U.S. Department of Homeland Security South Texas Family Residential Center in Dilley, Texas cir. 2015
Photo by this blogger.
Central America has, for several years now, been the source of a great surge of migrants seeking political asylum or related immigration benefits in the United States. On June 11, 2018, Attorney General (AG) Jeff Sessions issued a potentially deep-cutting legally-binding decision on policy that may greatly affect the ability of potential asylees to succeed in seeking a place in this country. Asylum and related immigration-seekers have been fleeing extreme gang violence in levels that have prompted the U.S. government to build large-scale immigration detention facilities, and have given rise to the Attorney General's recent statement indicating he will separate children from parents crossing the border. (More here.)
What is the Short Version of Attorney General Jeff Sessions' Decision?
In issuing his decision, Attorney General Jeff Sessions has attempted to dramatically change the standards for asylum in the United States. He claims victims of gang violence and domestic abuse in Central American countries such as Guatemala, Honduras, and El Salvador, must demonstrate a much higher bar in showing that a government was negligent, incapable, or even culpable in preventing the actions of private individuals - namely gangs.
Attorney General Sessions is attempting to change the law so that asylum claims "pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum" FN.1 Basically, the Attorney General is attempting to eliminate both gang violence and domestic violence as a basis for asylum. He claims that these are "private crimes," and do not meet the standard for a foreign government's inability or unwillingness to protect its citizens. FN.2.
The Attorney General is clearly trying to eliminate the grounds that give a legal basis for immigration for a highly significant portion of those seeking asylum from Central America. Whether he will be successful remains to be seen. His decision flies in the face of years of legal decision-making going back from well before the Obama administration. FN.3 However it will provide a basis for Immigration Judges to deny many cases. Whether they will and whether their decisions will withstand appeals is the pressing question coming from the Attorney General's action.
So, How is Gang Violence in Central America Concerned?
Many people fleeing Central America are seeking refuge from gang violence. Gangs in Honduras, El Salvador, and Guatemala, have completely overrun the government's basic ability to function in certain parts. Or, as is often the case, the gangs have co-opted the local governments so completely that they function at the behest of the gangs. This goes far beyond pay-offs by organized crime to police; this is much deeper and more entrenched control over authorities of a type never experienced in the United States even at the height of our Mafia or other large, structured criminal organizations.
So, people are leaving these Central American countries in droves to escape death and torture. They travel hundreds of miles to apply for asylum - a humanitarian means to obtain status in the United States - including Permanent Residence. In order to qualify for asylum, you must demonstrate that you will be persecuted on one of five grounds: race, religion, nationality, political opinion, or "particular social group." The last category, particular social group (PSG) is the subject of much legal debate, and lies at the heart of the Attorney General's recent decision
A person who qualifies for asylum as a member of a PSG must meet certain qualifications. Immigration Judges and the BIA have held that, in addition to showing you qualify as a member of a PSG, you must show that the government is unable or unwilling to protect you. You must also show the specificity of your membership in the social group - that is, you must show that you are being targeted due to circumstances that are unique to you and the social group. Being a "victim of gang violence" may not be enough to qualify under the PSG standard. You may have to prove that you were a "victim of gang violence" because you were a youth who resisted recruitment by a gang. So, the PSG might be "teenagers fleeing gang violence because they will be killed if they resist recruitment."
Additionally, gang violence often gives rise to domestic violence. When gangs become very prevalent, women are often targets. For instance, in the example above, young women are often targeted because they resist recruitment. Gangs often pressure young women to become "girlfriends" of other male gang members, often involving involuntary sexual contact. Gang violence also leads to a general societal degradation in the appreciation of a women's rights, and therefore leads to domestic violence.
Immigration opponents have long seen the "PSG" standard as a loophole. AG Sessions' current decision attempts to disqualify gang violence and domestic abuse as the basis for establishing a "PSG." His decision attempts to raise the standard to make it harder to show that the government is unwilling or able to protect you. More specifically, the Attorney General's decision attempts to make gang violence and domestic abuse "private" matters that cannot qualify for asylum because they are not related to the foreign government's unwillingness or inability to protect a person.
What is the Legal Effect of the Attorney General's Decision?
