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  1. The Attorney General's Not-as-Bad-as-We-Feared Decision on Asylum

    We knew this was coming. On March 7, 2018, Attorney General Jeff Sessions announced plans to revisit a Board of Immigration Appeals ("BIA") case called Matter of A-B-, 27 I&N Dec. 227 (BIA 2018), which granted asylum to a victim of domestic violence from El Salvador. Now, the Attorney General has reversed A-B- and issued a wide-ranging opinion that seeks to limit asylum for victims of domestic violence and other criminal activity.

    Attorney General Jeff Sessions explains why asylum seekers are bad.

    There is a lot to say about the AG's decision, but here I want to focus on two issues: (1) Who is affected by the decision, and (2) Why the decision may not have the broad impact that the AG seems to have intended.

    Matter of A-B- most immediately impacts victims of domestic violence. Since 1999, the law related to asylum for DV victims has been evolving. Different lawyers and government agencies have worked to crack open the door for such applicants. The end result of their efforts was Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014), which created a convoluted path for victims of DV to obtain asylum. I think it was fairly apparent that A-R-C-G- was a house of cards, waiting for a hostile Administration to knock it down. And in Matter of A-B-, Mr. Sessions has done just that--he has overturned nearly two decades of evolving precedent, and overruled A-R-C-G-.

    How, exactly, Mr. Sessions has attempted to block DV asylum seekers is important. To win asylum, an applicant must not only show that she faces harm; she must demonstrate that the harm she faces is on account of a protected ground, such as race, religion, nationality, political opinion or particular social group ("PSG"). So if a persecutor wants to kill you in order to steal your money, that is usually not a basis for asylum. But if the persecutor wants to harm you because he does not like your political opinion, or race, or religion, or PSG, that can form the basis for an asylum claim. A-R-C-G- said that “married women in Guatemala who are unable to leave their relationship” can constitute a PSG, making such people potentially eligible for asylum (assuming they met a host of other requirements).

    In A-B-, the Attorney General is saying that this PSG formulation was erroneous, and so victims of DV can no longer use it as a basis for asylum. Such victims can still attempt to win asylum based on other protected grounds (maybe they are a member of an acceptable PSG, for example, or maybe the persecutor seeks to harm them due to their religion or for some other "protected" reason). But the fact is, many of these (mostly) women will no longer qualify for asylum, and will be sent home to face whatever "vile abuse" (Jeff Sessions's words) that is awaiting them.

    The impact of A-B- is clearly meant to reach beyond the realm of DV asylum, but how it will be interpreted outside the immediate circumstances of the case is unclear (at least to me). For example, in the decision, Mr. Sessions writes, "Generally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum." Indeed, the decision makes multiple references to "gang violence," but as far as I can tell, gang violence is not an issue in the case. This is strange, since normally, courts decide issues that are before them; not abstract issues that are obliquely related to the subject of the case.

    So if they are presented with an asylum claim involving "gang violence," how will Immigration Judges and Asylum Officers apply Matter of A-B-? It's difficult to know. The AG's vague pronouncements about "gang violence" are not easily translated into legal guidance for adjudicators. Of course, adjudicators who want to deny a case can find additional support for such a decision here, but those who want to grant a case are not blocked from doing so.

    There's also the more general issue of "persecution based on violent conduct of a private [as opposed to government] actor," which could include harm against LGBT individuals, FGM, threats from terrorists groups, etc. The AG states that in such cases, an asylum applicant "must show more than difficulty controlling private behavior... The applicant must show that the government condoned the private actions or at least demonstrated a complete helplessness to protect the victims." In other words, says the AG, "Applicants must show not just that the crime has gone unpunished, but that the government is unwilling or unable to prevent it." Maybe I'm missing something here, but this is the exact same legal standard we've had since the asylum statute was enacted. As I read Matter of A-B-, I don't expect big changes for people seeking asylum based on sexual orientation or FGM, or those fleeing terrorists, even though these cases typically involve persecution by non-state actors.

    In fact, though Matter of A-B- will block many DV victims from obtaining asylum, I am not sure that its effects will be broadly felt. Much of the decision is hyperbole without substance: "Generally," asylum claims based on persecution by non-state actors will fail. Generalizations like this aren't guidance for adjudicators; they are propaganda. And then there are helpful chestnuts like this:

    Neither immigration judges nor the Board may avoid the rigorous analysis required in determining asylum claims, especially where victims of private violence claim persecution based on membership in a particular social group.... Furthermore, the Board, immigration judges, and all asylum officers must consider, consistent with the regulations, whether internal relocation in the alien’s home country presents a reasonable alternative before granting asylum.

