"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
BIA Asylum Panel In Action Albrecht Dürer, Public domain, via Wikimedia Commons“She struggled madly in the torturing Ray” Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons
A Parting Shot At Women
As the Trump Administration comes to an end, let’s remember how it began. On the day following the inauguration, millions participated in Women’s Marches around the world. There is sadly no need to list the reasons why women in particular would feel the need to respond in such a way to a Trump presidency.
It was therefore no surprise that Trump’s first Attorney General issued a decision intended to strip protection under our asylum laws from women who are victims of domestic violence. That decision, Matter of A-B-, was so soundly rejected by U.S. District Court Judge Emmet Sullivan that the U.S. Court of Appeals for the Sixth Circuit relied on his reasoning to conclude that Sessions’s decision had been abrogated. The First and Ninth Circuits further rejected Sessions’s view that the particular social group relied upon in A-B- was legally unsound. The Eighth Circuit rejected Sessions’s description of the standard for proving a government’s inability or unwillingness to control an abusive spouse, for example, as requiring evidence that the government condones his actions, or is completely helpless to prevent them.
The administration tried to codify the views expressed in A-B- and in another case, Matter of L-E-A-, by issuing proposed regulation designed to completely rewrite our asylum laws, with the purpose of making it virtually impossible for domestic violence and gang violence victims to qualify for asylum protection. Those rules, which were rushed out with very little time for public comment, were blocked on January 8 by a U.S. District Court judge.
There are at least two important cases presently before the U.S. Court of Appeals for the Fourth Circuit involving the issues raised in both A-B- and L-E-A-. Had these decisions been issued by, e.g., U.S. District Court judges, the Department of Justice would be representing the government (in the form of the Attorney General), but not the judge who issued the decision below. But as to A-B-, the government attorneys represent an Attorney General acting as judge, and a judge with extraordinary powers. As a result of those powers, the official presently filling the position on an acting basis (who had come to the job a few weeks earlier from the Department of Transportation with absolutely no background in immigration law) was able to unilaterally issue a new decision in the case, in an attempt to shore up issues of concern before the circuits.
So what does the new decision of the recent Deputy Transportation Secretary say? It addresses two issues: the “condone or complete helplessness” language used by Sessions, and the proper test for when persecution can be said to be “on account of” an asylum seeker’s gender, familial relationship, or other group membership.
As to the first issue, the Acting AG now states that Sessions did not change the preexisting legal standard for determining whether a government is unwilling or unable to provide protection. The Acting AG accomplishes this by explaining that “condone” doesn’t actually mean condone, and that “complete helplessness” doesn’t mean complete helplessness.
I’m not sure of the need for what follows on the topic. Perhaps there is an Attorney General Style Guide which advises to never be succinct when there are so many more exciting options available. Besides from sounding overly defensive in explaining why Sessions chose to use terms that sure sounded like they raised the standard in order to supposedly signal that he was doing no such thing, the decision also feels the need to remind us of what that preexisting standard is, in spite of the fact that no one other than perhaps a Deputy Transportation Secretary pretending to be an asylum law scholar is in need of such a recap. Yes, we understand there are no crime-free societies, and the failure to prevent every single crime from occurring is not “unwilling or unable.” No court has ever said that it was. Let’s move on.
The second part of this new A-B- decision addresses a conflict between the views of the Fourth Circuit and the BIA in regard to when a nexus is established. This issue arises in all asylum claims, but the BIA addressed it in a case, Matter of L-E-A-, in which an asylum applicant was threatened by a violent gang because it wished to sell drugs in a store owned by his father. The question was whether the asylum seeker’s fear of harm from the gang was “on account of” his familial relationship to his father.
Our laws recognize that persecution can arise for multiple reasons. A 2005 statute requires a showing that one of the five specific bases for a grant of asylum (i.e. race, religion, nationality, membership in a particular social group, or political opinion) must form “one central reason” for the harm. The BIA itself has defined this to mean that the reason was more than “incidental, tangential, superficial, or subordinate to another reason.”
