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Jason Dzubow on Political Asylum

Attorney General Seeks to Limit Asylum... Or Something

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The Attorney General, Jefferson Beauregard Sessions, has been busy "certifying" cases to himself in order to (apparently) reduce protections for certain asylum seekers. I want to talk about two cases in particular, but first, let's talk about the process that Mr. Sessions is following.


"Oh Magoo, you've done it again!"

The decisions in question involve cases that were before the Board of Immigration Appeals ("BIA" or "Board"), the administrative appellate body that interprets the nation's immigration laws. The BIA has been called (sometimes derisively) the "Supreme Court of immigration law." The BIA is not actually a court in the normal sense of the word (and, by the way, neither are the Immigration Courts). Instead, it is an office within the U.S. Department of Justice. The leader of the Department of Justice is the Attorney General ("AG"). So in essence, the BIA derives its power from the AG, who is the ultimate "decider" when it comes to BIA cases.

What has been happening recently is that Mr. Sessions has been "certifying" cases from the BIA to himself. Basically, this means that he is taking the cases from the BIA and changing the Board's decisions. In a sense, this is nothing new--previous AGs have done the same thing on occasion. But the concern here is two-fold: Substantively, the AG seems to be moving towards limiting the scope of asylum protections in some types of cases, and procedurally, the AG's actions do not comport with due process of law, at least as that concept is understood in non-totalitarian countries.

The first case I want to discuss is Matter of E-F-H-L-, 27 I&N Dec. 226 (AG 2018). In that case, the AG vacated a 2014 BIA decision (also called Matter of E-F-H-L-) and returned the matter to the Immigration Judge (the letters in the case name refer to the alien's initials). The 2014 case stands for the proposition that an asylum applicant is entitled to a hearing on the merits of her application, including an opportunity to provide oral testimony and other evidence, "without first having to establish prima facie eligibility for the requested relief." In other words, the case is widely viewed as re-affirming the right to a hearing, even if the asylum claim, as articulated by the applicant, is legally insufficient.

In civil litigation, there is something called "failure to state a claim." Judges routinely dismiss lawsuits if they determine that a litigant's claim--even if taken as true--does not entitled the litigant to relief. In our adversarial system, this makes sense. Why waste a court's time (or the jury's time) adjudicating the facts of a case if those facts do not entitle the claimant to any relief? And why not do the same thing for asylum applicants?

The main objection is that many asylum applicants are unrepresented, and do not know how to articulate their claims effectively. Only in the course of testimony might an applicant's claim become apparent (and that is especially true in a case like E-F-H-L-, where there is a complicated "particular social group" analysis). Most Immigration Court hearings are fairly truncated affairs to begin with, and so further curtailing an applicant's ability to present his case makes it even more likely that overworked judges will take the easy route and dismiss an asylum claim before the applicant is able to fully develop his case. The result, of course, will be that legitimate asylum seekers are denied protection.

So it is concerning that Mr. Sessions has vacated E-F-H-L-. But what comes next is not yet clear. The case has been returned to the Immigration Court for further decision-making, and as I read the case, it seems unlikely that the Judge or the BIA would need to rule on E-F-H-L-'s right to a full hearing. According to the AG's decision, E-F-H-L- married a U.S. citizen and withdrew his asylum claim. If that is true, there is little reason to think we will hear anything more about this particular case.

The problem, though, is that the AG presumably vacated E-F-H-L- for a reason. I expect the reason is that he wants to create a new standard (in a different alien's case) for adjudicating asylum claims. What this standard will be, we do not yet know, but given Mr. Sessions's jaundiced view of asylum seekers, I'm not feeling optimistic. Whatever he does, Mr. Sessions is limited by the statute and by the courts, and so hopefully, it will not be as bad as we fear.

The second case I want to discuss is Matter of A-B-, 27 I&N Dec. 227 (BIA 2018). Mr. Sessions has certified that BIA case to himself and requested new briefs (legal arguments) from the parties and from amici (interested organizations). The question Mr. Sessions wants briefed is this:

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.

We don't know, but presumably the goal here is to block asylum seekers who fear harm from "private criminal activity." This might, for example, block people fleeing harm from gangs in Central America, or victims of domestic violence. It potentially affects other types of asylum claims as well.

The main problem is that Mr. Sessions has asked for briefing on a question that is vague. He has not given us the facts of the case, thus making it difficult to write an effective brief, since cases are fact specific. He even tried to hide the name of the attorney representing A-B-; perhaps in an effort to block advocates from learning more about the case.

This is not how due process works, and I imagine that whatever decision the AG issues in A-B- will be vulnerable to review by the federal appellate courts, which tend to look askance at such blatant (and amateurish) violations of due process.

