The Trump Administration and Immigration Judges: Decreased Judicial Independence or Increased Efficiency?

• Author: Cuic, Aleksandar

Through the Attorney General, the Trump administration has changed asylum and immigration policies in several ways. In 2018, former-Attorney General Sessions used his referral power to overturn an immigration court's determination that victims of domestic violence are eligible for asylum as members of a "particular social group." In the same year, the Attorney General issued a decision that prohibits immigration judges from administratively closing cases. Lastly, then-acting Attorney General Whitaker certified a case that raised a question as to whether membership in a family is a "particular social group" under asylum law. This article explores a question raised by these recent developments: is Trump administration's approach to immigration judges an attempt to decrease those judges' independence or merely to increase the immigration system's efficiency?

Imagine this factual scenario:

A mother from rural Guatemala, married at the age of seventeen, is repeatedly abused by her spouse. He breaks her nose, throws paint thinner on her, burning her breasts, and repeatedly rapes her. She seeks protection from local law enforcement who do not arrest the spouse nor, simply put, do much of anything. However, and as a result of police involvement, the abuse increases. Seeking protection, she goes to stay with her father. But each time she does, her husband finds her, and threatens to kill her unless she returns home. Returning home, the abuse continues and increases. She escapes to a nearby city of roughly 3,000,000 inhabitants and he finds her again. She, like many victims of domestic abuse, returns home to the same cycle of abuse. With nowhere to turn, she, along with her three minor children, makes the roughly 1,800 mile trek from Guatemala to the United States to seek asylum.

In the United States, "The Secretary of Homeland Security or the Attorney General may grant asylum to an alien who has applied in accordance with the requirements and procedures established by the Secretary of Homeland Security or the Attorney General ... if the Secretary of Homeland Security or the Attorney General determines that such alien is a refugee," (1) as defined under the Immigration and Nationality Act. (2)

Thus, not only must the applicant meet the discretionary authority of the Secretary of Homeland Security or the Attorney General, but also the applicant must be a "refugee," defined as:

[A]ny person who is outside any country of such person's nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. (3) For years, Asylum and Refugee law in the United States struggled with gender-based asylum claims, (4) and even more so when such claims involved private actions such as domestic abuse. Simply put, where does this Guatemalan victim fit into the definition?

As all will agree, legal precedent meandering its way through the judicial system takes time irrespective of area of law--Immigration Law included. In 1985, in the Matter of Acosta, the Board of Immigration Appeals (BIA), the appellate body of US Immigration Courts, found that "sex" amongst other "common, immutable characteristics" can meet the "particular social group" definition for purposes of asylum. (5) Eleven years later, in Matter of Kasinga, the BIA expanded Matter of Acosta, finding that "young women of the Tchamba-Kunsuntu Tribe who have not had [Female Genital Mutilation], as practiced by that tribe, and who opposed the practice" also met the particular social group definition for purposes of Asylum. (6) The rationale in Kasinga not only supported Acosta, but also implicitly (perhaps) addressed private actions in terms of asylum; Female Genital Mutilation as a form of persecution not done by a government actor, but private persons--here, a tribe.

In the years that followed, Legacy Immigration Naturalization Service (INS), (7) Immigration Judges, the Board of Immigration Appeals, and Circuit Courts, all of whom in one way or another, render asylum-related decisions, issued decisions for, and against, domestic violence-based asylum claims. (8) Getting approved was essentially premised on the adjudicator's subjective definition of asylum. (9) Eventually, on August 26, 2014, nearly 29-years after Acosta, the Board of Immigration Appeals issued a three member panel (10) decision in Matter of A-R-C-G- et al. (11) In the decision, the BIA held:

"that the lead respondent, a victim of domestic violence in her native country, is a member of a particular social group composed of "married women in Guatemala who are unable to leave their relationship." (12)

Admittedly, the BIA's holding in A-R-C-G- did not cure all ills. Questions remained: does this holding apply only to "married women" or "Guatemalan women?" Is it inapplicable to men? Even with those questions and others, immigration practitioners...