A Review of the Attorney General’s Review(s)

                       B.A. Bacigal 
Undergraduate student at the University of Michigan studying Public Policy and English, intending on pursuing law.

On June 11, 2018 Attorney General Jeff Sessions released Matter of A-B-, a review that would shape the fate of thousands of refugees entering from the U.S.’s southern border by overruling a key asylum case: Matter of A-R-C-G-, a Board of Immigration Appeals (BIA) decision from 2014. Matter of A-R-C-G- is credited with opening the door to refugees fleeing domestic violence in Southern and Central America, providing a vital lifeline after successive restrictive rulings in cases such as Matter of S-E-G- and Matter of E-A-G-.

The U.S. has historically been hesitant to bind itself to international obligations with regard to asylum. The U.S. is not a party to the 1951 Convention relating to the Status of Refugees, but instead is a party to the 1967 Refugee Protocol and considers its domestic law to be sufficient in committing itself to implementing the obligations of the Protocol. However, US law falls short of ensuring compliance with international obligation. Under section 208 of the Immigration and Nationality Act (INA), the enforcement of international obligations is at the discretion of the politically appointed Attorney General.

Additionally, as ascribed by the INA and the structure of US immigration courts, the Attorney General is granted broad power over immigration, and during the course of his appointment Sessions seems to be testing the limits of said power to implement substantive change. His current actions can only be described as a persistent campaign to reduce refugee admittance at the Southern Border.  He has been enforcing “quotas” requiring immigration judges to review 700 cases per year.  He has also directly reversed the decisions of many impactful Obama-era immigration cases.

In a precedent setting manner, Sessions has been referring to himself cases for review[1], a practice that has historically gone unexercised by U.S. Attorney Generals. In doing so, he grants himself the unique ability to review and rewrite precedent-setting cases with full authority to overrule decisions from the Executive Office of Immigration Review (EOIR).[2] He began the process of overruling Matter of A-R-C-G- by accepting briefs in early March questioning the validity of a “private crime” victim’s claim to a particular social group. Subsequent decisions made it so immigration judges are not required to give asylum seekers a full hearing and judges can no longer remove cases from their docket.  Most recently, his decision in Matter of A-B- disqualifies thousands of previously eligible migrants from claiming asylum.

To understand the gravity of his ruling in Matter of A-B-, one must understand the requirements associated with applying for asylum– the right to be recognized as a refugee and receive legal protection and material assistance. To fulfill the stringent legal definition of a refugee, a person must have fled their home country due to a well founded fear of persecution. Said persecution must be on account of that person’s race, religion, nationality, political opinion, or membership in a particular social group. And finally, the asylum seeker must also prove that their home country is either perpetrating this persecution, or unwilling/unable to protect them from it.

Because there are no bounds to the types of or reasons for persecution, there are no real directions as to what is considered valid in asylum determinations, therefore decision-makers rely on case law to determine the viability of a claim. By far the option with the most flexibility is membership in a “particular social group.” Matter of Acosta[3] helped narrow the meaning requiring PSGs to be “common and immutable.” Matter of S-E-G- and matter of E-A-G- then greatly restricted the potential for what a PSG could be by adding to the list “socially visible and particularly defined.” At a time when many of those claiming asylum along our southern border were fleeing gang-related violence and persecution, these two cases determined that each claim for a PSG[4] did not satisfy the additional criteria. Therefore, all youth who were being persecuted solely for resisting joining gangs or for perceived affiliation with gangs did not qualify for asylum.

Matter of A-R-C-G- set historical precedence after a series of cases narrowing the options for what could be considered a PSG by holding that “married women in Guatemala who are unable to leave their relationship” constituted a PSG. Since this ruling, more and more claimants have been able to receive asylum from domestic violence in countries where their governments cannot protect them or do not provide adequate assistance and resources for protection. But Sessions’ review overruled that, and gang and domestic violence are, for the most part, no longer suitable claims for asylum. His reasoning was based in the BIA not having completed sufficient analysis of the situation, and the Board founding its decision in concessions rather than adjudicating the respondent’s past persecution and PSD membership. He believed it was wrongly decided and accordingly overruled it. It is speculated that increasingly restrictive decisions are likely to follow.

Session’s Matter of A-B- decision, together with previous decisions, ignores the plight of refugees fleeing gang and domestic violence in Southern and Central America and violates international obligations. With asylum no longer a viable option, these refugees are likely to turn to their only recourse, the very option that Sessions and the Trump Administration set out to limit: illegal immigration.

 

 

[1] 8 C.F.R. § 1003.1(h)(1) (2015).

[2] The Department of Justice EOIR includes immigration courts and the BIA. It is the executive office that specializes in the adjudication of immigration matters. About the Office, DOJ, EOIR, https://www.justice.gov/eoir/about-office.

[3] “A particular social group is composed of members who share a common, immutable characteristic, such as sex, color, kinship ties, or past experience, that a member either cannot change or that is so fundamental to the identity or conscience of the member that he or she should not be required to change it.”

[4] S-E-G-: Salvadoran youth who have been subjected to recruitment efforts by the MS-13 gang and who have rejected or resisted membership in the gang based on their own personal moral, and religious opposition to the gang’s values and activities, and their family members; E-A-G-: young persons who are perceived to be affiliated with gangs.

0 Comments

Submit A Comment

Your email address will not be published.

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <s> <strike> <strong>