Tag Archive for: Matter of A-B

Sophia Genovese

Acting AG Whitaker Takes Aim at Asylum Seekers Fleeing Family-Based Persecution

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Acting Attorney General Matthew Whitaker has followed in his predecessor’s footsteps by referring yet another immigration case to himself, Matter of L-E-A-, 27 I&N Dec. 494 (A.G. 2018). The Acting AG asks parties to brief “whether, and under what circumstances, an alien may establish persecution on account of membership in a particular social group under 8 U.S.C. 1101(a)(42)(A) based on the alien’s membership in a family unit.”

As background, the Board of Immigration Appeals (BIA) in Matter of L-E-A-, 27 I&N Dec. 40 (BIA 2017) recognized that membership in a family unit constitutes a particular social group. However, it held that to establish eligibility for asylum on such a basis, “an applicant must not only demonstrate that he or she is a member of the family but also that the family relationship is at least one central reason for the claimed harm.” The BIA denied asylum to the respondent, L-E-A-, for failing to meet this nexus requirement. The respondent was a native and citizen of Mexico whose father owned a general store in Mexico City. Members of a drug cartel approached the respondent’s father to ask if they could sell drugs in the store as they viewed it as a favorable distribution location. The respondent’s father refused. The members of the drug cartel approached respondent to see whether he would sell drugs for them at his father’s store. Upon respondent also refusing, the members of the cartel tried to abduct him, but he was able to get away. The respondent fled to the United States and sought asylum. The IJ and BIA reasoned that the respondent was not entitled to relief because even if the persecutor had harmed the respondent, it was done so as a means to an end, i.e. to sell drugs. In other words, they argued, the persecution was not due to the respondent’s membership in a particular social group and animus towards the family, but rather because he was interfering in their drug trade.

The BIA in Matter of L-E-A- recognized the long history of family units constituting particular social groups. See, e.g., Crespin-Valladares v. Holder, 632 F.3d 117, 128 (4th Cir. 2011); Al-Ghorbani v. Holder, 585 F.3d 980 (6th Cir. 2009); Torres v. Mukasey, 551 F.3d 616, 629 (7th Cir. 2008). The BIA has previously “explained that ‘persecution on account of membership in a particular social group’ refers to ‘persecution that is directed toward an individual who is a member of a group of persons all of whom share a common, immutable characteristic…such as…kinship ties.” Matter of C-A-, 23 I&N Dec. 951, 955 (BIA 2006) (quoting Matter of Acosta, 19 I&N Dec. 211, 233-34 (BIA 1985)). “It has been said that a group of family members constitutes the ‘prototypical example’ of a particular social group.” INS, Asylum Officer Basic Training Course: Eligibility Part III: Nexus 21 (Nov. 30, 2001) (quoting Sanchez-Trujillo v. INS, 801 F.2d 1571, 1576 (9th Cir. 1986)). “There can, in fact, be no plainer example of a social group based on common, identifiable and immutable characteristics than that of the nuclear family.” Gebremichael v. INS, 10 F.3d 28, 36 (1st Cir. 1993). Indeed, the BIA found that L-E-A-’s membership in his family constituted a particular social group. Instead, the key issue was whether the harm he experienced or feared was on account of his membership in that particular social group. The BIA in L-E-A- upheld the IJ’s decision below, opining that “any motive to harm the respondent because he was a member of his family was, at most, incidental…[Rather,] the cartel’s motive to increase its profits by selling contraband in the store was one central reason for its actions against the respondent and his family.” 27 I&N Dec. at 46.

As we and others have previously discussed, the BIA missed the mark in L-E-A-. The BIA in L-E-A- critically notes that “[i]f the persecutor would have treated the applicant the same if the protected characteristic of the family did not exist, then the applicant has not established a claim on this ground.” 27 I&N Dec. at 44. Under this reasoning, L-E-A- should have been granted asylum. But for L-E-A-’s familial relationship with his father, he would not have been targeted by the cartel. In other words, despite their motivation of wanting to sell drugs at his father’s store, the cartel’s motivation in targeting L-E-A- was to get to his father, thus satisfying the nexus criteria. There is a reason why the cartel did not target the father’s neighbor – because the neighbor does not have a close, i.e. family, relationship to him. That the cartel ultimately had monetary motivations is irrelevant in the analysis of why they persecuted L-E-A-.

It is unclear how the Acting AG, or the incoming AG (anticipated to be William Barr), will rule in a case that has already made the obstacles more onerous for asylum-seekers. Given the administration’s animus towards asylum-seekers, it is unlikely that they seek to redress the problems with the BIA’s holding. Rather, it is likely that the Acting AG seeks to build upon the BIA’s flawed reasoning and make it even more difficult for those to flee persecution and obtain asylum. The BIA in Matter of L-E-A- affirmed, without question, that kinship ties are inherently a particular social group. Given the wording of the Acting AG’s question Matter of L-E-A-, 27 I&N Dec. 494 (A.G. 2018), he will likely attack the case on this front.

