Give Me Your Tired, Your Poor, Your Huddled Masses

The Dangers of Certification Power in U.S. Asylum Law

Chaelin Jung

Abstract

Asylum cases in United States immigration courts today have been likened to “death penalty cases in a traffic court setting.”1 While much of the proceedings are administrative in nature, the outcomes carry serious implications for those seeking refuge in the country. In fiscal year 2019, judges presided over 67,000 asylum cases, which made up nearly a fourth of total cases in the immigration court system.2 Immigration law more broadly is notoriously complex, adjudicated by its own courts and spanning three federal departments: Homeland Security, Justice, and Health and Human Services. Concerningly, the immigration system lacks an independent judiciary and houses courts withinthe Department of Justice. In the maze of federal statute, regulations, and appeals court decisions, the Attorney General is able to invoke an authority called certification power to unilaterally overturn even precedent court decisions. Recently, this power has been utilized to constrict protections proffered to asylumseekers, particularly on the basis of a protected ground: particular social group status. In this paper, I first present a background of the relevant asylum law and then argue that the certification power of the Attorney General is susceptible to political abuse and violations of due process. Next, I discuss two prominent particular social groups — gender-based and family-based — to highlight how certification power narrows protections for asylum seekers. Finally, I explore broad implications of this authority on the immigration system and procedural legitimacy.

BACKGROUND

The Refugee Act of 1980 codified eligibility requirements for people physically present in the United States to apply for asylum. The legal criteria for refugee and asylee status are the same, except that refugee applicants apply outside of U.S. borders. To meet this definition, the asylum applicant must show the following: (1) a well-founded fear (2) of persecution (3) on account of race, religion, national origin, membership in a particular social group, or political opinion, or that he or she has experienced such persecution in the past. Of the five protected grounds in the third prong, particular social groups (PSGs) have been the most contentious. The primary federal statute regarding immigration law — the Immigration and Nationality Act (INA) — does not define the qualifications for a PSG. The United Nations ranking body on forcibly displaced persons, the United Nations High Commissioner for Refugees, has described a PSG as “a group of persons who share a common characteristic other than their risk of being persecuted, or who are perceived as a group by society.”3 However, this definition is only international guidance and is non-binding to the U.S. Instead, the seminal 1985 case Matter of Acostahas steered social group jurisprudence in the United States for over two decades. In Matter of Acosta, a Salvadoran national had pleaded guilty to a charge of deportability for entering the U.S. without inspection, but filed a defensive asylum claim before an immigration judge at his removal hearing. The judge denied relief to the respondent (Acosta), finding that he failed to meet his burden of proof. This finding was challenged on appeal to the Board of Immigration Appeals (BIA). Acosta testified that guerrillas had targeted a Salvadoran taxi cooperative, of which he was a manager, after the company refused to participate in work stoppages. The legal question before the BIA was if “taxi drivers and persons engaged in the transportation industry in El Salvador” constituted a particular social group. The precedential decision of the BIA established the immutability component of defining a PSG, stating that members of a PSG share a characteristic that they cannot or should not be required to change. In Acosta, the BIA held that being a taxi driver and refusing to participate in the stoppages were not immutable traits that would qualify them as a particular social group, as drivers could conceivably change professions or cooperate with the guerrilla groups. While Acosta lost on appeal, the BIA explicitly established that sex, color, kinship ties, and sometimes shared past experience, like former military leadership or land ownership, could form the basis for a PSG.4 Notably, the court avoided over-specificity and ordered a case-by-case analysis of future PSG asylum claims. Subsequent rulings have contributed two additional components to accepted particular social group definition: particularity and social distinction. The particularity standard requires a social group’s boundaries to be defined, discrete, and not overly broad. For example, in Matterof S-E-G-, the BIA opined that the respondents’ proposed PSG — “male children who lack stable families and meaningful adult protection, who are from middle and low income classes, who live in the territories controlled by the MS-13 gang, and who refuse

