"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals PAUL WICKHAM SCHMIDT and DR. ALICIA TRICHE, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
In recent years, the United States has been something of a beacon of hope for women fleeing violence and persecution in their home countries. In 2014, in a giant step forward, immigration courts explicitly determined that a person fleeing severe domestic violence may be granted asylum here if the violence rises to the level of persecution, if the government in the victim’s home country cannot or will not punish her abuser and if various other criteria are met. It’s a high bar but one that, sadly, women from many countries can clear. Now their last chance at protection may be under threat.
The case that established that certain victims of domestic violence are eligible for asylum was decided in a landmark ruling by the Board of Immigration Appeals, the highest court in our immigration judicial system.
The survivor in the case, a Guatemalan named Aminta Cifuentes, was a victim of severe physical and sexual abuse. Ms. Cifuentes had endured 10 years of unrelenting violence at the hands of her spouse, who burned her with acid, beat and kicked her, broke her nose and punched her in the stomach with such force when she was eight months pregnant that the baby was born prematurely and with bruises. Her husband told her it would be pointless to call the police, because “even the police and judges beat their wives.”
The ruling that granted her protection was a transformative one, not just for Ms. Cifuentes but for our country, too. At last, the United States stood firmly in opposition to violence against women and recognized that we can and should offer hope to survivors.
In March, however, Attorney General Jeff Sessions, in an unusual move, suddenly and inexplicably stepped into this seemingly settled matter to assign a similar petition for asylum, known as the Matter of A-B–, to himself for reconsideration.
The facts in the Matter of A-B- are similar to those in the 2014 case. Ms. A-B-, a Salvadoran, was brutalized by her husband for 15 years. He beat and kicked her, including while she was pregnant; bashed her head against a wall; threatened her with death while holding a knife to her throat and while brandishing a gun; and threatened to hang her. Ms. A-B- attempted to secure state protection to no avail.
When she went to the police after her husband attacked her with a knife, their response was that if she had any “dignity,” she would leave him. When Ms. A-B- did attempt to leave her husband, he tracked her down, raped her and threatened to kill her. When she finally got a divorce, her ex-husband told her that if she thought the divorce freed her from him, she was wrong. She fled the country after he told her that he and his friends were going to kill her and dump her body in a river.
When Ms. A-B- came to the United States seeking asylum, her case was heard by an immigration judge in Charlotte, N.C., named V. Stuart Couch, who is notorious for his high denial rate. Judge Couch denied her asylum; Ms. A-B- appealed, and the decision was overruled by the Board of Immigration Appeals, the same board that had ruled favorably in the 2014 case.
The board sent the case back to Judge Couch for security checks to be completed and asylum to be granted. Without any explanation, Judge Couch held on to the case and refused to grant asylum as directed. And then, deviating from normal procedures, Mr. Sessions took jurisdiction.
The attorney general does have the power to reconsider any decision by the Board of Immigration Appeals. However, the procedural irregularities, paired with the possibility that Mr. Sessions may be using his authority to upend the precedent set in the Cifuentes case, are troubling. Mr. Sessions has given himself the power not only to decide Ms. A-B-’s fate but also ultimately to try to rule on how our country handles claims for all survivors of domestic violence looking for asylum.
To be clear, we do not yet know what Mr. Sessions will decide. But in the context of the Trump administration’s antipathy toward asylum seekers, and Mr. Sessions’s statements and actions with regard to immigrant women, his decision to assign himself jurisdiction does not bode well. Asylum seekers who have arrived at the American border seeking protection have been vilified by this administration.
The government has targeted women in ways that would have been unthinkable under prior administrations, including separating mothers who arrive at the border from their children and detaining pregnant women. Mr. Sessions himself has expressed his deep skepticism about asylum claims based on gender-related persecution.
At a time when violence against women and girls is a global crisis, a decision to deny protection to women who flee gender violence, including domestic violence, would be a grave mistake. This is a moment of truth of our country. Will we remain a beacon of hope for women worldwide whose lives are on the line because of domestic violence, and whose governments cannot or will not protect them? The answer, it seems, is in the attorney general’s hands.
Matter of A-B-, was a straight-forward application by the BIA of its existing precedents on asylum for victims of domestic violence.
The Immigration Judge who wrongfully denied the original asylum application appeared to disregard the BIA’s mandate to check fingerprints and grant on remand, and instead delayed the case without any apparent valid reason for doing so.
Sessions “certified” this case to himself either though neither party had requested his intervention and, remarkably, the DHS requested that the certification be dissolved to allow the BIA to resolve any issues under its existing framework of asylum precedents.
Sessions has made a number of inflammatory, anti-asylum statements including several made in a speech to EOIR adjudicators.
Is this “Justice In America?” Or, is it a “Parody of Justice In America” taking place in a “captive court system” dedicated to one-sided enforcement rather than fairness and Due Process.
Join the “New Due Process Army” and fight against Sessions’s perversion of the U.S. Immigration Court system to fit his “enforcement only” viewpoint.
FOIA results: evidence of Immigration Judge V. Stuart Couch’s shocking prejudgment of all domestic violence asylum claims
by Bryan Johnson on April 20, 2018
At the bottom, readers will find the all of the decisions of Immigration Judge V. Stuart Couch that resulted in BIA remands for the Fiscal Year of 2017.
Time and time again, IJ Couch’s decisions denying victims of domestic violence asylum contain carbon copy language.
Thus, it is clear that IJ Couch’s has been prejudging all claims that have a history of domestic violence, and quite literally copying and pasting language he used to deny other domestic violence victims asylum. The following is one of his favorite passages to copy and paste.
The respondent’s evidence reflects that [the] physical and verbal abuse of her was related to his violent and jealous nature…The evidence in this case is more consistent with acts of general violence and therefore does not constitute evidence of persecution based on a statutorily protected ground.
Immediately below, I have excerpted key parts of the BIA & IJ Couch decisions. A clear pattern has emerged: IJ Couch does not grant asylum to women who are victims of domestic violence, despite clear instructions to the contrary from the BIA.
Pages 31-48:
Immigration Judge’s decision:
“As noted in the particularity analysis supra, Guatemala has significant and troubling
issues related to domestic violence and crimes against women. However, unlike the married
alien in Matter of A-R-C-G-, the respondent lacks an identifiable trait like marriage or
inability to seek assistance from authority that distinguishes her from other women in
Guatemalan society. Similar to the particularity analysis supra, the Court finds the
respondent is an unfortunate victim of violence against women like far too many women in
Guatemala, and thereby renders her past harm indistinct by comparison.”
BIA’s holding:
The respondent’s testimony reflects that people in the community knew them as a couple and
made comments reflecting their notions that the respondent could not escape the relationship (Tr. 232 at 66).
The respondent also testified that her parents did not help her leave the
relationship because of ingrained views that women are the property of men (Tr. at 33-35).
Under these circumstances, we conclude under the same reasoning as Matter of A-R-C-G-,
supra, that the proffered social group here is “immutable,” “particular” and “socially distinct.”
To the extent that the Immigration Judge determined that the respondent is not a member of this
particular social group, that determination is clearly erroneous. See Matter of A-R-C-G-, supra,
at 3 91 (the question whether a person is a member of a particular social group is a finding of fact
that we review for clear error).”
