Briefs of the parties and amici have now been filed with the Attorney General in Matter of A-B-. Once again, a group of former immigration judges and BIA members, which this time numbered 16 (including myself) filed an amicus brief (which can be viewed here: http://www.aila.org/infonet/amicus-brief-matter-of-a-b- ).* The respondent’s brief was submitted by the outstanding legal team of Ben Winograd of IRAC; Karen Musalo, Blaine Bookey, and Eunice Lee of CGRS, and Charlotte attorney Andres Lopez. DHS’s brief was submitted by Michael P. Davis of ICE, whose reasoned positions are to be commended.
The issue in the case below involved the actions of immigration judge V. Stuart Couch in failing to abide by the decision of the Board of Immigration Appeals, which reversed Couch’s denial of asylum in a particularly strong claim involving a victim of severe domestic violence. The BIA reversed the judge’s decision, and remanded with instructions to grant asylum following the required updated security clearance by DHS. However, Couch took some nine months to schedule the case for a hearing. When at that hearing, DHS stated that the clearances had been completed, Judge Couch did not issue a new decision (as he was directed to do by the BIA). Instead, he stated that he was recertifying the case to the BIA, something that he lacked the authority to do without first issuing a new decision.
The case sat for another seven months, during which time it is not clear whether the record actually made its way back to the BIA. But before the Board could rule on the propriety of Judge Couch’s actions, the case was somehow plucked from wherever it had been by AG Jeff Sessions, who on his own transformed the case into a vehicle to answer a question that no one but himself seems to understand, namely, whether being the victim of private criminal activity constitutes a cognizable particular social group for asylum purposes. (There is an interesting question of how Sessions even knew that this case existed.)
In response, the Department of Homeland Security appealed to reason. It requested the AG to hold off until the BIA ruled on the propriety of Couch’s attempted recertification. DHS also requested Sessions to provide further clarification of his question, and noted that “this question has already been answered, at least in part, by the Board and its prior precedent.” Sessions denied both requests, adding that he is not bound by BIA precedent, nor is he required to allow briefing on an issue before him on certification. It seems as if Sessions might be saying that as he’s bestowing the privilege of allowing briefs, he doesn’t further need to let everyone know what it is they are being asked to brief.
Depending on how Sessions is choosing to interpret the question, his decision might impact not only domestic violence claims, but any asylum claim based on a particular social group involving private criminal activity (which could include claims based on sexual orientation or sexual identity; as well as victims of female genital cutting, human trafficking, gang violence, blood feuds and honor killings). Or then again, maybe not. Because if Sessions is asking whether a particular social group delineated as “victims of private criminal activity” is cognizable, his answer wouldn’t impact the outcome of this case, as the respondent never claimed to be a member of such group. Nor would it matter to the outcome if Sessions is asking whether a group which includes the element of victimization by a criminal acting in a private capacity is cognizable, as no element of victimization is included in the respondent’s delineated group of “El Salvadoran women who are unable to leave their domestic relationships where they have children in common.” Nowhere in the wording of such group is there a mention of being the victim of private criminal activity, nor is the respondent claiming that she was targeted for abuse because of her being a victim of private criminal activity.
But could Sessions be questioning whether any particular social group merits asylum where its members fear persecutors who are not government officials? If that’s his question, a decision in the negative would run counter to not only more than a half century of BIA precedent, but also to decisions of all eleven Federal circuit courts, and to international law, all of which universally agree that for asylum purposes, persecution may be by private actors that the government is unable or unwilling to control.
Does Sessions himself understand the question he is asking? Let’s just assume that since this case involves a credible victim of severe domestic violence, and that her particular social group was found by the BIA to be substantially similar to the one it recognized as cognizable in its 2014 precedent decision in Matter of A-R-C-G-, that Sessions is considering invalidating that decision.
The purpose of courts and tribunals is to resolve disputes between the parties. The issue that Sessions now wishes to address has been settled, and is not being contested by either party. The Department of Homeland Security itself made this point to Sessions. Had this case been allowed to run its course and result in a grant of asylum, it is far from clear that such result would have been contested or appealed by DHS. In its brief to Sessions, DHS states more than once that it “generally supports the legal framework set out by the Board in Matter of A-R-C-G-.” DHS continued that the group in that case of “married women in Guatemala who are unable to leave their relationship” was not defined by the respondent’s being subject to domestic violence. DHS specifically stated that like the BIA, it “understands ‘unable to leave a relationship’ to signify an inability to do so based on a potential range of ‘religious, cultural, or legal constraints...’” DHS continued that neither the PSG in A-R-C-G- nor the group offered by A-B- herself violate the principle that such group “must exist independently of the persecution suffered and/or feared.”
In refusing DHS’s request for clarification, Sessions claimed that “several Federal Article III courts have recently questioned whether victims of private violence may qualify for asylum” based on their membership in a particular social group. However, in responding to such statement in its subsequent brief, DHS noted that “none of the circuit court decision cited by the Immigration Judge questioned the underlying validity of A-R-C-G-.” In response to Sessions’ statement that he is not bound by the BIA’s precedent decisions, DHS recognized this, but “avers that the Attorney General should not directly or indirectly abrogate A-R-C-G-,” but should “rather...emphasize the importance of case and society-specific analysis.”
There is thus agreement between the parties of the validity of the Board’s holding in A-R-C-G-. In revisiting the issue, Sessions is not attempting to resolve a dispute, as no such dispute exists.
To me, the most shocking aspect of Sessions’ action is its timing. Case law concerning human rights (including the law of asylum) and civil rights does not develop in a vacuum. Much as courts have extended civil rights protections based on race, gender, and sexual orientation throughout the history of this country, the idea of what constitutes persecution and which of its victims are deserving of protection evolves along with the views of society. Sessions is choosing, unprompted, to challenge whether victims of domestic violence are deserving of asylum just as our society has undertaken a powerful, long-overdue, and much needed correction in the form of the #metoo movement. Many hundreds of thousands of us (“us” of course referring to people regardless of gender, as women’s rights are human rights) have filled the streets of cities all over America (and the world) the past two Januarys in a powerful, emotional rebuke to sexual assault and all forms of sexism. Powerful men who for years had engaged in all forms of sexual abuse and harassment are for the first time experiencing the consequences of their actions. And it is at this particular time that Sessions seeks to revoke protection to women who are domestic violence victims?
Briefs are good, but more is needed. The wonderful Tahirih Justice Center collected 60,000 signatures on a petition which it delivered to Sessions in March calling on him to uphold asylum protection for survivors of domestic violence: https://www.tahirih.org/news/tahirih-delivers-petition-on-asylum-for-domestic-violence-survivors-to-the-attorney-general/. More organizations need to follow Tahirih’s example. In addition to the briefs submitted, there needs to be a true public outcry addressed to Sessions on this issue. Asylum protection for victims of domestic violence is not just an immigration issue or a women’s issue. It is a human right, on which all of us should make ourselves heard.
*Heartfelt thanks to the law firm of Gibson Dunn (Megan Kiernan, Ronald Kirk, Chelsea Glover, Lalitha Madduri, and Amer Ahmed) for drafting the brief, and to former BIA member Lory D. Rosenberg for organizing and coordinating the effort.
Copyright 2018 Jeffrey S. Chase. All rights reserved.