Attorney General vacates Trump-era immigration court asylum decisions—06-18-21

Immigration news, in context

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This week’s edition:

  • In The Big Picture, we break down two rescissions of Trump-era immigration court precedents by new Attorney General Merrick Garland.

  • In Under the Radar, we examine how ICE surveilled Georgia immigrant rights’ activists.

  • In Next Destination, we look at the announced expansion of the Central American Minors program.

The Big Picture

The news: Attorney General Merrick Garland—who, given the immigration courts’ placement in the Justice Department, acts as a sort of one-person Supreme Court for the system—rescinded two prior precedential decisions issued by Trump-era Attorneys General Jeff Sessions and Bill Barr. Both decisions restricted access to asylum.

What’s happening?

As we’ve noted before, the national system immigration courts are all contained within a Justice Department agency known as the Executive Office of Immigration Review (EOIR, pronounced out loud as “Eeyore,” like the misanthropic donkey from Winnie the Pooh lore). These courts possess the trappings of an independent judiciary—courtrooms where opposing sides present arguments and file motions, clerks, a presiding judge—but are actually administrative courts answering directly to executive branch officials. Judges are Justice Department employees, as are members of the Board of Immigration Appeals, the system’s single appellate division. Sitting atop this hierarchy is the attorney general, who in addition to appointing immigration judges has the ability to refer cases to themself, and essentially issue binding decisions for the entirety of the courts.

As we’ll explain in more detail later, the Trump attorneys general made ample use of this power, issuing a series of decisions that collectively made it much harder to win asylum or otherwise obtain relief in removal proceedings. This approach worked in tandem with that administration’s myriad efforts to prevent access to asylum in the first place. The courts acted as a bit of a failsafe: if migrants were somehow able to evade the many obstacles to making it to court in the first place, winning their case was now much harder.

Among these decisions were Matter of A-B-, issued by Sessions in 2018, and Matter of L-E-A-, issued by Barr in 2019. Garland vacated both on Wednesday, acting on Biden’s Executive Order 14010, issued in early February. Among other things, that order instructed the attorney general and Homeland Security secretary to “promulgate joint regulations… addressing the circumstances in which a person should be considered a member of a ‘particular social group.’”

To understand what that means, and what the vacated orders did, we have to understand the eligibility criteria for asylum. Derived from post-WWII definitions codified in the United Nations’ 1951 Convention and 1967 Protocol on refugees, it is laid out in 8 USC 1101(a)(42)(A) as a person “unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of” a country of their nationality or last habitual residence due to “persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” Race, religion, nationality, and political opinion are all relatively narrow and straightforward, leaving membership in a particular social group, or PSG, as the grounds most subject to interpretation. Over time, this relatively discretionary term has been used to extend protections to, for example, LGBTQ+ people, who are not otherwise explicitly included.

Matter of A-B- and Matter of L-E-A- both targeted potential PSGs, essentially determining certain categories of people were ineligible. A-B- involved the case of a Salvadoran woman who was seeking asylum on the basis of having suffered from domestic violence. Prior immigration court decisions had found that Guatemalan women unable to leave their domestic partnerships constituted a cognizable social group, and in the case of A-B-, the Board of Immigration Appeals ruled that Salvadoran women were similarly a particular social group and granted her asylum while creating that precedent. Crucially, asylum claims require some measure of state-sanctioned persecution, or at least a finding that the state is unable or unwilling to protect the persecuted party, and the courts had agreed that this was the case for these women.

Sessions overruled these decisions, deciding that A-B- had been the victim of “private criminal activity” and not state-sanctioned persecution, and that “generally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum.” In one swoop, he essentially made it extremely difficult to obtain asylum as a victim of domestic violence or persecution by a gang, which constituted the vast majority of asylum petitions by Central American migrants.

In L-E-A-, Barr overruled prior decisions finding that families could constitute particular social groups, in the sense that families as a whole could be targeted as a result of the persecution of one particular member, or their position within society. Barr decided that clans or large families with specific and recognizable characteristics could constitute a particular social group, but generally speaking family ties alone were not sufficient to claim asylum. With Garland’s orders, neither of these decisions apply anymore, and court precedent returns to what it was prior.

How we got here

Decisions like A-B- and L-E-A- are presented as legalistic interpretations of complex immigration law, but the truth is they’re ideologically motivated. The Trump administration didn’t narrow the definition of a “particular social group” in order to more faithfully follow the letter of the law; it did so because it would be an effective way to deny asylum to thousands of Central Americans fleeing generalized or interpersonal violence in their home countries. 

The U.S. refugee and asylum systems are both rooted in Cold War ideology and were designed to process claims made by people fleeing state-sponsored repression. Asylum in particular was a tool used against Soviet bloc countries; there was no better advertisement against global communism than high-profile cases of people fleeing communist countries. (This 1991 Washington Post article on the rise in Soviet asylum seekers in the U.S. is a great example. “U.S. authorities once valued asylum seekers who fled the Soviet Union as tools in Cold War propaganda battles with Moscow and, in some cases, as intelligence assets,” it reads.) Meanwhile, the U.S. often denied asylum claims filed by people from countries the U.S. government had security ties to, such as Haiti, El Salvador, and Guatemala—even in clear cases of government repression. In 1984, 3 percent of asylum applications filed by Guatemalans and Salvadorans were approved; 100 percent of Cuban asylum applications were approved that year.

