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7 Appeals Court Decisions Showing Jeff Sessions’ Decision Will Be Overturned

In Matter of A-B-, this was Jeff Sessions’ most brazen attempt to re-write statutory law on asylum:

(7)An applicant seeking to establish persecution based on violent conduct of a private actor must show more than the government’s difficulty controlling private behavior. The applicant must show that the government condoned the private actions or demonstrated an inability to protect the victims.

In his decision, he floated several different variations of the above, such as his casual extra-legal addition requiring asylum applicant’s to show “the government’s role in sponsoring or enabling” harm inflicted on them by non-governmental actors.

In a sweeping, wholly conclusory holding on page 5 of the decision, Sessions, without citing to any legal authority, stated:

Generally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum.1 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 for proving group persecution that the government is unable or unwilling to address.

Here is why Sessions is wrong, explained through the decisions of the Federal Courts of Appeals.

The United States Court of Appeals for the 4th Circuit.

Under 8 U.S.C. § 1101(a)(42)(A), to establish her eligibility for asylum, Hernandez [*949] must prove that she (1) has a well-founded fear of persecution; (2) on account of a protected ground; (3) by an organization that the Salvadoran government is unable or unwilling to control. Lopez-Soto v. Ashcroft, 383 F.3d 228, 234 (4th Cir. 2004) (vacated pending reh’g en banc on other grounds).

Finally, Hernandez must show that the Salvadoran government is either unwilling or unable to control the gang members who threatened her. The BIA found that Hernandez had “not shown any clear error in the Immigration Judge’s factual finding” that the government of El Salvador would not be unwilling or unable to protect her from the gang. A.R. 4. As a result, we [*951] must also examine the IJ’s factual finding on this issue.

The IJ acknowledged that the gang problem in El Salvador is “quite [**13] serious” and that Hernandez had perhaps failed to report the threats she received to the Salvadoran authorities because the Mara 18 members had threatened to harm her if she did so. A.R. 50. Despite these observations, however, the IJ concluded that Hernandez had not shown that El Salvador is unwilling or unable to protect her because she had not attempted to obtain protection from the Salvadoran authorities. Id. In support of this rationale, the IJ stated that Hernandez had testified that one of the gang members responsible for Augustin’s murder had been imprisoned and sentenced to 25 years. Id. Moreover, the IJ stated that the government of El Salvador, “with significant support from the United States Government, has taken a variety of law enforcement and social measures to address gang criminality.” Id. The BIA found no clear error in this determination and added only its reiteration that “the respondent testified that one of the gang members responsible for Augustin’s murder was arrested, convicted and imprisoned. He was sentenced to 25 years.” A.R. 4.

There are several errors in the BIA’s conclusion that Hernandez has not shown that El Salvador is unwilling or unable to protect [**14] her. The IJ and the BIA misstated Hernandez’s testimony and drew unjustified conclusions from it. Next, the BIA failed to consider relevant evidence of country conditions in El Salvador. Finally, the IJ relied on his unsupported personal knowledge of conditions in El Salvador.

HN6 “‘Whether a government is “unable or unwilling to control” private actors … is a factual question that must be resolved based on the record in each case.'” Crespin-Valladares, 632 F.3d at 128 (quoting Menjivar v. Gonzales, 416 F.3d 918, 921 (8th Cir. 2005)). Despite the “extremely deferential standard” under which we review an IJ’s factual findings, Menghesha v. Gonzales, 450 F.3d 142, 147 (4th Cir. 2006), an IJ is not entitled to ignore an asylum applicant’s testimony in making those factual findings. See Cordova, 759 F.3d at 340 (“[U]ltimately, in reviewing agency decisions in immigration matters, it is our responsibility to ensure that unrebutted, legally significant evidence is not arbitrarily ignored by the fact finder.”) (internal citations and quotation marks omitted); see also Tassi, 660 F.3d at 719 (“[A]n IJ is not entitled to base a decision on only isolated snippets of the record while disregarding the rest.”) (internal citations and quotation marks omitted). The BIA abuses its discretion if it “fail[s] to offer a reasoned explanation for its decision, or if it distort[s] or disregard[s] important aspects of the applicant’s claim.” [**15] Id.