recruitment” — was amorphous and did not meet the particularity standard.5 The third facet, social distinction, requires that an asylum applicant show belonging to a group that is set apart within its society. In Matter of M-E-V-G, the BIA held that applicants must show membership to a PSG that is “perceived within the given society as a sufficiently distinct group.”6 These differentiating characteristics need not be visible and may be “subtle and only discernible by people familiar with the particular culture.”7 Since then, the Ninth Circuit has ruled that the perception of society, not that of the persecutor, is relevant to social group distinction.8 Now that I have provided a brief overview of the relevant asylum law and interpretation, I turn to discussion of the Attorney General’s certification power and the threat it poses to the doctrine of judicial independence and autonomy.

CERTIFICATION POWER OF THE ATTORNEY GENERAL

The Board of Immigration Appeals (BIA) is charged with hearing appeals from decisions by immigration judges and Department of Homeland Security directors. These decisions are binding and administratively final “unless modified or overruled” by the Attorney General or a federal court.9 Federal statute empowers the Attorney General with this power, stating: “The Board [of Immigration Appeals] shall refer to the Attorney General for review of its decision all cases that: The Attorney General directs the Board to refer to him.”10 Historically, the Attorney General has not invoked this “certification” power to refer cases to himself. The Bush administration utilized this process only twice per year, and the Obama presidency saw only four uses in its eight years.11 The Trump administration marked a major break in this tradition: in 2018, then-Attorney General Jeff Sessions certified eight cases to himself in the span of only ten months, with succeeding Attorneys General Matthew Whitaker and William Barr also relying on certification power to overturn BIA decisions.12 The use of certification power, also known as “self-referral power,” reveals serious due process concerns in immigration law — specifically the opportunity to present one’s case before an impartial party. The immigration court system, including immigration judges and the BIA, is housed within the Executive Office for Immigration Review (EOIR), an administrative agency within the Department of Justice. This same department is at the helm of the Attorney General, who is delegated oversight of the immigration court system by Congress. In a nonimmigration law context, the proposition of the Attorney General as both the federal government’s lawyer and the adjudicating judge would be hugely antithetical to the principle of judicial independence. Yet, in the conundrum of immigration law, the Attorney General is empowered to be both prosecutor and judge — an authority that legal practitioners see as a fundamental breach of due process. In 2019, the American Bar Association passed a resolution urging the Justice Department to establish procedural safeguards for the Attorney General’s self-certification power, citing in part concerns of short briefing timelines, certification of issues not on appeal to the BIA, and the lack of opportunities for the relevant

parties, public, and amici— or “friends of the court” — to comment. Ultimately, the American Bar Association urged that certification power be used only sparingly, and only to clarify legal questions after a full administrative review has been conducted by the BIA.13 Federal courts have repeatedly ruled against the substantive outcomes of the Attorney General’s certification power. In Matter of M-S-, Attorney General Barr stated that even asylum seekers who have established a credible fear of persecution or torture were ineligible for release on bond.14 This overturned the decision in Matter of X-K-, in which the BIA ruled that aliens with a positive credible fear determination were entitled to bond hearings under the Immigration and Nationality Act.15 Subsequently, U.S. Senior District Judge Marsha J. Pechman struck down Attorney General Barr’s decision, ruling that the statutory prohibition of bond hearings “violates the U.S. Constitution.”16 More importantly, higher courts have long expressed hesitance of the procedural integrity of the Attorney General interfering in immigration decisions. In United States ex rel. Accardi v. Shaugnessy, the Supreme Court opined, “as long as the regulations remain operative, the Attorney General denies himself the right to sidestep the Board or dictate its decision in any manner.”17 In this case, the petitioner was an Italian national who had entered the U.S. without inspection. He claimed that his application for relief from deportation was prejudiced by the Attorney General’s list of “unsavory characters” containing the petitioner’s name that had been circulated prior to the BIA’s ruling. In sum, rulings from higher courts have rejected both the total plenary power of the Attorney General to rule on immigration matters and the specific outcomes of decisions made in the certification process. This consistent jurisprudence affirms the dangers of allocating both prosecutor and adjudicator power to the Attorney General. Proponents of the Attorney General’s certification power in immigration law assert that it is an efficient tool for rectifying erroneous immigration decisions. Former Attorney General Alberto R. Gonzales of the Bush administration and Patrick Glen, former Senior Litigation Counsel of the Department of Justice, argue that certification power is “an effective conduit for executive branch immigration policy,” characterizing it as one tool in the executive branch’s arsenal of policy mechanisms.18 In an era where congressional stalemate has blocked comprehensive immigration reform for decades, certification power — much like executive orders or memoranda — may seem to be an appealing means of swift policy implementation. A thorough discussion of the politicization of the Justice Department merits its own paper. Briefly, however, Gonzales’ and Glen’s characterization of certification power fails to recognize that the Attorney General is relatively insulated from the legislative resistance that checks the power of the President.19 Unless or until a federal court challenges the decision, the Attorney General’s word is law. At the very least, certification power is an affront to the constitutional principle of checks and balances between the branches of government. It is important to note that the Attorney General’s certification power has been invoked with significant prudence on some occasions. For example, the Obama

