THE STATE OF ASYLUM

A review of precedential decisions issued in the last year of the Trump Presidency

Boiled down, immigration law is administrative law.  U.S. government agencies in the Executive Branch decide whether a noncitizen must depart the United States as a matter of law, and if applicable, decide whether to physically remove that noncitizen from this country.  Whether acting in a quasi-judicial capacity (immigration judges) or quasi law enforcement (ICE Enforcement and Removal), immigration is a realm where administrative power reigns.

But not supreme.  As in all areas of administrative law, Congress writes the immigration “rules” through statute.  The agencies have a limited ability to interpret and supplement Congress’s statutes through formal regulation, but ultimately, Article III courts get the last word1.  Immigration law is unique however, in that it expressly provides the Attorney General of the United States with authority to issue precedential decisions, a power attorneys general have often delegated to yet another administrative agency, the Board of Immigration Appeals (“BIA”), located in Falls Church, Virginia.

Then came the Administration of Donald Trump.  By my count, Donald Trump’s attorneys general issued over a dozen precedential decisions in under four years.  This equates roughly to the total combined amount of precedential decisions issued by the Clinton, W. Bush, and Obama attorneys general in the 20 years following implementation of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.  The Trump Administration kept it up to the very end; even Acting Attorney General Jeffrey Rosen got in on the action during the last week of the Trump Presidency.2  Every decision published by the Trump attorneys general was consequential, and nearly every one pushed immigration law in a direction decidedly unfriendly to noncitizens.  Perhaps unsurprisingly, the BIA largely followed suit—the BIA is, after all, considered the Attorney General’s “voice” when it comes to immigration law.


Nowhere was this adversarial theme more pronounced than with asylum law.  Then Attorney General Jeff Sessions made his views on the issue crystal clear with the publication of Matter of A-B in 2018, an expansive decision that vacated the BIA’s 2014 decision in Matter of A-R-C-G- and (among many other things) made it exceptionally difficult for victims of domestic violence to obtain asylum relief in the United States.  

Subsequent asylum decisions from Trump’s attorneys general and BIA had a similar feel.  In the last year of Donald Trump’s presidency alone, the BIA: held that that the group “landowners who resist drug cartels in Guatemala” is not a cognizable particular social group3; stated that Interpol Red Notices are generally reliable evidence that a noncitizen committed a serious nonpolitical crime4; made it easier for immigration judges to apply the “firm resettlement bar” to asylum5; provided immigration judges with the authority to deem an asylum application abandoned where a noncitizen misses his filing deadline, even if that noncitizen does not speak English, does not have an attorney, is in immigration detention, and missed his deadline by only one week6; provided immigration judges with a framework to disregard expert testimony7; and made it easier for an immigration judge to deem an asylum seeker’s evidence “fraudulent.”8  Not one of the BIA’s 2020 precedential asylum decisions favored noncitizens; few (if any) did so during the entire Trump Presidency.  

Trump’s attorneys general published similarly hostile asylum decisions in 2020/2021.  According to Attorneys General Barr and Rosen (acting): the BIA must analyze every element of asylum, withholding of removal, or Torture Convention protection de novo, even where relief or protection is granted by an immigration judge, and even if the Department of Homeland Security (“DHS”) stipulates to a legal issue9; criminal conduct will per se bar a noncitizen from asylum even if the criminal conviction does not match the definition of a single aggravated felony10; and not only does the persecutor bar to asylum and withholding of removal not include an exception for coercion or duress, but DHS does not have an evidentiary burden on the issue11.  Perhaps fittingly, the Trump Administration then concluded where it began, with acting Attorney General Rosen supplementing Matter of A-B- to hold, essentially, that Attorney General Sessions’s view of the “unable or unwilling to protect” standard and “nexus” requirement trumps12 any contrary view from any circuit court of appeals.13  Whether the Acting Attorney General’s analysis will withstand the Biden Administration or circuit court review remains an open question.