The Attorney General has substantial authority to issue direction to the "Board of Immigration Appeals" (BIA), the court that reviews opinions of Immigration Judges. Immigration Judges are employees of the Department of Justice (DOJ), so unlike normal judges, they are not impartial and, like the BIA, must respond, in part, to the discretion of the Attorney General.
(As a side note, "Normal" judges are typically Article III judges, guided by Article III of the Constitution and protected by the separation of powers. Immigration Judges, and the BIA that reviews their decision, are employees who serve, for the most part, at the pleasure of the President - many, including this author, believe that Immigration Judges (and the BIA) should be Article III courts, independent and separate than the Executive Branch, which also is also the immigration prosecutors through the Department of Homeland Security - DHS).
Attorney General Sessions has issued a decision that has great power in directing the decisions of immigration judges. He has overruled previous precedent by many decisions of the immigration judges and the BIA that reviews their decisions. Overturning long-standing practices can give rise to review by the Federal Courts, which are Article III. Fortunately, his policy decisions may also be overturned if a new Attorney General takes his place.
Perhaps one of the most serious legal consequences of Attorney General Sessions' decision is that it is a huge diversion from not only previous policy, but the standards for asylum established by years of decisions by immigration judges and federal policy. His blatant disregard for our well-established legal history causes a crisis in enforcement of future immigration laws by engaging in a "yo-yo" effect.
Attorney General Sessions also demonstrates the limitations of his decision by overruling a four-year-old decision without explicitly overruling the long-standing precedent that builds up to that decision. Additionally, the Attorney General's decision revolves around a case that is centered in domestic violence. In order to issue a decision that can change the law, the decision must apply to facts that are part of the case. Failure to do so may result in parts of a decision being considered "dicta," which means that it has very little, if any, legal weight. So, the Attorney General's attempt to encompass gang violence in this decision may be an overreach that will invalidate his clear intent to remove gang violence as ground for asylum. FN.4
Given that the current Administration's policies have seemed to make an impact in the practices of Department of Homeland Security (DHS) attorneys who process the cases, as well as Department of Justice (DOJ) judges who make decisions, the AG's precedent decision will likely have considerable sway. The question will really be of degree, and whether the AG's decision withstands other legal challenges. While the Administration's policy changes have made definite differences in the implementation of immigration law, the Federal Courts have also restrained some of the Administrations more radical changes, such as the "Muslim Ban." So, this change may see some significant implementation, but may also see significant legal push-back.
Closer Legal Analysis
The author notes that Attorney General Jeff Sessions' opinion is, at the outset, sloppy legal writing. Within the very first sentence, the AG's decision has a typo in the very case he is trying to change. (Matter of A-R-C-G, 26 I&N Dec. 338 (BIA 2014) has the wrong number: 338 should be 388: this actually makes a difference in trying to locate the basic legal precedent the AG is trying to overturn.)
The AG also misstates the standard for establishing a "particular social group." The AG says this is two-part test. FN.5 There are actually three parts to the test. FN.6 While all three parts are later mentioned, they are done so in passing and without full recognition of the breadth of the test, or any real explication of how the three-part test applies to the circumstances at hand. FN.7 Specifically, The Attorney General's decision fails to actually apply the framework, but instead merely recites it. These wild misunderstandings of the basic standard demonstrate either a complete carelessness in the consistency of the decision or the AG's deep ignorance of the law that he is trying to change and about which he speaks vociferously and often. Either proposition is extremely troubling for the chief attorney in this country.
After failing to fully address the three-part test, Attorney General Sessions then goes on to conclude that victims of domestic violence should not be a particular social group because some courts disagreed with the outcome in the precedent case. FN.8 The Attorney General's decision misses the fact that the courts disagreed with the precedent case largely because of differing facts, not the underlying precedent. (Though admittedly, some courts did express reservations about the underlying case's expansion on precedent.)
Additionally, the precedent the Attorney General attempts to overturn expands on domestic violence as a grounds for asylum, but is by no means foundational precedent. Domestic violence victims, and, more specifically, women subject to societal-based gender violence, have long been recognized, within certain contexts, as members of a particular social group. FN.9 So, the Attorney General has attacked a legal doctrine not at its hilt, but in one of its informative, but not controlling, decisions. His claims to the changes in policy are not supported by the precedent he is overturning, as he has failed to reach back far enough into the underlying precedent.
