Asylum adjudications in American immigration courts1×1. Functionally, asylum adjudications take place under the institutional auspices of the U.S. Department of Justice. Immigration judges “decide issues of removability, deportability, and admissibility, and adjudicate applications for relief.” U.S. Dep’t of Justice, Board of Immigration Appeals Practice Manual 9 (2018), https://www.justice.gov/eoir/board-immigration-appeals-2 [https://perma.cc/G7S8-XAWF]. Their decisions may be reviewed by the Board of Immigration Appeals (BIA), a twenty-one-member entity within the U.S. Department of Justice’s Executive Office of Immigration Review. Id. at 1–4. The BIA’s decisions are “binding on the Immigration Judges, unless modified or overruled by the Attorney General or a federal court.” Id. at 2. often have life-and-death consequences.2×2. See Sarah Stillman, When Deportation Is a Death Sentence, New Yorker (Jan. 15, 2018), https://www.newyorker.com/magazine/2018/01/15/when-deportation-is-a-death-sentence [https://perma.cc/Y5FU-GENE] (collecting stories of individuals who were killed after being deported to their home countries). As mandated by the Refugee Act of 1980,3×3. Pub. L. No. 96-212, 94 Stat. 102 (codified as amended in scattered sections of 8 and 22 U.S.C.). applicants for asylum must demonstrate an inability to return to their home country “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”4×4. 8 U.S.C. § 1101(a)(42) (2012). This statutory definition of refugees incorporates text from the United Nations Convention Relating to the Status of Refugees. See Deborah E. Anker & Michael H. Posner, The Forty Year Crisis: A Legislative History of the Refugee Act of 1980, 19 San Diego L. Rev. 9, 11 (1981) (citing the Convention Relating to the Status of Refugees, July 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S. 150). Recently, in In re A-B-,5×5. 27 I. & N. Dec. 316 (Att’y Gen. 2018). the Attorney General certified a Board of Immigration Appeals (BIA) case for his review and held that a Salvadoran woman fleeing domestic violence was not entitled to asylum because she failed to establish membership in a cognizable particular social group.6×6. Id. at 319–20. In so doing, the Attorney General explicitly overturned In re A-R-C-G-,7×7. 26 I. & N. Dec. 388 (B.I.A. 2014). a precedential BIA decision from 2014 that had opened a promising legal route for domestic violence–based asylum claims.8×8. Id. at 388–89. Compared with the Obama Administration, the Trump Administration’s use of the certification power9×9. See Laura S. Trice, Adjudication by Fiat: The Need for Procedural Safeguards in Attorney General Review of Board of Immigration Appeals Decisions, 85 N.Y.U. L. Rev. 1766, 1767 (2010) (“The Attorney General’s authority on review is extraordinarily broad, and it is almost wholly unconstrained by procedural safeguards.”). in In re A-B- to overturn a prior administration’s BIA precedent evinces a lack of prudence and concern for participatory processes, which is particularly troubling given the high-stakes consequences of asylum adjudications.
