Closed Doors and Closed Borders: Matter of A- B- and the Powers of Attorneys General

The Statute of Liberty, in the right corner, faces her back toward the viewer. Her green coloring is juxtaposed against a white and gray, gloomy backdrop.

By Alix Bruce

On June 11, 2018, Attorney General Jeff Sessions finally released his decision in Matter of A- B-.[1] Sessions’ decision in Matter of A- B-, an asylum claim for a domestic violence victim fleeing El Salvador, rendered twenty years of legal debate moot.[2] In a 31-page opinion, Sessions invalidated domestic violence (DV) as a potential avenue to claim asylum in the United States, leaving thousands of immigrants applying for asylum in the United States, many of them women, scrambling for cover.[3]

The attorney general has the power of referral and review, which can be used in three specific circumstances: 1) the chair or a majority of the Board of Immigration Appeals (BIA) refers the case to the attorney general; 2) the Secretary of Homeland Security refers the case; or 3) the attorney general self-refers a case by directing the BIA to transfer it to himself or herself.[4]  It is rare for an attorney general to exercise this ability—it was only used once during Obama administration and three times during the Clinton administration—but it is a power that can utterly transform the landscape of immigration law.[5]

To establish an asylum claim, the filing individual must prove a connection, or “nexus,” between the persecution they experienced in their native country and one of five qualities about themselves: race; religion; nationality; political opinion; or membership in a particular social group.[6] For a person to belong to a particular social group, a person must be perceived to be a part of a distinct social group, and the government must take action, or deliberately avoid action, such that this group is persecuted and members fear for their safety.[7] The characteristic that makes individuals a part of a particular social group, such as sexuality, must be, as per Matter of Acosta, either an immutable characteristic or a characteristic so integral to their morality and character that they should not be required to change it.[8]

In 2009, Matter of R-A- initially resulted in an immigration judge denying asylum to a Guatemalan woman brutalized by her husband without government or police interference. [9] However, the case was later remanded by Attorney General Janet Reno to herself; she vacated the decision and returned it to immigration courts with instructions to decide the case in a manner consistent with her written opinion.[10] The woman in Matter of R-A- was a part of the particular social group “Guatemalan women who have been involved intimately with Guatemalan male companions, who believe that women are to live under male domination.”[11] The government persecution in these cases was the inaction of police and government officials in preventing the domestic violence from continuing. In 2014, the BIA decided to grant asylum to another Guatemalan woman who was brutalized by her husband while police failed to intervene, resulting in an enormous uptick from 4,000 pending asylum cases in 2009 to 73,000 in 2016.[12] The woman in Matter of A- B- claimed membership in the particular social group of “El Salvadoran women who are unable to leave their domestic relationships where they have children in common.”[13]

On June 11, Sessions declared that victims of DV are not part of a particular social group; namely, he claimed that DV is a private crime, not government persecution, stating that “an applicant seeking to establish persecution based on violent conduct of a private actor must show more than the government’s difficulty controlling private behavior.”[14] As a result, Sessions concluded that DV can no longer be used as an asylum claim in the United States.[15] Setting aside the inherently problematic idea that DV is just a private act, and not one heavily affected by society, culture, oppression, and persecution, Sessions’ decision proves another point: that the attorney general, particularly when it comes to immigration, wields a tremendous amount of power.[16]

Immigration law has always operated in a shadowland of constitutionality. There are several enumerated powers that have been argued to grant Congress the ability to create immigration law. In the Chinese Exclusion Case of 1889, naturalization, the Commerce Clause (if one can argue that immigration affects interstate commerce), the War Powers (if immigrants are viewed as “foreign encroachment”), and the Foreign Affairs power were all invoked to argue that Congress should be granted the ability to exclude immigrants if it so chose.[17] However, no one clause in the Constitution actually explicitly grants to any one branch of government the sole power to make laws that affect immigration in this country. Two centuries after the Chinese Exclusion Case, it is generally accepted that Congress has the ultimate deciding power in how immigration law, including asylum law, functions in the United States.[18] However, for one person to be able to overturn years of precedent by choosing, on his own, to remand a case to himself has been shocking to many. For one person to wield so much power, even one representing the executive branch, is understandably unsettling.