In the context of family membership, the Fourth Circuit has repeatedly held that this “one central reason” test is satisfied where the family membership formed the reason why the asylum seeker, and not someone else, was targeted for harm. Using the L-E-A- example, the gang members were obviously motivated most of all by their desire for financial gain from the selling of the drugs in the store. But under the Fourth Circuit’s test, the family relationship would also be “one central reason” for the harm, because had the asylum seeker not been the son of the store owner, he wouldn’t have been the one targeted. This is known as a “but for” test, as in “but for” the familial relationship, the asylum seeker wouldn’t have been the one harmed
In L-E-A-, the BIA recognized the Fourth Circuit’s interpretation in a footnote, but added that the case it was deciding didn’t arise under that court’s jurisdiction. The BIA thus went on to create its own test, requiring evidence of an actual animus towards the family. The BIA provided as an example of its new test the assassination of the Romanov family in 1917 Russia, stating that while there were political reasons for the murders, it would be difficult to say that family membership was not one central reason for their persecution.
I’m going to create my own rule here: when you are proposing a particular legal standard, and the judge asks for an example, and all you can come up with is the Romanov family in 1917 Russia, you’re skating on thin ice. The other thing about legal standards is in order for judges to apply them and appeals courts to review them, they have to be understandable. I’m not a student of Russian history, but it would seem to me that (as the BIA acknowledged), the main motive in assassinating the Romanovs was political. I’m not sure what jumps out in that example as evidence of animus towards the family itself. How would one apply the Romanov test to anyone ever appearing in Immigration Court? By comparison, the Fourth Circuit’s test is a very clear one that is easy to apply and review on appeal.
Of course, this is just my humble opinion. The assistant Transportation czar feels differently. Drawing on his extensive minutes of experience in the complex field of asylum, he concluded: “I believe that the Fourth Circuit’s recent interpretation of ‘one central reason’ is not the best reading of the statutory language.”
I am guessing that by saying this in a precedent decision in the final days of this Administration, Transportation guy is hoping that the Fourth Circuit will feel compelled to accord his opinion Brand X deference. Legal scholar Geoffrey Hoffman has pointed out that no such deference is due, as the requirement that the statute be ambiguous is not satisfied. (Geoffrey’s excellent takedown of this same decision can be found here, and is well worth reading).
But the term in question, “on account of,” is also not one requiring agency expertise, which is of course a main justification for judicial deference. It is instead a legal standard not specific to asylum or immigration law.
For example, last June, the Supreme Court decided Bostock v. Clayton County, a case involving employment discrimination based on sexual orientation or identity. In a 6-3 decision authored by Justice Gorsuch, the Court explained that the statutory term in question, “because of,” carries the same legal meaning as “on account of,” the relevant phrase for asylum purposes. In determining nexus, the Court stated:
It doesn’t matter if other factors besides the plaintiff’s sex contributed to the decision. And it doesn’t matter if the employer treated women as a group the same when compared to men as a group. If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee—put differently, if changing the employee’s sex would have yielded a different choice by the employer—a statutory violation has occurred.
That last sentence – “if changing the employee’s sex would have yielded a different choice by the employer” – is essentially the same “but for” standard applied by the Fourth Circuit in the asylum context. What would give an Acting Attorney General the authority to hold otherwise?
A conservative commentator observed a difference between the discrimination required in Bostock and the persecution required in L-E-A-, stating that discrimination can involve favoring one group without necessarily hating the group being passed over, whereas persecuting someone requires an animus towards them.
However, the BIA recognized nearly 25 years ago that persecution can be found in harm resulting from actions intended to overcome a characteristic of the victim, and that no subjective punitive or malignant intent is required. The BIA acknowledged this in L-E-A-, noting that a punitive intent is not required.
Furthermore, the legislative history of the REAL ID Act (which created the requirement in question) shows that Congress amended the original proposed requirement that the protected ground be “the central motive” for the harm, to the final language requiring that it be “one central reason.”1 While animus would fall under “motive,” “reason” covers the type of causation central to the Fourth Circuit’s “but for” test. The history seems to undermine the former Transportation official’s claim that under the Fourth Circuit’s test, the “one central reason” language would be “mere surplusage.” This is untrue, as that additional language serves to clarify that the reason can be one of many (as opposed to “the” reason), and that the relevant issue is reason and not motive. Perhaps the author required more than three weeks at the Department of Justice to understand this.