In July 2014, a Salvadoran mother of three entered the United States and was apprehended by U.S. Customs and Border Protection.10×10. In re A-B-, 27 I. & N. Dec. at 320–21. She alleged that she was eligible for asylum because she suffered persecution on account of her membership in a particular social group, which she defined as “‘El Salvadoran women who are unable to leave their domestic relationships where they have children in common’ with their partners.”11×11. Id. at 321 (quoting In re A-B- (In re A-B- 1), slip op. at 8 (Charlotte Immigration Ct. Dec. 1, 2015)). To support her asylum claim, the claimant adduced factual evidence showing that her ex-husband “repeatedly abused her physically, emotionally, and sexually during and after their marriage.”12×12. Id. (citing In re A-B- 1, slip op. at 2–3). In December 2015, the immigration judge denied the claimant’s asylum application.13×13. Id. (citing In re A-B- 1, slip op. at 4–15). A year later in December 2016, the BIA reversed.14×14. Id. (citing In re A-B- (In re A-B- 2) (B.I.A. Dec. 8, 2016), https://www.lexisnexis.com/LegalNewsRoom/immigration/b/immigration-law-blog/posts/due-process-asylum-protections-for-women-under-attack-matter-of-a-b-revealed [https://perma.cc/37DA-3UDT]). Relying on In re A-R-C-G-, which recognized Guatemalan women unable to leave their marriages as a cognizable particular social group,15×15. 26 I. & N. Dec. 388, 392–94 (B.I.A. 2014). the BIA found that the In re A-B- claimant had similarly satisfied the particular social group requirement.16×16. In re A-B-, 27 I. & N. Dec. at 321 (citing In re A-B- 2, slip op. at 2). The BIA also determined that the government of El Salvador “was unwilling or unable to protect” her. Id. (citing In re A-B- 2, slip op. at 3–4). The BIA then remanded the case with an order to grant asylum pending the claimant’s completion of background checks.17×17. Id. (citing In re A-B- 2, slip op. at 4). In August 2017, the immigration judge issued an order certifying this case back to the BIA, indicating that the Fourth Circuit’s intervening decision in Velasquez v. Sessions18×18. 866 F.3d 188 (4th Cir. 2017). rendered the BIA’s December 2016 decision invalid.19×19. In re A-B-, 27 I. & N. Dec. at 321–23 (citing In re A-B-, slip op. at 3–4 (Charlotte Immigration Ct. Aug. 18, 2017)). No further action was taken until March 7, 2018, when Attorney General Jeff Sessions invoked his certification power20×20. 8 C.F.R. § 1003.1(h)(1) (2008) (“The Board shall refer to the Attorney General for review of its decision all cases that: (i) The Attorney General directs the Board to refer to him[;] (ii) The Chairman or a majority of the Board believes should be referred to the Attorney General for review[; and] (iii) The Secretary of Homeland Security . . . refers to the Attorney General for review.”). For a historical overview of the Attorney General’s certification power, see Hon. Alberto R. Gonzales & Patrick Glen, Advancing Executive Branch Immigration Policy Through the Attorney General’s Review Authority, 101 Iowa L. Rev. 841, 849–52 (2016). See also Margaret H. Taylor, Refugee Roulette in an Administrative Law Context: The Déjà Vu of Decisional Disparities in Agency Adjudication, 60 Stan. L. Rev. 475, 484 n.35 (2007) (noting that the regulation conferring the Attorney General’s certification power “does not specify any substantive criteria for referral. Rather, it delineates those who have authority to invoke this mechanism of policy control.”). and directed the BIA to refer this case for his review.21×21. In re A-B-, 27 I. & N. Dec. at 323. Specifically, the Attorney General framed the question for decision as follows: “Whether, and under what circumstances, being a victim of private criminal activity constitutes a cognizable ‘particular social group’ for purposes of an application for asylum or withholding of removal.”22×22. Id.
On June 11, 2018, the Attorney General issued a thirty-one-page decision that overruled In re A-R-C-G-, vacated the BIA’s 2016 decision holding that the respondent met the statutory definition of a refugee, and remanded the respondent’s case to the immigration judge for further proceedings.23×23. Id. at 346. First, the Attorney General disposed of the procedural and due process objections to his use of the certification power. Relying on an expansive conception of the Attorney General’s power over immigration matters, he held that he had jurisdiction to certify this case even though the BIA had remanded the case to the immigration judge for further proceedings and no final decision had been issued yet by the BIA.24×24. Id. at 323–24. The Attorney General also dismissed the respondent’s concern that she would be denied a fair hearing before an impartial adjudicator because of his prior public statements about immigration policy.25×25. Id. at 324–25.
