Grace v. Sessions, U.S.D.C. D.D.C., 12-19-18, Hon. Emmet G. Sullivan, Published
***********************************************************
MY STATEMENT ON GRACE V. WHITAKER:
As a former United States Immigration Judge, Chair of the U.S. Board of Immigration Appeals, and Acting General Counsel and Deputy General Counsel of the “Legacy INS” involved in developing the Refugee Act of 1980, I am deeply gratified by the decision of U.S. District Judge Emmet G. Sullivan today in Grace v. Whitaker. Judge Sullivan strongly supports the rule of law and the generous humanitarian protections and procedural rights afforded by Congress to vulnerable asylum seekers against a lawless and unjustified attack by former Attorney General Sessions in Matter of A-B-, 27 I&N Dec. 316 (AG 2018) and the largely erroneous Policy Memorandum incorporating that decision issued by the Department of Homeland Security (“DHS”).
Among the most important holdings, Judge Sullivan:
- Reaffirmed the duty of the Executive Branch to comply with the rule of law as enacted by Congress to protect individuals fleeing persecution;
- Reaffirmed the generous humanitarian intent of the asylum provisions of the Refugee Act of 1980;
- Recognized the generous “well-founded fear” (10% chance) standard for asylum as enunciated by the U.S. Supreme Court in 1987 in INS v. Cardoza-Fonseca;
- Reaffirmed the “extraordinarily low” bar for applicants in “credible fear” interviews before DHS Asylum Officers: “to prevail at a credible fear interview, the alien need only show a ‘significant possibility’ of a one in ten chance of persecution, i.e., a fraction of ten percent;”
- Found that Congress intended that the term “particular social group” must be interpreted generously in accordance with the United Nations’ guidance;
- Rejected Sessions’s unlawful attempt to generally preclude domestic violence and gang-related claims from qualifying for asylum;
- Reaffirmed the necessity of case-by-case determinations of credible fear and asylum;
- Rejected Session’s unlawful attempt to engraft a “condoned or completely helpless” requirement on the interpretation of when a foreign government is “unwilling or unable” to protect an individual from persecution by a private party;
- Reaffirmed Congress’s unambiguous understanding that persecution means “harm or suffering . . . inflicted either by the government of a country or by persons or an organization that the government was unable or unwilling to control;”
- Rejected DHS’s misinterpretation of the “circularity requirement” in the Policy Memorandum;
- Rejected the Department of Justice’s disingenuous argument that Article III Courts must “defer” to administrative interpretations of Article III Court decisions;
- Rejected the Policy Memorandum’s illegal requirement that an asylum applicant (usually unrepresented) “delineate” the scope of a particular social group at the credible fear interview;
- Emphatically rejected the Policy Memorandum’s attempt to elevate administrative precedents over the conflicting decisions of U.S. Courts of Appeals.
Judge Sullivan’s cogent decision dramatically highlights the problems with an U.S. Immigration Court system that is controlled by political officials, like former Attorney General Sessions, who are not fair and impartial judicial officials and whose actions may be (and in Sessions’s case definitely were) driven by political philosophies and enforcement objectives inconsistent with judicial responsibilities to insure that non-citizens are fairly considered for and when appropriate granted the important, often life-saving, protections conferred by law and guaranteed by due process. A clearly biased political official like Jeff Sessions should ethically never been permitted to act in a quasi-judicial capacity.
As a result of Sessions’s anti-immigrant bias, unlawful actions, and gross mismanagement of the Immigration Courts, innocent lives have been endangered and one of our largest American court systems has been driven to the precipice with an uncontrolled (yet unnecessary) backlog of over 1.1 million cases and crippling quality control issues. When it finally plunges over, it will take a large chunk of our American justice system and the Constitutional protections we all rely upon with it!
Congress must create an independent Article I United States Immigration Court to ensure that the immigration and refugee laws enacted by Congress are applied to individuals in a fair, efficient, and impartial manner.
Many, many thanks to the ACLU and all of the other wonderful pro bono lawyers who stood up for the rule of law and the rights of the most vulnerable among us against the intentionally illegal actions and unethical behavior of this Administration.
PWS
12-19-18