This week the Attorney General (AG) spun the combination lock on the vault of seemingly finalized Board of Immigration Appeals (BIA) decisions – pulled out an asylum grant – vacated the decision – and remanded it to the BIA for further consideration. In a nod to Edgar Allan Poe, I like to imagine “[a] fleshless human hand” grabbing this decision out of the imaginary locked vault and then reversing the decision. See, The Skeleton Hand, attributed to Poe. The Yankee, August 1829. Your first question might be, does the AG actually have a fleshless human hand? But, once that image passes (and I assure you it will) you may wonder, can the AG simply reopen a final BIA decision? Does he have the jurisdiction to do so? Is there any time limit to this power? Does the immigrant have any right to finality in immigration cases? The regulations provide that the AG can refer a case to themself and there seems to be no time limit to this power. 8 C.F.R. § 1003.1(h). Once again, we are finding out that the norms that we have been relying on for years in immigration proceedings are actually not binding rules and are simply customs.
The Basic Holdings of the Case
The headnotes in this decision provide an excellent summary of the case. First, in analyzing an asylum claim the BIA must engage in de novo review to determine whether the facts found by the Immigration Judge (IJ) satisfy all of the statutory elements of asylum. Second, when reviewing an asylum case, the BIA should not accept the parties’ stipulations or failures to address any particular elements of asylum. Rather it should meaningfully review each element of the asylum claim before affirming or granting asylum – regardless of the stipulation. Third, if the asylum seeker is a member of a cognizable particular social group and has suffered persecution, the BIA should deny the asylum claim if the harm inflicted or threatened by the persecutor is not “on account of” membership in a particular social group. Finally, the asylum seeker’s membership in the particular social group cannot be incidental to, tangential to, or subordinate to the persecutor’s motivation for inflicting harm. Accordingly, persecution that results from personal animus or retribution generally does not support eligibility for asylum. It’s a very dark case.
The Facts as We Know Them
The AG engages in a very limited factual analysis of this case, so it is difficult to understand exactly what happened here. But the limited facts that he does reveal are chilling. The IJ and the BIA issued a humanitarian grant of asylum to Ms. A-C-A-A-. They determined that she had suffered past persecution at the hands of her parents as a Salvadoran female. (What kind of parents persecute their own child? After all of these years of practicing law, I should no longer be shocked, but there you are.) The BIA further determined that she would face other serious harm were she to return to El Salvador. Namely, she feared future persecution by her former romantic partner, by gang members, and by the Salvadoran police on account of being a woman in El Salvador. Matter of A-C-A-A-, 28 I&N Dec. 84, 87 (AG 2020).
DHS appealed the IJ’s grant to the BIA. DHS challenged the IJ’s findings that Ms. A-C-A-A- was credible and challenged the finding that she had established a nexus between her membership in a particular social group and past persecution. The BIA affirmed the IJ’s decision. They deferred to the IJ’s credibility finding and issued a one-sentence discussion of the merits of Ms. A-C-A-A-’s asylum claim “finding and concluding that it could “discern no clear error in the Immigration Judge’s determination that the respondent established persecution on account of her membership in a particular social group.” BIA Op. at 2.” Matter of A-C-A-A-, 28 I&N at 87. The AG directed the BIA to refer this case to him under 8 C.F.R. § 1003.1(h)(1)(i). This week he vacated the BIA’s decision and remanded the case back to the BIA for review by a three-member panel.
Legal Analysis
The AG starts this analysis by noting that the BIA uses de novo review for both questions of law and the IJ’s application of the law to the facts. “In this case, the Board neither analyzed in any depth whether the evidence presented by the respondent established the nexus requirement, nor reviewed the immigration judge’s ultimate determination that the respondent was eligible for humanitarian asylum.” Matter of A-C-A-A-, 28 I&N Dec. at 85. The AG instructs the BIA to consider whether Ms. A-C-A-A- met her burden to prove her asylum claim consistent with applicable precedent. More specifically, the AG instructs the BIA to consider whether Ms. A-C-A-A- had “established that her past mistreatment was “on account of” a protected ground such as membership in a particular social group, rather than on account of individualized private circumstances not connected to any statutory basis for asylum relief.” Id.
