On June 16, 2021, the Attorney General mercifully vacated precedential decisions in Matter of A-B– and Matter of L-E-A- that were intended to restrict asylum. The prior decisions obstructed those seeking asylum benefits as a result of domestic abuse and gang violence due to familial ties. The old precedent also intended to severely limit eligibility for asylum for those who were fleeing persecution perpetrated by private actors rather than a government. Attorney General Garland reasoned that these matters should be decided by federal rulemaking and, in the meantime, the law should revert to prior precedent. Proposed rules on the subject are due by October 30, 2021; the final regulations will be pushed well into next year.
The forthcoming DOJ regulations on asylum will have an extraordinary impact on the future of asylum. Many legal experts say that the regulations should explicitly specify that gender alone may be the basis of a particular social group. Furthermore, recognizing a group alone does not ensure asylum protections and the regulations must help rectify the BIA’s method for determining whether the persecution is “on account of” the group membership.
The power to vacate these decisions comes from the Attorney General’s ability to oversee immigration courts and the immigration judges within each court. The Attorney General has authority to certify decisions made by the Board of Immigration Appeals (BIA), which is housed by the Department of Justice. The Attorney General receives this referral power from federal regulation, in accordance with the broad immigration powers Congress delegated to the executed branch. The Trump Administration used the certification power an unprecedent 17 times during his single term, more than any administration in U.S. history. By comparison, the Obama Administration only used the certification power four times over the course of two terms. Accordingly, even after vacating this egregious precedent, the vast majority of the Trump Administration’s AG decisions remain in effect.
Many of the Trump Administration’s other AG decisions limit eligibility for asylum, protection under the Convention Against Torture, cancellation of removal, judicial independence for immigration judges, administrative closure, continuances, and the impact of post criminal conviction relief. Beyond those AG decisions, the Trump Administration also changed the composition of the appellate courts, installing judges who issued dozens of precedential decisions that adversely affect immigrants in removal proceedings. Within the immigration courts, there are many immigration judges appointed by Trump that were either prosecutors for ICE, had no prior experience in immigration law, or belonged to advocacy groups opposed to legal immigration. It is unclear how committed the Biden Administration is to unravelling the legal precedent established in the previous administration. Nevertheless, the decision to vacate these horrendous decisions is an extremely positive first step in rectifying the immigration courts.