Attorney General to Review Asylum Standards

By Andrew R. Arthur on March 12, 2018

On March 7, 2018, the attorney general directed the Board of Immigration Appeals (BIA) to refer Matter of A-B- to him for his review, in accordance with 8 C.F.R. § 1003.1(h)(1)(i). This marked the second time in a week that he has opted to use his authority to review a BIA decision, following his March 5, 2018, order in Matter of E-F-H-L-.

In my March 6, 2018, post "An Unusual Amicus Argument", I quoted former Attorney General Alberto Gonzales and Patrick Glen, who described the attorney general's review authority (also known as "certification") in the Iowa Law Review:

An additional tool, used only twice by the Obama Administration, is the authority of the Attorney General to adjudicate immigration cases under the Immigration and Nationality Act [INA]. This authority can be exercised on the Attorney General's own motion, or through the referral of cases to him by the [BIA] or the Secretary of the Department of Homeland Security. As has been recognized: "This certification power, though sparingly used, is a powerful tool in that it allows the Attorney General to pronounce new standards for the agency and overturn longstanding BIA precedent." This authority, which gives the Attorney General the ability "to assert control over the BIA and effect profound changes in legal doctrine," while providing "the Department of Justice final say in adjudicated matters of immigration policy," represents an additional avenue for the advancement of executive branch immigration policy that is already firmly embodied in practice and regulations.

Why is such review possible? As Gonzales and Glen explain, the BIA is simply the attorney general's "delegate", lacking "any independent statutory existence":

It is the Attorney General who was statutorily charged, and remains charged together with the Secretary of the Department of Homeland Security, with the administration and enforcement of the immigration laws. The Board has authority to act only to the extent that the Attorney General, by regulation, so provides.

A third referral order was issued by the attorney general in Matter of Castro-Tum, on January 4, 2018. This particular referral, however, might be the most significant of the three.

Specifically, the attorney general is inviting briefing on: "Whether, and under what circumstances, being a victim of private criminal activity constitutes a cognizable 'particular social group' for purposes of an application for asylum or withholding of removal."

By way of background, section 208(b)(1) of the Immigration and Nationality Act (INA) gives the attorney general the authority to grant asylum to any alien who has applied for that protection "if the Attorney General determines that such alien is a refugee within the meaning of section 101(a)(42)(A)" of the INA.

Section 101(a)(42)(A) of the INA, in turn, defines the term "refugee" as:

[A]ny person who is outside any country of such person's nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.

Section 208(b)(1)(B)(i) of the INA, as amended by section 101(a)(3) of the REAL ID Act of 2005, sets forth the burden of proof for asylum applicants:

The burden of proof is on the applicant to establish that the applicant is a refugee, within the meaning of section 101(a)(42)(A). To establish that the applicant is a refugee within the meaning of such section, the applicant must establish that race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant.

The Conference Report for the REAL ID Act reflects the fact that this amendment was necessary to correct anomalies and clarify standards in the application of the asylum provisions. It states, in pertinent part:

Burden of Proof and Central Reason: Paragraph 101(a)(3) codifies case law standards for granting asylum, both to resolve conflicts between fora and to codify precedential rules.

First, that paragraph would create a new clause 208(b)(1)(B)(i) in the INA. This clause codifies existing regulations and case law standards stating that the burden of proof is on the asylum applicant to establish eligibility as a refugee. This clause also will clarify the standard that an asylum applicant must meet to establish the motivation for persecution claimed.

. . .

As the Supreme Court has held: "since the statute makes motive critical, [an asylum applicant] must provide some evidence of it, direct or circumstantial.''

. . .

In explaining the Supreme Court's decision, the Ninth Circuit stated: "[I]n those cases in which a persecuted activity could stem from many causes, some protected by the statute and others unprotected, the victim must tie the persecution to a protected cause. To do this, the victim needs to show the persecutor had a protected basis (such as the victim's political opinion) in undertaking the persecution.'' The BIA has explained the alien's burden as follows: an asylum applicant "bear[s] the burden of establishing facts on which a reasonable person would fear that the danger arises on account of'' one of the five protected factors.

The main issue in assessing motivation in an asylum context occurs in so-called "mixed motive'' cases, where there is more than one possible motive for harm, one protected, others not. In requiring an asylum applicant to establish that at least one central reason for persecution was or will be one of the five factors for asylum relief, this subsection calls for an evaluation of whether the protected characteristic is central to the persecutor's motivation to act.

Finally, with respect to so-called "mixed-motive'' claims, under this amendment, asylum may be granted where there is more than one motive for mistreatment, as long as at least one central reason for the mistreatment is on account of race, religion, nationality, membership in a particular social group, or political opinion.

The relationship between the harm suffered or feared and the reasons for that harm in an asylum claim is referred to as the "nexus". As the Congressional Research Service (CRS) explained in its September 2014 report, "Asylum and Gang Violence: Legal Overview":

The refugee definition's proviso that the persecution be "on account of" a protected ground has been construed to require that there be a "nexus" between the harm that the alien has incurred or fears and the alien's race, religion, nationality, political opinion, or membership in a particular social group. To establish the requisite nexus, the alien must provide some evidence (direct or circumstantial) that the persecutor is motivated to persecute the victim because the victim possesses — or is believed to possess — the protected characteristic. The alien need not prove the actual, exact reason for the persecution.