The Framing of the Argument
The AG framed his decision in a very interesting manner. Rather than considering whether Ms. A-C-A-A- had a well-founded fear of persecution in El Salvador under INA § 208 he framed the issue as whether Ms. A-C-A-A- met her burden to establish that she merited relief from removal under INA § 240. Had she (1) established that she satisfied the eligibility requirements for relief; and (2) had she established that she merited a favorable exercise of discretion? Matter of A-C-A-A-, 28 I&N Dec. at 85. It’s interesting to compare this framing with the U.S. Supreme Court’s 1987 framing of the decision to determine what a “well-founded fear of persecution” actually means. Was the standard for determining whether an asylum applicant had a well-founded fear similar to the withholding of deportation standard where the noncitizen must show that they “would be threatened”? Was it a “more likely than not” standard? The Supreme Court held that the standard was much more generous than either standard and cited to a 1966 treatise on the Status of Refugees in International Law.
““Let us. . . presume that it is known that in the applicant’s country of origin every tenth adult male person is either put to death or sent to some remote labor camp. . . . In such a case it would be only too apparent that anyone who has managed to escape from the country in question will have a ‘well-founded fear of being persecuted’ upon his eventual return.””
INS v. Cardoza-Fonseca, 480 U.S. 421, 431 (1987) quoting with approval 1 Atle Grahl-Madsen, The Status of Refugees in International Law 180 (1966). The Supreme Court later in the decision held: “There is simply no room in the United Nations’ definition for concluding that because an applicant only has a 10% chance of being shot, tortured, or otherwise persecuted, that he or she has no “well-founded fear” of the event happening.” Cardoza-Fonseca, 480 U.S. at 440.
I realize that I might be comparing apples to oranges, but the change in the tone of the adjudicator is chilling. Perhaps this case was decided at a time that the Justices had a personal memory of the Holocaust, the Killing Fields, and the Chinese Cultural Revolution. Perhaps they realized that refugees needed to be protected even if there were only a 10% chance that they would be persecuted, because a 10% chance was enough. By contrast in this decision, the AG frames the issue such that the entire burden is on the noncitizen to establish that they are eligible for asylum rather than to say if there is a one in ten chance that she would be persecuted in El Salvador, that chance is enough for protection. Enough for the history lesson, let’s get back to the AG’s analysis.
The Attorney General’s Legal History Lesson on Asylum
First the AG gives his own legal history lesson (ignoring Cardoza-Fonseca I might add). He instructs that for a noncitizen to establish that they are a refugee they “must establish that race, religion, nationality, membership in a particular social group or political opinion was or will be at least one central reason for persecuting the applicant.” Matter of A-C-A-A-, 28 I&N Dec. at 86. First, the noncitizen may establish a “well-founded fear” by showing that a reasonable person in their circumstances would fear persecution on one of the five protected grounds if they were to return to their home country. Alternatively, they may satisfy this requirement by showing that they have suffered past persecution, creating a presumption that they will face a well-founded fear of future persecution upon their return. Id. However, the Government can rebut that presumption by showing that the conditions relating to the past persecution have changed to such an extent that the noncitizen no longer has a well-founded fear of harm from the original source of the persecution.
The AG notes that all is not lost for the noncitizen should the Government rebut the presumption of establishing a well-founded fear through the showing of changed circumstances. The regulations provide that the Attorney General may grant humanitarian asylum where (1) the noncitizen has demonstrated compelling reasons for being unwilling or unable to return to the home country due to the severity of the past persecution; or, (2) the noncitizen has established that there is a reasonable possibility that they may suffer other serious harm upon removal to their home country. 8 C.F.R. § 1208.13(b)(1)(iii)(A)-(B). The Attorney General cautions that humanitarian asylum is only available to noncitizens who have demonstrated that they suffered past persecution on account of a protected ground and is appropriate “only in rare instances.” Matter of A-C-A-A-, 28 I&N Dec. at 86-87.
