2020 AILA Conference: Day 3, Session 2: Lessons From Matter of A-B For Aslyum Seekers

[Tsang Intro Splash]

Alright, we are here at day three of AILA’s 2020 conference. This is the first time AILA University is providing these conferences virtually online. I’m watching these videos and then I’m taking the things that I found most helpful and sharing them with you. 

Now, as a quick disclaimer, these are my opinions. Even though I am an AILA member, the opinions expressed in this video cannot be contributed to AILA organization as a whole, nor can they even be contributed to the speakers themselves. These are what I took out of the video and I’m sharing what I thought they say. You can totally download the entire video and watch it from AILA University yourself, and you can fact check what I’m saying.

[0:37] Now, today’s track is all related to removal proceedings and litigation. It is the hottest trend in immigration right now because the [Trump] administration has been strongly opposed to anything immigration-related. So the only way to challenge it is through the courts. There’s a lot of good topics here, and I can’t wait to get started.

Here we are at day three, session two: How to formulate a social group. Now, this isn’t a session about how to make friends. Attorneys are not great at that, typically speaking. This is about asylum. Now, this is a super important presentation. It’s a complete change from last year when I went to the AILA conference. We have some outstanding speakers over here [Jefferey S. Chase, Deborah Anker, Karen Musalo, Evelyn Smallwood], you can see them, and it’s actually a super technical presentation. So if you guys want the in-depth information, please download it from AILA University.

[1:23] Now, this is actually an extension of what happened last year. Last year at the AILA conference, the Matter of A-B dropped like a bombshell, and everybody at the conference was super sad and pissed off at the same time. As a quick background, why is it important to know how to formulate a particular social group? Well, that is a key element, that’s the first element, to claim asylum in the United States. You need to prove that you are a particular social group that is being discriminated against, that’s being harmed, and that the second prong, that the government is not able to help you. The government, the country that you’re in, is not able to help you. And that’s why you need to lean on the shoulders of the United States, and the United States will be able to get you a green card and protect you because that’s what the United States stands for. We are here to provide shelter for all people all across the world. It’s a great humanitarian nation, but last year, things just got a lot more difficult.

[2:16] Now, before we dive into the Matter of A-B, the bombshell that dropped last year, let’s take a step back and think about the public policy as a whole. As a country, we do want to help people from all nations if they cannot help themselves, and we want to protect them. And we grant asylum. That field of law is in place, and that makes sense. We were a country founded by immigrants, and we want to help people, right? Alexander Hamilton, we do want to welcome people who are in desperate need, and they potentially do help us back.

Now, how far does that extend? Do we want to help everyone? So when anybody hits a hard time, they’re discriminated against, there’s a police report that’s filed, and suddenly they can come to the U.S. and get a green card? Or do we want to only help certain groups of people that have been marginalized and are the most severe? Then we will help them.

[2:59] Last year, June 2019, the Matter of A-B answered that question specifically and dropped a bombshell, overturning approximately 40 years of asylum case law. Essentially saying, now if you are in fear of gang violence and domestic abuse, you no longer can claim asylum in the United States because domestic violence is very individualistic. It’s not a particular social group. That’s something that the courts and the laws in that country need to deal with. The United States is not going to protect all families from everywhere. Makes sense, right?

The problem is, a lot of countries around the world do not have sophisticated domestic abuse hotlines and laws in place that protect against these types of things. Genital mutilation, they don’t… Women are treated as property. It’s really, really sad. And the victims of these abuses don’t have anywhere to turn. And so historically, the United States has welcomed these individuals who are suffering this type of abuse to leave their home country, to come here, and start a new life. As a superpower of the world trying to spread democracy and freedom and help all mankind, if we see a whole group of people suffering like that, in the past 40 years, we welcome them, we help them. It is literally carved into the Statue of Liberty. And the Matter of A-B changed all of that last year. I was on the second row. I saw the expressions on the people’s faces, the groans in the room. It was terrible. But a lot has changed since June of last year. AILA has been fighting really hard, and here are some of the key updates regarding the Matter of A-B.