As outlined by the BIA in Matter of L-E-A-, 27 I&N Dec. 40 (BIA 2017), and reiterated above, there is no clearer definition of particular social group than kinship ties. To be granted asylum based on one’s membership in a particular social group, the applicant must show that the group is “(1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.” Matter of A-R-C-G-, 26 I. & N. at 392. As set forth in Matter of Acosta, 19 I&N Dec. 211, 212 (BIA 1985), a “common immutable characteristic” is defined as “a characteristic that either is beyond the power of the individual members of the group to change or is so fundamental to their identities or consciences that it ought not be required to be changed.” Under  Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014) and clarified in Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014), the social group must be defined with “particularity,” or be defined by boundaries of who is actually a member of the group. Finally, as explained in Matter of W-G-R-, “social distinction” is defined as the ‘recognition’ or ‘perception’ of the particular social group in society. 26 I&N Dec. at 216. Family units very clearly satisfy each of these requirements, where you cannot change who your family is, where who members of your family are can be defined with particularity, and where others in society can recognize you as a member of your family. A challenge to the family unit particular social group would undermine the construction of nearly all particular social groups thereafter.

Once formulating one’s social group, the applicant must also show that their persecution was on account of their membership in the social group (the “nexus requirement”), and that the government in the country of origin is unable or unwilling to afford them protection from such persecution. As we’ve previously argued, the Courts need to clarify the nexus requirement. In Matter of L-E-A-, for example, the nexus analysis needed to have focused specifically on why L-E-A- was targeted and persecuted – not what the cartel’s ultimate aim was after targeting him. Clarification on this issue is imperative for uniform adjudication of particular social group asylum cases. Additionally, given AG Sessions’ holding in Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018), future courts and advocates will need to clarify the state protection analysis, especially when the persecution is carried out by private actors. In particular, advocates will need to demonstrate through country conditions reports and expert testimony that the country of origin is unable or unwilling to provide protection from these private actors. In Matter of L-E-A- in particular, one can demonstrate that the cartel acts as a quasi-government in the respondent’s town, and that the police do not have control (or choose not to have control) over them.

Although the legitimacy of Acting AG Whitaker’s appointment, and thus his self-referral of cases, has been called into question, advocates must instead focus their efforts on litigating the asylum requirements. The constant self-referral of cases and unilateral, sweeping changes to the law have been tiresome for immigration advocates; however, we should use these opportunities to litigate existing, flawed case law to create a more robust asylum framework so that we can actually protect those fleeing violent persecution.

Cyrus Mehta & Sophia Genovese

Stop the Horrific Practice of Separating Children from Parents

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The desperate sobbing of children who have been separated from their parents is horrific and shocking. As the children scream “Mami” and “Papa” over and over again, a Border Patrol agent booms above the crying: “Well, we have an orchestra here,” he jokes. “What’s missing is a conductor.”

The practice of separating families at the border is not only cruel and unconscionable, but it is in direct violation of the United States’ obligations under international and US law. As has been argued by the American Civil Liberties Union (ACLU) in its most recent lawsuit against the government, Ms. L v. ICE, this practice of forcibly separating families violates “the Constitution’s due process clause, federal law protecting asylum seekers, and of the government’s own directive to keep families intact.” The Texas Civil Rights Project, the Women’s Refugee Commission, the University of Texas School of Law Immigration Clinic, and Garcia & Garcia Attorneys at Law, P.L.L.C., have filed an Emergency Request for Precautionary Measures with the Inter-American Commission on Human Rights (“IACHR”), arguing that the United States is “violating internationally-recognized human rights and well-established Inter-American standards, including the rights to family, to seek asylum and protection, to minimum due process, among others.”

For those parents seeking asylum in particular, it is permissible under the Immigration and Nationality Act to apply for asylum even if you entered the US without inspection. Supporters of the zero-tolerance policy have decried that these asylum-seekers and migrants should “get in line” or “do it the right way” by applying at Ports of Entry (POEs). However, even when asylum-seekers present themselves at POEs, they are often prevented from making an asylum claim and are turned away. This is in direct violation of International Refugee law, where countries are required to refrain from “expel[ling] or return[ing]  (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” Others ‘lucky’ enough to get through to credible fear interviews are systemically found to not possess such a fear and are swiftly removed from the United States despite being eligible for asylum. Attorney General Sessions has now made this even more difficult after he overturned Matter of A-R-C-G-, 26 I&N Dec. 338 (BIA 2014) in Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018), and in a footnote gratuitously asserts that few claims based on domestic violence or gang based persecution would satisfy the legal standard to determine whether a foreign national has a credible fear of persecution. And now these individuals seeking asylum, both at the POEs and who have entered without inspection, are being violent separated from their families before they can even attempt to adjudicate their claims.