The AG then references Attorney General Sessions’s decision in Matter of A-B-.He holds that for a noncitizen to establish a particular social group they must demonstrate (1) membership in a particular group, which is composed of members who share a common immutable characteristic that is defined with particularity and is socially distinct within the society in question; (2) that their membership in the social group is a central reason for their persecution; and (3) that the alleged harm is inflicted by the government of the home country or by groups that the government cannot or will not control. Matter of A-B-, 27 I&N Dec. 316, 320 (BIA 2018) cited with approval, Matter of A-C-A-A-, 28 I&N Dec. at 88.
The Scope of the BIA’s Review
After the modified history lesson, the AG discusses the scope of the BIA’s review and here is where the case gets really interesting. First the AG notes that the BIA reviews an immigration judge’s factual findings for clear error and that it engages in de novo review for questions of law, discretion, judgment and all other issues on appeals, including the application of law to fact. Matter of A-C-A-A-, 28 I&N Dec. at 87 citing Matter of R-A-F-, 27 I&N Dec. 778, 779 (AG 2020). The AG holds that “DHS’s decision not to expressly challenge a particular element of the asylum claim did not relieve the Board from the need to review the immigration judge’s determination as to that element.” Matter of A-C-A-A-, 28 I&N Dec. at 88 (emphasis added). So, DHS cannot stipulate to the elements of an asylum claim. Plus, in conducting this review the BIA must also examine whether the facts found by the IJ satisfy the elements as a matter of law. The AG notes that this requirement is consistent with the INA’s placing the burden on the noncitizen to establish eligibility for asylum. Id., at 89.
Now, this turn in the case may not sound really interesting at first but consider the shift of power here from the IJ to the BIA. Also consider the implications of this new procedure on other immigration court proceedings. It seems from this language that DHS is precluded from stipulating to any elements of a case. For example, in a cancellation of removal case for non-lawful permanent residents under INA § 240A(b) will DHS no longer be able to stipulate to ten years’ physical presence, and good moral character? Will they have to meet all of the elements instead of allowing both parties and the IJ to focus on the issue of whether the U.S. citizen or lawful permanent resident parent, spouse, or child, would suffer exceptional and extremely unusual hardship if the noncitizen were deported? What about a similar case where the qualifying U.S. citizen child has cancer, but the noncitizen has a driving under the influence arrest within the statutory period? Will the parties have to focus on all of the elements of the case rather than simply on the issue of good moral character? While this case is about asylum, I think its holding extends to all areas of removal. DHS can no longer stipulate to anything.
Back to Matter of A-C-A-A-, after discussing this standard, the Attorney General in a footnote explains the difference between a summary affirmance and a Burbano affirmance. See Matter of Burbano, 20 I&N Dec. 872 (BIA 1994). I, for one, am grateful for this footnote, because I’ve always been too lazy to try to figure out the difference. Here it goes, a summary affirmance is where the BIA adopts only the result of the IJ’s decision. Any error is deemed harmless or nonmaterial. A Burbano affirmance means the BIA adopted the IJ’s reasoning and results. Matter of A-C-A-A-, 28 I&N Dec. at 89 n.3. Thank you, AG Barr.