administration utilized this power to overturn a prior administration’s BIA precedent only twice, although it used the power for non-precedential purposes other times. For the cases In re Compeanand In re Silva-Trevino, Attorney General Eric Holder sought notice-andcomment input from the public or waited for circuit courts to weigh in before making a decision.20 In the latter case, five circuit courts had rejected previous Attorney General Michael Mukasey’s interpretation of the standard for determining crimes of moral turpitude for aliens. Only after these rulings did Holder rely on certification power to vacate Mukasey’s precedent.21 While some Attorneys General have exercised greater caution by allowing for stakeholder input and deferring to decisions by higher courts, the protections for asylum seekers fleeing persecution ought to be standardized and not subject to the whims of political vicissitudes. I now turn to two particular social groups to understand the effect of certification power on narrowing protections for asylum seekers on the basis of social group status. The two groups in question — gender- and family-based PSGs — were chosen as examples due to ongoing litigation and the frequency of these claims in asylum proceedings.

GENDER-BASED PSGs

Gender identity itself is not a protected ground, and most courts have been hesitant to recognize a gender-based social group because of the widespread nature of gender discrimination. Yet some courts have increasingly embraced recognition of gender-based PSGs, with the Ninth Circuit stating that “women in a particular country, regardless of ethnicity or clan membership, could form a particular social group.”22 As a procedure uniquely experienced by biologically female individuals, female genital mutilation (FGM) has been a critical gateway consideration for courts to establish asylum eligibility on gender-based PSG claims. In Matter of Kasinga, the BIA established the first precedent that women fleeing female genital mutilation could be eligible for asylum. In this case, Fauziya Kassindja had fled her home in Togo at age 17 to escape FGM and a forced polygamous marriage. Kassindja won the case upon appeal in a unanimous decision by the BIA, recognizing “young women of the Tchamba-Kunsuntu Tribe who have not had FGM, as practiced by that tribe, and who oppose the practice” as a particular social group.23 Given that more than 200 million girls and women today have undergone FGM, a more generous posture by the court offered hope to international human rights organizations and advocacy groups fighting against the widely condemned practice.24 18 years later in In re A-R-C-G-, the BIA made a long-awaited decision on another gender-based PSG: women fleeing domestic violence. In the ruling, the BIA held that Guatemalan women unable to leave their marriages constituted a cognizable particular social group, satisfying the immutability, particularity, and social distinction prongs established in cases like Acosta. Notably, the BIA found that individuals in the presented PSG were treated with sufficient distinction in Guatemalan society given limited legal protections, a culture of