That the Attorney General of the United States would engage in such obvious procedural misfeasance is very concerning. Since we don't know what the AG is really asking for, his request for amici briefs is completely disingenuous. Indeed, even if you favor limiting the scope of asylum, you should be concerned when our country's top law enforcement officer demonstrates such contempt for the rule of law.

Where the AG is heading with all this, we shall see. The widespread belief among advocates is that in anticipation of DACA and TPS ending, Mr. Sessions is planning to roll back protections for certain asylum seekers, specifically people facing harm from gangs and also victims of domestic violence. But he could also be targeting LGBT asylum seekers who fear community (as opposed to government) persecution, victims of female genital mutilation, and victims of terrorist groups, among others.

Finally, it’s difficult not to see the irony here. For years, advocates for asylum seekers have been litigating to expand protections for a wider range of persecuted individuals, particular women, who often face harm not contemplated by the people (mostly white men) who came up with the definition of “refugee” after World War II. However, by pursuing litigation—rather than legislation—we have left ourselves vulnerable to a restrictionist Administration that now seeks to contract that definition.

Don’t get me wrong—I certainly don’t blame advocates for our current woes; we tried and failed legislatively at least once. But I do hope that if the pendulum swings back, and the public mood becomes more favorable, we will try again to create a refugee law that is more in-tune with the types of harm individuals face today. Until then, we are stuck litigating our clients’ cases in an uncertain environment, against an Attorney General who has little interest in playing by the rules.

Originally posted on the Asylumist: www.Asylumist.com.

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Comments

  1. ImmigrationLawBlogs's Avatar
    Jason, I don't see this situation the way you do. I wrote decisions for the Board for 20 years, so I am very familiar with the AG's authority to set precedents for the Board. There is an office within the Department that does the analysis and writes the decision for the AG. It handles difficult policy issues of all kinds for the AG. I had a friend in that office. He got a phd in philosophy at MIT before he went to law school. Extremely bright. It's a very high level policy office. I think you will realize that when you read their decision. Which isn't to say that I expect you to agree with it.

    The AG normally doesn't use that authority. I only know of it happening when the Board is screwing up badly. I could give you examples if you are interested.

    Incidentally, I don't recall an AG requesting amicus briefs before. Sessions is going out of his way to make sure that his staff gets as much input as possible from interested parties. I mean other than the alien and the gov't attorneys who handled the case.

    If you are planning on submitting a brief, don't get caught up in the facts of the case. This isn't about that case. The case is just the vehicle that Sessions is using to clarify asylum law in an area that the Board has failed to clarify adequately.

    I don't know what Sessions intends to do in the current situation, but I can make a good guess. The immigration judges have caused a major problem with asylum cases. The results of an asylum application vary widely depending on which judge the alien draws. You probably would think it's great that many judges grant asylum in a high percentage of their cases and terrible that many deny asylum in a high percentage of their cases. But I think you will agree that this is a problem, and the Board has not done anything about it.

    The Board should be providing guidance on asylum law and making sure that the judges are applying the law properly. In fact, that's the reason for having a Board.

    I think Sessions has selected an asylum claim that the judges are not handling properly so that he can have his staff write a precedent that will provide the judges with the guidance they need to handle the cases properly. In other words, do what the Board should already have been doing with all of the asylum issues that come up frequently. If I am right Sessions will continue to certify cases for his review until the judges are applying the law correctly.

    Incidentally, the Board is not a statutory body. It was created by the AG's office with regulations. If Sessions can't get the Board to do provide the judges with the guidance they need, there's a good possibility that he will eliminate the board by promulgating new regulations to replace it with some other type of appellate body.

    I don't mean the Article One court system the judges and now the Federal Bar Association have been advocating for more than a decade. I am absolutely sure that he is not going to favor rewarding the board members or the judges with higher status and more pay as federal judges.

    Nolan Rappaport
    Updated 03-14-2018 at 10:20 PM by ImmigrationLawBlogs
  2. JDzubow's Avatar
    Thank you - I certainly agree with the point that the BIA is not providing enough guidance to IJs (the Board decides about 40,000 cases per year, but only publishes about 40 decisions). I don't believe that one decision can change that. The Board needs to publish many more decisions to provide guidance to IJs in all sorts of situations. The more decisions we have, the more guidance we have. I take your point that the AG has asked for briefing, but his questions is very vague, and that makes it difficult to address the issue (whatever that may be). Also, I had not heard about any plan to replace the BIA with something else. Maybe a rose by any other name is still a rose, but they need to have some adjudicative body to decide these cases and provide guidance to IJs. I tend to favor the Article I court idea, though maybe not as strongly as others, since I think asylum is inherently political, but whatever court adjudicates these cases, I think we need much more guidance. Take care, Jason
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