I write this on the last full day of the Trump presidency. Let’s hope that all of the decisions issued by this administration will be vacated shortly; that the BIA will soon be comprised of fair and independent immigration law scholars (preferably as part of an independent Article I Immigration Court), and that future posts will document a much more enlightened era of asylum adjudication.
Note:
1. See Deborah Anker, The Law of Asylum in the United States (Thomson Reuters) at § 5:12.See also Ndayshimiye v. Att’y Gen. of U.S., 557 F.3d 124 (3d Cir. 2009) (recounting the legislative history and rejecting a dominance test for determining “one central reason”).
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
Copyright 2021 Jeffrey S. Chase. All rights reserved.
Republished by permission.
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Judge Garland and his team must address systemic failures at the dysfunctional DOJ well beyond the festering, unconstitutional mess @ EOIR (“The Clown Show” 🤡) that requires an immediate “remove and replace.” The ethical failings, bad lawyering, dilatory litigating tactics, anti-American attitudes, racism, misogyny, intellectual dishonesty, coddling of authoritarianism, and complicity in the face of tyranny are in every corner of the disgraced Department.
Withdrawal of every bogus, biased, unconstitutional, racist- motivated “precedent” issued during the Trump regime and turning the proper development and fair interpretation of immigration and asylum laws over to a “new BIA” — consisting of real judges who are widely recognized and respected experts in immigration, human rights, and due process — must be a “day one” priority for Judge Garland and his team.
The Clown Show🤡🦹🏿♂️ that has made mincemeat out of American justice — not to mention legal ethics and human morality — must go! And, the problem goes far beyond the “Falls Church Circus!”🎪🤹
🇺🇸⚖️🗽Due Process Forever! Institutionalized misogyny, 🤮☠️never! No more Jeffrey Rosens @ DOJ —ever!
And, firms like Kirkland & Ellis need to think twice about re-employing a sleazy “empty suit” like Rosen who represents everything that is wrong with American law in the 21st century! Public disgrace should not be mistaken for “public service.”
“Normalizing” political toadies, “senior executives,” government “lawyers,” and other “public officials” who carried the water and willingly (often, as in Rosen’s case, enthusiastically, gratuitously, and totally unnecessarily) advanced the objectives of a White Nationalist, anti-American regime whose disgraceful and toxic rule ended in a violent, unhinged, failed insurrection against our democracy encouraged by a Traitor-President, his supporters, and members of the GOP would be a HUGE, perhaps fatal, mistake!
Make no mistake about it! Brave, determined refugee women like Ms. A-B- and her lawyers (superstars like Professor Karen Musalo and Blaine Bookey of the Center for Gender and Refugee Studies) are the true American heroes 🦸🏻 of the resistance to White Nationalist, racist, xenophobic policies of cruelty, hate, and disparaging of the rule of law. Toadies and traitors like Rosen are the eternal villains!🦹🏿♂️ Picking on refugees on the way out the door is an act of supreme cowardice that will live in infamy!🐓🤮
InDe Pena Paniagua v. Barr, a three-judge panel of the U.S. Court of Appeals for the First Circuit made several corrections to the Trump administration’s application of the law of asylum as it applies to victims of domestic violence. The court’s precedent decision provided validation to the longstanding views of asylum advocates that the administration has worked hard to ignore.
As background, after an 18-year legal battle, the BIA in a 2014 decision, Matter of A-R-C-G-, finally recognized that the particular social group of married Guatemalan women unable to leave their relationship warranted asylum where its members are targeted for persecution due to their group characteristics.
In 2018, then-Attorney General Jeff Sessions vacatedA-R-C-G-, claiming that it lacked the rigorous legal analysis expected of such a decision. Sessions stated that while his new decision did not bar all such claimants from asylum, he believed few victims of domestic violence would manage to qualify. In particular, Sessions decided that “women unable to leave their domestic relationship” could not form the legitimate particular social group needed under the asylum laws, on the ground that such groups cannot be defined even in part by the persecution the group fears. In support of this view, Sessions concluded that the asylum-seeker’s inability to leave her relationship in the case in question was due to persecution, although he provided no insight as to what facts supported his belief.