machismo and family abuse, and spousal rape.25 This 2014 decision signaled more promising opportunities for survivors of domestic violence to seek asylum in the U.S. Four years later, however, Attorney General Jeff Sessions invoked his certification power and overturned In re A-R-C-G-. The Attorney General described the PSG defined by Guatemalan women unable to leave their marriages as “likely [to] lack the particularity required… given that broad swaths of society may be susceptible to victimization.” The legal question at the fore of domestic violence claims is whether victims actually form a particular group or if they are victims of a particular abuser in highly individualized circumstances. Applying the immutability test from Acosta, in which the BIA expressly mentioned sex, domestic violence PSGs should, at the minimum, be eligible for evaluation on a case-by-case basis. Yet, the Attorney General categorically rejected asylum eligibility, stating: “Generally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum,” followed by a footnote casting doubt on the likelihood that such claims would satisfy the credible fear standard.26 This kind of broadly imposing dicta frequent in both Attorney General Sessions’ and Attorney General Barr’s decisions add additional ambiguity to an already complex area of law. The procedural legitimacy of the Attorney General’s self-referral in Matter of A-B, which overturned the domestic violence PSG precedent, is highly dubious. The aforementioned statute from which certification power is derived stipulates that the Attorney General can direct the immigration appeals court, the BIA, to refer cases to him. However, in Matter of A-B-, the case was still before the immigration judge and not the BIA. In his decision, the Attorney General dismissed this concern about jurisdiction, citing an expansive interpretation of his authority over immigration matters.27 Attorney General Sessions rejected another argument by the respondent that her case would not be heard before an impartial adjudicator because of his prior public statements on immigration policy.28 The Attorney General responds, “If policy statements about immigration-related issues were a basis for disqualification, then no Attorney General could fulfill his or her statutory obligations to review the decisions of the Board.”29 Ironically, this statement actually reinforcesthe illegitimacy of this certification power. To assume that a political appointee who ultimately serves at the pleasure of the president might possess singular authority over legal matters is unfitting for a constitutional republic. In addition to overturning the BIA precedent recognizing domestic violence survivors as a cognizable particular social group, the Attorney General’s finding in Matter of A-Braised the burden in proving private actor harm. An essential element of an asylum seeker’s petition for relief is proving that his or her home government is either culpable for the persecution — for example, if a dictatorial regime imprisons political dissidents — or does not respond to persecution perpetrated by a private actor. In the latter case, historical jurisprudence has interpreted private actor harm in the Immigration and Nationality Act to mean that the home government is “unwilling or unable” to control the private actor persecutor.30 An asylum seeker will have met this burden if, say, she filed police reports of an

extremist group threatening her family on account of their religion but local officials repeatedly refused to investigate. In his Matter of A-B- decision, the Attorney General stated that inaction by local police of an individual crime is not enough to meet the burden from prior precedent, raising the evidentiary bar from “unwilling or unable to prevent” to “condoned the private actions and demonstrated a complete helplessness to protect the victims.”31 Attorney General Sessions decided on a legal question — private actor harm — not even before the BIA, placing into jeopardy every future asylum claim of persecution by a non-government actor. In December 2018, Judge Emmet G. Sullivan of the U.S. District Court for the District of Columbia struck down aspects of the Attorney General’s decision in A-B- that appeared in policy guidance memos. Judge Sullivan’s decision in this case, Grace v. Whitaker, rejected a general rule against domestic violence asylum claims and the elevated standard for private harm cases.32

