Monday, July 2, 2018
Why Pereira v. Sessions Bodes Well for Overturning Matter of A-B-
Pereira v. Sessions has been lauded for its proposition that an insufficient “Notice to Appear” cannot be used for purposes of pretermitting a cancellation of removal application based on the so-called “stop-time” rule. The fact that eight justices agreed to this proposition should not be surprising if you stop to think about it. The NTA has to give you “notice” of something, not merely that some time or date will be set sometime in the future. However, the decision in Pereira has a more important significance than its main holding about improper NTAs: its discussion of Chevron deference. I’d like to now consider how the Supreme Court’s Chevron discussion could impact a future hoped-for and badly needed Matter of A-B- reversal.
There is a lot one could say about the Attorney General’s decision in Matter of A-B-. Most significantly, that recent decision violated the Immigration and Nationality Act. It reinterpreted the concept of “particular social group” in such a way that was at odds with federal law, international law, and past legal precedents. It unilaterally rewrote the Board of Immigration Appeals’ asylum jurisprudence by interpreting the statute in a novel and overly restrictive way. Although the Attorney General is permitted to “certify” cases to himself, under certain circumstances, the way this was done also violated due process. To understand how the AG got it wrong, first a foray into what a “particular social group” is and where it comes from.
“Particular social group” is a very specific term of art with a long history. The phrase, “particular social group” is derived from the definition of a “refugee” found in the Immigration and Nationality Act, section 101(a)(42). Specifically, under the Act, an applicant must prove he or she is “unable or unwilling to avail himself or herself of the protection of” of their country of origin “on account of” various grounds, including “membership in a particular social group, or political opinion.” Either the government must do the persecuting to be eligible for asylum or, if not the government then, alternatively, a group or private actor that the government is “unwilling or unable to control” must do the persecuting.
In Matter of A-B-, the Attorney General, through what may be called slick legal legerdemain, has now unilaterally changed the requirements for proving a “particular social group.” Now, under this new and erroneous interpretation an applicant has a novel and more difficult burden: to prove that in cases with private actors that the government in the country of origin must “condone” the violence or, alternatively, demonstrate that the government could not protect the applicant from the violence or in the words of the Attorney General, “prevent” it from happening. The AG also comes up with a new “completely helpless” requirement on the part of governmental action. This new “prevention” interpretation is new and does not comport with the Board’s prior legal decisions. Most importantly, as applied to domestic violence survivors and other victims of private violence, the bar has now been set artificially high and many will have trouble reaching it – as the AG self-consciously has intended.
In addition to impermissibly overextending the concept of particular social group beyond all recognition, the Attorney General also makes other significant mistakes. There are several points made which (normally) would be beyond the scope of such a decision. In a series of footnotes, he unfairly (1) attempts to weigh in on the likelihood of Customs and Border Protection (CBP) granting a credible fear interview in private actor cases (hoping apparently that all those cases will be denied and people turned away without a full and fair hearing); (2) the ability of immigration judges to deny cases on discretionary grounds (an issue not before him in the present case) and (3) the possibility that “nuclear family” as a basis for particular social group asylum could be in question although he concedes that he is not deciding that issue in this decision. Furthermore, the Attorney General takes great pains to mention that his ruling should be considered not just by the Board, and immigration judges, which are actually not under his jurisdiction but under U.S. Citizenship and Immigration Services, a branch of DHS.
Returning to Pereira, the Supreme Court held that it need not resort to Chevron deference, in the first place, because it found the statutory text was unambiguous. Therefore, the statute itself could resolve the issue. In Justice Kennedy’s concurrence, he had more to say, however, about Chevron deference as applied to the BIA. The Kennedy concurrence was troubled by the type of “reflexive deference” exhibited in some of the circuit court cases which deferred to the BIA’s interpretation of an unambiguous statute. The previous holdings of the BIA on the issue of the stop-time rule “were wrong” according to Justice Kennedy “because the BIA’s interpretation finds little support in the statute’s text.” Justice Kennedy chastised courts of appeals for their “cursory” analysis and failing to apply “the ordinary tools of statutory construction” and discerning whether “the BIA’s interpretation was reasonable” or not.
I think it is fair to say Justice Kennedy certainly is signaling that we need a wholesale reconsideration of Chevron deference. As he concludes, “The proper rules for interpreting statutes and determining agency jurisdiction and substantive agency powers should accord with constitutional separation-of-powers principles and the function and province of the Judiciary.” He seems to be indicating that “in an appropriate case” Chevron should and will be “reconsidered.” In a future possible Matter of A-B- appeal before the Supreme Court, Chevron deference to the AG should be “reconsidered” and may be rejected.
As already discussed, Attorney General Sessions is overstepping his bounds by engaging in a novel interpretation of the definition of “particular social group” which is not supported by the statutory text of INA § 101(a)(42). Moreover, there is no question that the kind of analysis that the AG engaged in is entitled to little or no deference since he is including extra-statutory requirements which have nothing to do with the Congressional intent or the plain language of the statute. Maybe Matter of A-B- is the future “appropriate case” where the Supreme Court can reject Chevron as applied to the Attorney General’s wholesale rewriting of a federal statute so at odds with the statutory text.
At the beginning of Matter of A-B-, the Attorney General himself concedes that his decision cannot invalidate all particular social group private actor claims. He states, “While I do not decide that violence inflicted by non-governmental actors may never serve as the basis for an asylum or withholding application based on membership in a particular social group, in practice such claims are unlikely to satisfy the statutory grounds . . . .” (emphasis added). Therefore, he plainly conceded that he cannot make a blanket disaffirmation of all private actor persecution claims.
Matter of A-B- is not alone in recently rewriting the immigration legal landscape. Another case, WYC-HOB decided recently by the Board similarly imposes a harsh (and new) burden on asylum seekers to “exactly delineate” their particular social groups before the immigration judge. This “exact delineation” rule will impose a novel harsh requirement, especially on unrepresented immigrants. Another recent decision allowed immigration judges to deny an entire case outright without a full hearing if the judge made a finding one element had not been met, thus obviating the need for a full hearing. If appealed, however, the Board will now be deprived of a full record, and if the Board were to disagree with the immigration judge’s decision it will slow down the process by necessitating a new hearing back before the same judge who denied the case in the first place. All these changes are likely to lead to a slower and more inefficient system. They will backfire and just increase the now over 700,000 case backlog.
The fact that applicants going forward will have a tough time is not in question. But there is hope that the Supreme Court, and circuit courts which will address whether Chevron deference should be applied to Matter of A-B-, will reject any deference to the AG. In sum, the circuit court and future Supreme Court should take Justice Kennedy’s concerns to heart and eschew a “cursory analysis,” examine the issue under the “ordinary rules of statutory construction,” and weigh reasonableness of the AG’s new interpretation of particular social group. If that happens, Matter of A-B- will be soundly rejected, overturned, and perhaps sooner than we think…
*Director, University of Houston Law Center, Immigration Clinic, Clinical Assoc. Professor (institution for identification only)