Many similar cases were pending when Sessions issued his fateful decision. But instead of remanding all pending cases to allow the opportunity to respond to the sudden change in the law, the BIA instead began denying those cases on the grounds that Sessions had rejected the concept, without bothering to actually analyze the specific facts of each case to see if they still merited asylum under the law.
In De Pena Paniagua, the First Circuit called shenanigans. It began by noting that nothing in Sessions’ decision created a categorical rule precluding any and all applicants from succeeding on asylum claims as members of the group defined as women unable to leave their relationships. The BIA had thus erred in categorically denying such a claim.
The court next turned to Sessions’ error in concluding that the inability to leave a relationship necessarily results from persecution, calling Sessions’ statement to the contrary “arbitrary and unexamined fiat.” But the court continued that even if persecution was the cause, the threatened abuse that precludes someone from leaving a relationship “may not always be the same…as the physical abuse visited upon the woman within the relationship.” Finally, the court held that even if the harm was the same, there is no reason such abuse can’t do “double-duty, both helping define the group and providing the basis for a finding of persecution.”
It bears noting that in a 2007 precedent decision, Matter of A-M-E- & J-G-U-, the BIA had only held that a particular social group cannot be defined “exclusively by the fact that its members have been subjected to harm.” And the group in De Pena Paniagua (and in A-B- and A-R-C-G-, for that matter) was not exclusively defined by the inability to leave, but also by its members’ gender, nationality, and domestic relationship status. Of course, the inability to leave a relationship can be due to social, religious, economic, or other factors having nothing to do with persecution. But even if the inability to leave is interpreted as resulting from persecution, the fact that such harm would only partially define the group would not invalidate it under A-M-E- & J-G-U- (which borrowed the “exclusively defined” language from particular social group guidelines issued by UNHCR in 2002, which the Board had cited in an earlier decision).
In a 2014 case, Matter of M-E-V-G–, DHS had argued for a requirement that a particular social group “must exist independently of the fact of persecution,” a stricter requirement that would seemingly forbid a group from being even partially defined by persecution. Strangely, the BIA responded to DHS’s argument in a footnote, claiming that DHS’s proposal “is well established in our prior precedents,” a statement that was clearly untrue. And in support of its claim, the BIA cited to Matter of A-M-E- & J-G-U-, which as discussed only precludes groups defined exclusively by persecution.
In his decision in A-B-, Sessions relied in part on the footnote in M-E-V-G- mischaracterizing prior case law to support his claim that a particular social group must exist independently of the harm asserted, thus perpetuating the Board’s prior falsehood. As in fact no prior BIA precedent had ever held that a particular social group cannot partially be defined by persecution, the First Circuit was correct to call out the unsupported legal conclusion. As merely looking up the citation in the BIA’s footnote would have revealed the error, one could argue that Sessions’ decision lacked the rigorous legal analysis expected of such a decision.
In remanding the record back to the BIA, the First Circuit also held out the possibility of considering a more concise group defined by an asylum applicant’s gender per se. This group was suggested in the amicus brief filed in the case by Harvard Law School’s Immigration and Refugee Clinical Program. While leaving it to the BIA to decide whether gender alone may constitute a cognizable particular social group for asylum purposes, the court provided very strong reasons why it should. The BIA’s recognition of gender per se would constitute a historical correction to U.S. asylum law, putting it in line with long recognized international standards. The same 2002 UNHCR Guidelines recognized gender as falling “properly within the ambit of the social group category, with women being a clear example of a social subset defined by innate and immutable characteristics, and who are frequently treated differently to men.”
Attorneys Jonathan Ng and Robert F. Ley of the Law Offices of Johanna Herrero represented the petitioner. Our Round Table of Former Immigration Judges is proud to have been among the distinguished amici filing briefs in the case, which included the Center for Gender and Refugee Studies, the Harvard Immigration and Refugee Clinical Program, a distinguished group of immigration law professors, and a group of faith-based organizations. Our heartfelt thanks to attorneys Richard W. Mark, Amer S. Ahmed, Indraneel Sur, Timothy Sun, Grace E. Hart, and Chris Jones of the law firm of Gibson Dunn for their outstanding efforts on our brief.
