly in need of refugee protection who aren’t covered by the other four grounds.  In Acosta, the Board had to decide how broadly the “PSG” category should be interpreted.  In response to evidence that the drafters of the 1951 Convention considered the ground of particular social group “to be of broader application than the combined notions of racial, ethnic, and religious group,” the Board applied the doctrine of ejusdem generis to conclude that a particular social group, like the four other categories it is grouped with, should be defined by characteristics that are immutable either because its members are unable to change them (like race and nationality), or because they should not, as a matter of conscience, be required to change them (like religion or political opinion).

The Acosta formulation was fair, and worked perfectly well for 21 years.  It was consistent with the way particular social group was being interpreted and applied internationally, and was in no need of modification.  Yet, the post-purge Board added two additional hurdles to particular social group determination: social distinction (previously called social visibility) and particularity.  As discussed below, the result-oriented line of decisions are legally flawed.

Matter of C-A-’s “social visibility” analysis contains at least three errors.   First, as Prof. Karen Musalo, Director of the Center for Gender and Refugee Studies (CGRS) at the University of California – Hastings Law School in San Francisco has pointed out, although the Board in Matter of C-A- cited to the 2002 UNHCR Guidelines on Particular Social Groups as a basis for adding the social distinction requirement, there is a significant difference between the Board’s holding and the UNHCR Guidelines.  The Guidelines at para. 11 define particular social group as “a group of persons who share a common characteristic other than their risk of being persecuted OR  who are perceived as a group by society.”  Note the use of “or.”  “Or” was intended to expand the group of those who satisfy for PSG status, by including both those who share a common characteristic  OR possess what the Board now calls social distinction.  However, the Board changed the “or” to an “and,” which has the opposite effect of significantly narrowing those who can establish a cognizable PSG by requiring both a shared characteristic and social distinction.

Secondly, the Board found that the proposed group of confidential informants lacked social “visibility” (as it then called social distinction) because informants, by the nature of their conduct, are “generally out of the public view,” and “in the normal course of events…remain unknown and undiscovered.”  However, this is irrelevant to whether the group itself is perceived by society to be distinct.  For example, “Russian spies” by the nature of their conduct, seek to remain unknown, undiscovered, and out of the public eye.  However, the group is often in the news, and is the subject of a popular TV show. It has served as the basis for characters in countless novels and films for decades, and has inspired the passage of anti-espionage laws.  The Board thus erred in apparently confusing the “singled out” requirement of the individual asylum applicant with the “social distinction” requirement of the proposed group.

Thirdly, the Board in C-A- stated that visibility of a group of confidential informants “is limited to those informants who are discovered because they appear as witnesses or otherwise come to the attention of cartel members.”  In that case, the cartel members were the persecutors.  However, the Board has claimed that it is the perception of society, and not the persecutors, that determines social distinction.

The particularity requirement is also problematic.  The element requires the social group to be defined by characteristics that provide a clear benchmark for determining inclusion.  The Board requires the terms used to define the group to have “commonly accepted definitions in the society in which the group is a part;” and “[t]he group must also be discrete, and have definable boundaries–it must not be amorphous, overbroad, diffuse, or subjective.”  See Matter of W-G-R-, 26 I&N Dec. 208, 214 (BIA 2014); Matter of A-M-E- & J-G-U-, 24 I&N Dec. 69, 76 (BIA 2007) (rejecting the proposed group as “too amorphous…to provide an adequate benchmark for determining group membership”).

However, in applying the new requirement of particularity to particular social group determinations only, the Board violated the doctrine of ejusdem generis that it had invoked in Acosta.  This is significant, as determinations under the other four protected categories would not necessarily stand up to the particularity determination.  In finding the proposed group of “former members of the MS-13 gang in El Salvador who have renounced their gang membership” to lack particularity, the Board stated that the proposed group “could include persons of any age, sex, or background.”  Matter of W-G-R-, 26 I&N Dec. 208, 221 (BIA 2014).  Of course, race, religion, and nationality will always include persons of any age, sex, or background; and political opinion could also draw from as wide a range of the population.