In recent decades, though, the demographics of those who seek and, crucially, those who are granted asylum have changed substantially. The number of Central American immigrants in the U.S.—including a mix of asylum seekers, unauthorized migrants who didn’t seek asylum, and others—tripled from 1980 to 1990, according to the Migration Policy Institute. In the ‘80s and ‘90s, Central American migrants were largely pushed out of their countries due to the violence and instability caused by U.S.-backed civil wars there. Today, asylum seekers from those countries come to the U.S. for a variety of reasons, ranging from gang violence to police corruption to interpersonal violence, all of which are lingering effects of decades of U.S. meddling in the region. Put simply, the Trump administration wanted to limit the number of Central American asylum seekers who were allowed to stay in the U.S. Since it couldn’t categorically ban Central Americans from being granted asylum, the administration did the next best thing: it cloaked its desire to deny asylum to Central American migrants in the legal jargon of BIA decisions.

A-B- and L-E-A- are among the most high profile immigration decisions issued by Trump’s series of attorneys general, but they are by no means the only ones. In Matter of O-F-A-S-, for example, Attorney General Bill Barr essentially limited the definition of torture. That decision involved the case of a Guatemalan man who sought protection in the U.S. after five men in police uniforms broke into his house, assaulted him, and threatened to hurt him and his family. An immigration judge initially ruled that the man didn’t qualify for protections under the Convention Against Torture—a lesser form of protection with a higher burden of proof than asylum—because he hadn’t proven that he was more likely than not to be tortured by someone acting “in an official capacity.” The BIA upheld that decision, ruling that those tortured at the hands of “rogue” officials who aren’t acting in an official capacity, i.e., on behalf of the state, aren’t eligible for CAT protections. Barr took those decisions and made them apply across the board as immigration court policy.

The attorney general isn’t just responsible for issuing such decisions—they also have the power to nominate immigration judges to the BIA. Barr notably appointed several hard-liners with high rates of asylum denials, including one judge, V. Stuart Couch, who once threatened to sic an attack dog on a 2-year-old Guatemalan child in the middle of a hearing. 

What’s next?

Vacating these decisions means that the precedents no longer apply, and not necessarily that claims based on family membership or persecution via domestic or gang violence will all be accepted now. What changes is that there is no longer a significant presumption against these claims being successful, meaning people in these situations aren’t essentially categorically excluded from protections but still have to prove that they faced this persecution and that the state could not or would not protect them. 

Immigration advocates and attorneys commended the move, which is hard to overstate in its potential impact on the viability of tens of thousands of pending asylum claims, not to mention all those that might be filed going forward. Still, most are hoping that this is a first step, given all the other BIA and AG precedential decisions that remain on the books. In the case of these rescissions, Garland was specifically directed to make redeterminations on the meaning of a particular social group by Biden’s February executive order. Not all the precedential decisions will have as clear cut a mandate to reevaluate, and Garland has been rather quiet in general about his approach to the sprawling immigration court system now under his purview.

Prior to Trump, the precedent-setting recertification decisions that attorneys general could hand down were relatively rare, and usually only used if the immigration courts specifically requested the intervention in cases where there were, for example, BIA panels arriving at different conclusions on what seemed like similar questions of law. A return to usual practice would mean that Garland would be relatively hands-off, yet it would take some sustained focus and several new decisions just to bring the system back to where it was pre-Trump.

Beyond the precedent decisions, Garland’s choices when it comes to filling immigration judge roles are hugely significant. Progressives grumbled in May when it emerged that Garland had appointed a slate of new judges including some with enforcement backgrounds, and who appeared to have been selected and vetted under the previous administration. They’re pushing for him to turn more towards former immigration defense attorneys and litigators to fill open positions, including at the appellate level, where they can begin issuing their own pro-immigrant precedents.

There’s also the open question of how Garland will approach the immigration judges’ union, which the Trump administration moved to decertify after it had strenuously pushed back on a number of policy and regulatory shifts that stripped judges of independence. The case remains pending after the Federal Labor Relations Authority initially sided with the administration.

It will also be up to Garland to oversee the new dedicated dockets for asylum-seeking families, which already have a number of advocates on edge over their potential due process implications. As we explained earlier this month, the dockets have some conceptual similarity to so-called ‘rocked dockets’ in use under both the Trump and Obama administrations, which aimed to speed up processing but ultimately led to many migrants going unrepresented and losing their cases. It’s left to be seen exactly how Garland will head off those concerns, but in general, it’s safe to assume he’ll continue to be under pressure to find ways to reduce the massive immigration court backlog.

Under the Radar

ICE classified activists as “known adversaries,” records show

Immigration agents have been keeping tabs on activists who shed a light on medical neglect and unnecessary surgeries at a detention center in Georgia, records shared with The Intercept show. In one instance, ICE referred to an advocacy group as a “known adversary.” The agency also considered barring advocates at El Refugio from visiting detained immigrants. 

This isn’t the first time an immigration agency has monitored activists. For example, in 2019 at least 5 people—including one journalist and four immigration lawyers—reported being stopped and questioned at border stations in Arizona and Texas. That same year, DHS hired an intelligence firm to monitor people who had attended anti-family separation protests. 

Next Destination

Biden administration expands Central American Minors program

The Biden administration is expanding an Obama-era policy that makes it easier for some Central American children to legally migrate to the U.S. The Central American Minors program began in 2014 in response to an increase in unauthorized and unaccompanied migrant children from Guatemala, Honduras, and El Salvador at the time. It allowed children who had at least one parent or guardian legally present in the U.S. apply to migrate from their home country; the goal was to prevent children from traveling to the U.S. alone and without authorization. Per the Wall Street Journal, 1,450 children entered the U.S. through humanitarian parole under the CAM from 2014 until the Trump administration ended it in 2017, and another 2,700 children had been conditionally approved.