Copyright 2020 Jeffrey S. Chase. All rights reserved.
Republished with permission.
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The biased, substandard performance and deficient scholarship of both the Attorney General and the BIA is matter of public record. The AG is not a qualified quasi-judicial official; he’s a prosecutor, with vengeance, who harbors a very clear enforcement bias against migrants. The BIA is structured to facially look like an expert body of quasi-judicial adjudicators. But, the frequent mistakes in their decisions and the clear bias in their hiring and supervision by the Attorney General expose the unhappy truth: they are nothing of the sort. So, what’s the excuse for the Article IIIs “deferring” to decisions on questions of law from these unqualified enforcement officials masquerading, not very convincingly, as “fair and impartial adjudicators?”
Looks like “judicial task avoidance” and “abdication of duty” to me!
Article III Judges are paid to determine what the law is (and not much else). They should do their jobs rather than hiding beyond the “doctrine of false deference.”
PANEL: Howard, Chief Judge, Kayatta and Barron, Circuit Judges.
OPINION BY: Judge Kayetta
KEY EXCERPTS (Courtesy of Amer S. Ahmed, Esquire, Gibson Dunn, Pro Bono Counsel for the Round Table of Former Immigration Judges as Amici):
[The BIA] added, however, that “[e]ven if [De Pena] had
suffered harm rising to the level of past persecution,” De Pena’s
proposed particular social groups are analogous to those in Matter
of A-R-C-G, 26 I. & N. Dec. 388 (BIA 2014), which the BIA
understood to have been “overruled” by the Attorney General in
Matter of A-B, 27 I. & N. Dec. 316, 319 (A.G. 2018). The BIA read
A-B as “determin[ing] that the particular social group of ‘married
women in Guatemala who are unable to leave their relationship’ did
not meet the legal standards to qualify as a valid particular
social group.”
…
That conclusion poses two questions to be resolved on
this appeal: First, does A-B categorically reject any social group
defined in material part by its members’ “inability to leave” the
relationships in which they are being persecuted; and, second, if
so, is A-B to that extent consistent with the law?
…
Is it reasonable to read the law as supporting such a categorical
rejection of any group defined by its members’ inability to leave
relationships with their abusers? A-B itself cites only fiat to
support its affirmative answer to this question. It presumes that
the inability to leave is always caused by the persecution from
which the noncitizen seeks haven, and it presumes that no type of
persecution can do double duty, both helping to define the
particular social group and providing the harm blocking the pathway
to that haven. These presumptions strike us as arbitrary on at
least two grounds.
….
First, a woman’s inability to leave a relationship may
be the product of forces other than physical abuse. In
Perez-Rabanales v. Sessions, we distinguished a putative group of
women defined by their attempt “to escape systemic and severe
violence” from a group defined as “married women in Guatemala who
are unable to leave their relationship,” describing only the former
as defined by the persecution of its members. 881 F.3d 61, 67
(1st Cir. 2018). In fact, the combination of several cultural,
societal, religious, economic, or other factors may in some cases
explain why a woman is unable to leave a relationship.
…
We therefore do not see any basis other
than arbitrary and unexamined fiat for categorically decreeing
without examination that there are no women in Guatemala who
reasonably feel unable to leave domestic relationships as a result
of forces other than physical abuse. In such cases, physical abuse
might be visited upon women because they are among those unable to
leave, even though such abuse does not define membership in the group
of women who are unable to leave.
…
Second, threatened physical abuse that precludes
departure from a domestic relationship may not always be the same
in type or quality as the physical abuse visited upon a woman
within the relationship. More importantly, we see no logic or
reason behind the assertion that abuse cannot do double duty, both
helping to define the group, and providing the basis for a finding
of persecution. An unfreed slave in first century Rome might well
have been persecuted precisely because he had been enslaved (making
him all the same unable to leave his master). Yet we see no reason
why such a person could not seek asylum merely because the threat
of abuse maintained his enslaved status. As DHS itself once
observed, the “sustained physical abuse of [a] slave undoubtedly
could constitute persecution independently of the condition of
slavery.” Brief of DHS at 34 n.10, Matter of R-A, 23 I. & N. Dec.
694 (A.G. 2005).