In a claim of persecution on account of religion, would the Jewish religion, for example, withstand the particularity requirement?  There is a strong chance that such group would be found too amorphous to provide an adequate benchmark for inclusion.  For example, a 2013 study by the Pew Research Center found that 14 percent of American Jews stated that they were raising their children “partially Jewish.”  Do “partially Jewish” claimants merit inclusion in the group?  What about those who only attend synagogue once a year, on Yom Kippur?  Or those who consider themselves culturally Jewish, but don’t observe the religion?  Or those with only a Jewish father (who would therefore not be considered Jewish under traditional Jewish law, but would be considered Jewish in the more liberal Reform branch of the religion)?  Where is the benchmark for inclusion?

Looking to the other asylum categories, is one said to possess a political opinion because she votes once every four years for candidates of a particular party, or because she has canvassed for a party’s candidates, given speeches at rallies, or run for office herself?  In this time of multiculturalism, where individuals of mixed race or ethnicity may choose to identify with a particular race or nationality from among two or more choices, would those categories also be found too amorphous?

In addition to the above shortcomings, attorneys have pointed out that particularity and social distinction often work at odds with each other.  Groups that rank high on society’s radar are usually not defined with the type of specific parameters for inclusion, and would therefore be dismissed as too “amorphous.”  Conversely, groups defined with the exacting precision demanded of the particularity requirement tend to be too cumbersome to register in the zeitgeist.  As an example, the term “soccer moms” became popular in American society several presidential elections ago, when “winning the soccer mom vote” was deemed a significant goal.  So while the term “soccer moms” clearly possessed social distinction, it would undoubtedly be found too amorphous to satisfy the particularity requirement.  However, “married middle-class suburban women between the ages of 32 and 47, who spend a significant amount of time driving their school-aged children to multiple after-school activities, which may or may not include soccer” might be particular enough, but will not grab public attention to the degree required to qualify as social distinction.

In spite of the above shortcomings, the federal circuit courts have largely accorded deference to the Board’s flawed interpretation.  Although immigration judges are bound by the Board’s holdings, practitioners may raise the above issues in order to create a record for eventual review by the circuit courts.  The Seventh and Third Circuits have rejected the particularity requirement for different reasons than those stated above.  As I am not aware of any circuit court addressing the issue of whether religion or any other protected ground would stand up to the particularity requirement, I present it as an argument worth pursuing.

Copyright 2017 Jeffrey S. Chase.  All rights reserved.”

Republished with permission.

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“ARBITRARY AND CAPRICIOUS”  — How The BIA Intentionally Misconstrued Asylum Law To Deny Particular Social Group Protection, While The Obama Administration Turned Its Back On Due Process For Refugees!

By Paul Wickham Schmidt

United States Immigration Judge (Retired)

The original Acosta decision was also wrongly decided on the merits. Of course most “occupational groups” have characteristics that are fundamental to their identity and are, therefore, properly classified as PSGs for asylum and withholding of removal purposes under the INA!

Taxi drivers in San Salvador were clearly a well-recognized tightly-knit group who were identified as such by the public, the Government, and the guerrillas and weren’t lightly going to switch occupations. That’s why they were targeted by both sides!

The result in Acosta was also completely nonsensical from a policy standpoint. The BIA’s “bottom line” was that taxi drivers in San Salvador who feared the guerrillas could either quit their jobs en masse or participate in a transportation strike called by the guerrillas. But, either of those actions would have crippled the Salvadoran Government which the U.S. was supporting during the guerrilla war! How stupid can you get! But, when categorically denying asylum to large groups of Central American refugees, there’s no limit to what captive adjudicators who want to hang on to their jobs will do to avoid granting protection!

Would you tell a New York cabbie that his or her occupation isn’t “fundamental” to his or her identity? I certainly wouldn’t do it while sitting in his or her back seat. How many yarns, stories, and jokes have you heard with the phrase “like a New York cabbie?” There are even movies glorifying or vilifying the occupation!

How about American truck drivers? They have their own culture, lingo, and even restaurants, gas stations, and stores. Next time you walk into a Pilot Truck Stop along the Interstate, see if you can tell the “pros” from the “amateur divers” like me. Then go up to one of those “pros” and tell him or her that he or she could just as well make a living  as a checkout clerk or a computer programmer! Or, walk into the “Reserved for Professional Drivers” section, take a seat, and see how long you last. I really wouldn’t try either of the foregoing unless you have very good hospitalization insurance.

Want to bet that being a lawyer or a judge isn’t fundamental to one’s identity — just ask a non-lawyer, non-judge spouse or anyone whose ever had to attend a social function with with one of us? My wife Cathy can usually pick the lawyers out in a room even without introductions!  They “dress, act, and speak” like lawyers!