Pages 65-80:
Immigration Judge’s decision:
“As noted in the particularity analysis supra, El Salvador has significant and troubling
issues related to domestic violence and crimes against women. However, unlike the married
alien in Matter of A-R-C-G-, the respondent lacks an identifiable trait like marriage or
inability to seek assistance from authority that distinguishes her from other women in
Salvadoran society. Similar to the particularity analysis supra, the Court finds the
respondent is an unfortunate victim of violence against women like far too many women in
El Salvador, and thereby renders her past harm indistinct by comparison.”
BIA decision:
Finally, the record does not support the Immigration Judge’s determination that the past harm
the respondent suffered is “consistent with acts of general violence” which undermines her claim
for asylum (l.J. at 10). Further, even assuming her former partner’s “criminal tendencies and
substance abuse” played a role in his conduct (/d.), the appropriate inquiry is whether the
asserted protected ground was or would be “at least one central reason” for the claimed or feared
harm. See section 208(b)(l)(B)(i) of the Act; Matter of C-T-L-, 25 I&N Dec. 341, 349 (BIA
2010)
Pages 81-96:
Immigration Judge Decision:
The respondent testified that when was drunk, he would physically and
verbally abuse her. She further testified “he was fine” when he was not under the influence
of alcohol. Thus, ‘s abuse appears related to his own criminal tendencies and
substance abuse, rather than conclusive evidence he targeted the respondent on account of
her proposed particular social group. The evidence in this case is more consistent with acts of
general violence and therefore does not constitute evidence of persecution based on a
statutorily protected ground.
BIA decision:
Upon review of the record, we conclude that a remand is necessary for the Immigration
Judge to further assess whether the respondent established that she is a member of a cognizable
particular social group. The Immigration Judge found that the respondent’s case is factually
distinguishable from Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014), because she was not in
a marital relationship with her former partner and did not seek assistance from authorities
(I.J. at 7-9). While relevant, the distinguishing factors identified do not preclude the respondent
from establishing that her proposed particular social group is cognizable under the Act, and we
find that further fact-finding regarding the respondent’s experiences in El Salvador is necessary
to determine whether she satisfied the elements required to establish a valid particular social
group. See Matter of A-R-C-G-, supra, at 393 (stating that “adjudicators must consider a
respondent’s own experiences, as well as more objective evidence, such as background country
information”).
Pages 102-120:
BIA decision:
We find clear error in the Immigration Judge’s determination that the respondent was not
abused by her former partner on account of her particular social group. See l.J. at 12; 8 C.F.R.
§ 1003.l (d)(3)(i); Matter of N-M-, 25 l&N Dec. 526, 532 (BIA 2011) (a persecutor’s actual
motive is a matter of fact to be determined by the Immigration Judge and reviewed by this Board
for clear error). The respondent testified that her former partner told her that a woman is not
more intelligent than he is and that the respondent has no value, comments which indicate that he
harmed her because of her perceived lesser status in the relationship (Tr. at 46).
Immigration Judge Decision:
The respondent’s evidence reflects that [the] physical and verbal abuse of her
was related to his violent and jealous nature, sometimes accompanied by his use of alcohol.
Thus, ‘s abuse appears related to his own criminal tendencies or substance abuse,
rather than conclusive evidence he targeted the respondent on account of her proposed
particular social group. The evidence in this case is more consistent with acts of general
violence and therefore does not co nstitute evidence of persecution based on a statutorily
protected ground. Huaman-Cornelio v. BIA, 979 F.2d 9 at l 000; Ruiz v. US. Att’y Gen., 440
F.3d 1247, 1258 (11th Cir. 2006).
Pages 137-155
BIA decision:
We disagree with the Immigration Judge that the respondent’s proposed social group, consisting of Honduran women
who are viewed as property and whose domestic partners refuse to allow them to leave their
relationship lacks the requisite immutability, particularity, and social distinction (l.J. at 7-10).
See Matter of M-E-V-G-, 26 l&N Dec. 227, 236-43 (BIA 2014) (outlining factors to be
considered when discerning whether a social group is cognizable under the Act); Matter of
The respondent’s evidence reflects that ‘s physical and verbal abuse of her
was related to his violent and jealous nature, heavy use of drugs and alcohol, and association
with drug traffickers. Exhibit 3, tab C at 17-19. Thus, ‘s abuse appears related to his
own criminal tendencies or substance abuse, rather than conclusive evidence he targeted the
respondent on account of her proposed particular social group. The evidence in this case is
more consistent with acts of general violence and therefore does not constitute evidence of
persecution based on a statutorily protected ground. Huaman-Cornelio v. BIA, 979 F.2d at
1000; Quinteros-Mendoza v. Holder, 556 F.3d 159, 164-65 (4th Cir. 2009). The Court finds
that the respondent has not established targeted her due to her particular social group,
which is required to prove the requisite nexus for asylum relief. INA§ 208(b)(l)(B)(i).
Pages 157-173
Immigration Judge decision:
The respondent’s evidence reflects that Mr. ‘ physical, verbal, and sexual abuse
of her was related to his violent and jealous nature. The respondent testified Mr. ‘
motivation to harm her was anger when she would ask him for money so she could buy food
for her family. She recalled the final argument that led to their separation occurred when the
respondent confronted Mr. regarding his affair with her sister-in-law. Thus, Mr. ‘
abuse of the respondent appears related to his own violent and criminal tendencies, rather than
conclusive evidence he targeted her on account of her membership in a particular social group.
The evidence in this case is more consistent with acts of general violence and therefore does
not constitute evidence of persecution based on a statutorily protected ground.
Consistent with its immutability and particularity analysis supra, the Court finds the
respondent is an unfortunate victim of violence against women like far too many women in
Guatemala, and thereby renders her past harm indistinct by comparison. For these reasons, the
Court finds the respondent has not met her burden to show the requisite social distinction
necessary for membership in a particular social group.
BIA decision:
The Immigration Judge further concluded that the respondent did not meet the immutability,
particularity and social distinction requirements for a cognizable particular social group (I.J. at 9-
12). We have held that depending on the facts and evidence in an individual case, victims of
domestic violence can establish membership in a cognizable particular social group that forms the
basis of a claim for asylum or withholding of removal. Matter of A-R-C-G-, 26 I&N
Dec. 388 (BIA 2014).
Pages 228-243
Immigration Judge decision:
The respondent’s evidence reflects that Mr. ‘s physical, verbal, and sexual
abuse of her was related to his violent and jealous nature. The respondent testified Mr.
‘s motivation to harm her was anger after she reported his abuse to government
authorities. Thus, Mr. ‘s abuse of the respondent appears related to his own
violent and criminal tendencies, rather than conclusive evidence he targeted her on account of
her membership in a particular social group. The evidence in this case is more consistent with
acts of general violence and therefore does not constitute evidence of persecution based on a
statutorily protected ground. Huaman-Cornelio v. BIA, 979 F.2d at 1000; Quinteros-Mendoza
v. Holder, 556 F.3d 159, 164-65 (4th Cir. 2009). The Court finds that the respondent has not
established Mr. targeted her due to her membership in a particular social group,
which is required to prove the requisite nexus for asylum relief. INA§ 208(b)(l)(B)(i).