After providing a history of the BIA’s particular social group jurisprudence, the Attorney General reaffirmed the BIA’s most recent articulation of the legal standard.26×26. Id. at 327–31. Particular social groups must be “(1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.”27×27. In re M-E-V-G-, 26 I. & N. Dec. 227, 237 (B.I.A. 2014). Some scholars have argued that the particularity and social distinction prongs of the particular social group standard ought to be eliminated. See, e.g., Rachel Gonzalez Settlage, Rejecting the Children of Violence: Why U.S. Asylum Law Should Return to the Acosta Definition of “A Particular Social Group,” 30 Geo. Immigr. L.J. 287, 310 (2016). Against this backdrop, the Attorney General held that In re A-R-C-G- was “wrongly decided and should not have been issued as a precedential decision.”28×28. In re A-B-, 27 I. & N. Dec. at 333. Central to the Attorney General’s critique was the BIA’s “cursory analysis of the three factors required to establish a particular social group” and the U.S. Department of Homeland Security’s “multiple concessions” that these requirements were met.29×29. Id. at 331.
The Attorney General held that if the BIA had “properly analyzed the issues”30×30. Id. at 334. in In re A-R-C-G-, then it would have rejected “married women in Guatemala who are unable to leave their relationship”31×31. Id. at 331 (internal quotation marks omitted) (quoting In re A-R-C-G-, 26 I. & N. Dec. 388, 392 (B.I.A. 2014)). as a cognizable particular social group. In terms of the particularity requirement, he held that “[s]ocial groups defined by their vulnerability to private criminal activity,” such as victims of domestic violence, “likely lack the particularity required . . . given that broad swaths of society may be susceptible to victimization.”32×32. Id. at 335. In terms of the social distinction requirement, he held that “there is significant room for doubt that Guatemalan society views these women, as horrible as their personal circumstances may be, as members of a distinct group in society, rather than each as a victim of a particular abuser in highly individualized circumstances.”33×33. Id. at 336. In addition to establishing membership in a cognizable particular social group, victims of private violence must also show that the “government was unwilling or unable to control” the perpetrator.34×34. Id. at 337. The Attorney General held that the Guatemalan woman failed to meet this requirement.35×35. Id. For these reasons, he overruled In re A-R-C-G- and vacated the BIA’s December 2016 decision in In re A-B- because that decision relied so heavily on In re A-R-C-G- as precedent.36×36. Id. at 340.
The Attorney General’s power to certify BIA cases for review and unilaterally overturn a prior administration’s BIA precedent can affect large classes of people and their ability to remain in the country.37×37. This certification power has generally been accepted as legitimate because the BIA is a “nonstatutory body created by the Attorney General.” Stephen H. Legomsky, Learning to Live with Unequal Justice: Asylum and the Limits to Consistency, 60 Stan. L. Rev. 413, 417 (2007); see Margaret H. Taylor, Behind the Scenes of St. Cyr and Zadvydas: Making Policy in the Midst of Litigation, 16 Geo. Immigr. L.J. 271, 289 (2002) (“[I]t follows from its establishment via delegated powers that the Board is subject to the control of the Attorney General.”). This analysis will compare the Trump Administration’s use of the certification power in In re A-B- to the only two instances in which the Obama Administration also used the certification power to overturn a prior administration’s BIA precedent: In re Compean38×38. 25 I. & N. Dec. 1 (Att’y Gen. 2009). and In re Silva-Trevino.39×39. 26 I. & N. Dec. 550 (Att’y Gen. 2015). This article will not consider the two other instances in which the Obama Administration used the certification power: In re Dorman, 25 I. & N. Dec. 485 (Att’y Gen. 2011), and In re Chairez-Castrejon, 26 I. & N. Dec. 796 (Att’y Gen. 2016). Neither of those cases overturned a prior administration’s BIA precedent. By focusing on In re Compean and In re Silva-Trevino, this analysis seeks to highlight the consequences of the Attorney General using the certification power to overturn a prior administration’s BIA precedent. In those two cases, Attorney General Eric Holder either solicited public input through notice-and-comment rulemaking or waited for circuit court precedent to develop before intervening.40×40. See In re Compean, 25 I. & N. Dec. at 2; In re Silva-Trevino, 26 I. & N. Dec. at 552–54. In In re A-B-, however, Sessions did neither. Given the high-stakes nature of asylum adjudications, the Obama Administration’s approach to the use of the certification power is normatively superior.