I might also add that the identity of being a BIA Appellate Judge is so “fundamental” to some of my former colleagues’ identity that they were willing to put forth a totally disingenuous interpretation of the U.N. Guidelines and blow off both fairness and due process for vulnerable asylum seekers (the BIA’s sole functions) to retain their jobs as Appellate Judges in the Bush and Obama Administrations, which were generally actively hostile or clearly indifferent to the rights of refugees. Nobody had the guts to stand up for a correct intrerpretation of the Refugee Convention which would have saved many lives and made the whole immigration system fairer and easier to administer in the long run.

There actually was a U.S. Circuit Judge way out in the 8th Circuit, of all places, who saw clearly the BIA’s disingenuous approach and “called” them on it. The case is Gaitan v. Holder, 671 F.3d 678, 682-86 (8th Cir. 2012) (Bye, Circuit Judge, concurring), the concurring Judge was Judge Bye, and I reproduce the concurring opinion in full from “Legale” because Judge Bye is so “spot on” and, regrettably, so few people paid attention to his criticism:

BYE, Circuit Judge, concurring.

Based upon our recent decisions in Constanza v. Holder, 647 F.3d 749 (8th Cir. 2011) (per curiam) and Ortiz-Puentes v. Holder, 662 F.3d 481 (8th Cir.2011), I concur in the result reached by the majority. I do so reluctantly, however, and write separately to express my disagreement with our circuit’s as-a-matter-of-course adoption of “social visibility” and “particularity” as requirements for establishing “membership in a particular social group.” See 8 U.S.C. § 1101(a)(42)(A). While both decisions cited with approval the BIA’s new approach to defining “particular social group,” neither had before it the issue raised in this appeal: did the BIA act arbitrarily and capriciously in adding the requirements of “social visibility” and “particularity” to its definition of “particular social group.” While I am convinced it did, I am nonetheless bound by circuit precedent and therefore concur in the result.

Our circuit only recently addressed the BIA’s new approach to defining “particular social group.” While both Constanza and Ortiz-Puentes grafted the requirements of “social visibility” and “particularity” to petitioners’ social groups claims, neither panel offered any explanation as to why the addition of these new requirements—which are very clearly inconsistent with the BIA’s prior decisions—should not be deemed arbitrary and capricious. Neither panel inquired as to whether the BIA had provided a good reason, or any reason at all, for departing from established precedent. Neither asked if the BIA’s new approach to defining “particular social group” amounted to an arbitrary and capricious change from agency practice. Instead, we simply adopted the new approach, as a matter of course, offering no substantial reason ourselves for this shift in direction. As a result, I fear we have chosen the wrong direction.

In order to understand why the BIA’s addition of the “social visibility” and “particularity” requirements to the definition of “particular social group” is arbitrary and capricious, some background information is necessary. The BIA first attempted to define “particular social group” in Matter of Acosta, 19 I. & N. Dec. 211 (B.I.A.1985). In Acosta, the BIA relied on the canon of ejusdem generis to construe “membership in a particular social group” in a way which most closely resembles the definition of the other four grounds of persecution under the Immigration and Nationality Act (Act): race, religion, nationality, and political opinion. Id. at 233. After deducing commonalities between the five bases of persecution cognizable under the Act, the BIA defined “particular social group” as a “group of persons all of whom share a common, immutable characteristic,”

[671 F.3d 683]

 

which may be either “an innate one such as sex, color, or kinship ties” or a “shared past experience such as former military leadership or land ownership.” Id. In all such circumstances, BIA explained, the characteristic uniting the group must be “one that the members of the group either cannot change, or should not be required to change because it is fundamental to their individual identities or consciences.” Id. Because an occupation is not something individuals are either unable to change or, as a matter of conscience, should not be required to change, the BIA rejected an asylum claim by a taxi driver in the city of San Salvador premised on his membership in a taxi cooperative whose members were targeted by the guerillas for having refused to participate in guerrilla-sponsored work stoppages. Id. at 234.