The Attorney General may have made an argument that the specific precedent relied upon in the present case should be overturned; however the Attorney General takes a confounding logical leap in overturning a narrowly-construed precedent, and applying it to all "domestic violence" claims. FN.10 His reasoning for this is based on the concept that "when private actors inflict violence based on a personal relationship with a victim, then the victim's membership in a larger group may well not be 'one central reason' for the abuse." FN.11 This unbelievably obtuse reasoning avoids the fact that societal considerations of the "place" of women is often at the root of the "private" abuse. The Attorney General greatly mischaracterizes the doctrine whereby personal disputes are not grounds for asylum. He erroneously applies it to clear and pervasive social circumstances that make actions by private actors subject to broader social concerns. The raising of private actions into the public sphere lies at the heart of the rationale for a "particular social group:" that certain social characteristics may make a person more likely to be targeted by persecution protected under U.S. and international law.
The Attorney General then takes this already shaky legal reasoning and balloons it out to extend to gang violence. FN.12 He extends the scope of his decision in a matter that is unbelievable both as clearly inapplicable dicta and as a gaping stretch of reasoning. There is no other reason for this leap of faith other than an intention to abort all precedent and turn the course of the basis for asylum on its head in a way that confounds years of interpretation of international law and the intention of Congress.
The Attorney General has taken an obvious political problem and used his personal policy beliefs to radically subvert the will of Congress in enacting the Immigration and Nationality Act and its amendments over the years. His decision is an excuse that attempts to flee from our international responsibilities as enshrined in long-standing treaties that have formed the basis for peace and world order since the World Wars.
The Attorney General actually spends time in this decision refuting the idea that he is going against all sane legal reasoning and rather taking action to advance his personal political policy goals. FN.13 His refutation stands as a threadbare and impotent protestation with his claim to be "an administrator with substantial policymaking responsibilities." FN.14 His own assertion of his power demonstrates his lack of deference to or humility before Congress, international law, jurisprudential principles and history, and the basic considerations of human decency.
Moreover, Attorney General Sessions' decision reflects a lack of understanding of basic human rights principles. The upshot of this decision is that some will suffer, undoubtedly, and unnecessarily. This includes those who will, by all accounts of country conditions in Guatemala, Honduras, and El Salvador, be killed because of the Attorney General's misunderstanding of the law and intentional cruelty in its enforcement. Perhaps his most salient misunderstanding is that our legal tradition has long recognized compassion as part and parcel to legal precedent and legal enforcement. Blind following of rote rules of law without consideration for individual circumstances, or even the circumstances of a large group like Central American refugees, guides us towards a dystopian vision of society towards which we are skating freightening close under Attorney General Jeff Sessions mindless and heartless policy miscreancy.
FN.1 - Matter of A-B-, 27 I&N Dec. 316, 320 (A.G. 2018)
FN.2 - Id. at 337
FN.3 - See Matter of Acosta, 19 I&N Dec. 211 (BIA 1985)
FN.4 - Matter of A-B-, 27 I&N Dec. at 321
FN.5 - Id. at 317
FN.6 - Matter of Acosta, 19 I&N Dec. at 233
FN.7 - Matter of A-B-, 27 I&N Dec. at 328
FN.8 - Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014)
FN.9 - See e.g. Qu v. Holder, 618 F.3d 602 (6th Cir. 2010)[holding PSG for women in China who have been subjected to forced marriage and involuntary servitude], Sarhan v. Holder, 658 F.3d 649 (7th Cir. 2011)[holding PSG for Jordanian women who have allegedly flouted social norms and are at risk of honor killing], Hassan v. Gonzalez, 484 F.3d 513 (8th Cir. 2007)[holding PSG for Somali women), Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996)[holding gender-based membership claims are "entirely appropriate and consistent with the developing trend of jurisprudence in the United States].
FN.10 - Matter of A-B-, 27 I&N Dec. at 320, 336, 338-9
FN.11 - Id. at 338-9, citing Zoarab v. Mukasey, 524 F.3d 777, 781 [holding "Courts have routinely rejected asylum applications grounded in personal disputes"].
FN.12 - Id. at 339.
FN.13 - Id. at 324-5
FN.14 - Id. at 325