Request to Vacate Matter of A-B-, A-C-A-A-, L-E-A-
The Honorable Merrick B. Garland
Attorney General of the United States
950 Pennsylvania Avenue, NW
Washington, DC 20530-0001
CC: Alejandro Mayorkas, Secretary, U.S. Department of Homeland Security
RE: Request for Immediate Vacatur of:
Matter of A-B-, 28 I. & N. Dec. 199 (A.G. 2021); Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018)
Matter of L-E-A-, 27 I. & N. Dec. 581 (A.G. 2019); Matter of L-E-A-, 27 I. & N. Dec. 40 (B.I.A. 2017)
Matter of A-C-A-A-, 28 I. & N. Dec. 84 (A.G. 2020)
Dear Attorney General Garland,
As you know, President Biden issued an Executive Order on February 2, 2021 requiring the Department of Justice and the Department of Homeland Security to evaluate whether the United States (U.S.) protects survivors of domestic and gang violence in accordance with international law, and to promulgate regulations regarding the “particular social group” (PSG) ground of asylum. Per the Order, and consistent with the April 13 request from respondents’ counsel, the 357 undersigned humanitarian and human rights organizations, law school clinics, and professors respectfully urge you to promptly vacate the decisions in the above-captioned cases while the agencies engage in their longer-term review and rulemaking. Immediate action is needed because decision-makers in asylum proceedings–including in the cases of our clients–continue to use these cases to justify categorical foreclosure of relief for survivors of such violence, unjustly putting survivors’ lives and safety at grave risk. These precedents flagrantly violate U.S. obligations under the United Nations (UN) Convention and Protocol Relating to the Status of Refugees (Convention), and our asylum laws designed to implement them. We look forward to engagement with the administration on putting in place rules that reflect Congressional intent and international norms to ensure those fleeing persecution are not unjustly denied protection under U.S. law. Action is also needed now on these decisions, however, in order to save lives.
Asylum is meant to provide refuge to individuals who lack protection from targeted harm they face at home. Women like the respondents in Matter of A-B- and Matter of A-C-A-A- endure horrific persecution and are at high risk of femicide if unable to flee. Perpetrators are emboldened by governments that tolerate and even encourage violence against women, leaving them in dire need of international protection. The respondent in Matter of A-B- survived 15 years of brutal physical, sexual, and emotional abuse and was properly found eligible for asylum when her case was first heard. In overturning the Board of Immigration Appeals’ (BIA) prior decision, former AG Sessions arbitrarily declared that survivors of domestic violence would no longer qualify for asylum as a general matter.[1] He made similar sweeping comments about cases involving gang violence, even though the A-B- case did not raise such a claim.
Former Acting AG Rosen then doubled down on Sessions’ decision[2], again appearing to raise the bar for proving failure of state protection in cases – often those involving domestic and gang violence – where the persecutor is a non-state actor. He noted that failures of protection in particular cases or generally high levels of crime do not amount to a breach[3]. He further concluded that failure to protect is when “the government in the home country has fallen so far short of adequate protection as to have breached its basic duty to protect its citizens, or else to have actively harmed them or condoned such harm. . . . [4]“ In contravention of settled law, this standard seems to preclude claims where a government makes a minimal gesture to prevent persecution by non-state actors, but effectively turns a blind eye toward it. Many courts continue to erroneously reject asylum claims on this basis.
In Matter of A-C-A-A-, former AG Barr further cast gender-based persecution as a “personal” dispute. He implied that adjudicators should be skeptical of affording protection for survivors simply because such violence is so pervasive.[5] This sweeping characterization presents a backwards view that denies that women’s rights are human rights. This characterization also appeared to heighten the standard for establishing that persecution is inflicted on account of membership in a particular social group when the group potentially encompasses large numbers of people, such as ‘women’ in a certain country. Both Matter of A-B- and A-C-A-A- stand in stark opposition to the UN’s longstanding, unequivocal recognition of gender-based persecution as a systemic human rights abuse intentionally inflicted upon a protected group that warrants redress under the Convention. According to the UN High Commissioner for Refugees, “…it is widely accepted that [gender] can influence, or dictate, the type of persecution or harm suffered and the reasons for this treatment. The refugee definition, properly interpreted, therefore covers gender-related claims.” Moreover, this decision ignores the fact that there are many hurdles asylum seekers must clear before they are granted protection, and each case must be viewed on its own merit.