During the next twenty years, the BIA applied the immutability definition of Acosta in a variety of contexts. The BIA’s published decisions recognized as a “particular social group” former members of Salvadorian national police (who could not change their past experience of serving in the police), see In re Fuentes, 19 I. & N. Dec. 658 (B.I.A.1988); members of the Marehan subclan of the Darood clan in Somalia (who shared kinship ties and linguistic commonalities), see In re H-, 21 I. & N. Dec. 337 (B.I.A. 1996); Filipinos of mixed Filipino-Chinese ancestry (because their traits were immutable)], see In re V-T-S-,21 I. & N. Dec. 792 (B.I.A.1997); young women of a certain Togo tribe who have not yet had a female genital mutilation (FGM) and who opposed the practice on moral grounds (because the “characteristic of having intact genitalia is one that is so fundamental to the individual identity of a young woman that she should not be required to change it”), see In re Kasinga, 21 I. & N. Dec. 357 (B.I.A.1996); and homosexuals in Cuba (based on the Board’s recognition of homosexuality as an immutable characteristic), see In re Toboso-Alfonso,20 I. & N. Dec. 819, 822 (B.I.A.1990). With some variations, all circuits adopted the Acostadefinition of “particular social group.” See generally Fatma E. Marouf, The Emerging Importance of “Social Visibility” in Defining a “Particular Social Group” and Its Potential Impact on Asylum Claims Related to Sexual Orientation and Gender, 27 Yale L. & Pol’y Rev. 47, 53 & n. 24 (2008) (stating federal courts “generally have followed Acosta” and cataloging relevant precedents) (hereinafter “The Emerging Importance of Social Visibility”). Our circuit adopted the Acosta definition as well, although it seemingly expanded it following the Ninth Circuit’s lead to also permit social groups based on a “voluntary associational relationship among the purported members.” Safaie v. INS, 25 F.3d 636, 640 (8th Cir.1994) (theorizing a group of Iranian women who refuse to conform to Iranian customs relating to dress and behavior and whose opposition is so profound that they would choose to suffer the severe consequences of noncompliance “may well satisfy the definition”) (citing the standard in Sanchez-Trujillo v. INS, 801 F.2d 1571, 1576 (9th Cir.1986)).

Beginning in 2006, however, the BIA started deviating from the Acosta definition of “particular social group” by emphasizing the importance of social visibility of a given group. In Matter of C-A-, for example,2 the BIA reiterated its adherence

[671 F.3d 684]

 

to Acosta, but listed “the extent to which members of a society perceive those with the characteristic in question as members of a social group” as a “relevant factor” in the analysis. 23 I. & N. Dec. 951, 956-57 (B.I.A.2006). Applying this standard, the BIA rejected the proposed social group of noncriminal drug informants working against the Cali drug cartel in Colombia in part because “the very nature of the conduct at issue is such that it is generally out of the public view.” Id. at 960.

The BIA continued the trend in Matter of A-M-E & J-G-U-, 24 I. & N. Dec. 69 (B.I.A.2007), by refusing to recognize a social group of “affluent Guatemalans” targeted for ransom. The BIA acknowledged the petitioners should not be expected to divest themselves of their wealth under the second prong of Acosta, but denied the claim on the basis of the applicants’ inability to show “social visibility,” id. at 75 (lamenting the lack of evidence to demonstrate “the general societal perception” of wealthy people was different from the common perception of groups at different socio-economic levels), and “particularity,” id.at 76 (criticizing the proposed group for being “too amorphous” and “indeterminate”). In its reasoning, the BIA drew on the Second Circuit opinion in Gomez v. INS, 947 F.2d 660, 664 (2d Cir.1991), where the court required members of a cognizable social group to possess “some fundamental characteristic in common which serves to distinguish them in the eyes of a persecutor—or in the eyes of the outside world in general.”

The biggest transformation in the BIA’s “particular social group” jurisprudence, however, came in its two most recent decisions issued on the same day in 2008: Matter of S-E-G-,24 I. & N. Dec. 579 (B.I.A.2008), and Matter of E-A-G-, 24 I. & N. Dec. 591 (B.I.A.2008). Both confronted claims of gang-related persecution under the rubric of membership in a particular social group. In E-A-G-, the BIA refused to recognize social groups of “young persons who are perceived to be affiliated with gangs (as perceived by the government and/or the general public)” and “persons resistant to gang membership (refusing to join when recruited)” because these groups “have not been shown to be part of a socially visible group within Honduran society, and the respondent [does not] possess[] any characteristics that would cause others in Honduran society to recognize him as one who has refused gang recruitment.” 24 I. & N. Dec. at 593-94. In S-E-G-, the unsuccessful group was that of Salvadorian youth who have been subjected to recruitment efforts by the MS-13 and who have rejected and resisted membership in the gang based on their own personal, moral, and religious opposition to the gang’s values and activities. 24 I. & N. Dec. at 579. Their claim for asylum failed because, according

