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Case Notes

Grace v. Whitaker: Judge blocks US asylum rules for domestic, gang abuse survivors

This piece was written by Nidia Bautista and originally published by Al Jazeera on 19 December 2018. The original article publication can be found here. The opinion in its entirety can be found here.

A US federal judge on Wednesday struck down the policies put in place by former Attorney General Jeff Sessions that made it harder for individuals fleeing domestic and gang violence to obtain asylum.

Last June, Sessions reversed precedent put forth by the Obama administration that allowed more individuals to cite domestic violence and fears of gang violence as part of their asylum application. Sessions argued that "the mere fact that a country may have problems effectively policing certain crimes - such as domestic violence or gang violence - or that certain populations are more likely to be victims of crime cannot itself establish an asylum claim."

On Wednesday, Judge Emmet Sullivan found the policies "arbitrary, capricious and in violation of the immigration law". Sullivan also ordered federal officials to return plaintiffs who were deported and provide them with new credible fear determinations "consistent with the immigration law."

The decision was the result of a lawsuit filed by the American Civil Liberties Union (ACLU) on behalf of a dozen asylum seekers, including children, who had their asylum claims rejected after their "credible fear" screenings by asylum offices, an initial step in the asylum process where officers determine whether asylum-seekers have a well-founded fear of persecution.

Plaintiffs in the ACLU case were placed in removal proceedings without a hearing, according to the ACLU. That included an indigenous woman named Grace, who fled Guatemala after enduring 20 years of rape and beatings by a partner.

Judge Sullivan permanently blocked the government "from continuing to apply those practices and from removing plaintiffs who are currently in the United States without first providing credible fear determinations consistent with the immigration laws."

In the Mexican border city of Tijuana, where thousands of Central American migrants and refugees have been living in different shelters after arriving last month as part of a collective exodus, migrants, including Xiomara Ramirez Hernandez, hope the decision will help their chances of getting asylum in the coming months. Up until today Hernandez, 52, from San Salvador, El Salvador, didn't think she had a good chance of obtaining asylum. She's staying in Tijuana's El Barretal shelter, along with more than 3,000 other migrants and refugees, and has been in the border city for a month now. On October 18 of this year, she was ordered to leave San Salvador within 24 hours by a member of the Barrio 18 gang, a known rival of the MS 13 gang.

The threat came after Hernandez found out her 22-year-old daughter was found beaten and naked in an empty lot in the capital city. She had been attacked, raped and left for dead by a member of Barrio 18. Hernandez approached San Salvador's attorney general's office to report the crime. Within days the perpetrator showed up at her door and gave her an ultimatum: leave the city or stay and be killed.

She joined the migrant caravan to escape the threats. On Wednesday morning, Hernandez was thinking about leaving Tijuana and travelling to Ciudad Juarez to look for work. But Judge Sullivan's decision might mean a change of plans. "If I have the chance to present my asylum claims, I'm going to, absolutely," she told Al Jazeera. "I won't survive back in my country."

Human rights advocates and lawyers slammed Sessions's decision earlier this year as a violation of women's human rights. Gender violence is a widespread issue in Central America and at least 50 percent of women experience domestic violence in the region. UN Women has said that domestic violence represents only the beginning of a number of violent acts that could culminate in femicide. An estimated 387 women were killed in Honduras in 2017 while every 18 hours a woman was killed in El Salvador that year.   The Justice Department said it was still deciding whether it would appeal the decision.

How far reaching is the impact of Grace v. Whitaker?

This case note was written by Jeffrey Chase, and originally published on 24 December 2018. It is reprinted here with the author’s permission, all rights reserved.

