Asylum law under threat in the U.S.: How the Attorney General is rewriting asylum law

President Donald Trump has placed cracking down on immigration at the top of his agenda. The travel ban, the separation of children from their parents, the end of DACA (Deferred Action for Childhood Arrivals) and of Temporary Protected Status for nationals of six countries (Sudan, Nicaragua, Nepal, Honduras, Haiti, El Salvador), the wall with Mexico… the list goes on and never ends… However, one issue has gained less attention, at least in Europe: the review of so many individual decisions of the Board of Immigration Appeals by the Attorney General in order to modify substantially asylum law.

The Sciences Po Law Review has had the opportunity to interview Sabrineh Ardalan on this issue. Sabrineh Ardalan is the assistant director of the Harvard Immigration and Refugee Clinical Program and assistant clinical professor of law at Harvard Law School.

1. Before talking about the role of the Attorney General, we would like to hear your opinion on the Presidential Proclamation issued on November 9. In its Presidential Proclamation, Donald Trump declared that “aliens who enter the United States unlawfully through the southern border in contravention of this proclamation will be ineligible to be granted asylum”. The American Civil Liberties Union (ACLU), along with two other organizations, has filed a lawsuit challenging this Proclamation and on November 20, a federal judge of a district court of San Francisco has issued a temporary restraining order that blocks the government from denying asylum to people who enter the country illegally^[1]. According to you, why is this Proclamation contrary to international and U.S. law? Do you believe that the judges will follow your reasoning or is there still a slight chance that the Presidential Proclamation is deemed legal?

The Refugee Act of 1980 incorporated into U.S. law the UN Protocol on the Status of Refugees. The statute specifically states that people can apply for asylum if they are “physically present” in the U.S., “whether or not [they arrived] at a designated port of arrival … irrespective of [their] status.” The Refugee Convention does not require that you arrive at a designated port of entry. The statute is clear on its face and the President cannot rewrite a statute. That can only be done by Congress. The President is trying to say that he is taking this Presidential Proclamation to “protect the national interest,” and that we are in the same situation as in the travel ban, whose last version was deemed legal. But in the travel ban, there was not any explicit statutory provision that was overridden whereas it is different here, there is a clear tension between the statute and the Presidential Proclamation. It remains to be seen how the courts will interpret the Presidential Proclamation, but at least for now it has been enjoined from taking effect.

2. Could you explain briefly to our French readers what has changed in terms of asylum law since President Donald Trump’s arrival? We talked a lot about the Muslim ban and the children being separated from their family, but apart from that, we don’t know very well what has changed. To what extent has it become more difficult to seek asylum in the U.S.?

Several things have changed. First, with respect to immigration courts generally, on October 1st, case quotas were imposed on immigration judges so that they hear more cases in a short period of time. My concern is that it may force judges to rule more quickly and asylum seekers may have less time to present their claims.

Second, in the U.S., pursuant to immigration law, U.S. immigration courts and the Board of Immigration Appeals are under the Department of Justice and, consequently under the line of authority of the Attorney General. It means that the Attorney General can pick a decision to certify to himself or herself and rewrite. Jeff Sessions, the former Attorney General, did so several times. For example, in March 2018, the Attorney General vacated the Board of Immigration Appeals decision Matter of E-F-H-L-, which held that an applicant for asylum was entitled to a full hearing on the merits of the applications. This means that immigration judges may decline to hear testimony in asylum cases where they do not believe the applicant is prima facie eligible for asylum.

Third, the former Attorney General also attempted to foreclose women fleeing domestic violence and people fleeing gang violence from obtaining asylum, by proclaiming—without basis—that generally such individuals would not be eligible for protection in Matter of A-B-, another important case that the Attorney General certified to himself.

3. From a French perspective, this seems extremely strange and undemocratic that an attorney general can review a decision from the Board of Immigration Appeals. Isn’t this process contrary to the due process provision?

This is a structural problem. U.S. immigration law provides that the head of the agency (the Department of Justice) can review a decision of the appellate tribunal within the agency (the Board of Immigration Appeals). The Department of Justice and Board of Immigration Appeals are not the only agency/body with this type of structure. Other agencies have similar structures, where the head of the agency can review administrative adjudication but immigration proceedings—where the stakes are often life and death—are very different in nature than most other administrative proceedings. The Attorney General has been trying to use this power to completely rewrite asylum law.