Asylum seekers who otherwise would qualify for refugee protection are at imminent risk of deportation as a result of these decisions. The case of Anna* from Guatemala* is illustrative. She was held captive by a man who relentlessly abused and humiliated her for 11 years with impunity, referring to her as his “dog.” He whistled at her instead of calling her by name, told her she was registered to him like a car, controlled what she wore, and beat her for trying to go to church. He tied her child up in front of her and tried to light him on fire, threatening to kill her because she reported him to the police. Anna* finally managed to escape, after her abuser sharpened his machete in front of her and threatened to decapitate her. Anna’s* case was heard immediately after Matter of A-B- was decided and she was denied relief as a direct result. Her case is currently on appeal.
Matter of L-E-A-, meanwhile, broadly foreclosed protection for many families targeted by gangs and other actors for violence because of their family membership.[6] In this case, a Mexican drug cartel retaliated against a son because his father would not sell drugs for the cartel. Although former AG Barr acknowledged that “a number of courts of appeals have issued opinions that recognize a family-based social group as a ‘PSG,’” he inexplicably held that “average” families are generally not recognizable as a group in society. In fact, from 1993 through 2019, all circuits that considered the issue have published decisions specifically finding that a family unit can constitute a PSG. In addition, the BIA had erroneously concluded in Matter of L-E-A- that because the persecutor had one non-protected motive to harm the applicant (seeking access to the applicant’s store), he failed to prove that his family membership was one central reason for the harm even though he would not have been threatened but for his relationship to his father. Barr adopted this nexus determination. Together, these decisions have caused denials of protection that would have previously been granted, as well as unnecessary litigation and protracted appeals.
As explained above, the U.S.’s obligations under international law include providing safe haven to survivors of brutal human rights abuses such as domestic and gang violence. Yet we remain in violation of the Convention and Protocol as long as Matter of A-B- (I&II), Matter of A-C-A-A-, and Matter of L-E-A– (I&II) remain in effect. To restore compliance, and prevent the needless suffering of vulnerable asylum seekers, it is critical that the Department of Justice vacate these erroneous and unjust decisions. Previous AGs have taken similar actions in the past, while agencies review and develop new guidance, and we respectfully urge you to do the same immediately.
Thank you for your consideration of this request. Should you have any questions, please contact Irena Sullivan at irenas@tahirih.org.
Signed,
Adelante Alabama Worker Center
ADL (the Anti-Defamation League)
Adriel Daniel Orozco, New Mexico Immigrant Law Center**
Advocating Opportunity
African Services Committee
AJ SINGH LAW
Albizu Law Firm
Aldea – The People’s Justice Center
Alexandra Manrique Alfonso
Alianza Americas
Allegra Love
Ambrosio Immigration Practice
American Gateways
American Immigration Council
American Immigration Lawyers Association (AILA) Colorado
Americans for Immigrant Justice
Angela Y. Suh, LAW OFFICES OF ANGELA Y. SUH**
Anju Gupta, Professor of Law & Director, Immigrant Rights Clinic, Rutgers Law School**
Annique Boomsma, Western Mass Jewish Activists for Immigration Justice**
Ann Terese Slusher
Ann-Louise Haak, Wellington Avenue UCC, Chicago, IL**
Anu Joshi, Vice President of Policy, New York Immigration Coalition
Asian Americans Advancing Justice – Atlanta
Asian Law Caucus
Asian Pacific Institute on Gender-Based Violence
ASISTA
Association of Africans Living in Vermont
Asylum Seeker Advocacy Project (ASAP)
AsylumWorks
Aust Schmiechen, PA
Becker & Lee LLP
Benjamin Casper Sanchez, James H. Binger Center for New Americans, University of Minnesota Law School**
Beth Lyon, Clinical Professor of Law, Cornell Law School**
Black Alliance for Just Immigration (BAJI)
Blumenau Law, PLLC
Boston College Law School Civil Rights Clinic
Brooklyn Defender Services
BRYAN LAW FIRM PA
Calderon & Gonzalez, PC
California Collaborative for Immigrant Justice (CCIJ)
California Partnership to End Domestic Violence
Canal Alliance
CARECEN
CarmanFullerton, PLLC
Caroline Sennett
Carolyn P Blum, Clinical Professor of Law, Emerita, Berkeley Law, University of California**
Casa Cornelia Law Center
Casa de Esperanza: National Latin@ Network for Healthy Families and Communities
Casa del Migrante en Tijuana
Casey Miller
Catherine A. Bernard, Mayer Brown LLP**
Catholic Charities, NY, Immigrant and Refugee Services
Catholic Migration Services, Inc.