The Trump Administration understands that what they are doing is shameful, and has deployed every public relations stunt in the book to try and distract the public from what is really going on. From blaming Democrats and the Obama Administration for the existence of a supposed law that mandates this violent separation, to claiming that a separation policy does not exist, to then defending such a policy – it is difficult to keep up. No matter which way you paint it, though, the policy is disgraceful and unlawful, and the Trump Administration has the power to stop its enforcement.

There is no law that requires the separation of immigrant families. The Administration has made the explicit decision to prosecute parents who enter the United States without inspection and to separate them from their children in the process. The government has appeared to bunker down on INA § 275 and 8 USC § 1325, which allow for the prosecution of the misdemeanor violation of illegal entry. Under Session’s so-called zero-tolerance policy, every person who crosses the border illegally is now being prosecuted under INA § 275.  The rationale is that those being prosecuted must be separated from their children during the pendency of the trial. Despite supposedly only separating those families who enter without inspection, there are also a number of cases where immigrant families are being separated after lawfully presenting themselves at POEs. Indeed, in  Ms. L v. ICE, supra, the federal judge presiding over the case determined that the plaintiff-parents had asserted sufficient facts and legal basis to establish that separation from their children while they are contesting their removal and without a determination they are unfit or present a danger to their children violates due process under the Fifth Amendment.

This Administration has made the choice to immediately subject asylum-seekers to prosecution prior to adjudicating their asylum eligibility. The UN and human rights advocates have rightfully called this practice unlawful. But more than that, the combination of being punished for fleeing violence and being violently separated from one’s children takes an ineffable mental toll and prevents them from effectively adjudicating their asylum claims, with one recent story of a father taking his own life under the stress of this policy and others discussing the developmental consequences of this separation to children. Once an asylum-seeker finally gets to adjudicate their asylum claim, after weeks or months of separation from their children, they are often so broken down that they cannot effectively argue their claims. If they do not have access to counsel, their chances of obtaining relief – despite clear eligibility – are next to none.  What also makes this practice so egregious is that the underlying motive of the Trump administration is to use the children as political fodder so that Trump can get what he desires in an immigration bill, including his wall and a reduction in legal immigration.  The whole crisis has been manufactured by Trump himself and he has the power to stop it right now.   Indeed, the separation of children as young as eight months old is so horrific that it is important to start viewing them as crimes against humanity, punishable under an international tribunal, rather than a shift in policy.

If you’re like us, and believe that this separation is wrong, we urge you to put pressure on your Congressperson to propose/support emergency legislation to stop the Trump Administration from cruelly separating children from the parents. Call the congressional switchboard at (202) 224-3121. There’s a Senate bill (S. 3036 – Keep Families Together Act) and a House bill (H.R. 5950 – the HELP Separated Children Act), which you can ask your Senators and Representatives to support. If your member is conservative and not likely to support any of these bills, then at least have the member speak out in order to urge the President to reverse the policy.  This violent policy of separating families at the border is not in line with the law and is not in line with American values. The United States has historically taken in hundreds of thousands of refugees from Eastern Europe, the Soviet Union, Haiti, Cuba and Vietnam, among many other countries. We can easily take in people fleeing persecution and violence in Central America once they qualify for asylum under our laws.  The Trump Administration and its supporters ought to take a good, long look in the mirror and ask themselves whether they in good conscience believe that separating children from their families is in-line with those values.

Update: The solution to family separation is not family incarceration.

On June 20, 2018, President Trump issued an Executive Order misleadingly entitled “Affording Congress an Opportunity to Address Family Separation,” purportedly resolving the issue of the separation of immigrant families. The EO maintains support for the zero-tolerance policy at the border and mandates family detention during the pendency of proceedings for unlawful entry, as well as for the immigration proceedings themselves. This EO is in contravention of international norms and standards in regards to the detention of refugees and children. The EO is also in violation of the Flores settlement, which requires that the government not detain children for more than 20 days. Although the Flores settlement only applies to children, past practice (admittedly, inconsistent practice) has been to release the whole family after 20 days to ensure family unity. The EO directs the Attorney General to file suit in the Central District of California to modify the Flores settlement to allow for indefinite detention of children.

The struggle to end mass incarceration of families is not over, and the new EO should not be seen as a victory. Practitioners should continue to litigate these detention practices in the courts and allies should continue to advocate for the eradication of this egregious practice. Nor should President Trump gloat and claim victory. He along with his cabinet members  and advisors who masterminded a gulag for children, toddlers and infants – with the goal of using them  as political fodder – have inflicted irreparable damage on them and should ultimately pay the price.