BIA decision:
There appears to be no dispute that the verbal, physical and sexual abuse suffered by the
respondent at the hands of her stepfather, which occurred several times per week over a period of
years, rises to the level of past persecution. See, e.g., Barahon v. Holder, 588 F.3d 228, 232,
(4th Cir. 2009) (observing that “[a] key difference between persecution and less-severe
mistreatment is that the former is ‘systematic’ while the latter consists of isolated incidents”).
However, the Immigration Judge rejected as invalid the respondent’s proposed particular social
group of”Mexican children who are perceived as property and lack effective familial protection,”
finding that it lacked the requisite immutability, particularity, and social distinction (I.J. at 7-9).
The question whether a group is a “particular social group” within the meaning of the Act is a
question of law that we review de novo. Matter of A-R-C-G-, supra, at 390. On review, we find
that the particular social group posited by the respondent, under the circumstances of this case, is
valid under the reasoning of our recent decisions clarifying the approach to particular social
groups. See Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014); Matter of W-G-R-, 26 I&N
Dec. 208 (BIA 2014).
Pages 264-283
Immigration Judge decision:
The respondent’s evidence reflects that her former spouse’s physical, sexual, verbal,
and psychological abuse of her was related to his violent and jealous nature, and frequent
intoxication from alcohol. The respondent testified that is an alcoholic whose
motivation to harm her stemmed from his anger, dislike for her, jealous nature, and infidelity
with other women. Exhibit 2, tab C at 12-13. Based upon the respondent’s testimony, it
appears the threats, assault and rape she suffered at the hands of was intended to
intimidate and threaten her to comply his own selfish and criminal demands for sex.
Thus, the abuse suffered by the respondent appears related to the violent and criminal
tendencies of her abusive former spouse, rather than conclusive evidence she was targeted on
account of her membership in a particular social group. The evidence in this case is more
consistent with acts of general violence and therefore does not constitute evidence of
persecution based on a statutorily protected ground. Huaman-Cornelio v. BIA, 979 F.2d at
1000; Quinteros-Mendoza v. Holder, 556 F.3d 159, 164-65 (4th Cir. 2009). The Court fmds
that the respondent has not established her former spouse targeted her due to her membership
in a particular social group, which is required to prove the requisite nexus for asylum relief.
INA§ 208(b)( l)(B)(i).
BIA decision:
We additionally conclude that the Immigration Judge’s finding that the respondent was able
to leave her ex-husband is clearly erroneous (l.J. at 10-11).
However, the record reflects that the respondent’s ex-husband continued to threaten and physically abuse the respondent after -their separation,
despite her move to a town over 2 hours away from him, and that he raped her in…2014, after their divorce.
Pages 315-334
Immigration Judge decision:
The respondent’s evidence reflects that Mr. ‘ physical, verbal, and sexual abuse
of her was related to his violent and jealous nature, often fueled by his use of alcohol and
drugs. Exhibit 2, tab H at 1-2. Mr. ‘ motivation to harm her appears to be based upon his
own criminal tendencies and substance abuse, rather than conclusive evidence he targeted
her on account of her membership in a particular social group.
BIA decision:
We also note that even if the evidence and testimony support a finding that the
respondent’s husband has a “violent and jealous nature” (I.J. at 12), this is not clearly separate
from a motive to persecute his wife based on feelings of domination and control, the hallmarks
of domestic violence.
Pages 373-393
Immigration Judge decision:
The respondent’s evidence reflects that her husband’s physical, verbal, and
psychological abuse of her was related to his violent and jealous nature, at times affected by his
use of alcohol. The respondent testimony suggests her husband’s motivation to harm her was
his dislike for her and suspicion she was being unfaithful to him. His motivation also appears
related to the respondent’s desire to leave him because of his infidelity, and his demands for
custody of their son. Based upon the respondent’s testimony, it appears the threats, assaults
and psychological abuse she suffered at the hands of her husband was intended to intimidate
her to obtain some unclear result.
BIA decision:
We conclude, based on the particular facts presented on this record that the respondent
established that she was a member of the particular social group she articulated. We further
conclude that the Immigration Judge erred in concluding that this case is distinguishable from
Matter of A-R-C-G-, supra, based principally on the fact that the respondent was able to separate
and live apart from her husband after he moved out of their home in 2013 (l.J. at I 0-l l ).
The respondent’s ability to live apart from her husband in Honduras is not a distinguishing factor
from the social group rationale articulated in Matter of A-R-C-G-, supra, where the respondent
credibly testified that her husband refused to consent to a divorce and showed up unannounced
and uninvited at her home on several occasions, once touching her in a sexual manner and telling
her that he has a “right” to her as his wife. Additionally, the respondent testified that she was
unable to leave the relationship in Honduras for numerous cultural reasons, including her fear that
would take their son away from her and her belief that she was unable to obtain a divorce
because of ‘s ties to local government officials (l.J. at 3-4; Tr. at 51, 56, 64-73, 99, 105).
See Matter of A-R-C-G-, supra, at 393 (recognizing that “a married woman’s inability to leave the
relationship may be informed by societal expectations about gender and subordination, as well as
legal constraints regarding divorce and separation.”). Further, that domestic violence is prevalent
in Honduras does not mean that the respondent’s proposed particular social group lacks discrete
boundaries, as the Immigration Judge determined (l.J. at 11).
*************************************
EOIR has been known to pass off this type of judicial misconduct as “normal deviations” in judging. But, there is a difference between honest variances in judicial philosophies and approach, which are present to some extent in all diverse judicial systems and might produce differing results, and clearly biased and unfair judging. Judge Couch’s performance clearly fits within the latter.
To state the obvious:
All of these incidents were “specifically targeted.” Therefore, Judge Couch’s determination that they were part of “generalized violence” is clearly fiction.
Asylum applicants are not required to demonstrate “conclusive evidence” of anything. “Conclusive evidence” is not a legal standard in any part of asylum adjudication.
What should have happened:
Judge Couch should have been removed from each of these cases for bias;
Like U.S. Courts of Appeals, the BIA should have “outed” Judge Couch, by name, in published opinions to give both applicants and the Fourth Circuit Court of Appeals notice of his problematic adjudication of asylum cases.
If Judge Couch continued his biased and unfair judging he should have been 1) ordered by the BIA not to hear any asylum cases involving women from the Northern Triangle, and 2) told that if his performance in asylum cases did not improve, he would be referred to the EOIR disciplinary system for Immigration Judges based on actual bias against asylum applicants.
There is simply no room in a true Due Process system, particularly one where many respondents are unrepresented, for a biased, anti-asylum judge like Judge Couch. Is this “being the world’s best administrative tribunals guaranteeing fairness and Due Process for all?” No Way! Jeff Sessions, who often enunciates biased, anti-asylum positions, is part of the problem, not the solution! Due Process can’t be restored to the U.S. Immigration court system until Jeff Sessions and the USDOJ are removed from the process.
We need an independent judiciary capable of telling judges who perform like Judge Couch to correct their behavior immediately — in other words, “shape up or ship out.”
Judge in case Sessions picked for immigrant domestic violence asylum review issued ‘clearly erroneous’ decisions, says appellate court
By: Tal Kopan, CNN
Jeff Sessions recently used his special authority as attorney general to review an asylum case that could have sweeping implications for how the US treats immigrants fleeing domestic violence.
Newly released records now show that the case he handpicked, which involves a Central American woman fleeing domestic abuse from her ex-husband, comes from a judge who has been repeatedly rebuked by appellate judges for his multiple rejections of asylum claims from victims of domestic abuse.