[671 F.3d 685]

 

to the BIA, it did not fare well under the “recent decisions holding that membership in a purported social group requires that the group have particular and well-defined boundaries, and that it possess a recognized level of social visibility.” Id. In essence, the decisions elevated the requirements of “social visibility” and “particularity” from merely some of the many factors in the holistic analysis of the issue to absolute prerequisites to establishing membership in a particular social group.

This new approach to defining “particular social group” split the circuits as to the validity and permissible extent of the BIA’s reliance on “social visibility” and “particularity.” Compare Valdiviezo-Galdamez v. Holder, 663 F.3d 582, 603-09 (3d Cir.2011) (concluding the BIA’s “social visibility” and “particularity” requirements are inconsistent with prior BIA decisions and rejecting the government’s attempt to graft these additional requirements onto petitioner’s social group claims); Gatimi v. Holder, 578 F.3d 611, 615-16 (7th Cir. 2009) (criticizing the BIA’s decisions in S-E-G- and E-A-G- for being “inconsistent” with the BIA’s precedents in Acosta and Kasinga and for failing to explain the reasons for adopting the “social visibility” criterion); Benitez Ramos v. Holder, 589 F.3d 426, 430-31 (7th Cir.2009) (denouncing the BIA’s insistence on “social visibility,” sometimes in its literal form, and charging the BIA might not understand the difference between visibility in a social sense and the external criterion sense); Urbina-Mejia v. Holder, 597 F.3d 360, 365-67 (6th Cir.2010) (noting being a former gang member is an immutable characteristic and defining former members of the 18th Street gang as a “particular social group” based on their inability to change their past and the ability of their persecutors to recognize them as former gang members), with Lizama v. Holder, 629 F.3d 440, 447 (4th Cir.2011) (upholding the BIA’s definition of a particular social group as requiring that “(1) its members share common immutable characteristics, (2) these common characteristics give members social visibility, and (3) the group is defined with sufficient particularity to delimit its membership”); Ramos-Lopez v. Holder, 563 F.3d 855, 862 (9th Cir.2009) (upholding the BIA’s adoption of the “social visibility” requirement); Scatambuli v. Holder, 558 F.3d 53, 60 (1st Cir.2009) (rejecting petitioners’ claims the BIA is precluded from considering the visibility of a group); and Fuentes-Hernandez v. Holder,411 Fed.App’x. 438, 438-39 (2d Cir. 2011) (stating individuals who resisted gang recruitment in El Salvador do not constitute a “particular social group” because their proposed group lacked “social visibility” and “particularity” and because the alleged persecution “did not bear the requisite nexus to a protected ground”).

I agree with the circuits which hold the BIA’s addition of the “social visibility” and “particularity” requirements to the definition of “particular social group” is arbitrary and capricious. First, as discussed above, these newly added requirements are inconsistent with prior BIA decisions. Specifically, they are in direct conflict with the definition of “particular social group” announced in Acosta. By stating this, I am in no way suggesting the BIA must continue to adhere to the Acosta definition. I am of course cognizant the BIA may “add new requirements to, or even change, its definition of `particular social group'” over time. Valdiviezo-Galdamez, 663 F.3d at 608; see also Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 57, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (stating an agency may change its interpretation of a stature or regulation over time). The BIA, however, must explain its choice for

[671 F.3d 686]

 

doing so because an unexplained departure from established precedent is generally “a reason for holding [the departure] to be an arbitrary and capricious change from agency practice[.]” Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 981, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005); see also FCC v. Fox Television Stations, Inc., 556 U.S. 502, 129 S.Ct. 1800, 1811, 173 L.Ed.2d 738 (2009) (stating “the agency must show that there are good reasons for the new policy”); Friends of Boundary Waters Wilderness v. Dombeck, 164 F.3d 1115, 1123 (8th Cir. 1999) (noting “a sudden and unexpected change in agency policy” may be characterized as arbitrary and capricious).