Six months after a significant number of US immigration judges cheered a decision intended to revoke the hard-earned right of domestic violence victims to asylum protection, immigration advocates had their chance to cheer last week’s decision of US District Court Judge Emmet G. Sullivan in Grace v. Whitaker. The 107-page decision blocks USCIS from applying the standards set forth in a policy memo to its asylum officers implementing the decision of former Attorney General Jeff Sessions in Matter of A-B-. Judge Sullivan concluded that “it is the will of Congress - and not the whims of the Executive - that determines the standard for expedited removal,” and therefore concluded that the policy changes contained in the USCIS memo were unlawful. In his decision in Matter of A-B-, Sessions stated that “generally, claims … pertaining to domestic violence or gang violence will not qualify for asylum.” In a footnote, Sessions added “accordingly, few such claims would satisfy the legal standard to determine whether an [asylum applicant] has a credible fear of persecution.” Read properly, neither of those statements are binding; they are dicta, reflecting Sessions’ aspirations as to how he would like his decision to be applied in his version of an ideal world. However, both the BIA and the author of the USCIS policy memo forming the basis of the Grace decision drank the Kool-Aid. The BIA almost immediately began dismissing domestic violence cases without the required individualized legal analysis. And USCIS, in its memo to asylum officers, stated that in light of A-B-, “few gang-based or domestic violence claims involving particular social groups defined by the members’ vulnerability to harm may … pass the ‘significant probability’ test in credible fear screenings.” If one reads Matter of A-B- carefully, meaning if one dismisses the more troubling language as non-binding dicta, its only real change to existing law is to vacate the precedent decision in Matter of A-R-C-G- which had recognized victims of domestic violence as refugees based on their particular social group membership. A proper reading of A-B- still allows such cases to be granted, but now means that the whole argument must be reformulated from scratch at each hearing, requiring lengthy, detailed testimony of not only the asylum applicant, but of country experts, sociologists, and others. Legal theories already stipulated to and memorialized in A-R-C-G- must be repeated in each case. Such Sisyphean approach seems ill suited to the current million-case backlog. However, the BIA and the USCIS memo chose to apply Sessions’ dicta as binding case law, an approach that did in fact constitute a change in the existing legal standard. When the Department of Justice argued to the contrary in Grace, Judge Sullivan called shenanigans, as USCIS’s actual application of the decision’s dicta to credible fear determinations harmed asylum applicants in a very “life or death” way. The judge also reminded the DOJ of a few really basic, obvious points that it once knew but seems to have forgotten in recent years, namely (1) that the intent of Congress in enacting our asylum laws was to bring our country into compliance with the 1951 Convention on the Status of Refugees; (2) that the UNHCR’s guidelines for interpreting the 1951 Convention are useful interpretive tools that should be consulted in interpreting our asylum laws, and (3) that UNHCR has always called for an expansive application of “particular social group.” Judge Sullivan further found that as applied by USCIS, the should-be dicta from A-B- constitutes an “arbitrary and capricious” shift in our asylum laws, as it calls for a categorical denial of domestic violence and gang-based claims in place of the fact-based, individualized analysis our asylum law has always required. How far reaching is the Grace decision? We know that the decision is binding on USCIS asylum officers, who actually conduct the credible fear interviews. But is the decision further binding on either immigration judges or judges sitting on the Board of Immigration Appeals? USCIS of course is part of the Department of Homeland Security. Immigration judges and BIA members are employees of EOIR, which is part of the Department of Justice. Its judges are bound by precedent decisions of the Attorney General, whose decisions may only be appealed to the Circuit Courts of Appeal. However, the credible fear process may only be reviewed by the US District Court for the District of Columbia, and only as to whether a written policy directive or procedure issued under the authority of the Attorney General is unconstitutional or otherwise in violation of law. This is how Grace ended up before Judge Sullivan. The BIA and Immigration Judges generally maintain that they are not bound by decisions of district courts. Despite these differences, the credible fear interviews conducted by USCIS are necessarily linked to the immigration court hearings of EOIR. An asylum officer with USCIS recently described the credible fear interview process to me as “pre-screening asylum cases for the immigration judge.” The credible fear process accounts for the fact that that the applicant has not had time yet to consult with a lawyer or gather documents, might be frightened, and likely doesn’t know the legal standard. But the purpose of the credible fear interview is to allow the asylum officer to gather enough information from the applicant to determine if, given the time to fully prepare the claim and the assistance of counsel, there is a significant possibility that the applicant could file a successful claim before the immigration judge. The credible fear standard has always been intended to be a low threshold for those seeking asylum. Before A-B-, a victim of domestic violence was extremely likely to meet such standard. The USCIS memo reversed this, directing asylum officers to categorically deny such claims. But now, pursuant to Grace, USCIS must go back to approving these cases under the pre-A-B- legal standard. When an asylum officer finds that the credible fear standard has not been met, the only review is before an immigration judge in a credible fear review hearing. Although, as stated above, EOIR generally argues that it is not bound by district court decisions, its immigration judges would seem to be bound by the Grace decision in credible fear review hearings. Congress provided the district court the authority to determine that a written policy directive of the AG (which was implemented by the USCIS written policy memo) relating to the credible fear process was in violation of law, and Judge Sullivan did just that. Even were EOIR to determine that the decision applies only to USCIS, the IJ’s role in the credible fear review hearing is to determine if USCIS erred in finding no credible fear. If USCIS is bound by Grace, it would seem that IJs must reverse an asylum officer’s decision that runs contrary to the requirements of Grace. But since the credible fear standard is based entirely on the likelihood of the asylum application being granted in a full hearing before an immigration judge, can EOIR successfully argue that its judges must apply Grace to conclude that yes, a domestic violence claim has a significant chance of being granted at a hearing in which the IJ will ignore the dicta of A-B-, find that the only real impact of the decision was that it vacated A-R-C-G-, and will thus apply an individualized analysis to an expansive interpretation of particular social group (with reference to UNHCR’s guidelines as an interpretive tool)? And then, once the case is actually before the court, ignore Grace, and apply what appears to the be BIA’s present approach of categorically denying such claims? Many immigration judges are presently struggling to understand Matter of A-B-. The decision was issued on the afternoon of the first day of the IJ’s annual training conference. This year’s conference was very short on legal analysis, as the present administration doesn’t view immigration judges as independent and neutral adjudicators. But the judges tapped for the asylum law panel had to throw away the presentation they had spent months planning and instead wing a program on the A-B- decision that they had only first seen the prior afternoon. Needless to say, the training was not very useful in examining the nuances of the decision. As a result, fair-minded judges are honestly unsure at present if they are still able to grant domestic violence claims. Of course, a decision of a circuit court on a direct challenge to A-B- would provide clarification. However, A-B- itself is presently back before the BIA and unlikely to be decided anytime soon. I am aware of only one case involving the issue that has reached the circuit court level, and it is still early in the appeal process. My guess is that EOIR will issue no guidance nor conduct specialized training for its judges on applying A-B- in light of the Grace decision. Nor will the BIA issue a new precedent providing detailed analysis to determine that a domestic violence claimant satisfied all of the requirements set out in A-B- and is thus entitled to asylum. A heartfelt thanks to the team of outstanding attorneys at the ACLU and the Center for Gender and Refugee Studies for their heroic efforts in bringing this successful challenge.