4. Let’s now talk about Matter of A-B-, a decision that has far-reaching consequences on asylum law. In this decision, the Attorney General reviewed a decision from the Board of Immigration Appeals in which a woman fleeing domestic violence was granted asylum because of her persecution on account of membership in a particular social group composed of “El Salvadoran women who are unable to leave their domestic relationship where they have children in common”. The Refugee Convention defines a refugee as a person who: “… owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality, and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country”. With this decision, it is thus the interpretation of “membership of a particular social group” that is at stake. In the U.S., how has the interpretation of “membership of a particular social group” evolved over time in relation to women fleeing domestic violence?

In 1985, in Matter of Acosta, the Board of Immigration Appeals interpreted for the first time the notion of “particular social group” and defined it as “a group of persons all of whom share a common, immutable characteristic”. The Board of Immigration Appeals specified that the common characteristic “must be one that the members of the group either cannot change or should not be required to change because it is fundamental to their individual identities or consciences”. It also provided some examples of “common, immutable characteristic” and sex was included among them.

However, the definition that we use for membership in a particular social group in the U.S. has become over time more convoluted and complex. Since 2008, the Board has held that to constitute a particular social group, a group must be defined with “particularity” and be “socially distinct within the society in question”. Advocates have argued that women fleeing domestic violence qualify for refugee protection based on various gender-based social groups, as well as other grounds. Nevertheless, for a long time, even though women fleeing domestic violence were granted asylum, there was no clear Board of Immigration Appeals precedent saying that these women were eligible for asylum based on membership in a particular social group. Then, in 2014, in Matter of A-R-C-G-, the Board of Immigration Appeals finally clearly stated that women fleeing severe domestic violence are eligible for asylum based on their persecution on account of a particular social group composed of “married women in Guatemala who are unable to leave their relationship”. But in Matter of A-B-, the Attorney General overturned the decision in Matter of A-R-C-G.

5. According to Jeff Sessions, the former Attorney General, the analysis of Matter of A-R-C-G lacked rigor and broke with the Board’s own precedents. How would you reply to this statement?

The Attorney General based this flawed assertion on the fact that Department of Homeland and Security conceded in Matter of A-R-C-G- that “married women in Guatemala who are unable to leave their relationship” comprised a viable particular social group. Yet, the Attorney General provides no explanation for why DHS conceding means that the group lacks rigor. If we look at the particular social group defined in Matter of A-R-C-G, there is no doubt that all the requirements for particular social groups have been met. The group is based on an immutable characteristic, the group is not amorphous, and it is socially distinct. Indeed, there are many laws on the books in Guatemala recognizing that women are in need of special protections.

6. How does it work concretely right now for asylum seekers fleeing domestic violence? Are you still invoking the notion of particular social group or are you instead focusing on other grounds of persecution, saying for example that at least some women fleeing domestic violence have feminist political opinions?

We are still invoking the notion of particular social group. But we are arguing different social groups such as “Honduran women” or “Honduran women without male protection” or “Honduran women who are viewed as property”. We are also presenting asylum claims for women on the basis of feminist political opinions, anti-gang political opinions, family membership, race, and/or religion. But making these arguments will be particularly difficult for asylum seekers who are not represented by a lawyer. And in the U.S., less than half of the people in immigration court proceedings are represented by a lawyer.

7. Could you explain why this decision is also affecting individuals seeking asylum on account of other particular social groups?

In Matter of A-B-, the Attorney General says very broadly that people fleeing domestic violence and gang violence are generally not eligible for the refugee status. As advocates, we are saying that the decision must be read narrowly, that it has only overturned Matter of A-R-C-G. We are arguing that the Attorney General can only review individual decisions and cannot decide on his own of the general interpretation of asylum law. However, this Matter of A-B- decision may set the tone for what is going to happen with these cases.

8. What will happen with Matter of A-B-? Can it go to the Supreme Court and if yes, what would be its reasoning?

Former Attorney General Sessions vacated the Board’s decision and remanded to the immigration judge for further proceedings. The case is now pending at the B.I.A. and from there, it can be appealed to the Fourth Circuit. After that, it could go to the Supreme Court, although in the U.S., the Supreme Court can decide which cases it wants to weigh in on, so I do not know if they would pick this one. We will have to wait and see what happens.

^[1]The order, which suspends the rule until the case is decided by the court, applies nationally.

Interviewed by Romane Pluchet, second-year student at Sciences Po Law School, in the Global Governance Studies program and formerly part of the Harvard Immigration and Refugee Clinic during her exchange semester