Advocates and immigration attorneys fear that Sessions could be using the case as an opportunity to reverse case law that has protected Central American women fleeing violence and sexual assault from husbands by granting them asylum in the US.Stuart
Couch, an immigration judge in Charlotte, North Carolina, has sought to justify denying such women the right to stay in the US in multiple cases, even with the appellate body repeatedly ruling that his findings were “clearly erroneous,” according to records released after a Freedom of Information Act request.
Couch’s decision in the case Matter of A-B-, a convention of naming cases in immigration court that protects the individual’s identity, is a rare opinion that Sessions has referred to himself for review. Sessions has been using a little-known authority to refer immigration cases to himself for review, allowing him to almost single-handedly direct how immigration law is interpreted in this country.
In reviewing Couch’s decision, Sessions invited interested parties to comment on the notion of whether being the victim of a crime can count for asylum, a complicated aspect of asylum law.
The case was initially kept secret by the Justice Department and immigration courts on privacy grounds, but was made public by immigration attorneys as a domestic violence case. Input on the case was due to Sessions on Friday.
It was also later revealed that Sessions decided to consider the case over the objections of the Department of Homeland Security, which had asked him to hold off on diving into the case until the Board of Immigration Appeals, the immigration courts’ appellate body, decided on a request from Couch to take the case back up themselves. Sessions denied DHS’s request.
The Department of Justice declined to comment on why or how Sessions chose the case, and it’s not known how he will rule. When Sessions initially referred himself the case, a department official said he was considering it “because of a lack of clarity in the court system on the issue.”
You should read Tal’s entire article for a profile of just how biased Judge Couch — the second most reversed Judge among hundreds in the Immigration Courts — is in asylum cases. He had 58 cases reversed by the BIA just in 2017, while piling up an “asylum denial rate” 26% above the national average!
And, remember that this “isn’t the Ninth Circuit” by any stretch of the imagination. The BIA is a considered a conservative tribunal with a strong predilection to rule for the DHS to begin with!
I’m glad that the anti-asylum bias that runs through too much of today’s Immigration Court system, and is actually fanned and encouraged by Sessions, is finally being exposed. Even if Congress won’t solve this glaring problem by removing these Courts from the DOJ and creating an independent Immigration Court, with a merit-based hiring system, I hope that the Article III reviewing courts are getting the picture that much of what they are getting from EOIR in the area of asylum denials is the product of an intentionally unfair and biased system.
In this outrageous example, Matter of A-B-, the BIA was actually quite properly trying to “rein in” Judge Couch. Rather than encouraging justice, Sessions actually interfered with the BIA’s actions, even though neither the BIA nor any party had requested his review. What kind of “court system” allows a law enforcement official to control the results? Sounds like something directly out of the DOS Country Report on a Third World Dictatorship!
Judge Couch actually was appointed during the Obama Administration, illustrating the widespread and chronic nature of the problem of anti-asylum biased judging at EOIR. The Obama Administration was not accused of the overtly politicized hiring engaged in by the Bush Justice Department.
Nevertheless, from a statistical standpoint, the opaque, closed, and glacial (two-year average) Obama DOJ selection system was biased in favor of attorneys from government backgrounds and against those with experience representing asylum applicants by an astounding 9 to 1 ratio! Many believe this intentionally produced a BIA and an Immigration Court that would more or less “go along to get along” with construing the law and the facts against asylum applicants from countries considered to be “enforcement priorities” by the Obama Administration.
It’s time to put an end to this charade of justice and Due Process in our Immigration Courts. We need an independent Article I U.S. Immigration Court with a merit-based selection system. If not, we need a “helpful intervention” by the Article III Courts to end this chronically unfair and dysfunctional administration of justice by the Department of Justice!
Amici Curiae are sixteen former immigration judges and members of the Board of Immigration Appeals (“Board”). Out of respect for the law to which they have dedicated their careers, Amici feel compelled to file this brief in support of Respondent. Amici are deeply concerned about the procedural violations in this case—in particular the Attorney General’s certification of a question that was not properly considered by the Immigration Judge and was not considered at all by the Board. This complete disregard for established procedure is alarming. It plainly violates binding federal regulations governing the narrow circumstances under which Attorney General certification is permitted and it raises serious due process concerns.
Ultimately, it is within Congress’s authority—not the Attorney General’s—to define the boundaries of asylum. And Congress has already determined that a person can qualify for asylum based on persecution that independently might constitute private criminal activity.
Amici urge the Office of the Attorney General not to take any further action on a question that is not properly before it, and therefore urge that the referral order be vacated.
HERE’S THE TOC:
TABLE OF CONTENTS
Page INTRODUCTION ………………………………………………………………………………………………………….. 1 STATEMENT OF INTEREST OF AMICI CURIAE………………………………………………………….. 1 BACKGROUND ……………………………………………………………………………………………………………. 6 ARGUMENT …………………………………………………………………………………………………………………. 8
This case is not properly before the Attorney General ……………………………………. 8
Federal regulations require that the Immigration Judge issue a
decision on asylum before certifying a case to the Board. ……………………. 9
The Attorney General may only review a Board decision, but there
was none………………………………………………………………………………………. 12
Bypassing the Board nullifies critical procedural safeguards…………………………. 13
The Board, a neutral and independent body, with deep knowledge
of its own precedent, should consider the effect of new case law on
that precedent in the first instance. ………………………………………………….. 13
Bypassing the Board raises serious due process concerns…………………… 14
The Attorney General cannot override Congress’s judgment under the
guise of a procedural mechanism……………………………………………………………….. 16
“Persecution” can be carried out or threatened by private actors that the government cannot or will not control………………………………………………………… 19
The Honorable Steven Abrams served as an Immigration Judge at the New York, VarickStreet, and Queens Wackenhut Immigration Courts in New York City. Prior to his appointment to the bench, he worked as a Special U.S. Attorney in the Eastern District of New York, and before that as District Counsel, Special Counsel for criminal litigation, and general attorney for the former Immigration and Naturalization Service (“INS”).
The Honorable Sarah M. Burr served as an Immigration Judge in New York starting in 1994 and was appointed as Assistant Chief Immigration Judge in charge of the New York, Fishkill, Ulster, Bedford Hills, and Varick Street immigration courts in 2006. She served in this capacity until January 2011, when she returned to the bench full time until her retirement in 2012. Prior to her appointment, she worked as a staff attorney for the Criminal Defense Division of the Legal Aid Society in its trial and appeals bureaus and also as the supervising attorney in its immigration unit.
The Honorable Jeffrey S. Chase served as an Immigration Judge in New York City from 1995 to 2007 and was an attorney advisor and senior legal advisor at the Board from 2007 to 2017. He now works in private practice as an independent consultant on immigration law, and is of counsel to the law firm of DiRaimondo & Masi in New York City. He received the American Immigration Lawyers Association’s (“AILA”) annual pro bono award in 1994 and chaired AILA’s Asylum Reform Task Force.
The Honorable George T. Chew served as an Immigration Judge in New York from 1995 to 2017. Previously, he served as a trial attorney at the former INS.
2
The Honorable Bruce J. Einhorn served as an Immigration Judge in Los Angeles from 1990 to 2007. He now serves as an Adjunct Professor of Law at Pepperdine University School of Law, and is a Visiting Professor of International, Immigration, and Refugee Law at the University of Oxford.
