Brief (2018-11-09)

Date: 2018-11-09

Summary

Brief of Amici Curiae Former Immigration Judges & Former Members of the Board of Immigration Appeals in Support of Plaintiffs, filed June 7, 2023 as Document 172 in East Bay Sanctuary Covenant, et al. v. Joseph R. Biden, et al., Case No. 4:18-cv-06810-JST, in the U.S. District Court for the Northern District of California. The amici ask the court to strike down the Circumvention of Lawful Pathways Rule, 88 Fed. Reg. 31314 (May 11, 2023). The brief argues that the Rule creates a near-complete bar to asylum at the border, abrogates Congress' asylum scheme, will prolong cases and complicate the role of immigration judges, and runs afoul of international law. It cites 8 U.S.C. § 1158 and the 1951 Refugee Convention. Appendix A lists the former immigration judges and Board members who join the brief.

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Case 4:18-cv-06810-JST Document 172 Filed 06/07/23 Page 1 of 19

1 AKIN GUMP STRAUSS HAUER & FELD LLP
ASHLEY VINSON CRAWFORD (SBN 257246)
2 100 Pine Street, Suite 3200
San Francisco, California 94111
3 Telephone: 415-765-9500
Facsimile: 415-765-9501
4 E-mail: avcrawford@akingump.com
5 Counsel for Amici Former Immigration Judges &
Former Members of the Board of Immigration Appeals
6

8
UNITED STATES DISTRICT COURT
9
NORTHERN DISTRICT OF CALIFORNIA
10

11 East Bay Sanctuary Covenant, et al., Case No.: 18-cv-06810-JST
12 Plaintiffs, BRIEF OF AMICI CURIAE
FORMER IMMIGRATION JUDGES &
13 v. FORMER MEMBERS OF THE BOARD OF
14 IMMIGRATION APPEALS IN SUPPORT OF
Joseph R. Biden, et al., PLAINTIFFS
15
Defendants. Judge: Hon. Jon S. Tigar
16 Trial Date: None
Action Filed: November 9, 2018
17

BRIEF OF AMICUS CURIAE FORMER IMMIGRATION JUDGES &
FORMER MEMBERS OF THE BOARD OF IMMIGRATION APPEALS CASE NO. 18-CV-06810-JST
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1 TABLE OF CONTENTS
2 STATEMENT OF INTEREST OF AMICI CURIAE ............................................................................ 1
3 INTRODUCTION .................................................................................................................................. 2
4 ARGUMENT .......................................................................................................................................... 3
5 I. The Rule Creates a Near-Complete Bar to Asylum for Those Seeking Asylum
Protections at the Border. ................................................................................................ 3
6
II. The Rule’s Elimination of Nearly All Asylum Relief Arbitrarily Abrogates
7 Congress’ Longstanding Asylum Scheme, Undermining the Integrity of
the Asylum Adjudication Process. .................................................................................. 5
8
III. The Rule Will Prolong Cases and Complicate the Role of Immigration
9 Judges in Subsequent Proceedings................................................................................ 10
10 IV. The Rule Runs Afoul of International Law. ................................................................. 12
11 CONCLUSION ..................................................................................................................................... 13
12 APPENDIX A Former Immigration Judges and Members of the Board of Immigration Appeals ..... 14
13

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1 TABLE OF AUTHORITIES
2 Page(s)
3 Cases
4 Matter of A-M-E & J-G-U-,
5 24 I&N Dec. 69 (BIA 2007) ................................................................................................................ 9

6 Matter of Acosta,
19 I&N Dec. 211 (BIA 1985) .......................................................................................................... 8, 9
7
Alquijay v. Garland,
8 40 F.4th 1099 (9th Cir. 2022) .............................................................................................................. 4
9 Matter of C-A-,
23 I&N Dec. 951 (BIA 2006) .............................................................................................................. 9
10

11 INS v. Cardoza-Fonseca,
480 U.S. 421 (1987) ....................................................................................................................... 8, 12
12
Kone v. Holder,
13 596 F.3d 141 (2d Cir. 2010)................................................................................................................. 4
14 Lauritzen v. Larsen,
345 U.S. 571 (1953) ........................................................................................................................... 12
15

16 Matter of M-E-V-G-,
26 I&N Dec. 227 (BIA 2014) .............................................................................................................. 9
17
MacLeod v. United States,
18 229 U.S. 416 (1913) ........................................................................................................................... 12

19 Murray v. Schooner Charming Betsy,
6 U.S. (2 Cranch) 64 (1804)............................................................................................................... 12
20

21 Statutes

22 8 U.S.C. § 1158 ...................................................................................................................................... 4, 6

23 8 U.S.C. § 1225 .......................................................................................................................................... 6

24 8 U.S.C. § 1229(a) ..................................................................................................................................... 6

25 8 U.S.C. §1362 ........................................................................................................................................... 6

26 INA § 208(a)(2)(B) ................................................................................................................................ 4, 5

27 INA § 235 .............................................................................................................................................. 3, 6