New guidance requires fair process for process for domestic violence, gang asylum claims at the US border

The following was released by the Centre for Gender & Refugee Studies at the University of California-Hastings on 14 January 2019. The guidance for both EOIR and USCIS can be found here.

The Centre for Gender & Refugee Studies (CGRS) is pleased to share the government’s new guidance for asylum cases which clarifies that there is no blanket rule against claims involving applicants fleeing domestic violence and gang violence. The guidance was issued in accordance with US District Court Judge Emmet Sullivan’s recent ruling in Grace v. Whitaker. The Grace lawsuit, filed by CGRS and the American Civil Liberties Union (ACLU) last summer, challenged the implementation of former Attorney General Jeff Sessions’ Matter of A-B- decision in credible fear proceedings. Under US Citizenship and Immigration Services (USCIS) guidance issued after A-B-, many asylum officers and immigration judges had been rejecting survivors of domestic violence and gang violence at this initial screening stage, returning countless asylum seekers to the risk of life-threatening harm. In his December decision Judge Sullivan ruled that key legal interpretations in Matter of A-B- and related USCIS policy memos were arbitrary, capricious, and unlawful. He granted our request for a permanent injunction, blocking asylum officers and immigration judges conducting credible fear interviews and review hearings from implementing them. Notably, Judge Sullivan ruled that each case must be considered on its own facts, and that there can be no general rule against asylum claims based on domestic violence and gang violence in the credible fear screening process. He also rejected the government’s attempt to impose a heightened legal standard in cases involving violence perpetrated by non-government actors, such as intimate partners and members of criminal organizations. The new guidance brings the government into compliance with the Court’s order and requires that asylum officers and immigration judges provide a fair process for asylum seekers in credible fear proceedings, including those presenting themselves at our southern border. CGRS encourages advocates representing individuals at all stages of the asylum process to review the new guidance closely and to contact CGRS for our most up-to-date litigation resources and practice pointers.

Rayamajhi v. Whitaker: No de minimus funds exception to the material support bar

This note is in regards to the Rayamajhi opinion released by the court on 15 January 2019.

The panel dismissed in part and denied in part a petition for review of Board of Immigration Appeals’ denial of asylum and withholding of removal to a citizen of Nepal under the material support terrorist bar. The panel held that petitioner’s argument for a duress exception to the material support bar is foreclosed by Annachamy v. Holder, 733 F.3d 254 (9th Cir. 2013), overruled in part on other grounds by Abdisalan v. Holder, 774 F.3d 517 (9th Cir. 2015) (en banc), and therefore does not constitute a colorable legal or constitutional question providing jurisdiction over the otherwise unreviewable material support determination. The panel held that there is no de minimis funds exception to the material support bar. The panel explained that the plain text of the statute, 8 U.S.C. § 1182(a)(3)(B)(iv)(VI), states that funds knowingly given to a terrorist organization are material support, regardless of the amount given. The panel further held that even if the statute is ambiguous on this point, the Board’s interpretation in In re A-C-M-, 27 I. & N. Dec. 303 (B.I.A. 2018), that there is no de minimis exception, was based on a permissible construction of the statute, and therefore is entitled to Chevron deference.