The Honorable Cecelia M. Espenoza served as a Member of the Board from 2000 to 2003 and in the Executive Office for Immigration Review (“EOIR”) Office of the General Counsel from 2003 to 2017 where she served as Senior Associate General Counsel, Privacy Officer, Records Officer, and Senior FOIA Counsel. She now works in private practice as an independent consultant on immigration law. Prior to her EOIR appointments, she was a law professor at St. Mary’s University (1997–2000) and the University of Denver College of Law (1990–97), where she taught Immigration Law and Crimes and supervised students in the Immigration and Criminal Law Clinics. She has published several articles on immigration law. She received the Outstanding Service Award from the Colorado Chapter of AILA in 1997.
The Honorable Noel Ferris served as an Immigration Judge in New York from 1994 to 2013 and as an attorney advisor to the Board from 2013 until her retirement in 2016. Previously, she served as a Special Assistant U.S. Attorney in the Southern District of New York from 1985 to 1990 and as Chief of the Immigration Unit from 1987 to 1990.
The Honorable John F. Gossart, Jr. served as an Immigration Judge from 1982 until his retirement in 2013. He is the former president of the National Association of Immigration Judges. At the time of his retirement, he was the third most senior immigration judge in the United States. From 1975 to 1982, he served in various positions with the former INS, including as a general attorney, naturalization attorney, trial attorney, and deputy assistant
3
commissioner for naturalization. He is also the co-author of the National Immigration Court Practice Manual, which is used by all practitioners throughout the United States in immigration-court proceedings. From 1997 to 2016, Judge Gossart was an adjunct professor at the University of Baltimore School of Law teaching immigration law, and more recently was an adjunct professor at the University of Maryland School of Law, also teaching immigration law. He is also a past board member of the Immigration Law Section of the Federal Bar Association.
The Honorable Carol King served as an Immigration Judge from 1995 to 2017 in San Francisco and was a temporary member of the Board for six months between 2010 and 2011. She previously worked in private practice for ten years, focusing on immigration law. She also taught immigration law for five years at Golden Gate University School of Law and is currently on the faculty of the Stanford University Law School Trial Advocacy Program. Judge King currently works as an advisor on removal proceedings.
The Honorable Margaret McManus was appointed as an Immigration Judge in 1991 and retired from the bench this January after twenty-seven years. Before her time on the bench, she worked in several roles, including as a consultant to various nonprofit organizations on immigration matters (including Catholic Charities and Volunteers of Legal Services) and as a staff attorney for the Legal Aid Society, Immigration Unit, in New York.
The Honorable Lory D. Rosenberg served on the Board from 1995 to 2002. She then served as Director of the Defending Immigrants Partnership of the National Legal Aid & Defender Association from 2002 until 2004. Prior to her appointment, she worked with the American Immigration Law Foundation from 1991 to 1995. She was also an adjunct Immigration Professor at American University Washington College of Law from 1997 to
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2004. She is the founder of IDEAS Consulting and Coaching, LLC, a consulting service for immigration lawyers, and is the author of Immigration Law and Crimes. She currently works as Senior Advisor for the Immigrant Defenders Law Group.
The Honorable Susan Roy started her legal career as a Staff Attorney at the Board, a position she received through the Attorney General Honors Program. She served as an Assistant Chief Counsel, National Security Attorney, and Senior Attorney for the DHS Office of Chief Counsel in Newark, NJ, and then became an Immigration Judge, also in Newark. She has been in private practice for nearly five years, and two years ago, opened her own immigration law firm. She is the New Jersey AILA Chapter Liaison to EOIR and is the Vice Chair of the Immigration Law Section of the New Jersey State Bar Association.
The Honorable Paul W. Schmidt served as an Immigration Judge from 2003 to 2016 in Arlington, VA. He previously served as Chairman of the Board from 1995 to 2001, and as a Board Member from 2001 to 2003. He authored the landmark decision Matter of Kasinga, 21 I&N Dec. 357 (BIA 1995), extending asylum protection to victims of female genital mutilation. He served as Deputy General Counsel of the former INS from 1978 to 1987, serving as Acting General Counsel from 1979 to 1981 and 1986 to 1987. He was the managing partner of the Washington, DC office of Fragomen, DelRey & Bernsen from 1993 to 1995, and practiced business immigration law with the Washington, DC office of Jones, Day, Reavis and Pogue from 1987 to 1992, where he was a partner from 1990 to 1992. He was a founding member of the International Association of Refugee Law Judges (IARLJ), which he presently serves as Americas Vice President. He also consults, speaks, writes, and lectures at various forums throughout the country on immigration law topics.
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The Honorable William Van Wyke served as an Immigration Judge from 1995 until 2015 in New York City and York, PA.
The Honorable Gustavo D. Villageliu served as a Member of the Board from July 1995 to April 2003. He then served as Senior Associate General Counsel for the EOIR until he retired in 2011. Before becoming a Board Member, Villageliu was an Immigration Judge in Miami, with both detained and non-detained dockets, as well as the Florida Northern Region Institutional Criminal Alien Hearing Docket from 1990 to 1995. Mr. Villageliu joined the Board as a staff attorney in January 1978, specializing in war criminal, investor, and criminal alien cases.
The Honorable Polly A. Webber served as an Immigration Judge from 1995 to 2016 in San Francisco, with details to the Tacoma, Port Isabel (TX), Boise, Houston, Atlanta, Philadelphia, and Orlando immigration courts. Previously, she practiced immigration law from 1980 to 1995 in her own firm in San Jose, California. She served as National President of AILA from 1989 to 1990 and was a national AILA officer from 1985 to 1991. She also taught Immigration and Nationality Law for five years at Santa Clara University School of Law. She has spoken at seminars and has published extensively in the immigration law field.
HERE ARE THE ATTORNEYS AT GIBSON DUNN WHO MADE THIS HAPPEN:
Amer S. Ahmed
Ronald Kirk
Megan B. Kiernan
Lalitha D. Madduri
Chelsea G. Glover
Counsel for Amici Curiae
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Thanks to all for making this happen. Great teamwork in the name of Due Process!
Special thanks to our colleague Judge Lory Diana Rosenberg who served as our “Group Leader” in working with Gibson Dunn and to Judge Jeffrey Chase for assembling the group and putting the “finishing touches” on the filing.
The recent flurry of case certifications by Attorney General Jeff Sessions (he has certified four BIA decisions to himself since January) raises the question of the continued appropriateness of the practice. Certification allows a political appointee who heads an enforcement agency, and is subject to the policy agenda of the administration he or she serves, absolute authority to overrule or completely rewrite the decisions of an ostensibly neutral and independent tribunal comprised of judges possessing greater subject matter expertise.
The issue has only become a matter of legitimate concern under the two most recent Republican administrations. In her eight years as Attorney General during the Clinton Administration, Janet Reno decided a total of three cases pursuant to certification. Under the Obama administration, AGs Loretta Lynch and Eric Holder decided a comparable number of cases (four). The number is artificially inflated by the fact that two of those consisted of Holder vacating late-term decisions by his predecessor, Michael Mukasey. In one of the vacated decisions, Mukasey’s reasoning had been rejected by five separate U.S. circuit courts of appeal.