Historically, Congress has been content to live and let live when it comes to attorneys general. The power of the attorneys general to remand cases to themselves can, in some cases, provide positive results; had Reno not remanded Matter of R- A- to herself in 2001, Rody Alvarado would never have been granted asylum. [19] In this case, however, Sessions is not simply redirecting a case that was inaccurately decided, or even particularly unclear; he took a case that had been decided, and used it to overturn an accepted legal precedent, without it being referred to him for review. Like attorneys general in some prior administrations, Sessions seems to be on track to use the power of review to impose his own will on the legal process.[20] Although constitutionally Sessions can remand cases without requests for aid, the result has only caused confusion. It is time for the powers of attorneys general to be re-evaluated. Otherwise, we may once again be facing a crisis: thousands, or tens of thousands, of cases in the immigration system who might now be deported, and thousands more seeking safety in the United States, only to be turned away at the gates.

 

[1] Associated Press, Sessions Excludes Domestic, Gang Violence from Asylum Claims, N.Y. Times (June 11, 2018),  https://www.nytimes.com/aponline/2018/06/11/us/ap-us-immigration-asylum.html.

[2] In re A- B-, 27 I. & N. Dec. 316, 317 (A.G. 2018).

[3] Id. at 317; Julia Preston, Trump Administration Wants to Shut Door on Abused Women, Politico (Apr. 17, 2018), https://www.politico.com/magazine/story/2018/04/17/trump-administration-wants-to-shut-door-on-abused-women-218005.

[4] 8 C.F.R. § 1003.1(h)(1) (2018).

[5] See Hon. Alberto R. Gonzalez & Patrick Glen, Advancing Executive Branch Immigration Policy Through the Attorney General’s Review Authority, 101 Iowa L. Rev. 841, 846 (2016); Associated Press, Sessions Excludes Domestic, Gang Violence from Asylum Claims, N.Y. Times (June 11, 2018),  https://www.nytimes.com/aponline/2018/06/11/us/ap-us-immigration-asylum.html (noting that it is more common to frequently use self-referral powers in conservative administrations than liberal administrations); Jeffrey S. Chase, The AG’s Certifying of BIA Decisions, (Mar. 29. 2018), https://www.jeffreyschase.com/blog/2018/3/29/the-ags-certifying-of-bia-decisions.

[6] 8 U.S.C. § 1101(a)(42)(A) (2018).

[7] Id.

[8] Matter of Acosta, 19 I. & N. Dec. 211, 233 (B.I.A. 1985).

[9] In re A- R- C- G-, 26 I. & N. Dec. 388, 390 (B.I.A. 2014).

[10] In re R- A-, 22 I. & N. Dec. 906, 906 (A.G. 2001).

[11] Id. at 907.

[12] In re A- R- C- G-, 26 I. & N. Dec. at 388; Julia Preston, Is Domestic Violence Private?, Marshall Project (June 12, 2018)  https://www.themarshallproject.org/2018/06/12/is-domestic-violence-private.

[13] 27 I. & N. Dec. at 326.

[14] 27 I. & N. Dec. at 316.

[15] 27 I. & N. Dec. at 320; see also id. at 318 (“Yet the asylum statute does not provide redress for all misfortune. It applies when persecution arises on account of membership in a protected group and the victim may not find protection except by taking refuge in another country.”).

[16] See Sandra Horley, Why domestic violence is never a private issue, CNN (June 19, 2013, 10:50 AM), https://www.cnn.com/2013/06/19/opinion/opinion-domestic-violence-not-private-issue/index.html (claiming that ignoring domestic abuse in the public forum maximizes the amount of damage domestic abusers can commit behind closed doors).

[17] See U.S. Const. art. 1 § 8; see also Chae Chan Ping v. United States, 130 U.S. 581, 604-606 (1889).

[18] 130 U.S. at 601.

[19] See In re A- R- C- G-, 26 I. & N. Dec. at 388; Julia Preston, Is Domestic Violence Private?, Marshall Project (June 12, 2018)  https://www.themarshallproject.org/2018/06/12/is-domestic-violence-private.

[20] See Chase, supra note 5.