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“[I]t is the will of Congress – not the whims of the Executive – that determine the standard for expedited removal.” Grace et al. v. Whitaker, No. 18-cv-01853 (EGS) slip op. at *3 (D. DC Dec. 19, 2018). My favorite decisions come out of the district courts. The decisions tend to be very long and explain every aspect of the law. I love them. When I’m writing a brief, I read the district court decisions to make sure that I don’t miss any issues; and to help me explain the issues clearly either to the Board of Immigration Appeals (BIA) or to the Ninth Circuit. This week two excellent decisions came down from the district courts. I think of them as holiday gifts from the district courts.
First the District Court for the District of Columbia issued a decision finding that Matter of A-B- and the accompanying policy memorandum applying the reasoning of A-B- to asylum officers adjudicating credible fear cases violated the Immigration and Nationality Act and the Administrative Procedures Act. Second, the District Court for the Northern District of California issued a preliminary injunction enjoining the Trump Administration from enacting a new rule prohibiting noncitizens who enter the United States without inspection through the Mexican border from applying for asylum. This decision reiterated its original holding that now its reasons for granting the injunction are even stronger than when it granted the original Temporary Restraining Order (TRO). East Bay Sanctuary Covenant et al. v. Trump et al. You can read my original post on the TRO here. I am not blogging separately about this case because it really is a restatement of the legal arguments made in the TRO. So, let’s get on to Judge Sullivan’s awesome decision in Grace v. Whitaker.
District Court for the District of Columbia – the Credible Fear Policies Regarding Domestic Violence and Gang Violence Claims Contained in Matter of A-B- and the Implementing Policy Memorandum Are Unlawful
In a huge decision, the District Court for the District of Columbia declared that the credible fear policies contained in Matter of A-B-, 27 I.&N. Dec. 317 (A.G. 2018) and the USCIS Policy Memorandum, Guidance for Processing Reasonable Fear, Credible Fear, Asylum, and Refugee Claims in According with Matter of A-B-, July 11, 2018 (PM-602-0162); and the Asylum Division Interim Guidance – Matter of A-B-, 27 I.&N. Dec. 316 (A.G. 2018) are arbitrary, capricious, and in violation of the immigration laws. The District Court limits this ruling to credible fear interviews. That said, we can use a lot of the logic in this ruling to challenge A-B- denials in regular asylum proceedings before the immigration courts, the Board of Immigration Appeals, and in the Ninth Circuit.
Everything about this decision is fascinating from the posture of the case to the legal reasoning of the court. It’s a very long and very comprehensive decision (it’s 107 pages long – I’m not kidding). I’m going to start by talking about why this case is in the District Court for the District of Columbia. How did they get jurisdiction? Why district court? Why D.C.? It turns out that a lot of the decision talks about why and how the district court has jurisdiction over this case. Back in 1996 when Congress enacted the Illegal Immigration Reform and Immigration Responsibility Act (IIRIRA) two of the seemingly harshest provisions were the expedited removal provision and the jurisdiction stripping of the courts. Expedited removal proceedings were a new invention with a critical safeguard: noncitizens who could establish a credible fear of persecution were not subject to expedited removal.
Now for a detour to explain the credible fear standard. “Congress intended the credible fear determination to be governed by a low screening standard.” Grace et al. v. Whitaker, No. 18-cv-01853 (EGS), slip op. at *8 (D. DC Dec. 19, 2018). The Supreme Court has held that to establish a well-founded fear of persecution the noncitizen only had to establish that there was a one in ten chance of persecution. INS v. Cardoza-Fonseca, 480 U.S. 421, 439-40 (1987). By default, if the requirement to establish a well-founded fear of persecution is ten percent and to establish a credible fear of persecution the noncitizen need only show a significant possibility of establishing eligibility for asylum; the noncitizen only need establish a fraction of that ten percent threshold. Grace, slip op. at *58. It’s a very generous standard.
Back to the jurisdictional issues. When Congress created expedited removal and stripped a lot of jurisdiction from the courts in 1996, it left a safeguard for some very limited court review of expedited removal. First, the courts can hear a habeas corpus proceeding to review whether the petitioner was erroneously removed because they were U.S. citizens, lawful permanent residents (LPRs), or had previously been granted asylum. Second, the district court for the District of Columbia has jurisdiction to review a systemic challenge to the legality of a “”written policy directive, written policy guideline, or written procedure issued by or under the authority of the Attorney General to implement the expedited” removal process.” Grace, slip op. at *11. The district court found it had jurisdiction under this provision.