Holder of the Obama Administration used the certification power to seek diverse perspectives on the relevant legal issues. In In re Compean, Holder vacated a decision handed down by then–Attorney General Michael Mukasey in the waning weeks of the Bush Administration.41×41. Mukasey’s decision was issued on January 7, 2009. In re Compean, 25 I. & N. Dec. at 1. For a discussion of the potential perils of so-called “midnight agency adjudication” that occurs in between a new President’s election and inauguration, see generally Margaret H. Taylor, Midnight Agency Adjudication: Attorney General Review of Board of Immigration Appeals Decisions, 102 Iowa L. Rev. Online 18, 34–39 (2016). Mukasey’s decision concerned the standards for reviewing motions to reopen removal proceedings on the basis of ineffective assistance of counsel.42×42. In re Compean, 25 I. & N. Dec. at 1–2. In June 2009, Holder vacated this decision because he “[did] not believe that the process used in Compean resulted in a thorough consideration of the issues involved.”43×43. Id. at 2. Recognizing that this issue was “a matter of great importance” and that process mattered, Holder instructed the Acting Director of the Executive Office for Immigration Review (EOIR) to “initiate rulemaking procedures as soon as practicable . . . to determine what modifications should be proposed for public consideration.”44×44. Id. This order resulted in a notice-and-comment rulemaking process in which the public was invited to submit “written data, views, or arguments on all aspects of this rule,”45×45. Motions to Reopen Removal, Deportation, or Exclusion Proceedings Based Upon a Claim of Ineffective Assistance of Counsel, 81 Fed. Reg. 49,556, 49,556 (July 28, 2016) (to be codified at 8 C.F.R. pts. 1003, 1208). thereby enlarging the universe of available sources of information.46×46. See In re Compean, 25 I. & N. Dec. at 2 (“The preferable administrative process for reforming the Lozada framework is one that affords all interested parties a full and fair opportunity to participate and ensures that the relevant facts and analysis are collected and evaluated.”).
Holder also used the certification power with prudence, overturning BIA precedent only after it had been soundly rejected by circuit court precedent. After the 2008 election,47×47. Mukasey’s decision was issued on November 7, 2008. In re Silva-Trevino, 26 I. & N. Dec. 550, 550 (Att’y Gen. 2015). Mukasey handed down a decision addressing the standard for determining “whether an alien has been ‘convicted of . . . a crime involving moral turpitude.’”48×48. Id. (omission in original) (quoting 8 U.S.C. § 1182(a)(2)(A)(i)(1) (2012)). For an overview of how the term “crime involving moral turpitude” has been interpreted under the Immigration and Nationality Act, see Mary Holper, The New Moral Turpitude Test: Failing Chevron Step Zero, 76 Brook. L. Rev. 1241, 1244–49 (2011). Mukasey’s opinion suggested an additional third step for the multipart inquiry that courts use to define crimes involving moral turpitude.49×49. In re Silva-Trevino, 26 I. & N. Dec. at 551. For a critique of the process by which Mukasey used the certification power in this case, see Trice, supra note 9, at 1767. Trice argues that “[t]he precedent at issue had not been questioned by either of the parties, and the Attorney General neither gave notice that he planned to reconsider it nor provided the parties an opportunity to brief or argue the issue, even though it had not been addressed below.” Id. In Silva-Trevino v. Holder,50×50. 742 F.3d 197 (5th Cir. 2014). the Fifth Circuit rejected Mukasey’s proposed third step as contrary to the statutory language of section 212(a)(2) of the Immigration and Nationality Act.51×51. See id. at 205 (citing Pub. L. No. 82-414, § 212(a), 66 Stat. 163, 182 (1952) (codified as amended in scattered sections of 8 U.S.C.)). The Fifth Circuit was not alone, as four other circuits had also rejected Mukasey’s interpretation.52×52. See Fatma Marouf, A Particularly Serious Exception to the Categorical Approach, 97 B.U. L. Rev. 1427, 1435 (2017). The other four circuit cases rejecting Mukasey’s approach were Olivas-Motta v. Holder, 746 F.3d 907 (9th Cir. 2014); Prudencio v. Holder, 669 F.3d 472 (4th Cir. 2012); Fajardo v. U.S. Attorney General, 659 F.3d 1303 (11th Cir. 2011); and Jean-Louis v. Attorney General, 582 F.3d 462 (3d Cir. 2009). Marouf, supra, at 1435 n.60. Only after the resolution of these five circuit court cases did Holder use his certification power to vacate the prior decision, illustrating the caution that befits the exercise of such an extraordinary power.53×53. Holder noted that the Seventh and Eighth Circuits had given deference to Mukasey’s interpretation. See In re Silva-Trevino, 26 I. & N. Dec. at 552. However, given “the decisions of five courts of appeals rejecting the framework set out in Attorney General Mukasey’s opinion . . . as well as intervening Supreme Court decisions that cast doubt on the continued validity of the opinion,” Holder decided to vacate the prior decision. Id. at 553.
