Attorney General (AG) Merrick Garland issued an order this week vacating AG Jeff Sessions’ June 2018 decision in Matter of A-B-, as well as a later decision in the case (with the same caption) issued in January by Acting AG Jeffrey Rosen. That order is not a terribly big surprise, but it is a harbinger of the Biden administration’s plans to significantly expand asylum protection. Granting everybody relief is one way to bring down the immigration court backlog, which has now reached 1.337 million cases.
To be granted asylum, an alien present in the United States (usually, but not always, illegally) must prove past persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.
A grant of asylum allows an alien to live and work in the United States, and to petition for other relatives to come to this country, and places the alien on a path to a green card and ultimately citizenship.
As the foregoing shows, asylum protection is supposed to be circumscribed. U.S. asylum law does not provide protection for every harm or bad thing that has happened or may happen to every national of every other foreign country.
Note the use of the phrase “is supposed to” above. Three of the five factors for asylum relief (race, religion, and nationality) are pretty straightforward; you are a national of Ireland, for example, or you are not.
“Political opinion” is a little broader, but still somewhat limited. What constitutes a “political opinion”? Running for office? Belonging to a political party? Putting a sign in front of your house? Voting a certain way? Complaining about land-distribution laws? Tacit support for law and order? There is a wide spectrum of activities that could be covered, and whether they are is generally a judgment call.
Then, there is the fifth ground for asylum: “membership in a particular social group”, an exception that could well swallow the rule that asylum is supposed to be circumscribed, if it is interpreted too expansively.
As then-Judge (now Justice) Samuel Alito explained in a 1993 decision: “Read in its broadest literal sense, the phrase is almost completely open ended. Virtually any set including more than one person could be described as a ‘particular social group.’”
Alito went on to explain that the sparse legislative history of the provision was no help, and the international conventions and instruments from which that provision arose did not shed much light either. As the future justice put it:
When the Conference of Plenipotentiaries was considering the [Refugee] Convention in 1951, the phrase "membership of a particular social group" was added to this definition as an "afterthought." The Swedish representative proposed this language, explaining only that it was needed because "experience had shown that certain refugees had been persecuted because they belonged to particular social groups," and the proposal was adopted.
Ultimately, as I explained in a June 2018 post, the Board of Immigration Appeals (BIA) crafted a calculus to differentiate between various social groups to determine which ones were appropriate (cognizable) for asylum protection.
In Matter of A-B-, Sessions largely relied on those BIA precedents to provide bright-line rules for immigration judges and asylum officers to follow in assessing whether a proposed social group was or was not cognizable for asylum protection.
In so doing, he made two crucial determinations. First, he held that victims of private criminal activity were generally not members of cognizable “particular social groups” for purposes of relief. Second, he overruled a prior BIA precedent decision in Matter of A-R-C-G-, which had to do with victims of domestic violence as members of particular social groups.
Note that Sessions did not hold that an asylum claim could never be based on the harm resulting from either criminal activity or domestic violence, a fine point that most casual observers (including the vast majority of the press) overlooks.
Instead, he held that, as a general rule, asylum applicants seeking protection based on such claims must comply with the standards that the BIA had established in defining what is — and is not — a cognizable particular social group for asylum purposes.
With that aside, and with due respect to the BIA members who issued it, Matter of A-R-C-G- should never have been designated as a precedent decision to begin with. Precedent decisions are supposed to provide guidance to adjudicators, but there was not much guidance to be gleaned from that case.
As Sessions noted in Matter of A-B-, in Matter of A-R-C-G-, DHS conceded that (1) A-R-C-G- suffered harm rising to the level of past persecution; (2) A-R-C-G-’s persecution was on account of her membership in a particular social group; and (3) A-R-C-G-’s particular social group was cognizable under the INA.
Based on those concessions, the BIA’s job was already done for it, because those are the main questions that must be answered by any adjudicator in any asylum case. So, while it may have been appropriate for the BIA to grant A-R-C-G- asylum, the resulting decision does not shed much light on whether another alien is eligible for protection. Therefore, it should not have been designated as precedent.