In contrast, during the eight year administration of George W. Bush, his three Attorneys General issued 16 precedent decisions through the certification process. Sessions so far seems to be on a similar pace.
One of Bush’s AGs, Alberto Gonzales, co-authored an article in 2016 defending the use of certification.1 As part of his argument, Gonzales traced the history of the practice to the BIA’s origins as an advisory-only panel in the Department of Labor in the 1920s and 30s. When the Board was transferred to the Department of Justice in 1940, it was provided only limited decision-making authority, but was required to refer to the AG certain categories of cases, including those “in which a dissent has been recorded” or where “a question of difficulty is involved.”
I will add that the early appointees to the BIA were career bureaucrats with no prior expertise or experience in the field of immigration law. To me, such history seems to provide no real justification for the continued practice. The BIA has for decades enjoyed the authority to independently decide a broad class of cases. It’s members all come to the Board with far more expertise and experience in the field of immigration law than the AG possesses (although since the 2003 purge by then-AG John Ashcroft, its make-up is far more conservative). Furthermore, whereas in the past, it was the BIA itself, and later, the Commissioner of INS, requesting certification, at present, the AG is handpicking the cases and certifying them to himself, sometimes in order to decide an issue that wasn’t part of the decision below.
Law Professor Margaret H. Taylor has noted that the practice of AG certification “might be seen as objectionable because it conflicts with a core value of our legal system: that disputes are resolved by an impartial adjudicator who has no interest in the outcome.”2 Taylor further points out that many such decisions were issued in the final days of an AG’s term, meaning that the AG “refers a controversial issue to himself and renders a decision upending agency precedent on his way out the door.”3
In an article calling for the implementation of procedural safeguards on the AG’s certification power, the author accurately notes that the practice of “agency head review” is common and non-controversial.4 However, Professor Stephen Legomsky has pointed out that the strongest arguments for agency head review – inter-decisional consistency, and agency control (by politically-accountable officials) over policy – don’t translate well to the process of deciding asylum applications, for example.5 This harks back to a point I made in an earlier article – that immigration judges (including BIA Board member) are the only judges in the otherwise enforcement-minded Department of Justice, and that the Department has never really grasped the concept of independent decision-makers existing under its jurisdiction.
Legomsky pointed out in the same article that the BIA, as an appellate authority, “can yield the same consistency as agency head review” through the issuance of en banc decisions; adding that the AG could require the Board to decide certain cases en banc.6 Interestingly, the BIA has given up the use of en banc decisions in recent years. It has not decided a precedent decision en banc even in cases of major import, or following remands from the AG or circuit courts.
Sessions’ use of certification thus far is unique in his redetermination of what the case he chooses is even about. In Matter of Castro-Tum, the DHS appealed an immigration judge’s decision to administratively close proceedings in which an unaccompanied minor did not appear on the grounds that it had met its burden of establishing proper notice of the hearing on the minor respondent. The BIA actually agreed with DHS and remanded the matter. However, Sessions has now turned the case into a referendum on whether any IJ or the BIA has the legal authority to administratively close any case, an argument that was never raised below. In Matter of A-B-, an immigration judge, in defiance of the BIA’s order to grant asylum on remand, refused to calendar the case for a hearing for an excessive length of time, and then disobeyed the Board’s order by denying asylum again for spurious reasons. Somehow, Sessions decided to certify this case to decide whether anyone seeking asylum based on membership in a particular social group relating to being a victim of private criminal activity merits such relief. His ultimate decision could curtail asylum eligibility for victims of domestic violence, members of the LGBTQ community, targets of gang violence, and victims of human trafficking.
Furthermore, two of the cases certified by Sessions involve tools of docket management, i.e. administrative closure and continuances. As immigration judges are the only judges within the Department, and as the BIA has set out uniform procedures for the proper use of these tools, how can the AG justify his need to weigh in on these issues, which clearly do not involve the need for intra-department consistency (as no other component of the department employs such tools), or for control by a politically-accountable official to ensure the coherent expression of agency policy?
Once again, the solution is to create an independent, Article I immigration court, allowing IJs to continue to decide cases with fairness and neutrality free from such policy-driven interference.
Copyright 2018 Jeffrey S. Chase. All rights reserved.
Notes:
Alberto Gonzales and Patrick Glen, Advancing Executive Branch Immigration Policy Through the Attorney General’s Review Authority, 101 Iowa L.Rev. 841 (2016).
Margaret H. Taylor, Midnight Agency Adjudication: Attorney General Review of Board of Immigration Appeals Decisions, 102 Iowa L. Rev. 18 (2016).
Id.
Laura S. Trice, Adjudication by Fiat: The Need for Procedural Safeguards in Attorney General Review of Board of Immigration Appeals Decisions, 85 N.Y.U. L. Rev. 1766 (2010).
Stephen H. Legomsky, Learning to Live with Unequal Justice: Asylum and the Limits to Consistency, 60 Stan. L. Rev. 413, 458 (2007).
International asylum frameworks have long grappled with how to address this gender-based persecution. After years of debating whether victims of domestic violence have a legitimate claim to asylum, the US Board of Immigration Appeals (BIA) finally recognized in 2014 that married women who are unable to leave their relationships may constitute a cognizable particular social group for the purposes of seeking asylum. Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014); see also Matter of D-M-R- (BIA June 9, 2015) (clarifying that a victim of domestic violence need not be married to her abuser). Although some advocates argue the decision does not go far enough, the protections and opportunities that Matter of A-R-C-G– have provided to thousands of women cannot be understated. Despite these advancements, Attorney General Jeff Sessions has questioned whether such claims to asylum are legitimate by referring to himself a BIA case, Matter of A-B- (BIA Dec. 8, 2016), where the Board found that a victim of domestic violence was indeed eligible for asylum. Pursuant to 8 C.F.R. § 1003.1(h)(1)(i) (2017), Sessions may refer a case to himself for review, and has asked each party to submit briefs on “[w]hether, and under what circumstances, being a victim of private criminal activity constitutes a cognizable ‘particular social group’ for purposes of an application for asylum or withholding of removal.” Matter of A-B-, I&N Dec. 227 (A.G. 2018).
As brief background, in order to be granted asylum, the applicant must show that they have suffered past persecution or have a well-founded fear of future persecution on account of their race, religion, nationality, membership in a particular social group, or political opinion, and that he or she is unable or unwilling to return to, or avail himself or herself of the protection of, their country of origin owing to such persecution. 8 C.F.R. § 1208.13(b)(1) & (2). To be granted asylum based on one’s membership in a particular social group, the applicant must show that the group is “(1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.” Matter of A-R-C-G-, 26 I. & N. at 392. As set forth in Matter of Acosta, 19 I&N Dec. 211, 212 (BIA 1985), a “common immutable characteristic” is defined as “a characteristic that either is beyond the power of the individual members of the group to change or is so fundamental to their identities or consciences that it ought not be required to be changed.” Under Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014) and clarified in Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014), the social group must be defined with “particularity,” or be defined by boundaries of who is actually a member of the group. Finally, as explained in Matter of W-G-R-, “social distinction” is defined as the ‘recognition’ or ‘perception’ of the particular social group in society. 26 I&N Dec. at 216. The applicant must also show that her persecution was on account of her membership in the social group, and that the government in her country of origin is unable or unwilling to afford her protection from such persecution.