The IJ’s claim that Hernandez testified that one of the gang members responsible for Augustin’s murder was convicted and imprisoned is factually incorrect. Hernandez testified not that this gang member was one of the men who had killed Augustin, but rather, that he was one of the men who made the first death threat against Hernandez. See A.R. 116. That the BIA failed to correct the IJ’s factual error, and in fact repeated it in its own opinion, suggests that the BIA did not engage in a proper review of the facts.

Moreover, the BIA relied on its mistaken belief that El Salvador had imprisoned one of Augustin’s murderers to suggest that the authorities would have been receptive to Hernandez’s complaints if she had reported the death threats. This significantly [*952] distorts the implications of Hernandez’s testimony. She did not testify that a gang member had been prosecuted and imprisoned for murdering her relative; rather, she testified that a gang member who had threatened her was later prosecuted and imprisoned for unrelated crimes. A.R. 116. Hernandez testified that her family had not prompted the prosecution, and she did not provide any details about the “other crimes” and “other killings” [**16] for which he had been prosecuted or the circumstances of his imprisonment. Id. The BIA’s factual mistake seems to have motivated its faulty conclusion that the Salvadoran government would have been willing to prosecute the gang members who threatened Hernandez because it had prosecuted gang members who had attacked her family in the past.8Link to the text of the note Under a correct reading of the record, however, there is no evidence of what motivated the police to prosecute and imprison that gang member. As a result, there is no evidence that the police in Hernandez’s neighborhood would have been responsive if she had reported the death threats.

To the contrary, Hernandez, whom the IJ found to be a credible witness, provided abundant evidence that the authorities would not have been responsive to such a report. Hernandez’s affidavit, in combination with the other evidence presented in this case, suggests that the police in her neighborhood may be subject to gang influence. [**17] See A.R. 147-48 (“Reporting these incidents to the police was not an option for me. The police routinely arrested gang members and within days they were released. Many times the gang members learned who reported them to the police and retaliated against that person. I was afraid that would happen to me.”). Further, even if the authorities in her neighborhood were willing to protect her against the gangs, Hernandez testified that they would be unable to do so. See A.R. 146-47 (“Of course, I was fearful and knew the authorities could not provide me with any degree of protection. For that reason, I did not turn them in.”). Thus, the BIA relied on a misstatement of the record, misinterpreted its significance, and ignored Hernandez’s contrary credible testimony in reaching its finding.

The United States Court of Appeals for the 9th Circuit: 

Further, although we have acknowledged that one of the archetypal examples of a pattern or practice of persecution was “the systematic attempt to annihilate the Jews in Nazi Germany,” Kotasz, 31 F.3d at 852 — a case in which the persecution was incremental, but a broad campaign of marginalization, and eventually extermination, was organized by the Nazi government itself 9Link to the text of the note — we have recognized that a pattern or practice may also be the [**29] work of private actors, so long as the persecution is sufficiently widespread and the government is unable or unwilling to control those actors. See Lolong v. Gonzales, 484 F.3d 1173, 1180 (9th Cir. 2007) (en banc).

The United States Court of Appeals for the Second Circuit: 

Direct governmental action is not required for a claim of persecution. Private acts can constitute persecution if the government “is unable or unwilling to control it.” Rizal v. Gonzales, 442 F.3d 84, 92 (2d Cir.2006); see also Pavlova v. I.N.S., 441 F.3d 82, 85 (2d Cir.2006). To succeed on a particular social group claim, the applicant must establish both that the group itself was cognizable, see Ucelo-Gomez v. Mukasey, 509 F.3d 70, 73 (2d Cir.2007), and that the alleged persecutors targeted the applicant “on account of” her membership in that group, see 8 U.S.C. § 1101(a)(42)(A).

