Lessons for Challenging Matter of A-B- in the Immigration and Federal Courts
On December 17, 2018, United States federal court judge, for the District of Columbia, Honorable Emmet G. Sullivan, in Grace, et al v. Whitaker (Hereafter referenced as “Grace v. Whitaker” or simply, “Grace”) Case No 18-CV-01853 issued a nationwide injunction on certain DOJ and USCIS asylum denial practices. Judge Sullivan overruled many of the Trump administration’s policies specifically, arising out of Attorney General Sessions’ decision referring “Matter of A-B-,” to himself and overruling the previous grant of asylum to a woman who was fleeing domestic violence (See, Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018).
As can be expected, judge Sullivan went through a detailed analysis of whether the plaintiffs had standing, and whether the Court had jurisdiction. The Court clearly found that it overwhelmingly had jurisdiction, and that the plaintiffs had standing.
Caveat – Limitations of this article:
I’ve tried to link this article to challenges which may be raised in immigration court, the BIA or at the federal circuit for attorneys who are representing clients who have a fear of persecution based on their gender, marital status, or relationship status, primarily in Central American countries. The case, while centered on individuals seeking asylum at a port of entry in the United States, contains arguments which may be helpful to individuals who are already in the country, and seeking asylum before either the USCIS asylum office or a US immigration court. Therefore, it is my hope through this article to expand the arguments set forth in the Grace v. Whitaker decision to a useful tool which may be used in immigration courts, where immigration judges may be employing Matter of A-B- to terminate or pretermit asylum applications based on the particular social group set forth in Matter of A-B-, Matter of A-R-C-G- (26 I&N Dec. 388 (BIA 2014), and as initially pronounced in Matter of R-A-, 24 I&N Dec. 629 (A.G. 2008). Remember, though, to raise these issues throughout the course of the proceedings, starting at the Immigration Court (EOIR) level and continuing through to the BIA level so that they can be raised at the Circuit court if necessary. If not raised, these issues will be deemed to have been waived. Also remember to incorporate these arguments into an affirmative asylum application, both via brief as well as by oral closing argument, so that the asylum officer is able to consider the accurate facts, law and interpretation on the record.
The plaintiffs in this case, a group of 12 adults and children, “alleged accounts of sexual abuse, kidnappings, and beatings in their home countries during interviews with asylum officers…Although the asylum officers found that the plaintiffs accounts were sincere, the officers denied their claims after applying the standard set forth in (Matter of A-B-).” (Grace, 2)
Subsequent to the Attorney General’s decision in Matter of A-B-, the DHS issued a “Policy Memorandum,” [USCIS Policy Mem., Guidance for Processing Reasonable Fear, Credible Fear, Asylum, and Refugee Claims in Accordance with Matter of A-B-, July 11, 2018 (PM-602- 0162)] which per the decision, “unlawfully and arbitrarily imposed a heightened standard to their credible fear determinations.” Judge Sullivan issued a stunning rebuke to the administration, stating “many of these policies are inconsistent with the intent of Congress as articulated in the INA. And because it is the will of Congress – not the whims of the Executive – that determines the standard for expedited removal, the Court finds that those policies are unlawful.” (Grace, 3)
In Grace v. Whitaker, the court listed the following issues raised by alien Plaintiffs:
“Plaintiffs challenge the following alleged new credible fear policies: (1) a general rule against credible fear claims related to domestic or gang-related violence; (2) a heightened standard for persecution involving non-governmental actors; (3) a new rule for the nexus requirement in asylum; (4) a new rule that “particular social group” definitions based on claims of domestic violence are impermissibly circular; (5) the requirements that an alien articulate an exact delineation of the specific “particular social group” at the credible fear determination stage and that asylum officers apply discretionary factors at that stage; and (6) the Policy Memorandum’s requirement that adjudicators ignore circuit court precedent that is inconsistent with Matter of A-B-, and apply the law of the circuit where the credible fear interview takes place.” (Grace, 46)
The court went on to analyze each issue as follows:
1. The general rule for closing domestic violence and gang related claims violates the APA and immigration laws.
The court looked to whether the Attorney General’s decision in Matter of A-B- was entitled to Chevron deference.
The court held that to the extent Matter of A-B- was interpreting the “particular social group” requirement in the INA, the Chevron framework applied.
Given that the phrase “particular social group,” is ambiguous, the question was whether or not the Attorney General could then interpret that phrase. The Court held that indeed, the Attorney General could do so. That led to the second prong of Chevron, which is whether the Attorney General’s interpretation of the “particular social group” to preclude domestic violence and gang related claims at the credible fear stage is an impermissible reading of the statute and is arbitrary and capricious.
To that end, this might perhaps be the most important argument an attorney can raise in opposition to either an immigration judge or a DHS attorney arguing that an applicant’s asylum claim should either be dismissed prior to conclusion, if already filed, or pretermitted if not yet filed.
The court in Grace held that the Attorney General’s reading of the statute was impermissible, and was arbitrary and capricious. The court cited Fawkes v. Clinton, 684 F.3d 67 (D.C. Cir. 2012), “to survive arbitrary and capricious review, the agency action must be the product of reasoned decision making.”…no deference is owed to an agency action that is based on the agency’s purported expertise where the agency’s explanation for its action lacks any coherence.”