In Matter of A-R-C-G-, the Board found that the lead respondent had met her burden in establishing eligibility for asylum, and held that “[d]epending on the facts and evidence in an individual case, ‘married women in Guatemala who are unable to leave their relationship’ can constitute a cognizable particular social group that forms the basis of a claim for asylum or withholding of removal.” 36 I&N Dec. at 388. In this case, the lead respondent was married to a man who regularly beat her, raped her, and on one occasion, burned her. She had contacted local authorities several times to escape her abuser, but was told that the police would not interfere with domestic matters. The respondent had even moved out, but her husband found her and threatened to kill her if she did return. Fearing for her life, and knowing that she could not be safe if she stayed in Guatemala, the respondent fled to the United States.
The Immigration Judge in Matter of A-R-C-G- found that the respondent’s abuse was the result of “criminal acts, not persecution,” and further found that the respondent was not eligible for asylum. On appeal, the BIA found that “married women in Guatemala who are unable to leave their relationship” is indeed a cognizable social group. First, the BIA asserted that the immutable characteristic in this matter was “gender,” and also found the marital status would satisfy the requirement where the woman is unable to leave the relationship. Second, the BIA found that the particular social group had been defined with particularity, where “married,” “women,” “who are unable to leave their relationship” have commonly accepted definitions in Guatemala, stating that it was particularly significant that the respondent had sought protection from the police but was denied protection due to her social group. Finally, the BIA found that the group was socially distinct in society, where Guatemala has a culture of “machismo and family violence,” where the respondent’s social group is easily perceived and recognized in Guatemalan society, and where Guatemala has created laws to protect the respondent’s social group, but has failed to successfully implement them. The BIA cautioned in their decision that particular social group analyses in cases that involve victims of domestic violence will depend heavily on the facts, including country conditions.
Sessions has made clear his animus against immigrants, especially those fleeing persecution and seeking asylum in the United States, along with their ‘dirty’ immigration lawyers. The referral of the A-B- case to himself is yet another instance of such xenophobia on full display, where he seeks to deny protection to some of the most vulnerable populations in the world. While we hope this is not the case, Sessions will likely reverse the BIA’s findings on the Matter of A-B- case and declare that victims of domestic violence are no longer eligible for asylum in the United States, thus uprooting Matter of A-R-C-G- and particular social group claims based on domestic violence. Indeed, attempting to reverse the ability of a victim of domestic violence to seek asylum goes beyond being anti-immigrant. It is a full-frontal attack on human rights and undermines international obligations to provide protection to people fleeing persecution. The respondent in Matter of A-B- will thus need to appeal to a federal appellate court to overrule Sessions.
One can hope that if successful on appeal, Matter of A-B- has the potential to broaden asylum eligibility for victims of domestic violence by returning to the Acosta definition of particular social group, and clarify what Matter of A-R-C-G- left untouched, such as the nexus requirement and the inability or unwillingness of governments to provide victims protection from their abuses.
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Go on over to LexisNexis at the above link for Sophia’s much longer full article.
More and more individuals are publicly “outing” the clear bias, White Nationalism, lifelong xenophobia, and disingenuous misstatements of facts, manipulation of the process, and disrespect for the true rule of law and our Constitutional guarantees of Due Process for all, which should have disqualified Jeff “Gonzo Apocalypto” Sessions from ever becoming the Attorney General and assuming control over the US. Immigration Courts. But, as Sophia cogently points out, by winning cases in the Article III Courts, the “NDPA” can actually turn the tables on Sessions and his restrictionist cronies by putting important principles of immigration law and fairness beyond their biased grasp.
Harm to the most vulnerable among us is harm to all of us! Go New Due Process Army! Due Process Forever!
FINALLY, AFTER FUTILE REQUESTS TO THE BIA AND THE DOJ, THE PUBLIC HAS BEEN ABLE TO GET A COPY OF THE RECENTLY CERTIFIED MATTER OF A-B-, FROM THE ATTORNEY (WHO WASN’T TOLD OF THE ACTION UNTIL HE RECEIVED A COPY OF THE DECISION IN THE MAIL ON FRIDAY)
It’s bad news for Due Process, justice in American, and particularly vulnerable asylum seekers who are battered women. Sessions appears to be taking direct aim at the landmark BIA precedent Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014) which, following a 15 year legal battle, recognized that battered women could be a “particular social group” and thereby qualify for asylum and withholding of opinion.
Make no mistake, the BIA decision in Matter of A-B- is correct in every respect — a virtual textbook on how U.S. Immigration Judges should be handling and granting these well-documented claims. It’s also a classic example of poor quality work and feeble, biased anti-asylum, anti-female reasoning by an Immigration Judge that plagues too much of our asylum system.
The Immigration Judge’s decision denying asylum which was reversed by the BIA in Matter of A-B- contained numerous egregious errors, including:
An incorrect adverse credibility ruling which failed to consider and properly weigh “the totality of the circumstances, and all relevant factors,” as required by the REAL ID Act;
Failure to recognize a “particular social group” (“PSG”) substantially similar to that approved by the BIA in Matter of A-R-C-G-;
A “clearly erroneous” finding that the abused respondent was free to leave her ex-husband;
A “clearly erroneous” finding that the valid PSG was not “at least once central reason” for the persecution;
An erroneous finding, bordering on the absurd, that the Government of El Salvador was not “unable or unwilling” to protect the respondent.
Overall, the Immigration Judge’s handling of this case has all the earmarks of a jurist who is biased against asylum applicants and has predetermined to deny most claims giving a litany of specious, basically “pre-judged” reasons.
The Attorney General compounds the problem by apparently questioning the long-established principle that persecution takes place when “non-state actors” are not reasonably controlled by their national government. See, e.g., Matter of O-Z-&I-Z-, 22 I&N Dec. 23, 26 (BIA 1998).
Rather than reinforcing the BIA’s long-overdue “reining in” of a wayward Immigration Judge, the Attorney General appears to be aiming to upend well-settled asylum law and empower those Immigration Judges who already treat asylum applicants unfairly. That’s likely to result in a monumental battle in the Article III Courts — specifically the U.S. Courts of Appeals. Hopefully, those courts eventually will recognize that the U.S. Immigration Courts are being manipulated to reflect the anti-asylum, xenophobic biases and prejudices of Jeff Sessions.
That will require them to stand up to Sessions’s bullying and insist that asylum seekers rights to fair hearings before impartial decision makers and to receive legal protection under U.S. and international standards be recognized.
Advocates also question the procedures by which this case was handled by the Immigraton Judge following the BIA remand. The BIA order instructed the Judge to schedule the case for a routine update of the fingerprints and background checks and to issue a final order; in my experience, that’s usually a “30 second process” that can be completed on a Master Calendar or by joint written motion “in chambers.”
However, according to sources, this Immigration Judge allegedly “held up” AB’s case for eight months for no particular reason, and then “recertified” it to the BIA raising a facially bogus legal issue concerning a later-issued, unrelated Fourth Circuit case. Mysteriously, the case then was “certified” by Sessions taking it out of the BIA’s jurisdiction.
This scenario raises speculation that this Immigration Judge — perhaps recognizing from the Attorney General’s public statements that Sessions was also biased against asylum seekers — may have manipulated the process to do an “end run” around the BIA to the Attorney General. All pretty unseemly stuff when “lives are on the line.” Yet more “anecdotal evidence” of a system out of control and biased against Due Process and fairness for asylum seekers and other migrants.