For these reasons, we reject as arbitrary and unexamined
the BIA holding in this case that De Pena’s claim necessarily fails
because the groups to which she claims to belong are necessarily
deficient. Rather, the BIA need consider, at least, whether the
proffered groups exist and in fact satisfy the requirements for
constituting a particular social group to which De Pena belongs.
Amer S. Ahmed
GIBSON DUNN
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Read the full opinion at the link above.
While Judge Kayetta does not specifically cite our Round Table’s brief, a number of our arguments are reflected in the opinion. Undoubtedly, with lots of help from Amer and our other superstar friends over at Gibson Dunn, we’re continuing to make a difference and hopefully save some deserving lives of the refugees intentionally screwed by our dysfunctional Immigration Court system under a politicized DOJ.
Knightess of the Round Table
I’ve heard of the bogus rationale used by the BIA in this case reflected in a number of wrongly decided unpublished asylum denials by both the BIA and Immigration Judges. This should make for plenty of remands, slowing down the “Deportation Railroad,” jacking up the backlog, and once again showing the “substantial downside” of idiotic “haste makes waste shenanigans” at EOIR and allowing biased, unqualified White Nationalist hacks like Sessions and Barr improperly to interfere with what are supposed to be fair and impartial adjudications consistent with Due Process and fundamental fairness.
Great as this decision is, it begs the overriding issue: Why is a non-judicial political official, particularly one with as strong a prosecutorial bias as Sessions or Barr, allowed to intervene in a quasi-judicial decision involving an individual and not only reverse the result of that quasi-judicial tribunal, but also claim to set a “precedent” that is binding in other quasi-judicial proceedings? Clearly, neither Ms. De Pena-Paniagua nor any other respondent subject to a final order of removal under this system received the “fair and impartial decision by an unbiased decision-maker” which is a minimum requirement under the Due Process Clause of the Fifth Amendment.
Let’s put it in terms that an Article III Circuit Court Judge should understand. Suppose Jane Q. Public sues the United States in U.S. District Court in Boston and wins a judgment. Unhappy with the result, Attorney General Billy Barr orders the U.S. District Judge to send the case to him for review. He enters a decision reversing the U.S. District Judge and dismissing Public’s claim against the United States. Then, he orders all U.S. District Judges in the District of Massachusetts to follow his decision and threatens to have them removed from their positions or demoted to non-judicial positions if they refuse.
The First Circuit or any other Court of Appeals would be outraged by this result and invalidate it as unconstitutional in a heartbeat! They likely would also find Barr in contempt and refer him to state bar authorities with a recommendation that his law license be revoked or suspended.
Yet this is precisely what happened to Ms. A-B-, Ms. De Pena Paniagua, and thousands of other asylum applicants in Immigration Court. It happens every working day in Immigration Courts throughout the nation. It will continue to happen until Article III Appellate Judges live up to their oaths of fealty to the Constitution and stop the outrageous, life-threatening miscarriages of justice and human dignity going on in our unconstitutional, illegal, fundamentally unfair, and dysfunctional Immigration Courts.
AMEZCUA-PRECIADO v. U.S. ATTORNEY GENERAL, 11th Cir., 12-03-19, published (per curium)
PANEL: BRANCH, FAY and HULL, Circuit Judges.
Maria Amezcua-Preciado, a native and citizen of Mexico, along with her two minor children, petitions for review of the Board of Immigration Appeals’ (“BIA”) final order reversing the Immigration Judge’s (“IJ”) grant of her application for asylum and denying her withholding of removal. The BIA concluded, based on recent precedent from the Attorney General, Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018), that Amezcua-Preciado’s proposed social group of “women in Mexico who are unable to leave their domestic relationships” was not a cognizable particular social group under the Immigration and Nationality Act (“INA”). After review, we agree with the BIA that Amezcua-Preciado failed to establish membership in a particular social group. We thus deny Amezcua- Preciado’s petition for review.
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Wow, what an amazingly gutless and disingenuous performance! Complicit Article III courts have become one of the Trump Regime’s key White Nationalist tools for “deconstructing” U.S. immigration, refugee, and asylum laws.
