On May 23, an amicus brief was filed in the U.S. Court of Appeals for the Fifth Circuit on behalf of a group of 13 former immigration judges (including myself) and BIA members in the appeal of the BIA’s precedent decision in Matter of W-Y-C- & H-O-B-. In that decision, a three-judge panel of the BIA held that an asylum applicant must clearly delineate its proposed particular social group before the immigration judge. The Board held that the asylum applicant may not alter the social group formulation on appeal to the BIA, citing the “inherently factual nature of the social group analysis.”
Our brief argues that the Board’s reasoning is flawed. The Board has held that the determination of whether a particular social group is cognizable is a question of law which the Board may review de novo. Our brief also points out that the Board’s arguments as to why it will generally not consider a new group on appeal overlooks the fact that it has done just that in the past.
One member of our group, former BIA chairperson Paul W. Schmidt, was the author if the Board’s 1996 landmark decision in Matter of Kasinga, the first BIA precedent to grant a gender-based asylum claim. Two other members of our group, former Board Members Gus Villageliu, and Lory D. Rosenberg, respectively joined in the majority opinion and wrote a concurring opinion in Kasinga. As the three pointed out in the drafting process, the particular social group that the Board approved in that case was neither delineated before the IJ nor proposed by either party on appeal. It was crafted for the first time by the Board itself, in a manner that was consistent with the factual record below and which allowed the Board to grant relief. The three noted that the ability of the Board itself to alter the group’s contours is often necessary to allow an en banc Board to reach consensus.
Our brief also pointed to the Board’s decision in Matter of M-E-V-G- to remand the record where “the respondent’s proposed particular social group has evolved during the pendency of his appeal.” We also point out how circuit courts have frequently cited to the Board’s decades-long practice of clarifying proposed groups.
Our brief additionally underscores the extreme complexity of particular social group formulation, particularly in light of the highly-criticized additional requirements of particularly and social distinction imposed by the Board in recent years. We note that group delineations will often be made by pro se respondents, often with a limited mastery of English, sometimes in detained facilities with limited access to counsel or law libraries.
This was the sixth Amicus brief filed by our group. We are most thankful for the outstanding assistance of attorneys Jean-Claude Andre and Katelyn Rowe of the law firm of Sidley Austin for lending their assistance pro bono for the second time in the drafting of our group’s brief. We also acknowledge the distinguished counsel for the respondents, led by Fatma Marouf of Texas A&M Law School, Geoff Hoffman of the University of Houston Law Center, and Deborah Anker of Harvard Law School.
The link to our full brief is here: http://immigrationcourtside.com/wp-content/uploads/2018/05/Cantarero-Amicus-Brief.pdf
The cooperation and assistance of so many brilliant minds and caring hearts is a source of great comfort in these challenging times.
Copyright 2018 Jeffrey S. Chase. All rights reserved.