Whereas Holder used the certification power to seek diverse perspectives, Sessions overturned In re A-R-C-G- in his decision in In re A-B- without proper concern for participatory processes. Rather than directing the head of the EOIR to initiate a rulemaking procedure with opportunity for public comment — as Holder had done in In re Compean — Sessions unilaterally proclaimed a set of criteria to be used in future cases.54×54. In re A-B-, 27 I. & N. Dec. at 344. This mandate was filtered through the lens of the Attorney General’s stated belief that “[a]liens seeking an improved quality of life should seek legal work authorization and residency status, instead of illegally entering the United States and claiming asylum.”55×55. Id. at 345. Furthermore, the question that Sessions purported to answer on certification was far broader than the initial issue litigated during the BIA proceedings below. Thus, even the individual parties in this proceeding did not receive a meaningful opportunity to be heard.
Sessions also invoked his certification power in In re A-B- in the absence of significant circuit court precedent rejecting the legal reasoning of In re A-R-C-G-. Sessions cited three circuit cases that purported to “express skepticism about A-R-C-G-.”56×56. Id. at 332. First, he cited the Fourth Circuit’s decision in Velasquez v. Sessions.57×57. Id. (citing 866 F.3d 188, 195 n.5 (4th Cir. 2017)). However, the majority opinion in that case explicitly stated that the “legal validity of the social group” recognized by In re A-R-C-G- was “not at issue in this case.”58×58. 866 F.3d at 195 n.5. He also cited the Eighth Circuit’s decision in Fuentes-Erazo v. Sessions59×59. 848 F.3d 847 (8th Cir. 2017). and the Eleventh Circuit’s decision in Jeronimo v. U.S. Attorney General.60×60. 678 F. App’x 796 (11th Cir. 2017). In these cases, however, the circuit courts merely made factual distinctions without disturbing the legal reasoning undergirding the recognition of the particular social group in In re A-R-C-G-.61×61. Whereas the respondent’s membership in the particular social group of Guatemalan women unable to leave their relationships was undisputed in In re A-R-C-G-, the petitioner in Fuentes-Erazo actually testified that she was able to leave her relationship. Fuentes-Erazo, 848 F.3d at 853. Similarly, in Jeronimo, the court merely distinguished In re A-R-C-G- on factual grounds. Jeronimo, 678 F. App’x at 802–03.