    In other words, adjudicators are supposed to follow the law. No duh.

    I don't know why the AG used Matter of A-B- to make a broad statement against people fleeing violence from non-state actors (as opposed to limiting his ruling to the facts of the case). But the decision's platitudes and generalizations are not conducive to the type of legal precedent that can guide decision makers.

    Perhaps Mr. Sessions hopes that his anti-asylum rhetoric and exhortations to "follow the law" will set the tone for adjudicators at the Immigration Courts and Asylum Offices. Maybe he believes that his disdain for immigrants can somehow be transmitted through the bureaucracy to the men and women deciding cases. But in my experience, IJs and Asylum Officers are not lemmings who exist to do the AG's bidding. They are adjudicators empowered to interpret the law.

    After Matter of A-B-, some applicants will have a tougher time obtaining asylum; others will be unaffected. In a strange sense, this decision gives me hope. If this is the best Mr. Sessions can do, it is not enough to end asylum as we know it. Thanks to Mr. Sessions, many domestic violence victims will be returned to face harm, but our country will continue to offer protection to many others. For that, I am thankful.

    Originally posted on the Asylumist:
    Tags: asylum, bia, sessions Add / Edit Tags
  2. Stench of Hypocrisy: Sessions Denies Asylum to Central American Gang Victims, While Using US Gang Victims to Demonize Immigrants. Roger Algase

    In a June 11 decision which Jeff Sessions made on his own after taking the case away from the Board of Immigration Appeals, Attorney General has engaged in a demonstration of hypocrisy and use of the double standard which can only be called appalling. See Matter of A-B- Interim Decision #3929. 27 I&N Dec. 316 (A.G. 2018).

    In this decision, among other things, Sessions ruled that immigration judges must from now on deny asylum to Central American men, women and children who come to the US to escape intolerable gang violence which the governments of their countries arev unable to prevent or control.

    He based his decision, as I read it, solely on the grounds that gang violence victims purportedly fail to qualify as a "particular social group" for asylum purposes. The fact that gangs are not connected with or controlled by the governments concerned was not the stated reason for his ruling, which appears to recognize and accept the fact that persecution by private criminal organizations which the government cannot control can be a legitimate basis for an asylum claim under our law.

    In the words of Sessions' decision:

    "Victims of gang violence often come from all segments of society, and they possess no distinguishing characteristic or concrete trait that would readily identify them as members of such a
    [particular social] group."

    This very casual and dismissive approach to the horrors of gang violence in Central America and its devastating effect on its victims or potential victims, including hundreds (so far) of women and young children who under Sessions' vindictive and barbaric policy of separating mothers from their young children are in effect being treated like "animals" - the same term that Donald Trump uses to characterize gang members when Americans are the victims - by the Trump administration when they arrive at the US border seeking refuge here, contrast with Sessions expression of concern for American (and therefore mainly white) victims of one of these same gangs, i.e. MS-13.

    Here is Jeff Sessions talking about American gang victims at an April speech in Long Island, NY:

    "The MS-13 mantra is to kill, rape and control, and so that should tell us about what kind of groups we confront...Our motto is justice for victims and consequences for criminals."

    Nothing in those remarks indicated any difficulty in recognizing gang victims or potential victims in the US as a distinct group, whose protection is a top priority of the US government at the very highest level - the president himself.

    Indeed, Trump is now frequently engaged in using American victims of MS-13 as a rallying point for his entire anti-immigrant agenda, denying that gang members even qualify as human beings (a charge that many of his supporters will take as being meant to refer to Latino and other non-white immigrants in general, whether gang members or not), and using gang violence and other immigrant criminal activity as a talking point for totally unrelated items in his agenda, such as cutting back on or eliminating family immigration and the diversity visa lottery.

    Trump frequently mentions American MS-13 victims by name, brings their families with him at "Roundtable" meetings on this topic, and otherwise uses them as part of his attempts to demonize most or all Latino immigrants as violent criminals just as he did with Mexican immigrants at the beginning of his presidential campaign.

    Victims of or people threatened gang violence are not a distinct social group?

