Update

Update: The Attorney General decided the case in Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018). Please see our full article to learn about new new precedent decision [see article]. This article only discusses the initial referral of the matter for review.

Introduction: Matter of A-B-, 27 I&N Dec. 247 (A.G. 2018)

On March 30, 2018, Attorney General Jeff Sessions issued a second decision in Matter of A-B-, 27 I&N Dec. 247 (A.G. 2018) [PDF version]. In the initial decision, Matter of A-B-, 27 I&N Dec. 227 (A.G. 2018) [PDF version], Attorney General Sessions requested briefing on the following question: “Whether, and under what circumstances, being a victim of private criminal activity constitutes a cognizable ‘particular social group’ for purposes of an application for asylum or withholding of removal.” Subsequent to the first Matter of A-B-, the Department of Homeland Security (DHS) requested that Attorney General suspend the briefing schedules and clarify the questions presented. Attorney General Sessions denied the requests to suspend the briefing schedules and clarify the question, but he granted the request of the parties to extend the briefing schedules. In this post, we will explain Attorney General Sessions’ analysis and conclusions in the second Matter of A-B- decision.

To learn about the question presented by the Attorney General in this case, which remains unaffected by the instant decision, please see our full article on the first Matter of A-B- decision [see article].

Request to Suspend Briefing Schedules Denied: 27 I&N Dec. at 247-49

Attorney General Sessions denied the DHS’s request to suspend the briefing schedules until the Board of Immigration Appeals (BIA) acted on the Immigration Judge’s request to certify the case for review. An Immigration Judge may certify his or her decision to the BIA for review. In the instant case, the Immigration Judge had not decided a pending request for certification before the Board when Attorney General Sessions intervened and referred the case to himself for review. The DHS argued that, in light of this, the case did “not appear to be in the best posture for the Attorney General’s review…”

Attorney General Sessions explained that briefing did not need to be suspended because the case is not properly before the BIA. Furthermore, Attorney General Sessions determined that the Immigration Judge had acted outside his authority by seeking to certify the case to the Board before an initial decision had been made and an appeal had been taken, in accord with 8 C.F.R. 1003.7.

In the instant case, the Immigration Judge had issued an initial decision that was appealed to the Board. The Board sustained the respondent’s appeal and remanded to the Immigration Judge “for the purpose of allowing [DHS] the opportunity to complete or update identity, law enforcement, or security investigations or examinations, and further proceedings, if necessary…” The remand, under 8 C.F.R. 1003.47(h), required the Immigration Judge to then “enter an order granting or denying the immigration relief sought…” in light of the purpose of remand. The Immigration Judge had discretion to hold further hearings to consider any legal or factual issues. The DHS subsequently informed the Immigration Judge that the respondents’ background checks were clear. At that point in time, Attorney General Sessions concluded, the Immigration Judge “was obliged to issue a decision granting or denying the relief sought” or to hold a hearing to consider new legal issues under 8 C.F.R. 1003.47(h) if he believed that there had been an intervening change in law. However, instead of taking one of those two options, the Immigration Judge had sought to certify the Board’s decision back to the Board. Attorney General Sessions described this as “essentially requesting that the Board reconsider its own legal and factual findings.” This, the Attorney General held, exceeded the Immigration Judge’s authority on remand. Under 8 C.F.R. 1003.1(b)(3), an Immigration Judge may only certify issues that arise from decisions in removal proceedings, and under 8 C.F.R. 1003.7, certification to the Board may only be made “after an initial decision has been made and before an appeal has been taken.”

For these reasons, Attorney General Sessions held that the Immigration Judge’s attempt to certify the case back to the Board after not issuing a decision on remand was “procedurally defective.”

The DHS had relied in support of its position on the Supreme Court of the United States decision in United States ex. rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954) [PDF version]. In Accardi, the Supreme Court ruled in favor of a petitioner who challenged the denial of his application for suspension of deportation on the ground that it was prejudged when prior to the Board’s decision the Attorney General issued a confidential list of individuals, including the petitioner, whom he wanted deported. However, Attorney General Sessions took the position that Matter of A-B- was distinguishable from Accardi in that the Board issued the decision under review under its own judgment and free of interference from the Attorney General. Furthermore, he added that the certification of the case to himself for review was in done in accordance with applicable regulations.

For these reasons, Attorney General Sessions denied the request to suspend the briefing schedule pending a new decision by the BIA.

Request to Clarify Question Presented Denied: 27 I&N Dec. at 249-50

The DHS requested that Attorney General Sessions clarify the question presented [see section]. The DHS based this request on the ground that “this question has already been answered, at least in part, by the Board and its prior precedent.” However, Attorney General sections cited to section 103(a)(1) of the Immigration and Nationality Act (INA) in noting that he was not bound by any prior decisions of the Board. Under the statute, the “determination and ruling by the Attorney General with respect to all questions of law shall be controlling.”

Attorney General Sessions stated that the parties and interested amici (friends of the court) may brief any issues that are relevant to the question presented about particular social groups, “including the interplay between any relevant Board precedent and the question presented.” However, he encouraged parties to “answer the legal question presented.”

Request for Extension of Briefing Deadline Granted in Part: 27 I&N Dec. at 250

Attorney General Sessions granted in part a motion filed by both parties for an extension of the deadline for submitting briefs in the instant case. The new deadlines are as follows:

Parties (on or before April 20, 2018);
Amici (on or before, April 27, 2018); and
Reply briefs from parties (on or before May 4, 2018).

However, Attorney General Sessions noted that the respondent’s request was supported by a desire to gather additional evidence in support of her claim for asylum. Here, the Attorney General noted that he “requested briefing on a purely legal question to assist my review of this case…” To that effect, he reminded parties that they should “focus their briefing on that question,” and that “[f]urther factual development may be appropriate in the event that the case is remanded, but the opportunity to gather additional factual evidence is not a basis for my decision to extend the briefing deadline.”

Conclusion

The second Matter of A-B- decision dealt with interesting procedural challenges to Attorney General Sessions’ authority and decision to refer the case to himself for review. Ultimately, for a variety of reasons, the Attorney General found that the challenges were unavailing and did not suspend the briefing schedule or clarify the question presented. Accordingly, briefing on the issue will proceed with the only change being more time for the parties and the amici to submit briefs. However, it will be worth watching after the issuance of the decision to see if the losing party brings up any of the procedural challenges made by the DHS in seeking to have briefing suspended.

As we noted regarding the first Matter of A-B- decision, the case may clarify an interesting issue in the context of particular social group determinations for purposes of asylum and withholding of removal. We will update the website when more information is available about the proceedings.