FAMILY-BASED PSGs

The second particular social group that remains highly contentious in courts and affected by the use of certification power is family-based PSGs. Decades-long jurisprudence from both the BIA and federal courts has accepted the family unit as a particular social group.33 In Matter of L-E-A- (L-E-A- I), the respondent was a Mexican citizen seeking asylum after receiving threats from members of the La Familia Michoacana cartel. The respondent’s father had been approached by cartel members seeking to sell drugs at his neighborhood store. After the father refused, the cartel members confronted the respondent numerous times and asked him to sell drugs at his father’s store on their behalf. Ultimately, the cartel members escalated in violence and tried to kidnap the respondent. The respondent filed an asylum claim based on “the particular social group comprised of his father’s family members.”34 The immigration judge denied asylum, citing the Mexican national’s failure to disprove that the cartel targeted him because they were interested in drug distribution, not in persecuting the family. The BIA dismissed this case upon appeal; however, it established the precedent that an asylum seeker’s immediate family canconstitute a PSG.35 The BIA’s decision in L-E-A- I accompanies a myriad of similar rulings recognizing family ties as a basis for particular social groups.36 Two years later, Attorney General William Barr referred L-E-A- to himself for review and subsequently overturned decades of case law and standing precedent at both the BIA and circuit court levels. The Attorney General applied the three-part PSG test in his analysis (immutability, particularity, social distinction) and ultimately conceded that family-based ties were satisfactorily immutable. However, he argued that “almost every alien is a member of a family of some kind” and that many families were defined too vaguely to qualify as a particular group. Attorney General Barr’s analysis is faulty in that it suggests that a protected ground may be rejected if too widely encompassing. This reasoning is obviously erroneous, as nearly everyone belongs to a nationality, ethnicity, religion, political opinion, etc. Asylum law does

not require an individual to merely show belonging to a protected ground (i.e. race, religion, political opinion, nationality, or PSG) but that the persecution he or she endured was on the basis ofmembership in that group. This is known as the nexus requirement and is frequently the reason that an asylum seeker may belong to, say, an ethnic minority but still be ineligible for asylum. The Attorney General’s use of certification power in family-based PSG cases mirrors its use in gender-based PSG cases. Both instances conflict with the landmark case Matter of Acosta, which explicitly names both gender and kinship ties as valid particular social groups. While precedents are frequently overturned in the judicial system, the ability for the Attorney General to unilaterally change the application and enforcement of law is alarming. Insofar as every other U.S. court of appeals presented with the issue has held that family can constitute a PSG, it is unconscionable that the legal opinion of a single individual can trump established judicial findings.37

IMPLICATIONS

The certification power of the Attorney General exacerbates existing inequalities and legal barriers within the immigration system. Granting asylum relief is discretionary, meaning asylum seekers are highly vulnerable to the volitions of immigration officers and judges. In this section, I will discuss how the Attorney General’s self-referral power jeopardizes asylum seekers’ protections throughout their proceedings. First, individuals who are in expedited removal proceedings — for example, if they have been arrested by Immigration and Customs Enforcement for entering the U.S. without inspection — can apply for defensive asylum.38 Because these asylum seekers are slated for deportation, they must pass a threshold credible fear screening with an asylum officer to qualify for a hearing before an immigration judge.39 To show a credible fear of persecution, an individual must prove a “significant possibility” that he or she can establish having been persecuted or having a well-founded fear of persecution on account of one of the five protected grounds. Invariably, the Attorney General’s decisions in cases he or she has certified will determine whether asylum seekers are even granted an opportunity to appear before a judge. For example, after Attorney General Sessions raised the private actor harm burden in Matter of A-B-, asylum officers concluded that the respondents, who had experienced severe sexual and physical violence in their home countries, did not meet the credible fear threshold. Using his certification power, the Attorney General was able to nullify the original design by Congress: an intentionally low credible fear threshold given the potentially disastrous consequences of deporting a meritorious applicant.40 In Grace v. Whitaker, U.S. District Judge Sullivan agreed that the Attorney General’s new credible fear policies violated the Administrative Procedure Act and the Immigration and Nationality Act, writing, “And because it is the will of Congress — not the whims of the Executive — that determines the standard for expedited removal, the Court finds that those policies [in Matter of A-B- and related Policy Memorandum] are unlawful.”41

