On June 11, 2018, Attorney General Sessions issued a precedential decision in Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018). The decision overrules a prior decision, Matter of A-R-C-G-, 26 I&N Dec. 338 (BIA 2014), which held that in some circumstances, domestic violence survivors could receive asylum protection. Additionally, A-B- attacks asylum claims involving harm by organized crime, cartels, and gangs, otherwise known as "non-state actors." As the New York Times was quick to point out, by issuing this new decision, the Attorney General "made it all but impossible for asylum seekers to gain entry into the United States by citing fears of domestic abuse or gang violence, in a ruling that could have a broad effect on the flow of migrants from Central America." "Mr. Sessions's decision overturns a precedent set during the Obama administration that allowed more women to claim credible fears of domestic abuse and will make it harder for such arguments to prevail in immigration courts."
Women often experience human rights abuses that are particular to their gender, such as rape, domestic violence, female genital mutilation, forced relationships, honor killing, and trafficking. At the Law Offices of Matthew H. Green, we share the opinion of other immigration advocates in condemning this decision, and strongly disagree with the Attorney General's decision. As a group of 16 retired immigration judges stated the day after the decision was issued, "[f[or reasons understood only by himself, the Attorney General today erased an important legal development that was universally agreed to be correct. Today we are deeply disappointed that our country will no longer offer legal protection to women seeking refuge from terrible forms of domestic violence from which their home countries are unable or unwilling to protect them. We hope that appellate courts or Congress through legislation will reverse this unilateral action and return the rule of law to asylum adjudications."
On July 11, 2018, U.S. Citizenship and Immigration Services (USCIS) published a policy memorandum that essentially instructs its asylum officers, who conduct credible and reasonable fear interviews, to deny any claims based on persecution arising from domestic violence or gang-related sources. As the American Immigration Lawyers Association concludes, this guidance "profoundly restricts the ability of vulnerable individuals to obtain asylum or refugee status in the United States and will result in the deportation of bona fide asylum seekers who are fleeing life-threatening danger." The USCIS memorandum, together with Matter of A-B-, will lead to widespread USCIS denials of asylum cases in which the person is seeking protection from domestic violence or persecution by powerful transnational criminal organizations referred to as “gangs.” The memorandum gives strongly-worded instruction to USCIS personnel that such claims do not typically qualify for asylum: “In general…claims based on membership in a putative particular social group defined by the members' vulnerability to harm of domestic violence or gang violence will not establish the basis for asylum, refugee status, or a credible or reasonable fear of persecution.” (emphasis in original). While the memorandum does not absolutely rule out that such claims could qualify, it instructs officers that they should rarely grant relief in these cases: “Officers should be alert that under the standards clarified in Matter of A-B-, few gangbased or domestic-violence claims involving particular social groups defined by the members' vulnerability to harm may merit a grant of asylum or refugee status.” (emphasis added).
However, it is absolutely possible to challenge the legality of Matter of A-B- and the new policy memorandum. First, The memorandum attempts to elevate decisions by the Attorney General and the Board of Immigration Appeals above the precedents established by federal courts of appeal as they apply to credible fear screening. This appears to mark a shift from prior USCIS policy providing that, when circuit court interpretations of a legal issue pertinent to a credible fear screening conflict with each other, and DHS policy does not address the issue, the USCIS adjudicator should apply the “[c]ircuit interpretation most favorable to the applicant.”
More broadly, the memorandum's assertion that the Attorney General and Board's decisions override federal court precedent and are immune to federal court review is both self-contradictory and at odds with core constitutional principles. USCIS cannot on the one hand instruct asylum officers to “apply the case law of a relevant federal circuit court” when conducting credible fear determinations, then suggest on the other hand that the case law of that jurisdiction is irrelevant because DHS may later shunt the applicant to a different jurisdiction. However, the overwhelming weight of legal authority, including Supreme Court decisions, indicate the reviewability of Board of Immigration Appeals and Attorney General decisions by federal courts.
The attorneys at the Law Offices of Matthew H. Green are no strangers to challenging unconstitutional practices by the Department of Justice. For our part, we intend to challenge Matter of A-B- and the July 11, 2018 policy memorandum head on. Doing so will likely require a much more thorough and aggressive approach to defending asylum-seekers, and it will likely require challenges in a variety of immigration courts, U.S. District Courts, and Circuit Courts of Appeal. However, with the proper strategy, we feel confident that thoughtful litigation strategies will ultimately be successful in rolling back and limiting the scope of Matter of A-B-, and will open the gates again to legitimate domestic violence and gang-based asylum claims.