I have to cut the BIA some slack, however, because numerous administrations have grappled — unsuccessfully — with the issue of whether victims of domestic violence are members of cognizable particular social groups, going all the way back to the BIA’s en banc 1999 decision in Matter of R-A-.
In that case, the BIA determined that the applicant was not eligible for asylum because it was “not persuaded that the abuse occurred because of her membership in a particular social group or because of an actual or imputed political opinion.” Then-AG Janet Reno subsequently vacated the BIA’s decision the day before the 2001 inauguration, leaving it to the Bush administration to sort out.
Almost nine years later, the BIA granted R-A- asylum based upon joint stipulations from both sides, but no decision was published. As Sessions noted in Matter of A-B-, however, courts still relied on the BIA’s 1999 decision in Matter of R-A-, largely for lack of other precedents.
Given the absence of any other guidance, then, I can understand why the BIA felt compelled to publish its decision in Matter of A-R-C-G-, despite the fact that it was somewhat less than helpful in most other cases.
Returning to the main point, however, Garland’s vacation of Matter of A-B- is not a surprise because, although it is a fairly straightforward decision, Biden made a big deal of it on the election trail.
Specifically, he asserted on his campaign website, in a thinly veiled referenced to the decision, that the Trump administration had “attempt[ed] to prevent victims of gang and domestic violence from receiving asylum”.
Biden asserted that as president, he would “end these policies ... and restore our asylum laws so that they do what they should be designed to do — protect people fleeing persecution and who cannot return home safely.”
Garland promised in his decision in Matter of A-B- that the questions at issue in that matter will be addressed in a broader administrative rulemaking, which is forthcoming. How broad and how expansive the resulting regulations will be is not clear, but I can almost guarantee that they will expand asylum protection beyond any currently recognizable bounds.
That would certainly be one way to reduce — if not all-but-eliminate — the crushing backlog before the immigration courts that I described in the first paragraph.
The result could well be the mirror image of the unique litigation posture in Matter of A-R-C-G-, except instead of DHS conceding all of the salient facts, “asylum” would be stretched so broadly that every person who has suffered or fears any harm anywhere in the world would benefit from it.
I hope that is not the case, though likely for different reasons than you might think.
First, such an outcome would metaphorically put out a welcome mat along the border, encouraging millions to enter the United States illegally to obtain that newly expanded relief.
The hellish, Hunger Games-like trek to the United States that thousands of migrants now undertake would be multiplied by any number of magnitudes. Drugs and other contraband would freely flow over the Southwest border and into our cities as Border Patrol agents are diverted to care for untold numbers of aliens, and in particular families and children, all seeking quick and easy benefits.
Every town is a border town now, but in such a scenario, every city would be the West Baltimore seen in “The Wire”, too.
Second, and as a result, asylum as it is now known would inevitably be eliminated, as a future administration snaps the protection shut in response.
We talk a lot about the “pendulum” of immigration policy and, if it swings as far as I fear the Biden administration plans when it comes to asylum, protection of foreign nationals will be too high a cost for voters to pay, give the inevitable resulting consequences.
Remember: Asylum is not guaranteed in the constitution, and although the United States has entered into international compacts and agreements promising to grant that protection, it can withdraw from them at any time.
Yes, asylum is limited, but necessarily so as to ensure that our immigration system is credible in the eyes of the people. It is an exception to the strict rules governing the entry and deportation of foreign nationals.
When that exception becomes the rule (as could easily occur if the president’s campaign website and statements accurately reflect his true intentions, and are not simply political puffery), faith in the system will be lost and the reaction from the voters will be harsh.
That is an extremely bad — but inevitable — outcome because asylum is a crucial protection for the truly worthy. As an INS attorney, I stipulated to asylum grants, and as an immigration judge, I granted the protection myself, understanding that the applicants I saw didn’t want asylum — they needed it.
Perhaps I am overly and unnecessarily concerned. Unfortunately, when it comes to abandoning fundamental norms in immigration law and policy (like enforcing the laws in the interior, and following Congress’s mandates at the border), the Biden administration has no equal, at least not in my memory.
The resulting regulations should be published at any time, and Garland’s decision in Matter of A-B- is likely the herald of their publication. Stay tuned.