Next, the Attorney General’s certification power has eroded the consistent enforcement of law and the autonomy of immigration judges across the country. It is widely known that the single most influential factor in the outcome of an asylum application is the court in which it is presented. In 2018, 70 percent of asylum cases heard in the San Francisco Immigration Court were successful, compared to a staggering 3.2 percent in the Atlanta Immigration Court.42 Scholars have argued that dicta presented by the Attorney General in self-referred cases may embolden judges already predisposed to rejecting asylum applications.43 Set in an existing culture of policing immigration judges’ behavior, including a laborious approval process for speaking engagements and policies against officiating naturalization ceremonies, certification power further demeans the autonomy of lower immigration courts.44 In fact, Attorney General Sessions’ self-certified decision in Matter of Castro-Tumdenied immigration judges the authority to administratively close immigration proceedings, a power that is often employed by judges to manage the overwhelming backlog of cases.45 To give a sense of the magnitude of this backlog, there are over 1.2 million cases currently pending in immigration court.46 The precedential decisions enacted by the Attorney General via certification power contravene the principle of judicial independence outlined in the Immigration and Nationality Act, which states, “immigration judges shall exercise their independent judgment and discretion and may take any action consistent with their authorities… ”47 Finally, self-referral power inflicts further damage on a perennial challenge for asylum seekers: representation. In fiscal year 2020, the percentage of unrepresented asylum seekers rose to 20 percent.48 Given that having legal representation can increase an individual’s chance of winning his or her asylum claim fivefold, the lack of access to legal advice and advocacy can literally determine if an applicant is granted asylum or removed to a country with potentially life-threatening circumstances.49 In the immigration system, legal representation is indeed a zero-sum game with finite resources. When legal practitioners are forced to file lawsuits against the government because of the Attorney General’s injudicious use of certification power, those already sparse resources are expended even more. The notable uses of certification power in the Trump administration should not be disregarded as one-off instances, but rather as a warning of the threats that this ability poses to the neutrality of immigration courts. There has been a troubling trend of Attorneys General invoking certification power in the last months of their term as a final effort to cement their respective administration’s policy platforms.50 Certification power, referred to by a retired immigration judge as “a nuclear option” in the annals of history, simply runs counter to the staid principles born of the Constitution: an independent judiciary, due process protections, and checks and balances.51 To deny asylum seekers, who come ashore the United States fleeing violence, danger, and persecution, a fair shot at presenting their case for relief is antithetical to the very words inscribed on the Statue of Liberty: “give me your tired, your poor, your huddled masses yearning to breathe free.”

Chaelin Jung is a sophomore at Brown University studying Economics and International & Public Affairs.

Notes

1. Mark A. Drummond, “‘Death Penalty Cases in a Traffic Court Setting’: Lessons from the Front Lines of Today’s Immigration Courts,” American Bar Association, last modified January 15, 2019, https://www.americanbar.org/groups/litigation/publications/litigation-news/practice-points/death-penalty-casestraffic-court-setting-lessons-front-lines-immigration-courts/. 2. “Record Number of Asylum Cases in FY 2019,” TRAC Reports, Inc. Syracuse University, last modified January 8, 2020, https://trac.syr.edu/immigration/reports/588/. 3. The United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees (Geneva: UNHCR, 2019), 88. 4. Matter of Acosta, 19 I. & N. Dec. at 233 (B.I.A. 1985). 5. Matter of S-E-G-, 24 I. & N. Dec. at 579 (B.I.A. 2008). 6. Matter of M-E-V-G-, 26 I. & N. Dec. 227 (B.I.A. 2014). 7. Ibid. 8. See Pirir-Boc v. Holder, 750 F.3d 1077 (2014). 9. “Board of Immigration Appeals,” Department of Justice, last modified December 7, 2020, https://www.justice.gov/eoir/board-of-immigration-appeals. 10. 8 CFR § 1003.1 (1958). 11. Melissa Heelan Stanzione, “ABA to Weigh Proposal on AG Powers Over Immigration Appeals,” American Bar Association, last modified August 5, 2019, https://news.bloomberglaw.com/us-law-week/aba-to-weighproposal-on-ag-powers-over-immigration-appeals. 12. Ibid. 13. Ibid. 14. Matter of M-S, 27 I&N Dec. 509 (A.G. 2019). 15. In re X-K-, 23 I&N Dec. 731 (BIA 2005). 16. Padilla v. ICE., Case No. 19-35565 (9th Cir. 2020). 17. "United States ex rel. Accardi v. Shaugnessy." Oyez. Accessed March 1, 2021. 18. Hon. Alberto R. Gonzales and Patrick Glen, “Advancing Executive Branch Immigration Policy Through the Attorney General’s Review Authority,” Iowa Law Review101, no. 841: 897. 19. Bijal Shah, “The Attorney General’s Disruptive Immigration Power,” Iowa LawReview102, no. 129. 20. “In re A-B-,” Harvard Law Review 132, no. 803. 21. Ibid. 22. Perdomo v. Holder, 611 F.3d 662 (9th Cir. 2010). 23. Matter of Kasinga, 21 I. & N. Dec. 357 (BIA 1996). 24. “Female genital mutilation,” World Health Organization, last modified February 3, 2020, https://www.who.int/news-room/fact-sheets/detail/female-genital-mutilation. 25. Matter of A-R-C-G- et al., 26 I&N Dec. 388 (BIA 2014). 26. Matter of A-B, 27 I&N Dec. 316 (A.G. 2018). 27. Ibid. 28. Ibid.