Many asylum claims in recent years from Central America have related to the violence, and in particular gang violence, in those countries, magnified by the number of unaccompanied alien children (UACs) who have entered the United States in recent years, as CRS suggested.

In the report referenced above, CRS found:

When considered by the BIA or appellate courts in light of how the INA's definition of refugee is construed, claims to asylum based on gang-related violence frequently (although not inevitably) fail. In some cases, this is because the harm experienced or feared by the alien is seen not as persecution, but as generalized lawlessness or criminal activity. In other cases, persecution has been found to be lacking because governmental ineffectiveness in controlling the gangs is distinguished from inability or unwillingness to control them. In yet other cases, any persecution that is found is seen as lacking the requisite connection to a protected ground, and instead arising from activities "typical" to gangs, such as extortion and recruitment of new members. The particular social group articulated by the alien (e.g., former gang members, recruits) may also be seen as lacking a "common, immutable characteristic," social visibility (now, social distinction), or particularity.

Four of the five factors for asylum relief are fairly straightforward: race, religion, nationality, and political opinion. The BIA and the courts, however, have struggled with the parameters of "membership in a particular social group". In Matter of the M-E-V-G-, for example, the BIA held: "The phrase 'membership in a particular social group,' which is not defined in the Act, the [United Nations Convention Relating to the Status of Refugees], or the [United Nations Protocol Relating to the Status of Refugees], is ambiguous and difficult to define." In Fatin v. INS, then-Judge (now Justice) Alito, writing for the Court of Appeals for the Third Circuit, noted: "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.'"

In the gang violence context, this is complicated by the fact that, generally, and as the BIA recognized in Matter of Sanchez and Escobar, "the tragic and widespread savage violence [in a general population] as the result of civil strife and anarchy is not persecution," and that, as the BIA recognized in Matter of T-M-B-, victims of crime (in that case, extortion) not related to one of the five factors for asylum relief have not been subject to "persecution" for purposes of that relief.

The BIA summarized these issues as they relate to gang violence in Matter of M-E-V-G-:

The prevalence of gang violence in many countries is a large societal problem. The gangs may target one segment of the population for recruitment, another for extortion, and yet others for kidnapping, trafficking in drugs and people, and other crimes. Although certain segments of a population may be more susceptible to one type of criminal activity than another, the residents all generally suffer from the gang's criminal efforts to sustain its enterprise in the area. A national community may struggle with significant societal problems resulting from gangs, but not all societal problems are bases for asylum.

Notwithstanding this, certain courts have held that aliens have been able to establish eligibility for asylum based on gang violence. For example, in Hernandez-Avalos v. Lynch, the Court of Appeals for the Fourth Circuit found that a Salvadoran national who had received death threats from Mara 18 members unless she allowed her son to join the gang had established eligibility for asylum. It held: "Mara 18 threatened Hernandez in order to recruit her son into their ranks, but they also threatened Hernandez, rather than another person, because of her family connection to her son," concluding that those "threats were ... made 'on account of' her membership in her nuclear family," a particular social group.

Returning to Matter of A-B-, as noted, the attorney general is requesting briefing on "[w]hether, and under what circumstances, being a victim of private criminal activity constitutes a cognizable 'particular social group' for purposes of an application for asylum or withholding of removal." This suggests that the attorney general is likely to issue bright-line rules for the consideration of asylum involving criminal activity, including gang claims. The ultimate decision is likely to have wide-reaching consequences.

Many, if not most, aliens claiming "credible fear" in expedited removal proceedings assert that they have been the victims of private criminal activity, and in particular gang activity. Because of the inconsistencies in the application of the law, and open questions regarding eligibility for such relief, credible fear is usually found. The most recent statistics from U.S. Citizenship and Immigration Services (USCIS) reveal that in the first three months of FY 2018, the agency issued 21,017 decisions relating to credible fear, finding that credible fear was established in 16,184 of those cases. Clear guidance on these questions is likely to result in fewer credible fear findings.

In addition, the most recent asylum filings information from USCIS reveals that "[a]n estimated 115,399 affirmative asylum applications were filed with USCIS in 2016, 39 percent more than the year before and more than 100 percent increase since 2014." It continues:

The number of affirmative asylum applications by migrants from Central America's Northern Triangle Countries (El Salvador, Guatemala, and Honduras) has ... risen dramatically in the past three years, from 7,723 to 25,801, a 234 percent increase. From the region, more individuals affirmatively sought asylum in 2014- 2016 than in the prece[]ding 17 years combined.

Similarly, it states:

Total defensive asylum applications before [the Executive Office for Immigration Review (EOIR), the Department of Justice agency with jurisdiction over the immigration courts and BIA] also increased to 65,218 in 2016, up from 45,770 applications in 2015. The largest numbers of applications lodged with the courts were from citizens of the Northern Triangle Countries (39,881) [and] Mexico (12,831).

Again, it is likely that many if not most of those claims are related in some way to gang or criminal violence. Depending on the attorney general's ultimate order, a substantial number of those cases may be denied.

Briefs in Matter of A-B- are due in April 2018. The attorney general is likely to issue a decision a few months later.