The government argued that Matter of A-B- and the DHS policy memorandum did not create a general rule against credible fear determinations based on domestic violence or gang related violence. However, the Grace court disagreed.
Grace held: “not only does Matter of A-B- create a general rule against such claims at the credible fear stage, but the general rule is also not a permissible interpretation of the statute. First, the general rule is arbitrary and capricious because there is no legal basis for an effective categorical ban on domestic violence and gang related claims. Second, such a general rule runs contrary to the individualized analyses required by the INA. Under the current immigration laws, the credible fear interviewer must prepare a case-specific, factually intensive analysis of each alien.” (Grace, 56)
The court also held that the heightened standard announced by the Attorney General in Matter of A-B- increased the hurdle that the asylum applicant had to overcome to greater than the current “significant possibility” of a 10% chance of persecution. quoting INS v. Cardoza-Fonseca, 480 U.S. 421, 436–37 (1987).
Given the court’s analyses of both of the Matter of A-B- decision as well as the DHS memorandum, the court held that the Attorney General’s directive was neither adequately explained nor supported by agency precedent. (Grace, 58)
2. Persecution: The “condoned or complete helplessness” standard violates the APA and immigration laws.
In matters regarding either persecution or a well-founded fear of persecution, the alien must show that the alleged persecutor has “some connection” between himself and “governmental action or inaction. The standard is that a petitioner must show that the government was either unwilling or unable” to protect him or her from persecution.
The Attorney General created a new standard in Matter of A-B- and the DHS policy memo followed suit, by requiring an alien to “show the government condoned the private actions or at least demonstrated a complete helplessness to protect the victim.” (Grace, 59)
The court applied Chevron once again to the Attorney General’s decision. It concluded that the term “persecution” is not ambiguous, and therefore there is no need to apply Chevron deference to the Attorney General’s new definition of persecution by a private actor.
In a telling indictment of the Attorney General’s decision, the court wrote “…[for the A.G. to create a rule that] the home government must either condone the behavior or demonstrate a complete helplessness to protect victims of such alleged persecution. That is simply not the law.” (Grace, 64)
The court strikes a solid stake into the heart of the A-B- decision on this particular ground, holding that “the Attorney General’s ‘condoned’ or ‘complete helplessness’ standard is not a permissible construction of the persecution requirement.” (Grace, 66)
Like the first point above, the attorney representing a respondent seeking asylum under either the gang based or domestic violence based grounds may still therefore seek asylum even if the persecution was from a private actor, and does not have to prove either the Attorney General’s “condoned” or “complete helplessness” standards.
3. Nexus – the credible fear policies do not pose a new standard for the nexus requirement.
The Attorney General stated in Matter of A-B-, and consequently, in the DHS’ policy memorandum that “purely personal” disputes will not meet the nexus requirements (Grace, 68). Likewise, the policy memorandum echoes the Attorney General’s decision, stating “when a private actor inflicts violence based on a personal relationship with the victim, the victim’s membership in a larger group often will not be ‘one central reason’ for the abuse.” (Grace, 68)
The court found that the Attorney General and the policy memorandum did not deviate from the “one central reason” standard in the statute or in BIA decisions. Therefore, this ground may not assist the advocate for an alien seeking asylum in this regard.
However, it is instructive in that the court held (through multiple citations) that “multiple motivations for persecution can exist, and the presence of a non-protected motivation does not render an applicant ineligible for refugee status.” (Qu v. Holder, 628 F.3d 602, 608 (6th Cir. 2010)) (Grace, 69)
This is instructive in that the attorney advocate must look for some other grounds for persecution which will overcome the lack of the “one central reason” nexus. Therefore, the advocate is well advised to delve deeply into the applicants past, the persecution, how the applicant is perceived in general society, and therefore arrive at more than one reason for the persecution, including the (sole and inapplicable) reason of the victim’s personal relationship to his or her abuser.
4. Circularity: the policy memorandum’s interpretation of the circularity requirement violates the APA and immigration laws.
On this point, the plaintiffs did not argue that the Attorney General had erred in Matter of A-B-. Rather, the plaintiffs argued that the DHS’ policy memorandum establishes a new rule that “particular social group” definitions based on claims of domestic violence are impermissibly circular, and therefore not cognizable as a basis for persecution in a credible fear determination. The court, after a lengthy analysis of circularity and its meaning, determined at the DHS had indeed expanded on the Attorney General’s A-B- decision, and had overextended the policy memorandum’s “mandate that domestic violence-based social groups that include ‘inability to leave’ are not cognizable.” (Grace, 73)
The court held that because the policy memorandum “imposes a general circularity rule for closing such claims without taking into account the independent characteristics presented in each case, the rule is arbitrary, capricious, and contrary to immigration law.” (Grace, 74)
The court further held that the policy memorandum changes the circularity rule as articulated in settled case law. (Matter of M-E-V-G-, 26 I&N Dec at 242)
The policy memorandum, the Grace court goes on to state, “does not provide a reasoned explanation for, let alone acknowledge, the change.” (Grace, 74)
While the Attorney General suggested only that the social group might be “effectively” circular, the Grace court held that the policy memorandum went well beyond the Attorney General’s explanation in Matter of A-B-, and consequently has no basis in Matter of A-B-. Therefore, the policy memorandum’s determination of “circularity” is arbitrary, capricious, and contrary to immigration law.