Stay tuned. The battle is just “revving up,” and the New Due Process Army is ready to defend our justice system against each and every debilitating attack on the rule of law by our biased and lawless Attorney General.
Attorney General Jeff Sessions’ recent move to re-open a court decision protecting domestic violence victims has advocates concerned that women and children fleeing abuse in their home countries could no longer seek shelter in the US.
Sessions last week announced he was reviewing the immigration court decision without making public what the case was about. In a quirk of immigration court law, decisions by the appellate court, the Board of Immigration Appeals, are reviewable by the attorney general.
The previously unpublished decision has been obtained by CNN and advocacy groups, and the facts of the case has human rights advocates concerned Sessions could be moving to undercut domestic violence victims’ claims for protections in the US.
The issue is mired in the legal details of asylum — a type of protection for immigrants who come to the US fleeing persecution back home. There are a few categories that have to be proven in order to be granted asylum, including being part of a “particular social group” that has a reason to fear persecution and whose government can’t or won’t adequately protect them.
Sessions has asked for arguments on the case, known as the “Matter of AB-” based on the redacted name of the individual bringing the case, on “whether, and under what circumstances, being a victim of private criminal activity constitutes a cognizable “particular social group” for purposes of an application for asylum or withholding of removal.”
Without knowing the underlying case, many experts had believed the issue related to gang violence — a major issue in Central America that pushes immigrants to try to enter the US illegally.
But though the case deals with a woman from gang violence-plagued El Salvador, the issue is instead her rape and physical and emotional abuse by her ex-husband. The Board of Immigration Appeals found in the case that the woman does qualify for asylum, as women in El Salvador with children in common are often unable to leave their relationships and the government has been found “minimally” able to stop domestic violence.
“We’re very concerned about what this could mean for the women who flee their homes, leaving everything behind — their community, parents, and children — in order to get to safety,” said Archi Pyati, chief of policy and programs for the Tahirih Justice Center, which protects and advocates for immigrant women and girls fleeing violence. “In some countries, the government will do nothing to stop a man from abusing a woman. …Right now, the attorney general is signaling that he may reconsider whether we as a nation are willing to stand up for what is right and offer a beacon of hope to those women with nowhere else to go.”
The Justice Department declined to comment on the case now that its details were released. Before it was obtained, a department official would only say that Sessions had referred the case to himself due to a “lack of clarity” in the court system on the subject of the Board of Immigration Appeals decision.
In 2014, the agency issued a similar decision for Guatemalan women in a case that set precedent for lower immigration courts.
Sessions’ decision to wade into the case has potentially far-reaching implications. As attorney general, he has the legal authority to single-handedly overturn the decision of the Board of Immigration Appeals. Once he does, the only authority who can overrule him are the federal appellate courts and Supreme Court, if an immigrant appeals their case to them.
If Sessions decides that victims of crime cannot qualify as a “particular social group,” hypothetically, it could mean foreign domestic violence victims are not able to seek protections from their abusive spouses in the US.
Sessions has alarmed advocates by referring himself two asylum cases in the past week. While he didn’t make a decision on the Matter of AB-, in the other case, he overruled the Board of Immigration Appeals on a decision that had determined all asylum cases are entitled to a hearing before their bid for protections is rejected. Sessions’ move means that asylum cases could now be rejected without those immigrants getting an opportunity to argue their case in court; judges can make decisions based on briefs.
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With each Sessions anti-immigrant, anti-asylum, anti-due-process action, the farce and charade of due process for migrants in the Sessions-controlled U.S. Immigration System becomes more pronounced. And, with the GOP in control of all three political branches of the Government, responsible oversight of Executive Branch actions and overreaching has simply ceased to exist. Yeah, the Article III courts are still out there. But, you can bet that Trump, Sessions, and the GOP Senators are doing their very best to co-opt the Federal Courts with appointees committed to an extreme right-wing agenda.
From: Anwen Hughes <HughesA@humanrightsfirst.org>
Date: March 8, 2018 at 5:25:33 PM EST
To: Dan Kowalski <dkowalski@david-ware.com>, “immprof@lists.ucla.edu” <immprof@lists.ucla.edu>
Subject: [immprof] RE: no transparency on Matter of A-B-
Hello all,
With apologies for cross-posting, we have drafted a sign-on letter on behalf of Human Rights First on the referral process in Matter of A-B-, complaining about the lack of transparency and asking for a copy of the underlying decision.
We are looking for sign-ons from concerned NGO’s and immigration professors. For NGO’s, we are taking organizational sign-ons, for immprofs, individual ones, but asking you to identify your school for purposes of identification only.
You can find a link to the text, and a link to sign onto the letter, below. With many apologies for the tight turnaround, imposed on us by circumstance, we are asking for sign-ons by noon tomorrow, Friday, March 9. There are a couple of formatting quirks due to the transfer of the text to google docs–these will be fixed before the letter is sent.
Letter text
Sign on form
Thanks so much,
Anwen
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SIGN ON TO THE LETTER BY CLICKING THE LINK AT THE TOP!
U.S. Department of Justice Office of the Attorney General
The Attorney General referred the decision of the Board of Immigration Appeals to himself for review of issues relating to whether being a victim of private criminal activity constitutes a cognizable “particular social group” for purposes of an application for asylum and withholding of removal, ordering that the case be stayed during the pendency of his review.
BEFORE THE ATTORNEY GENERAL
Pursuant to 8 C.F.R. § 1003.l(h)(l)(i) (2017), I direct the Board of Immigration Appeals (“Board”) to refer this case to me for review of its decision. The Board’s decision in this matter is automatically stayed pending my review. See Matter of Haddam, A.G. Order No. 2380-2001 (Jan. 19, 2001). To assist me in my review, I invite the parties to these proceedings and interested amici to submit briefs on points relevant to the disposition of this case, including:
Whether, and under what circumstances, being a victim of private criminal activity constitutes a cognizable “particular social group” for purposes of an application for asylum or withholding of removal.
The parties’ briefs shall not exceed 15,000 words and shall be filed on or before April 6, 2018. Interested amici may submit briefs not exceeding 9,000 words on or before April 13, 2018. The parties may submit reply briefs not exceeding 6,000 words on or before April 20, 2018. All filings shall be accompanied by proof of service and shall be submitted electronically to AGCertification@usdoj.gov, and in triplicate to:
United States Department of Justice Office of the Attorney General, Room 5114 950 Pennsylvania Avenue, NW Washington, DC 20530
All briefs must be both submitted electronically and postmarked on or before the pertinent deadlines. Requests for extensions are disfavored.
227
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Something pretty strange is going on here! The BIA has never, to my knowledge, held that “being a victim of private criminal activity constitutes a cognizable ‘particular social group.'” Quite to the contrary, the BIA has always found that “victims of crime” are not a PSG.
Moreover, “Matter of A-B-” is not a BIA precedent. In fact, it’s impossible to tell from the cryptic certification what facts or context the amici should address.
Stay tuned. But, given Sessions’s record of hostility and outright misrepresentations concerning asylum seekers, we could be heading for a monumental, years long battle in the Article III Federal Courts as to whether the U.S. will continue to honor our Constitutional, statutory, and international obligations to protect “refugees” applying for asylum.