Center for Constitutional Rights
Center for Safety & Change
Center for Victims of Torture
Central American Resource Center – CARECEN- of California
Central West Justice Center
Centro Del Inmigrante
Centro Legal de la Raza
Charis Zimmick
Charla Nich
Charlotte Weiss
Christopher M Kozoll
Claire R. Thomas, New York Law School**
Coalition for Humane Immigrant Rights (CHIRLA)
Community HeLP Clinic, University of Georgia School of Law
Community Immigration Law Center
Community Legal Services in East Palo Alto
Comunidad Maya Pixan Ixim
Connecticut Shoreline Indivisible
Cornell 1L Immigration Law & Advocacy Clinic
Cornell Law School Asylum & Convention Against Torture Appellate Clinic
Council on American-Islamic Relations, California
CRLA Foundation
Crystal Cortez
Csepes Law Offices
Dana Katz, Esq.
Debra Rodman Consulting
Deena R. Hurwitz
Denise Gilman, Co-Director, Immigration Clinic, University of Texas School of Law**
Desert Support for Asylums Seekers
Diego Castilleja
Dina Friedman
Diocesan Migrant & Refugee Services, Inc.
Disciples Immigration Legal Counsel
Dolores Street Community Services
Dr. Kimberly Gauderman
Dreamer Fund
East Bay Sanctuary Covenant
Elaine Fordyce, Law Office of Shara Svendsen**
Elevation Law LLC
Elizabeth Quay Hutchinson, University of New Mexico**
Ellen Kaufmann
Elora Mukherjee, Jerome L. Greene Clinical Professor of Law & Director, Immigrants’ Rights Clinic, Columbia Law School**
Elsaban Law Firm
Emily Jones
Equal Access Legal Services
Esperanza Immigrant Rights Project, CCLA Inc.
Family Violence Appellate Project
First Focus on Children
Florence Immigrant & Refugee Rights Project
Fordham University School of Law
Francesca Wander
Frances Kreimer, Villanova University, Clinic for Asylum, Refugee and Emigrant Services**
Freedom Network USA
Fulenchek Law
Futures Without Violence
Gabriela Moraga, University of San Francisco School of Law**
Gabrielle Schneck, Attorney at Law
Gail Dreyfuss
Geoffrey Heeren, Associate Professor & Director of the Immigration Litigation & Appellate Clinic, University of Idaho College of Law**
Georgetown University Law Center
Haitian Bridge Alliance
Harmony Mancino
Harold Dee
Harvard Immigration and Refugee Clinical Program
HIAS
Hiroko Kusada, Loyola University New Orleans College of Law**
H. Jessica Kim
Hofstra Law School Asylum Clinic
Hofstra Law School Deportation Defense Clinic
Hofstra Youth Advocacy Clinic
Human Rights First
Human Rights Initiative of North Texas
Illinois Coalition for Immigrant and Refugee Rights
Immigrant ARC
Immigrant Defenders Law Center
Immigrant Justice Corps
Immigrant Justice Task Force, Wellington Ave UCC
Immigrant Legal Advocacy Project (ILAP)
Immigrant Legal Center
Immigrant Legal Resource Center (ILRC)
Immigrant Legal Services of the Central Coast Inc.
Immigrants Rights
Immigration Center for Women and Children
Immigration Clinic, University of Nebraska College of Law
Immigration Equality
Immigration Institute of the Bay
Immigration Law Clinic, Touro Law Center
Immigration Resource Center of San Gabriel Valley
Indivisible Northampton, Massachusetts
Innovation Law Lab
Institute for Women in Migration (IMUMI)
Integrated Refugee & Immigrant Services (IRIS)
Interfaith Community for Detained Immigrants
International League of Advocates
International Refugee Assistance Project
International Rescue Committee
Iowa Migrant Movement for Justice
ISLA: Immigration Services and Legal Advocacy
Jacob McCoy
Janely Mendoza
Jean Stockdale
Jeng-Ya Chen
Jennie Feldman
Jennifer Frohman, Frohman Law Office LLC**
Jesus Martinez
Jewish Activists for Immigration Justice of Western MA
Jewish Women International
Jezic & Moyse LLC
Joan Friedland
Joel Coxander, Esq.