Once the district court determined it had jurisdiction, it dissected Matter of A-B- and the policy memorandum implementing the decision. To simplify, the Attorney General stated that few claims pertaining to domestic violence or gang violence by non-governmental actors could qualify for asylum or satisfy the credible fear standard. The district court held that this decision was arbitrary and capricious. I’m not going to delve into it. Suffice it to say, the district court found that it had jurisdiction under the Immigration and Nationality Act (INA) and under the Administrative Procedures Act (APA); that the plaintiffs had standing; and, that Chevron deference did not apply because the Attorney General’s decision was not a reasonable interpretation of the statute. I am going to blog about the six major holdings in this case. Please remember that this decision only applies to credible fear interviews and the credible fear standards. But I believe that we can apply the reasoning in our asylum claims before the asylum office, the immigration courts, and the BIA.
The General Rule Foreclosing Domestic Violence and Gang-Related Claims is Unlawful
The rule foreclosing domestic violence and gang-related asylum claims violates both the INA and the APA. The court examines the term “particular social group” (PSG). The court reviews the history of the term noting that Congress first included it in the INA when it enacted the Refugee Act of 1980. Congress enacted the Refugee Act to bring it into conformance with the United Nations Protocol Relating to the Status of Refugees (Protocol) which the United States joined in 1968. In interpreting the Refugee Act in accordance with the meaning intended by the Protocol, the INA should be read consistently with the UN’s interpretation of refugees. To determine the UN’s interpretation or a particular social group, the court looked to the United Nations High Commissioner of Refugees (UNHCR) Handbook. The UNHCR defines a particular social group as including persons of similar background, habits, or social status.
The court found that 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, the INA requires that the adjudicator make an individualized analysis of every asylum claim; so, there cannot be a blanket policy denying claims. “A general rule that effectively bars the claims based on certain categories of persecutors (i.e. domestic abusers or gang members) or claims related to certain kinds of violence is inconsistent with Congress’ intent to bring “United States refugee law into conformance with the Protocol.”” Grace, slip op. at 56-57. “The Attorney General’s directive to broadly exclude groups of aliens based on a sweeping policy applied indiscriminately at the credible fear stage, was neither adequately explained nor supported by agency precedent. Accordingly, the general rule against domestic violence and gang-related claims during a credible fear determination is arbitrary and capricious and violates the immigration laws.” Grace, slip op. at 58-59.
Persecution: The “Condoned or Complete Helplessness” Standard Violates the APA and the INA
Matter of A-B- and the Policy Memorandum set forth a new heightened standard requiring the noncitizen to “show the government condoned the private actions or at least demonstrated a complete helplessness to protect the victim.” Matter of A-B-, 27 I.&N. Dec. at 337. The court held that this standard violates the APA and the INA. The court cited to the “seminal case” on the interpretation of the term persecution, Matter of Acosta, 19 I.&N. Dec. 211 (BIA 1985). In Acosta the BIA recognized that harms could constitute persecution if they were inflicted “either by the government of a country or by persons or an organization that the government was unable or unwilling to control.” Id., at 222. The BIA crafted this standard from pre-1980 statutes which held that if the government was not the persecutor, an applicant could still seek asylum based on persecution from a person or group that the government was “unable or unwilling” to control. The district court agrees with this approach and this definition. Grace, slip op. at 61.
It was clear at the time that the Act was passed by Congress that the “unwilling or unable” standard did not require a showing that the government “condoned” persecution or was “completely helpless to prevent it. Therefore, the government’s interpretation of the term “persecution” to mean the government must condone or demonstrate complete helplessness to help victims of persecution fails at Chevron step one.
Grace, slip op. at 62. (Chevron step one asks whether the statute is ambiguous. Here the court finds that the statute is unambiguous). Even more interestingly, the court found that it need not defer to the agency’s interpretation to the extent it is based on an interpretation of court precedent.
To the extent the credible fear policies established a new standard for persecution, it did so in purported reliance on circuit opinions. The Court gives no deference to the government’s interpretation of judicial opinions regarding the proper standard for determining the degree to which government action, or inaction, constitutes persecution. Univ. of Great Falls, 278 F.3d at 1341. The “unwilling or unable” persecution standard was settled at the time the Refugee Act was codified and therefore the Attorney General’s “condoned” or “complete helplessness” standard is not a permissible construction of the persecution requirement.