29. Ibid. 30. Immigration and Nationality Act 8 U.S.C. § 101(a)(42). 31. Matter of A-B, 27 I&N Dec. 316 (A.G. 2018). 32. Grace v. Whitaker, 344 F. Supp. 3d 96 (D.D.C. 2018). 33. SeeMatter of Acosta. 34. Matter of L-E-A-, 27 I&N Dec. 40 (BIA 2017). 35. Ibid. 36. See Aldana-Ramos v. Holder, 757 F.3d 9 (1st Cir. 2014); Matter of M-E-V-G. 37. “Matter of L-E-A-,” Harvard Law Review 133, no. 1500 38. The opposite of defensive asylum is affirmative asylum, in which individuals with some sort of legal status (e.g. an F-1 student visa) file an application for asylum. 39. The constitutionality of expedited removal proceedings remains highly litigated, especially in regards to due process protections. 40. Jennifer Chang Newell, “Federal Judge Blocks Trump’s Policy Gutting Asylum for People Fleeing Domestic and Gang Violence,” American Civil Liberties Union, last modified December 19, 2018, https://www.aclu.org/blog/immigrants-rights/federal-judge-blocks-trumps-policy-gutting-asylum-people-fleeingdomestic-and 41. Grace v. Whitaker, 344 F. Supp. 3d 96 (D.D.C. 2018). 42. Christine Natoli, “Family Fleeing: Family Membership as a Basis for Asylum,” University of Pennsylvania Journal of Law & Public Affairs5, no. 3:4. 43. Ibid. 44. Cristian Farias, “The Trump Administration Is Gagging America’s Immigration Judges,” The Atlantic, last modified February 28, 2020, https://www.theatlantic.com/ideas/archive/2020/02/immigration-judges-firstamendment/607195/ 45. Matter of CASTRO-TUM, 27 I&N Dec. 271 (A.G. 2018). 46. “Immigration Court Backlog Tool,” TRAC Reports, Inc. Syracuse University, last modified January 2021, .https://trac.syr.edu/phptools/immigration/court_backlog/ 47. 8 CFR § 1003.10 (2007). 48. “Asylum Denial Rates Continue to Climb,” TRAC Reports, Inc. Syracuse University, last modified October 28, 2020, https://trac.syr.edu/immigration/reports/630/ 49. “Asylum Representation Rates Have Fallen Amid Rising Denial Rates,” TRAC Reports, Inc. Syracuse University, last modified November 28, 2017, https://trac.syr.edu/immigration/reports/491/ 50. Laura S. Trice, “Adjudication by Fiat: The Need for Procedural Safeguards in Attorney General Review of Board of Immigration Appeals Decisions,” New York University Law Review85, no. 1766. 51. Kim Bellware, “On immigration, Attorney General Barr is his own Supreme Court. Judges and lawyers say that’s a problem,” The Washington Post, last modified March 5, 2020, https://www.washingtonpost.com/immigration/2020/03/05/william-barr-certification-power/

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