John Charles Bell, Law Office of John Charles Bell, Retired Assistant United States Attorney NDAL**
Jonathan Moore, Washington Defender Association**
Judith Seeds Miller
Just Neighbors
Justice and Diversity Center of the Bar Association of San Francisco
JUSTICE AND IMMIGRATION CLINIC
Kaci Bishop, Clinical Professor of Law and Director of the Immigration Clinic, University of North Carolina School of Law**
Karen Levine
Law Offices of Karin Tolgu
Kathleen M. Weber
Katie H. Meyer, Washington University Immigration Law Clinic**
Keep Tucson Together
Kentucky Coalition for Immigrant and Refugee Rights
Kentucky Refugee Ministries
Kids in Need of Defense (KIND)
Kim D. Pedersen, Esq.
Kimberly Fasking, Law Office of John Charles Bell**
L&L Immigration Law, PLLC
La Raza Centro Legal
La Raza Centro Legal San Francisco
Laredo Immigrant Alliance
Latin America Working Group (LAWG)
Lauren Gilbert, St. Thomas University College of Law**
Law Foundation of Silicon Valley
Law Office of Benjamin Cornell
Law Office of Helen Lawrence
Law Office of Karina Velásquez
Law Office of Laurence Borten
Law Office of Mario Varela, PLLC
Law Office of Rachel Benedict
Law Offices of Clarissa M. Kalil
Law Offices of David A. Borts
Law Offices of Giovanna Harswick PLLC
Law Offices of Michael Boyle
Law offices of Neda Zaman
Lawyers’ Committee for Civil Rights of the San Francisco Bay Area
Layne Faulkner
Legal Aid Justice Center
Legal Services for Children
Legal Services NYC
Leslie Garcia
Linda Dakin-Grimm, Milbank LLP**
Lindsay M. Harris, Assoc. Prof. & Director, Immigration & Human Rights Clinic, UDC Law**
Lydia Sinkus
Lopez & Freshwater PLLC
Los Angeles Center for Law and Justice
Lutheran Social Services of New York
Lynn Marcus, Community Immigration Law Placement Clinic, University of Arizona James E. Rogers College of Law**
Make the Road New Jersey
Make the Road New York
Maria Baldini-Potermin & Associates, PC
Marisol Alarcon
Margaret Taylor, Professor of Law, Wake Forest University School of Law**
Maritza Colon Rivera, Colon and Gonzalez, LLC**
Maryann Hrichak, TechWomen**
Mary Foden, De Castro Foden**
McGeorge Law School
Medina Law, PLLC
Melanie Nathan, African Human Rights Coalition (AHRC)**
Menter Immigration Law PLLC
M. Gabriela Torres, Professor of Anthropology, Wheaton College, MA**
Michaelene Loughlin, Emmaus Community of Christian Hope**
Michael Smith
Michigan Immigrant Rights Center
Migrant and Immigrant Community Action Project
Migrant Center for Human Rights
Minikon Law, LLC – Immigration Attorneys
M Isabel Medina, Ferris Distinguished Professor of Law, Loyola University New Orleans College of Law**
Mississippi Center for Justice
Mobilization for Justice, Inc.
Monica Devens
Mujeres Unidas y Activas
Nancy K. D. Lemon, Berkeley School of Law, UC Berkeley**
Natalia Montserrat Osorio
National Alliance to End Sexual Violence
National Coalition Against Domestic Violence
National Council of Jewish Women
National Immigrant Justice Center
National Immigration Law Center
National Immigration Project
National Lawyers Guild – San Francisco Bay Area
National Lawyers Guild of Los Angeles
National Network to End Domestic Violence
National Organization for Women
National Partnership for New Americans
Neighbors Link – Community Law Practice
Nettie Parker, Atty at Law
NETWORK Lobby for Catholic Social Justice
New York Justice for Our Neighbors, Inc.
New York Legal Assistance Group
New York University School of Law Immigrant Rights Clinic
New York- Justice For Our Neighbors
NorCal Resist
North Carolina Justice Center
Northwest Immigrant Rights Project
Open Immigration Legal Services
Opening Doors, Inc.