The United States Court of Appeals for the Third Circuit:

If the persecution was not conducted directly by the government or its agents, the petitioner must also establish that it was conducted “by forces the government is unable or unwilling to control. Kibinda v. Attorney General., 477 F.3d 113, 119 (3d Cir. 2007)

The United States Court of Appeals for the Sixth Circuit: 

The BIA has defined persecution as “the infliction of harm or suffering by the government, or persons the government is unwilling or unable to control, to overcome a characteristic of the victim.” Pilica, 388 F.3d at 950 (quoting Matter of Kasinga, 21 I & N Dec. 357, 365 (BIA 1996)

The United States Court of Appeals for the Fifth Circuit:

(“When an asylum claim focuses on non-governmental conduct, its fate depends on some showing either that the alleged persecutors are aligned with the government or that the government is unwilling or unable to control them.”); see also Khalili v. Holder, 557 F.3d 429, 436 (6th Cir. 2009) (petitioner not entitled to withholding of removal because he presented “insufficient evidence to demonstrate that the government would be unwilling or unable to control” the persons threatening harm).

The United States Court of Appeals for the Seventh Circuit:

Rupey must demonstrate that the Ukranian government or nongovernmental actors that the government is unable or unwilling to control were responsible for his mistreatment. See Margos v. Gonzales, 443 F.3d 593, 599 (7th Cir. 2006).

An exception to the above is how the Eighth Circuit Court of Appeals has addressed similar questions of law. It is no coincidence that Sessions almost exclusively relies upon decisions from this Circuit Court to support his (still) wholly conclusory holding that asylum applicants must show that the “government condoned” the harm inflicted by non-governmental actors.

In the decision cited to by Sessions-Menjivar v. Gonzales, 416 F.3d 918, 921 (8th Cir. 2005)–the court held the following:

We also accept as reasonable the BIA’s view that an applicant seeking to establish persecution by a government based on violent conduct of a private actor must show more than “difficulty … controlling” private behavior. In re McMullen, 17 I. & N. Dec. 542, 546, 1980 WL 121935 (BIA 1980). Rather, the applicant must show that the government “condoned it or at least demonstrated a complete helplessness to protect the victims.” Galina v. INS, 213 F.3d 955, 958 (7th Cir.2000); see also Roman v. INS, 233 F.3d 1027, 1034 (7th Cir.2000).

Unfortunately for Sessions, the Eighth Circuit’s decision cites as authority an ancient BIA case, Mcmullen, that was overruled by the Ninth Circuit Court of Appeals, resulting in a second BIA decision in 1984 that held the opposite, that is, that the government was unable to control the private actor from inflicting harm on the applicant:

On review, the Ninth Circuit found that the respondent’s evidence established that the PIRA is a clandestine, terrorist organization, that the Government of the Republic of Ireland is unable to control the PIRA, and that the respondent was likely to suffer persecution by the PIRA if returned to the Republic of Ireland.

Even then, the original McMullen decision did not hold that an applicant must show more than ‘difficult…controlling” private behavior.

Instead, the BIA simply held very narrowly that the applicant did not show “that the Irish government would be unable, if necessary, to protect the respondent, a defected member, from the Provisional Irish Republican Army.” In other words, the applicant in that case, according to the BIA, did not provide sufficient evidence to show that the government was unable to protect him. There was no mention of the word “more.”

This same decision from the Eighth Circuit then purported to cite as authoritative law two decisions from the Seventh Circuit Court of Appeals, which similarly, and without citing to any legal authority, tack on additional(and sloppily drafted) requirements  to what is required in the statute as set forth in sINA 101(a)(42): one only has to show that they are unable or unwilling to obtain government protection from harm inflicted by persecutor  regardless of who the persecutor is.

Enjoy your short-lived victory, Mr. Sessions. Some advice: next time, try respecting the rule of law.


2 Comments Post a comment
  1. Will Miller #

    Bryan, doesn’t Brand X allow Sessions to interpret the INA contrary to prior circuit court decisions, so long as those decisions didn’t find that the subject law or provision was unambiguous? Still possible that a federal circuit court finds Sessions’s interpretation unreasonable and thus not worthy of Chevron deference.

    June 12, 2018
    • Bryan Johnson #

      This may be the case with respect to the PSG in ARCG, but in our opinion, the statute defining a refugee is unambiguous in that it states the applicant must show he or she “…is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded…”(emphasis added.) urthermore, Sessions’ only sought to apply Brand X to his interpretation of the PSG in A-B-. He did not claim that unwilling or unable language in the asylum statute to be ambiguos
      fear of persecution.

      However, as mentioned elsewhere, “women” is a more legally sound PSG than the one of “women unable to leave a relationship” overturned in Matter of A-B-.

      June 15, 2018

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