How Far Reaching is the Impact of Grace v. Whitaker?

Six months after a significant number of U.S. immigration judges cheered a decision intended to revoke the hard-earned right of domestic violence victims to asylum protection, immigration advocates had their chance to cheer last week’s decision of U.S. District Court Judge Emmet G. Sullivan in Grace v. Whitaker.  The 107-page decision blocks USCIS from applying the standards set forth in a policy memo to its asylum officers implementing the decision of former Attorney General Jeff Sessions in Matter of A-B-.  Judge Sullivan concluded that “it is the will of Congress - and not the whims of the Executive - that determines the standard for expedited removal,” and therefore concluded that the policy changes contained in the USCIS memo were unlawful.

In his decision in Matter of A-B-, Sessions stated that “generally, claims...pertaining to domestic violence or gang violence will not qualify for asylum.”  In a footnote, Sessions added “accordingly, few such claims would satisfy the legal standard to determine whether an [asylum applicant] has a credible fear of persecution.”  Read properly, neither of those statements are binding; they are dicta, reflecting Sessions’ aspirations as to how he would like his decision to be applied in his version of an ideal world.  However, both the BIA and the author of the USCIS policy memo forming the basis of the Grace decision drank the Kool Aid.  The BIA almost immediately began dismissing domestic violence cases without the required individualized legal analysis.  And USCIS, in its memo to asylum officers, stated that in light of A-B-, “few gang-based or domestic violence claims involving particular social groups defined by the members’ vulnerability to harm may...pass the ‘significant probability’ test in credible fear screenings.”1

If one reads Matter of A-B- carefully, meaning if one dismisses the more troubling language as non-binding dicta, its only real change to existing law is to vacate the precedent decision in Matter of A-R-C-G- which had recognized victims of domestic violence as refugees based on their particular social group membership.2   A proper reading of A-B- still allows such cases to be granted, but now means that the whole argument must be reformulated from scratch at each hearing, requiring lengthy, detailed testimony of not only the asylum applicant, but of country experts, sociologists, and others.  Legal theories already stipulated to and memorialized in A-R-C-G- must be repeated in each case.  Such Sisyphean approach seems ill suited to the current million-case backlog.

However, the BIA and the USCIS memo chose to apply Sessions’ dicta as binding case law, an approach that did in fact constitute a change in the existing legal standard.  When the Department of Justice argued to the contrary in Grace, Judge Sullivan called shenanigans, as USCIS’s actual application of the decision’s dicta to credible fear determinations  harmed asylum applicants in a very “life or death” way. The judge also reminded the DOJ of a few really basic, obvious points that it once knew but seems to have forgotten in recent years, namely (1) that the intent of Congress in enacting our asylum laws was to bring our country into compliance with the 1951 Convention on the Status of Refugees; (2) that the UNHCR’s guidelines for interpreting the 1951 Convention are useful interpretive tools that should be consulted in interpreting our asylum laws, and (3) that UNHCR has always called for an expansive application of “particular social group.”  Judge Sullivan further found that as applied by USCIS, the should-be dicta from A-B- constitutes an “arbitrary and capricious” shift in our asylum laws, as it calls for a categorical denial of domestic violence and gang-based claims in place of the fact-based, individualized analysis our asylum law has always required.

How far reaching is the Grace decision?  We know that the decision is binding on USCIS asylum officers, who actually conduct the credible fear interviews.  But is the decision further binding on either immigration judges or judges sitting on the Board of Immigration Appeals?

USCIS of course is part of the Department of Homeland Security.  Immigration judges and BIA members are employees of EOIR, which is part of the Department of Justice.  Its judges are bound by precedent decisions of the Attorney General, whose decisions may only be appealed to the Circuit Courts of Appeal.  However, the credible fear process may only be reviewed by the U.S. District Court for the District of Columbia, and only as to whether a written policy directive or procedure issued under the authority of the Attorney General is unconstitutional or otherwise in violation of law.3 This is how Grace ended up before Judge Sullivan.  The BIA and Immigration Judges generally maintain that they are not bound by decisions of district courts.