The AG notes that the BIA should have “carefully considered” whether Ms. A-C-A-A-’s membership in the particular group of “Salvadoran females” was truly “one central reason” for her persecution. He writes, “[e]ven if an applicant is a member of a cognizable particular social group and has suffered persecution, an asylum claim should be denied if the harm inflicted or threatened by the persecutor is not “on account of” the [noncitizen’s] membership in that group. Matter of A-C-A-A-, 28 I&N Dec. at 92. That’s cold. He then quotes Matter of A-B- for the proposition that membership in a particular social group cannot be incidental, tangential, or subordinate to the persecutor’s motivation for why the persecutor sought to inflict harm. Id. Furthermore if the persecutor hasn’t targeted anyone other than the applicant, then the applicant may not satisfy the nexus requirement. Id. at 93. Let’s tease this proposition out. Under Barr’s ruling, a noncitizen who establishes that they are gay and that a police officer continuously raped them while shouting anti-gay slurs, cannot get asylum unless they can establish that the police officer targeted other gays? In that case, the noncitizen won’t be able to establish a nexus between the persecution and their particular social group? That doesn’t seem right.
Back to this case, the AG notes that a closer examination of the IJ’s conclusion in light of the record would have raised concerns about the nexus requirement. Remember, Ms. A-C-A-A- established that her parents had persecuted her because she was a Salvadoran female. But, the IJ did not cite any evidence that her parents had ever said or done anything to express hostility to Salvadoran females in general as opposed to having made statements and taken actions based upon their personal feelings about their daughter. Id., at 93. The AG noted that Ms. A-C-A-A-’s mother was likely also a Salvadoran female. Moreover, the BIA did not explore whether there was evidence that her parents bore animosity toward other Salvadoran females. The AG writes:
“Indeed, it seems unlikely that the respondent will be able to demonstrate that she suffered persecution based on membership in a social group as broad as all “Salvadoran females,” because of the need to establish hat the private violence reflected a general animus against a broad social group rather than the personal animus arising from the relationship between the purported persecutors and the asylum applicant.”
Matter of A-C-A-A-, 28 I&N Dec. at 94.
The Attorney General notes that he did not consider and did not hold whether Ms. A-C-A-A- had established that she is entitled to a discretionary grant of humanitarian asylum due to harm that is so serious that it equals the severity of persecution but is not inflicted on account of one of the protected grounds. The AG notes that the BIA failed to mention or analyze this issue. The AG instructs the BIA on remand to analyze Ms. A-C-A-A-’s past persecution on account of her membership in a particular social group and it instructs that it must also consider whether Ms. A-C-A-A- merits humanitarian asylum including reviewing the determination of “other serious harm.” Matter of A-C-A-A-, 28 I&N Dec. at 95.
Finally, the AG instructs the BIA on remand to assess whether Ms. A-C-A-A- qualifies for asylum. He warns that the BIA should not affirm the IJ’s decision unless the BIA concludes that Ms. A-C-A-A- has satisfied each element of membership in a particular social group including: (1) membership in a particular social group;(2) a nexus between such a group and her persecution; and (3) the unwillingness or inability of the government of El Salvador to protect her. Next, he instructs the BIA to determine whether DHS has successfully rebutted the presumption that if Ms. A-C-A-A- establishes that she suffered past persecution on account of her membership in a social group that she faces a well-founded fear of persecution. He cautions that if DHS has not rebutted the presumption, then the BIA should determine whether DHS has established the feasibility of internal relocation. Finally, if the BIA finds (as the IJ found) that DHS rebutted the presumption, it should review the IJ’s subsequent conclusion that Ms. A-C-A-A- is eligible for a humanitarian grant of asylum.
Conclusion
According to the Department of Justice’s website there are currently over 1.2 million immigration cases pending before the BIA and there are currently twenty-three members of the BIA. According to my calculations that means that there are 52,174 cases per member. (I rounded up). This decision means that either the Attorney General is planning on the BIA taking years to review each and every asylum case; or he is counting on summary reversal and dismissal of each and every asylum case. Moreover, the implications of this case will reverberate within every area of removal defense, including adjustment of status, cancellation of removal, voluntary departure, 237(a)(1)(H) relief, withholding of removal, protection against CAT, and other areas that I’m not considering. You can read this case here.
Matter of A-C-A-A-, 28 I&N Dec. 84 (AG 2020).