Grace, slip op. at *66.
Nexus: The Credible Fear Policies Do Not Pose a New Standard for the Nexus Requirement
Although the nexus standard (persecution on account of) does not allow for a grant of asylum where the persecution is purely personal, it does not preclude a positive credible fear determination simply because there is a personal relationship between the persecutor and the victim, as long as the one central reason for the persecution is a protected ground. Because Matter of A-B- and the Policy Memorandum do not deviate from the “one central reason” standard the government did not violate the APA or the INA.
Circularity: The Policy Memorandum’s Interpretation of the Circularity Requirement Violates the APA and the Immigration Laws
I have found the circularity requirement to be particularly troublesome when I try to craft a particular social group – especially after Matter of A-B-. The Policy Memorandum provides that definitions based on claims of domestic violence are impermissibly circular and therefore not cognizable as a basis for persecution in a credible fear determination. All of the parties agreed that the BIA’s definition of the anti-circularity rule set forth in Matter of M-E-V-G-, 26 I.&N. Dec. 227 (BIA 2014) was correct. M-E-V-G- provides that a particular social group cannot be defined exclusively by the claimed persecution. Grace, slip op. at 70.
[T]he “act of persecution by the government may be the catalyst that causes the society to distinguish [a group] in a meaningful way and consider them a distinct group, but the immutable characteristic of their shared past experience exists independent of the persecution.” [M-E-V-G-] at 243. Thus, such a group would not be circular because the persecution they faced was not the sole basis for their membership in a particular social group.
Grace, slip op. at *72. The plaintiffs in Grace do not challenge Matter of A-B- ‘s statements with regard to circularity, but rather, the Policy Memorandum’s mandate that domestic violence-based social groups that include an inability to leave are not cognizable. The court found this analysis “unmoored from the analysis in Matter of M-E-V-G- and has no basis in Matter of A-B-.” Grace, slip op. at *75. The court found it arbitrary and capricious and contrary to immigration law.
There is No Delineation Requirement at the Credible Fear Interview
The government cannot require a noncitizen to formulate a particular social group at the credible fear interview. Thank goodness! It’s hard enough for me to formulate a particular social group and I have been representing asylees forever! The Attorney General in Matter of A-B- requires an asylum applicant to indicate an exact delineation of a particular social when the noncitizen is in immigration court. However, this requirement is not part of the credible fear determination and cannot be a part of the determination that the applicant lacks a well-founded fear of persecution.
The Policy Memorandum’s Requirements Related to the Asylum Officer’s Application of Circuit Law are Unlawful
This part of the case truly confused me because the language in the Policy Memorandum itself is so confusing. The court found that the part of the Policy Memorandum that directs asylum officers to disregard circuit law that is contrary to Matter of A-B- is unlawful. The government cited to the Supreme Court’s decision in Nat’l Cable & Telecomm’s Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005) (Brand X) in support of its position. Brand X holds that where an agency and a circuit court disagree on an interpretation of an ambiguous statute, the agency’s interpretation trumps the circuit court’s interpretation. The court notes that the Policy Memorandum directs officers as a rule not to apply circuit law if it is inconsistent with Matter of A-B-, without regard to whether a specific provision in Matter of A-B- is entitled to deference in the first place. The court held that such a rule runs contrary to Brand X. Here’s my one of my favorite lines from the decision, “Simply put, Brand X is not a license for agencies to rely on dicta to ignore otherwise binding circuit precedent.” Grace, slip op. at 86 n. 22. The court concludes that the statutory and regulatory provisions cited by the government do not justify a blanket mandate to ignore circuit law.
Finally, the court found that it had the authority to issue a nationwide injunction enjoining the government from implementing the Policy Memorandum. It found that it had the authority to order the government to return the plaintiffs who were unlawfully removed from the United States under this policy. Then it found that it had the permanent injunction factors require permanent injunctive relief in this case. So, the Policy Memorandum is unlawful, and we now have a guideline for challenging Matter of A-B- in court. We owe a tremendous amount of thanks to the ACLU (as usual) and the Center for Gender and Refugee Studies (CGRS) who represented the plaintiffs. I have not done this case justice. It’s spectacular.
Grace, et al. v. Whitaker, No. 18-cv-01853 (EGS) (D.DC, Dec. 19, 2018).