Oren Root
Oxfam America
Pars Equality Center
Pelton and Balducci
Pete Weiss, Pangea Legal Services**
Physicians for Human Rights
Pilar Ferguson, Human Rights Initiative of North Texas**
Prisoners’ Legal Services of New York
Professor Jaya Ramji-Nogales
Professor Sarah Rogerson, Albany Law School **
Professor Vanessa Merton, Immigration Justice Clinic, Elizabeth Haub School of Law at Pace University**
Project Blueprint
Project Ishmael
Project Lifeline
Public Counsel
Rabbi Benjamin Kelsen
RAICES
Refugees International
Roberts Immigration Law Office, Ltd.
Rocky Mountain Immigrant Advocacy Network
Ryan Krause
Safe Horizon
Safe Passage Project
Samavati & Samavati Law Firm
Sam Myers
San Joaquin College of Law – New American Legal Clinic
Sanctuary for Families
Sandra Gibbs Law, Inc.
Save the Children
Services, Immigrant Rights and Education Network (SIREN)
Shara Svendsen, Law Office of Shara Svendsen, PLLC**
Sheri Murray, Esq.
Social Justice Collaborative
Sosa Law
Southwest Asylum & Migration Institute (“SAMI”)
SPLC Action Fund
Stacy Caplow, Brooklyn Law School**
Stacy Kowalski, Esq.
Stand Together Contra Costa
Stanford University
Step Forward Foundation
Stella Terpstra, Esq., Law Office of Joshua J. Mikrut PLC**
Susanne Jonas
Susie Zeiger
Sylvia Carrion
Tahirih Justice Center
TakeRoot Justice
Tania N. Valdez, University of Denver Sturm College of Law**
TASSC (Torture Abolition & Survivors’ Support Coalition) International
Tennessee Justice for Our Neighbors
Teresa M Graw LLC
The Advocates for Human Rights
The Bortel Firm, LLC
The Door
The Exploitation Intervention Project, The Legal Aid Society
The Immigrant and Refugee Task Force of Temple Beth Hatfiloh
The Law Office of Joshua Mikrut, PLC
The Legal Aid Society (New York)
The Legal Aid Society of Westchester County
The Legal Project
The Program for Torture Victims
The Right to Immigration Institute
Tilly Kamin
Tisocco Immigration PLLC
Triche Immigration Appeals
Tulane Law School, Immigrant Rights Clinic
Tuyana Kupisk
U.S. Committee for Refugees and Immigrants
UC Davis
UCLA Immigrant Family Legal Clinic
UndocuBlack Network
University of Baltimore School of Law Immigrant Rights Clinic
University of Detroit Mercy Law Immigration Clinic
University of Illinois Immigration Law Clinic
University of Maine School of Law
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University of Miami School of Law, Immigration Clinic
University of Pittsburgh School of Law
University of San Francisco School of Law, Immigration & Deportation Defense Clinic
University of Southern California Immigration Clinic
University of Tulsa College of Law Legal Clinic
UnLocal
UNLV Immigration Clinic
Urban Justice Center Domestic Violence Project
Valeria Gomez, Clinical Teaching Fellow, University of Connecticut School of Law**
VIDA LEGAL ASSISTANCE INC
Viridiana Mireles
Washington Defender Association
Washington Office on Latin America
Wasser Law
Women’s Refugee Commission
Yakov Wiegmann
YMCA International Services
Young Center for Immigrant Children’s Rights
YWCA USA
Zachary Brugman, Esq.
*Name and country have been changed to preserve confidentiality.
**Institution named for identification purposes only.
[1] Matter of A-B-, 27 I. & N. Dec. 316, 320 (A.G. 2018).
[2] Following A-B-, the matter had been remanded to the BIA, but the judge issued a new decision which the BIA affirmed on June 30, 2020.
[3] See Matter of A-B-, 28 I. & N. Dec. 199 (A.G. 2021).
[4] Id. at 204.
[5] Matter of A-C-A-A-, 28 I. & N. Dec. 84, 92 (A.G. 2020).
[6] Matter of L-E-A-, 27 I. & N. Dec. 581, 589 (A.G. 2019).
Photo Caption: U.S. Attorney General Merrick Garland speaks to press at the Department of Justice. Photo Credit: Andrew Harnik-Pool via Getty Images