[4:25] Victory number one: Grace vs Whiticure. This is a DC court case basically overturning Matter of A-B. Essentially, the final ruling is that the Matter of A-B rule cannot be applied categorically to everyone else, to every situation. It would basically be rewriting asylum law if it did that. It argued that it’s arbitrary and capricious and it heightened the level of asylum applications. And what that means is now the government is going to come up with non-exhaustive lists of claims that are not going to be highly favorable. Like if you’re a black converse shoe-wearing type, well, that’s not a particular social group. Or you own a property that’s less than 900 square feet. Well, that’s not a particular social group. They’re going to come up with these lists, and those categories are not going to be favorable unless you have a really strong claim to prove it. So the war is not entirely lost. Yes, it’s gotten more difficult. Yes, there’s a bad ruling on one side saying family domestic abuse is not okay. But now it’s saying no, that’s arbitrary. And there are really key elements, and if you can prove those key elements, then you are a particular social group and you are able to still file your asylum claim.

[5:31] And we’re just talking about filing the claim here. We’re not even talking about winning the claim because there’s so many other prongs that you need to prove in order to win your asylum application. But right now, people who have been oppressed, they can’t even file because the government’s just directly rejecting it because you’re not a particular social group. You have to very clearly identify what group you are that’s being oppressed, why your government can’t help you, and why we should accept you, etc., etc.

Now, the speakers went super in-depth talking about gender, land ownership, and all these other case laws that tie in with it. I’m not going to go into that summary here, but it’s super interesting. If you want to download that video to watch, I just want to take you back one step and talk about more so the practice pointers, as attorneys, as clients who are seeking asylum, what do you do now, right?

[6:14] So some of the practice pointers are that since this application, you have to identify the particular social group right at the beginning. You cannot amend it later on. That’s a huge change. You need to do it right in the beginning. So just do everything you can. This is just like what we learned in law school. So just throw in the entire basket of claims. You’re discriminated because of your looks, because of your gender, because of your height, because of your land ownership, because of your lack of land ownership, because of your caste, because of your social particular group that you’re part of, because of your beliefs, because of your lack of beliefs. Throw in everything. And this is where social scientists are super important. If you study anthropology, if you study history, if you study social sciences and psychology, these professors, if they study discrimination, if they’re able to provide an expert testimony, an expert opinion letter regarding this position, it will strongly help your case.

[7:03] And the second point is these immigration judges are not trained in any way, shape, or form regarding immigration law. That might be shocking, but that is the case. These are appointed by the administration. They have slightly a background that’s bent against immigration. They certainly don’t know much about asylum specifically, other than the key ideas. And so when you’re talking about a particular social group, they don’t know the precedent, and all these presidents are coming out just right now. So as the attorney, as the client, when you’re making this claim, you have to go in-depth talking about the legal basis of your claim and why this makes good public policy sense. And you have to really do extra work to persuade them because you cannot assume they know immigration law, nor can you assume that they are even on your side.

[7:48] Now, asylum law has a really special place in my heart because I studied under Judge Einhorn at Pipeline Law School, and he is arguably the modern founder of the asylum law, having practiced as an asylum judge for like 16-17 years, and he has a really tremendous heart for the asylum law and the spirit of the law, and it’s just so sad seeing how it has changed this past year alone.

But all hope is not lost. Maybe the current administration and a few immigration judges put in place have a slight bent against asylum seekers and the particular social groups. But if you mount a strong enough case, if you do a good job as an attorney and the clients themselves, yes, it’s a little harder, but you can still win it. It just takes that extra effort, and everybody really needs to team up together to make these claims stronger and not as simple as it was. Maybe, you know, instead of a 20-page application, you need to mount like a 200-page application, but it is worth the time to do it.

And what AILA has done in this past year alone, seeing how the attorneys get together and fight against the Matter of A-B, is a testament that this can be won, and we need to stick together. And if you have any good arguments and ideas, please share with each other. It’s super important to stay connected with AILA so that we can win this together. It’s not just about our individual clients’ cases. It’s really about how to make America great. And that’s a wrap for day three, session two.

[9:09] Besides this video, we’re also very active on Instagram, Facebook, LinkedIn, and we’re trying to put out content that’s appropriate to those mediums. Now, if you like this video, you might like some of the things that we’re posting on there as well. Feel free to engage with us there. Now after today’s session, we’re also doing one more session tomorrow and it’s a really big session because we’re going to hear the big leaders and what they have to say. And then after this series is done, the AILA conference, I’m going to go through and teach immigration law and go through every single nuance that you would you might want to learn. So if you like this kind of stuff, feel free to like and subscribe below. I’d love to engage with you.

Thank you. Bye-bye.