Despite these differences, the credible fear interviews conducted by USCIS are necessarily linked to the immigration court hearings of EOIR.  An asylum officer with USCIS recently described the credible fear interview process to me as “pre-screening asylum cases for the immigration judge.”  The credible fear process accounts for the fact that that the applicant has not had time yet to consult with a lawyer or gather documents, might be frightened, and likely doesn’t know the legal standard.  But the purpose of the credible fear interview is to allow the asylum officer to gather enough information from the applicant to determine if, given the time to fully prepare the claim and the assistance of counsel, there is a significant possibility that the applicant could file a successful claim before the immigration judge.  The credible fear standard has always been intended to be a low threshold for those seeking asylum. Before A-B-, a victim of domestic violence was extremely likely to meet such standard.  The USCIS memo reversed this, directing asylum officers to categorically deny such claims.  But now, pursuant to Grace, USCIS must go back to approving these cases under the pre-A-B- legal standard.

When an asylum officer finds that the credible fear standard has not been met, the only review is before an immigration judge in a credible fear review hearing.  Although, as stated above, EOIR generally argues that it is not bound by district court decisions, its immigration judges would seem to be bound by the Grace decision in credible fear review hearings.  Congress provided the district court the authority to determine that a written policy directive of the AG (which was implemented by the USCIS written policy memo) relating to the credible fear process was in violation of law, and Judge Sullivan did just that.  Even were EOIR to determine that the decision applies only to USCIS, the IJ’s role in the credible fear review hearing is to determine if USCIS erred in finding no credible fear. If USCIS is bound by Grace, it would seem that IJs must reverse an asylum officer’s decision that runs contrary to the requirements of Grace.

But since the credible fear standard is based entirely on the likelihood of the asylum application being granted in a full hearing before an immigration judge, can EOIR successfully argue that its judges must apply Grace to conclude that yes, a domestic violence claim has a significant chance of being granted at a hearing in which the IJ will ignore the dicta of A-B-, find that the only real impact of the decision was that it vacated A-R-C-G-, and will thus apply an individualized analysis to an expansive interpretation of particular social group (with reference to UNHCR’s guidelines as an interpretive tool)?  And then, once the case is actually before the court, ignore Grace, and apply what appears to the be BIA’s present approach of categorically denying such claims?

Many immigration judges are presently struggling to understand Matter of A-B-.  The decision was issued on the afternoon of the first day of the IJ’s annual training conference.  This year’s conference was very short on legal analysis, as the present administration doesn’t view immigration judges as independent and neutral adjudicators.  But the judges tapped for the asylum law panel had to throw away the presentation they had spent months planning and instead wing a program on the A-B- decision that they had only first seen the prior afternoon.  Needless to say, the training was not very useful in examining the nuances of the decision.  As a result, fair-minded judges are honestly unsure at present if they are still able to grant domestic violence claims.

Of course, a decision of a circuit court on a direct challenge to A-B- would provide clarification.  However, A-B- itself is presently back before the BIA and unlikely to be decided anytime soon.4  I am aware of only one case involving the issue that has reached the circuit court level, and it is still early in the appeal process.  My guess is that EOIR will issue no guidance nor conduct specialized training for its judges on applying A-B- in light of the Grace decision.  Nor will the BIA issue a new precedent providing detailed analysis to determine that a domestic violence claimant satisfied all of the requirements set out in A-B- and is thus entitled to asylum.

A heartfelt thanks to the team of outstanding attorneys at the ACLU and the Center for Gender and Refugee Studies for their heroic efforts in bringing this successful challenge.

Copyright 2018 Jeffrey S. Chase.  All rights reserved.


Notes:

  1. See  my July 13, 2018 post, “Matter of A-B- Being Misapplied by EOIR, DHS,” https://www.jeffreyschase.com/blog/2018/7/13/matter-of-a-b-being-misapplied-by-eoir-dhs

  2. Remarkably, Department of Justice attorneys argued for such a reading of A-B- in an attempt to persuade Judge Sullivan that he lacked jurisdiction to decide Grace.  Such argument is at odds with the Attorney General’s own statements, and is inconsistent with the BIA’s application of the decision to date.

  3. See Section 242(e)(3)(A) of the I&N Act.

  4. According to the BIA, because of its heavy backlog, it cannot be predicted when a briefing schedule will be set

6th Cir. Reverses BIA on Res Judicata

Statement of Former IJs & BIA Members in Response to Grace v. Whitaker