Given the high-stakes nature of asylum adjudications, the Obama Administration’s approach to the certification power is normatively superior. Numerous scholars have noted the potential structural impropriety of allowing the Attorney General — “who serves as the nation’s chief law enforcement official” — to unilaterally “reverse the decision of an adjudicatory tribunal.”62×62. Stephen H. Legomsky, Restructuring Immigration Adjudication, 59 Duke L.J. 1635, 1672 (2010) (describing critiques of “this general scheme for allowing the nation’s chief prosecutor and law enforcement officer to direct and supervise adjudicatory tribunals,” id. at 1673). In the past, Attorneys General have used the certification power sparingly.63×63. See Trice, supra note 9, at 1771 (finding that between 1999 and 2009, there were an average of about 1.7 certified Attorney General decisions per year); see also Gonzales & Glen, supra note 20, at 858. Thus far in 2018, however, the Trump Administration has already used this certification power four times.64×64. In addition to In re A-B-, the Trump Administration has also used the certification power in In re E-F-H-L-, 27 I. & N. Dec. 226 (Att’y Gen. 2018); In re Castro-Tum, 27 I. & N. Dec. 271 (Att’y Gen. 2018); and In re L-A-B-R-, 27 I. & N. Dec. 405 (Att’y Gen. 2018). When this power is exercised, notice-and-comment rulemaking and the percolation of an issue through the circuit courts increase the likelihood that evidence will be gathered from a wide range of stakeholders and appropriately ventilated. This is especially important in asylum adjudications because ontological conceptions of particular social groups necessarily depend on objective facts about complex social phenomena, such as the nature of gender-based violence in particular country contexts.65×65. See, e.g., David A. Martin, Reforming Asylum Adjudication: On Navigating the Coast of Bohemia, 138 U. Pa. L. Rev. 1247, 1285 (1990) (arguing that “to the maximum extent possible,” asylum adjudicators ought to be “highly knowledgeable about country conditions”). In El Salvador, for example, gender-based violence has reached epidemic proportions — this is no longer mere failure to “act on a particular report of an individual crime,” as the Attorney General seems to believe.66×66. In re A-B-, 27 I. & N. Dec. at 337. Between 2004 and 2011, El Salvador had the highest recorded rate of femicide in the world.67×67. United Nations High Comm’r for Refugees, Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from El Salvador, at 8, U.N. Doc. HCR/EG/SLV/16/01 (2016), http://www.refworld.org/docid/56e706e94.html [https://perma.cc/AKP3-Y9JB]. Widespread perceptions of the justice system’s ineffectiveness, coupled with the belief that domestic violence is a private matter outside the realm of police interference,68×68. See Mo Hume, The Myths of Violence: Gender, Conflict, and Community in El Salvador, 35 Latin Am. Persp. 59, 66 (2008) (discussing the “popular (mis)conception” in El Salvador “that domestic abuse is not real violence but a ‘private’ or ‘family’ affair”). prevent victims from reporting such crimes.69×69. United Nations High Comm’r for Refugees, supra note 67, at 25 (“Fear, shame and lack of confidence in what is generally considered an ineffective and unsupportive justice system reportedly come together to prevent many women from reporting domestic or gang violence.”). The Attorney General’s failure to engage with such facts in In re A-B- resulted in a restrictive interpretation of particular social groups that does not account for the structural nature of persecution in domestic violence cases.70×70. See Martin, supra note 65, at 1280 (“Indeed, of all such [administrative] adjudications, asylum may rest on uniquely elusive factual foundations.”).
The Attorney General’s use of the certification power to unilaterally overturn BIA precedent will likely become a flashpoint in immigration debates in years to come. The search for proper limits is perhaps of increased salience as the current Attorney General has exhibited a special proclivity for exercising this certification power.71×71. See, e.g., Dara Lind, Jeff Sessions Is Exerting Unprecedented Control Over Immigration Courts — By Ruling on Cases Himself, Vox (May 21, 2018, 1:06 PM), https://www.vox.com/policy-and-politics/2018/5/14/17311314/immigration-jeff-sessions-court-judge-ruling [https://perma.cc/T2Y7-EFPG]. While policy preferences on immigration might vary with the vicissitudes of national politics, the legal standards governing asylum eligibility for vulnerable populations fleeing persecution ought to remain consistent.72×72. See, e.g., 125 Cong. Rec. 20,243 (1979) (statement of Sen. Kennedy) (“[T]here are few greater tests of the democratic and humanitarian ideals for which we stand than how we respond to the need of refugees. And there is no more basic human rights issue than the protection of refugees.”).