These aren’t legal disagreements; they are a derelictions of ethical and moral responsibilities. Matter of A-B- was a biased, legally incorrect, factually distorted, unethical attack on asylum law by a Sessions, who was not a “fair and impartial adjudicator.” It ignored a generation of well-developed jurisprudence, legal analysis, and overwhelming factual support for recognizing gender-based domestic violence as a basis for asylum.
Matter of A-R-C-G-, overruled by A-B-, represented a broad consensus within the legal community. Indeed, much of the impetus for that decision came from DHS itself, who had been successfully and efficiently applying its principles in Asylum Offices and in Immigration Courts long before A-R-C-G- actually became a precedent. Remarkably, no actual party requested Sessions’s intervention in A-B-; he rejected ICE’s request to vacate his interference and return the case to the BIA for adjudication under A-R-C-G- criteria. Obviously, the fix was on. But, that made no difference to Branch, Fay, and Hull in their disingenuous haste to “roll over” for the White Nationalist agenda.
I hope that when future historians eventually dissect the rancid racism, misogynism, and White Nationalism of the current regime they will fully expose jurists like Branch, Fay, & Hull who used their privileged positions to “go along to get along,” enabling and furthering the regime’s illegal and unethical “war on asylum seekers, migrants of color, and women.”
My colleague Judge Jeffrey Chase of our Roundtable of Former Immigration Judges reports some good news:
Also, for those of you who subscribe to Ben Winograd’s index of unpublished BIA Decisions, today’s update includes an unpublished decision dated Nov. 6, 2019, Matter of A-C-A-A- (single BM Ellen Liebowitz), affirming the IJ’s grant of asylum in a domestic violence case based on her cognizable PSG of “Salvadoran females.”The written decision of the IJ, Julie L. Nelson in SF, is also included.
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Thanks to those judges like Judge Nelson and Judge Liebowitz who are continuing to stand up for the rights of asylum seekers “post-A-B-.”
And, many thanks to Jeffrey & Ben for passing this good news along and for all they do for Due Process every day!
What if rather than the “A-B- atrocity” made precedent by unethical White Nationalist Jeff Sessions, we had an honest, independent Immigration Court system that encouraged fair and impartial adjudications and implemented asylum laws generously, as intended (see, e.g., INS v. Cardoza-Fonseca) by publishing precedent decisions like this recognizing the right to protection?
BIA precedents on asylum have intentionally been constructed in a negative manner, showing judges how to deny, rather than grant, protection and encouraging them to take a skewed anti-asylum view of the law. Even worse, bogus, unethical, legally incorrect “Attorney General precedents” are uniformly anti-asylum; the applicant never wins.
Some judges, like Judge Nelson and Judge Leibovitz, take their oaths of office seriously. But, too many others “go along to get along” with the unlawful and unethical “anti-asylum program” pushed by the White Nationalist Trump Regime.
Indeed, even during my tenure as an Immigration Judge, I remember being required to attend asylum “training” sessions (in years when we even had training) where litigating attorneys from the Office of Immigration Litigation basically made a presentation that should have been entitled “How to Deny Potentially Valid Asylum Claims And Have Them Stand Up On Judicial Review.”
It’s also past time for the Supremes and the Circuit Courts of Appeals to get their collective heads out of the clouds, start paying attention, begin doing their jobs and strongly rejecting “disingenuous deference” to bogus, illegal, unethical “precedents” rendered by politically biased enforcement hacks like Sessions and Barr who have unethically usurped the role of quasi-judicial adjudicator for which they are so clearly and spectacularly unqualified under the Due Process Clause of the Fifth Amendment. It’s nothing short of “judicial fraud” by the Article IIIs! Constantly Confront Complicit Courts 4 Change!
With a more honest and legally correct favorable precedents on asylum, many more cases could be documented and granted at the Asylum Office and Immigration Court levels. The DHS would be discouraged from wasting court time by opposing meritorious applications. The backlog would start going down. There would be fewer appeals. Justice would be served. Worthy lives would be saved. DHS could stop harassing asylum seekers and start enforcing the laws in a fair and reasonable manner. America would lead the way in implementing humanitarian laws, and we would become a better country for it.
Help the New Due Process Army fight for a better, more just, future for America and the world.