5. Discretion and Delineation: the credible fear policies do not contain a discretion requirement, but the policy memorandum’s delineation requirement is unlawful.
The court held that while the Matter of A-B- case did not require a delineation requirement (that is, the alien must specifically delineate a particular social group at the time of the credible fear application), the particular social group must be delineated at the time of the immigration court hearing. However, Matter of A-B- erred in discussing the application of discretionary factors in the context of granting asylum. Discretionary factors should not be established, said the Grace court, at the credible fear stage. The policy memorandum therefore erred in that regard.
Any delineation requirement would not apply to a credible fear determination which is not before an immigration judge, but which is before an asylum officer. However, given that the policy memorandum required that the asylum officer apply the delineation requirement even in credible fear interviews was held to be incorrect and an over extension, and therefore was struck down as being arbitrary and capricious.
6. The policy memos requirements related to asylum officers’ application of circuit law are unlawful.
The policy memorandum specifically tells asylum officer to ignore the applicable circuit court of appeal’s decisions. On its face, this requirement seems laughable: how can the USCIS instruct its officers to specifically ignore case law in the particular circuit? For the government to even make such an argument seems not only audacious, but obviously incorrect – even for a first-year law student – on its face! Nevertheless, the USCIS did so in its policy memorandum. The court, however, spent considerable time analyzing the policy memorandum’s directive, including a detailed explanation of “Brand X.” (Nat’l Cable & Telecomm’s Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005)).
The court also continued with its analysis of Brand X under the Chevron analysis:
Briefly, the court held that it was inconsistent for the government to argue that an asylum officer may disregard any circuit court decisions which are inconsistent with Matter of A-B-. Such an instruction, the court went on, was therefore arbitrary, capricious, and contrary to law.
In conclusion, the court summarized its decision as follows:
In sum, plaintiffs prevail on their APA and statutory claims with respect to the following credible fear policies, which this Court finds are arbitrary and capricious and contrary to law: (1) the general rule against credible fear claims relating to gang-related and domestic violence victims’ membership in a “particular social group,” as reflected in Matter of A-B- and the Policy Memorandum; (2) the heightened “condoned” or “complete helplessness” standard for persecution, as reflected in Matter of A-B- and the Policy Memorandum; (3) the circularity standard as reflected in the Policy Memorandum; (4) the delineation requirement at the credible fear stage, as reflected in the Policy Memorandum; and (5) the requirement that adjudicators disregard contrary circuit law and apply only the law of the circuit where the credible fear interview occurs, as reflected in the Policy Memorandum. The Court also finds that neither the Policy Memorandum nor Matter of A-B- state an unlawful nexus requirement or require asylum officers to apply discretionary factors at the credible fear stage. (Grace, 92)
Thus, the Grace court held that the decision in Matter of A-B- and the subsequent DHS policy memorandum were both arbitrary, capricious, and in violation of the immigration laws, and consequently granted permanent injunctive relief against the government, barring the government from applying the principles of Matter of A-B-, and the DHS policy memorandum from being applied in the context of credible fear interviews.
Applying the Grace v. Whitaker decision:
While the decision is clearly geared to application of Matter of A-B- and the policy memorandum at asylum office “Credible Fear” interviews, the decision can be applied much further: through the affirmative asylum interview process as well as the defensive immigration application filed with the immigration court. A careful reading of the case will establish several factors which can be utilized to push back against DHS trial attorneys or immigration judge’s attempts to either curtail an asylum applicant’s claim or to terminate such claims at the very outset.
As advocates for our clients, it behooves us to read the entire Grace v. Whitaker decision, which contains an incredible treasure trove of analysis, arguments, and case law in support of an asylum applicant’s right to seek refuge even under principles which the Attorney General considered inapplicable.
Copyright, Farhad Sethna, Attorney, 2019
About the author:
Farhad Sethna has practiced law for over 25 years. He was awarded his JD in 1990 and his MBA in 1991, both from the University of Akron. Since 1996, he has also been an adjunct professor of Immigration Law at the University of Akron, School of Law, in Akron, Ohio, where he wrote and used his own immigration textbook. Attorney Sethna is a frequent speaker at Continuing Legal Education and professional development seminars on various immigration-related topics. His practice is limited to immigration and small business. He has won awards for excellence in teaching and for pro-bono service. With offices in Cuyahoga Falls, Akron and New Philadelphia, Ohio, Attorney Sethna represents clients in all types of immigration cases before federal agencies and the immigration courts nationwide. A private pilot, it is Farhad’s goal to fly to each of Ohio’s 88 county airports. Our number is: (330)-384-8000. Please send your general immigration questions to AttorneySethna@immigration-america.com. We will try to answer as many questions as possible.
This is only general legal information. Please consult a qualified immigration attorney for advice on your specific case.