Because the BIA departed from its well-established Acosta definition without providing a reasonable explanation for its choice, the departure is arbitrary and capricious. Thus, although I am bound by our decisions in Constanza and Ortiz-Puentes, I cannot agree with our circuit’s as-a-matter-of-course adoption of the BIA’s new approach to defining “particular social group”—an approach which not only represents a stark departure from established precedent, but also eviscerates protections for many groups of applicants eligible under the agency’s prior definition.

Therefore, I reluctantly concur in the result.

FootNotes

1. Gaitan does not address the denial of relief under the Convention Against Torture in his brief. Any argument based on that ground is therefore deemed waived. See Tinajero-Ortiz v. United States, 635 F.3d 1100, 1103 n. 3 (8th Cir.), cert. denied, ___U.S. ___, 132 S.Ct. 315, 181 L.Ed.2d 194 (2011). Gaitan notes that he does not waive his claim that he is otherwise eligible for relief in the form of withholding of removal under the INA. However, “[t]he standard for withholding of removal, a clear probability of persecution, is more rigorous than the well-founded fear standard for asylum. An alien who fails to prove eligibility for asylum cannot meet the standard for establishing withholding of removal.” Turay v. Ashcroft, 405 F.3d 663, 667 (8th Cir.2005) (internal citations omitted). Because we find that Gaitan is not eligible for asylum, Gaitan is unable to meet the standard for establishing withholding of removal.

 

2. The BIA signaled its intention to break away from the Acosta standard as early as 2001, in its decision in Matter of R-A-, 22 I. & N. Dec. 906 (B.I.A.2001). There, the BIA refused to accord a social group status to a group of “Guatemalan women who have been involved intimately with Guatemalan male companions who believe that women are to live under male domination.” Id. at 917-18. Although the outcome of the opinion was unobjectionable even under the traditional Acosta standard, its logic was noteworthy for the BIA’s insistence that the applicant demonstrate “how the characteristic is understood in the alien’s society” and how “the potential persecutors… see persons sharing the characteristic as warranting suppression or the infliction of harm.” Id. at 918. Because at the time R-A- was issued, the Immigration and Naturalization Service was in the process of finalizing a rule defining “membership in a particular social group,” the Attorney General vacated the BIA’s opinion pending the publication of that rule. In re R-A-, 22 I. & N. Dec. 906 (B.I.A.2001). The proposed rule would incorporate R-A-‘s consideration of social visibility, but only as one of several non-exclusive factors. Asylum & Withholding Definitions, 65 Fed.Reg. 76,588, 76,594 (Dec. 7, 2000). Ultimately, the rule was never formalized, and the ball was back in the BIA’s court to define the “particular social group” incrementally, on a case-by-case basis.”

When Gaitan came out in 2012, the Bushies were gone Obama had taken over, and the Attorney General was Eric Holder. One might have thought that someone with Holder’s reputation for civil rights sensitivity and equal justice under the law might have forced the BIA to confront its tarnished past, or at least have appointed some “asylum experts” as Appellate Judges to force the BIA to engage in some “two-sided” appellate deliberation.
But, alas, Holder, like his successor Attorney General Loretta Lynch, didn’t  see a need to extend civil rights and fair legal treatment to refugees and asylum seekers being mistreated by the DOJ’s wholly owned subsidiary, the BIA. It became apparent that Holder and Lynch rather liked the idea of owning a complacent, largely pro-Government appellate court just as much as Ashcroft and the Bushies did.
During the Obama Administration, the BIA continued to be comprised of Appellate Judges who were insiders and/or bureaucrats. They kept the numbers rolling, didn’t rock the boat, almost never dissented, and “went along to get along” even with obviously flawed legal policies that forced scared, often semi-literate women and children to represent themselves before the U.S. Immigration Courts and make out cases under the BIA’s arcane, convoluted, and generally applicant-unfriendly definitions of PSG. So Sessions was able to take over a dysfunctional court system (in terms of its due process mission), but a relatively well-oiled “denial mill” masquerading as a Federal Appellate Court. And, that’s where we stand today, folks!

The U.S. Immigration Courts will not regain integrity until the are removed from the Executive Branch and reconstituted as as an independent Article I or even Article III Court. Until then, it’s likely that refugees and asylum seekers will continue to suffer unfair treatment, bias, and undeserved fates under the U.S. asylum system. Doesn’t anybody care?

PWS

09-14-17