    Only not, it seems, when they are brown-skinned Central Americans desperately trying to flee the horrors of gang violence which their governments are obviously unable to control. But when the victims of these same gangs are white American citizens, protecting them from gang violence becomes a top priority of the Trump administration.

    But don't all gang victims deserve such protection under our law and the principle of equal justice which our country stand for - even if they are brown-skinned immigrants whom Donald Trump doesn't want in America because they are not from Countries like Norway?

    Sessions' decision denying gang violence, which is such an important issue for him when the victims are (mainly white) Americans, as a basis for giving protection to its victims when they are brown immigrants instead, reeks with the Stench of Hypocrisy.

    So far, I have said nothing about the dangerous precedent for America's justice system and rule of law that Sessions has created by choosing this particular issue as a basis for using his statutory power to take cases away from the BIA and decide them himself.

    It is true that the immigration law gives Sessions such authority. But using this authority to decide such an important case, with its huge adverse implications for racial justice and human rights in America, when Sessions, as head of the Justice Department is also the chief litigant on one side of this same case and is also one of the chief actors in carrying out Trump's political agenda of excluding and deporting as many Central American and other non-white immigrants as possible, is a total perversion of America's justice system and goes against every principle of equality before the law that America stands for.

    The immediate victims of this kind of authoritarianism, in which one of the King's top agents decides a case in which that same top agent, acting on behalf of the King, is one of the parties, may be a few thousand Central American women whom Sessions is already treating like animals by inhumanly separating them from their children when their arrive in the United States under often horrendous detention conditions (as I have mentioned in a previous comment).

    But the ultimate victims could well turn out to be the American people themselves, through the destruction of our democracy by eviscerating the core principle of equal justice before the law on which our liberty stands.

    Roger Algase
    Attorney at Law

    Updated 06-14-2018 at 03:49 AM by ImmigrationLawBlogs

  3. Trump Administration Launching Office to Identify Fraud In Applications For Citizenship

    by , 06-12-2018 at 08:56 AM (Matthew Kolken on Deportation And Removal)
    Via The Associated Press:

    By Amy Taxin - Associated Press - Monday, June 11, 2018

    LOS ANGELES (AP) — The U.S. government agency that oversees immigration applications is launching an office that will focus on identifying Americans who are suspected of cheating to get their citizenship and seek to strip them of it.

    U.S. Citizenship and Immigration Services Director L. Francis Cissna told The Associated Press in an interview that his agency is hiring several dozen lawyers and immigration officers to review cases of immigrants who were ordered deported and are suspected of using fake identities to later get green cards and citizenship through naturalization.

    Cissna said the cases would be referred to the Department of Justice, whose attorneys could then seek to remove the immigrants’ citizenship in civil court proceedings. In some cases, government attorneys could bring criminal charges related to fraud.

    Click here for more.

    Updated 06-12-2018 at 09:16 AM by MKolken

  4. Will Trump's Peaceful Gestures to Kim Include Taking North Korea off the Muslim Entry Ban List? Or Does Trump Still Need This Fig Leaf? Roger Algase is not a foreign policy discussion site (except insofar as immigration is considered as part of foreign policy, as the Supreme Court has maintained for well over a hundred years). Therefore I make no comment on the June 12 Kim-Trump meeting other than to express a general thought that any action which might decrease the danger of blowing up the planet in a nuclear holocaust should be welcome as a benefit to the world's immigrants, along with the rest of humanity.

    But there is one point about the meeting between these two leaders which does concern immigration directly. North Korea is now on Trump's entry ban list, the legality of which the Supreme Court is expected to rule on shortly.

    There is good reason to think that the ban on North Korea was (along with one directed against Venezuela) simply thrown in as "window dressing" (or a fig leaf) to cover the real purpose of the ban, namely discrimination against Muslims because of their religion.

    As a peace gesture to Kim, might Trump be considering removing the North Korea ban - which has largely been meaningless up to now - how many readers have ever seen or met a North Korean?

    Or does he need this fig leaf so badly as part of his efforts to pretend that the ban was motivated by anything other than anti-Muslim animosity that he will decide to keep it in place, despite his other apparent attempt to conduct friendly discussions with the North Korean dictator?

    Roger Algase
    Attorney at Law

    Updated 06-12-2018 at 10:30 AM by ImmigrationLawBlogs

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