Based on all of this, readers of this blog could be forgiven for concluding that the “state” of asylum is now a failed one.  And maybe it is.  Indeed, scholars more experienced than I might point out that the “state” has been governed by warring factions since the publication of Matter of Acosta over 30 years ago.  But as in life, so too with any legal article worth reading: it’s important to highlight the good even when there’s a lot of bad, and asylum law is no exception.  For example, in Matter of OFAS-, Attorney General Barr did not rule against the noncitizen and instead, overturned the BIA to hold that the Convention Against Torture does not have an exception for torture by “rogue” or low-level government actors.  And even when the Attorney General or BIA ruled against asylum seekers last year, they still provided helpful quotes and analyses, including: acknowledging that “expert testimony generally warrants being admitted in most cases”14;  conceding that immigration judges should not consider Red Notices probative where the issuing country abuses the Interpol process15; recognizing that there exists an “inherently high risk of error in immigration proceedings”;16 and reminding immigration judges that “an adverse credibility finding must be based on the totality of the record—not a selective reading of certain facts, evidence, or inconsistencies to support a particular result.”17 

As of the date of this writing, the Biden Administration is four days old.  Hope abounds, but regardless of what happens over the next four years, it’s worth remembering that the United States remains a beacon of hope for immigrants throughout the world, inspiring local governance and providing a destination for persecuted peoples to begin life anew.  Personally, I hope that all immigration stakeholders can find some common ground.  I began my career working for immigration judges and have great respect for our imperfect immigration court system.  While immigration judges are best analyzed on a case-by-case basis, my experience with this “particular social group” leads me to define it as one comprised primarily of honorable yet understaffed public servants assigned intimidating caseloads, governed by an ever-shifting legal and administrative landscape, committed to reaching the right result.  Are there exceptions?  Of course.  But after four years of a concerted effort to place asylum beyond the reach of most noncitizens, I’m comforted by the fact that even in the final week of Trump’s presidency, the BIA recognized that: 

The immigration court system has no more solemn duty than to provide refuge to those facing persecution or torture in their home countries, consistent with the immigration laws.18   

[t]he immigration court system has no more solemn duty than to provide refuge to those facing persecution or torture in their home countries, consistent with the immigration laws.18

Impossible to argue with that. The future is uncertain, but bright. 

Kevin A. Gregg
Kevin A. Gregg

Kevin A. Gregg is based in San Diego, California, and is a partner with the law firm Kurzban Kurzban Tetzeli and Pratt, P.A.  He is also the host of the podcast Immigration Review®, where each Monday, he discusses every immigration decision published that week.  

FOOTNOTES 

1. But see National Cable & Telecommunications Association v. Brand X Internet Services, 545 U.S. 967 (2005) and Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), not to mention the various jurisdiction-stripping provisions at INA § 242.  These caveats require their own blogs entirely, and indeed, have their own law school courses.

 2. Matter of A-B-, 28 I&N Dec. 199 (A.G. 2021).

 3. Matter of E-R-A-L-, 27 I&N Dec. 767 (BIA 2020), vacated and remanded by Albizures-Lopez v. Barr, No. 20-70640, 2020 WL 7406164 (9th Cir. Dec. 10, 2020) (meaning the BIA’s decision has no precedential value whatsoever).

 4. Matter of W-E-R-B-, 27 I&N Dec. 795 (BIA 2020).

5.  Matter of K-S-E-, 27 I&N Dec. 818 (BIA 2020).

 6. Matter of R-C-R-, 28 I&N Dec. 74 (BIA 2020).

 7. Matter of J-G-T-, 28 I&N Dec. 97 (BIA 2020) and Matter of M-A-M-Z-, 28 I&N Dec. 173 (BIA 2020).

 8. Matter of O-M-O-, 28 I&N Dec. 191 (BIA 2021).

  9. Matter of RAF, 27 I&N Dec. 778 (A.G. 2020) and Matter of A-C-A-A-, 28 I&N Dec. 84 (A.G. 2020)  

10.  Matter of Reyes, 28 I&N Dec. 52 (A.G. 2020).

 11. Matter of Negusie, 28 I&N Dec. 120 (A.G. 2020).

 12. Double entendre intended. 

13.  A-B-, 28 I&N Dec. 199.

14.   J-G-T-, 28 I&N Dec. 97.

 15. W-E-R-B-, 27 I&N Dec. 795.

 16. Negusie, 28 I&N Dec. 120.

 17. O-M-O-, 28 I&N Dec. 191.

 18. Id.

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