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1 INA § 240 .................................................................................................................................... 2, 6, 7, 11
2 Pub. L. No. 96-212, 94 Stat. 102 (1980) .................................................................................................. 12
3 Other Authorities
4 8 C.F.R. § 235.3 ......................................................................................................................................... 3
5 8 C.F.R. §1003.42 ...................................................................................................................................... 8
6 8 C.F.R. §1208.13 ...................................................................................................................................... 4
7 8 C.F.R. § 1208.18(a)(1) .......................................................................................................................... 11
8 8 C.F.R. § 1240.3 ....................................................................................................................................... 6
9 88 Fed. Reg. 31314 (May 11, 2023) ............................................................................................ 1, 2, 3, 10
10 142 Cong. Rec. S11491-02 (daily ed. Sept. 27, 1996) (statement of Sen. Hatch) ..................................... 7
11 American Immigration Council & National Immigrant Justice Center, The Difference
Between Asylum and Withholding of Removal (Oct. 2020) ............................................................... 10
12
Black’s Law Dictionary ............................................................................................................................. 4
13
Convention Relating to the Status of Refugees, art. 1, July 28, 1951, 189 UNTS 137 ........................... 13
14
H.R. Rep. No. 104-469, Pt. 1 (1996) ......................................................................................................... 7
15
Human Rights First, Pretense of Protection: Biden Administration and Congress Should
16 Avoid Exacerbating Expedited Removal Deficiencies (Aug. 2022) .................................................... 5
17
Fatma E. Marouf, Becoming Unconventional: Correcting the 'Particular Social Group’
18 Ground for Asylum, N.C. J. Int’l Law, Summer 2019 ......................................................................... 9

19 Fatma E. Marouf, The Emerging Importance of “Social Visibility” in Defining a
“Particular Social Group and Its Potential Impact on Asylum Claims Related to
20 Sexual Orientation and Gender, 27 Yale L. & Pol’y Rev. 47 (2008) ................................................. 9
21 Merriam-Webster Dictionary ..................................................................................................................... 4
22 Victoria Nielson et al, Asylum Manual, Immigration Equality ............................................................... 11
23
S. Rep. No. 96-256 (1979), reprinted in 1980 U.S.C.C.A.N. 141 ........................................................... 12
24
U.N. Refugee Agency, Handbook on Procedures and Criteria for Determining Refugee
25 Status and Guidelines on International Protection (2019) .......................................................... 12, 13

26 U.S. Citizenship and Immigration Services, Questions & Answers: Credible Fear
Screening (Updated May 11, 2023) ............................................................................................. 6, 7, 9
27

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1 STATEMENT OF INTEREST OF AMICI CURIAE
2 Amici curiae are former immigration judges and former members of the Board of Immigration
3 Appeals (“BIA” or the “Board”), listed in Appendix A, with substantial, combined years of service and
4 intimate knowledge of the U.S. immigration system. Amici seek to illuminate for this Court the role of
5 the immigration courts in reviewing claims for asylum and other forms of human rights protection at
6 the border. Circumvention of Lawful Pathways Rule, 88 Fed. Reg. 31314 (May 11, 2023). The Rule
7 challenged by Plaintiffs severely compromises these protections, which are required by U.S. and
8 international law.
9 Amici filed comments to the Notice of Proposed Rulemaking that led to the publication of the
10 Rule at issue in the Complaint. They are invested in the issues presented by Plaintiffs because they have
11 dedicated their careers to improving the fairness and efficiency of the U.S. immigration system, even
12 after departing from the bench. Given amici’s familiarity with the procedures and realities of the
13 immigration adjudication system, amici respectfully submit that this Court should find the Rule is
14 unlawful. This brief is filed with permission of all parties, as reflected in the Court’s May 24, 2023
15 Order re: Joint Stipulation and Proposed Schedule.
16

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1 INTRODUCTION
2 As former immigration judges and former members of the Board, we submit this amicus brief to
3 ask the Northern District of California to strike down the Circumvention of Lawful Pathways Rule, 88
4 Fed. Reg. 31314 (May 11, 2023). The Rule, which came into effect in the immediate aftermath of Title
5 42’s sunset and which applies to non-Mexican asylum-seekers at the U.S.-Mexico border, automatically
6 forecloses a migrant’s asylum claim unless the person (i) arrives at an official port of entry having
7 secured an immigration appointment through a complex mobile application, (ii) receives advance
8 permission to travel to the U.S., or (iii) comes to the U.S. after applying for and being denied asylum in
9 a transit country. Absent proof one of these narrow exceptions or a medical or other emergency,
10 asylum-seekers will be unable to seek asylum regardless of whether they have compelling claims to
11 relief.
12 Immigration judges serve an important role in the Congressionally-mandated process for
13 reviewing the claims of asylum-seekers at or near the U.S.-Mexico border. This decades-old process,
14 known as Expedited Removal, has its own flaws, but it does provide a credible fear review system that
15 provides important protections for those seeking asylum. Specifically, and as explained in more detail
16 below, the Expedited Removal statute requires that asylum-seekers, regardless of how they entered the
17 United States, be interviewed by asylum officers to determine whether they have a credible fear of
18 persecution and therefore can proceed to a full asylum hearing under Section 240 of the INA. The
19 statute further mandates that immigration judges provide de novo review of asylum officers’ negative
20 credible fear determinations, and thus make the final decision about whether an asylum-seeker at the
21 U.S.-Mexico border has shown a credible fear of persecution and will have the opportunity to progress
22 to a full asylum hearing.
23 The Rule unlawfully undermines this statutory scheme. First, the Rule creates clear bars to
24 asylum for most migrants, disingenuously labeling these as “rebuttable presumptions.” As a result,
25 almost all claims for asylum are pretermitted without the full asylum credible fear interviews required
26 by the statutory Expedited Removal process. Rather, the credible fear interview will be turned into a
27 “reasonable fear” interview to determine whether the migrant can proceed to claim withholding of
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1 removal or protection under the Convention Against Torture (“CAT”), lesser forms of relief compared
2 to asylum. Asylum-seekers are thus denied the opportunity to obtain full review of their asylum
3 credible fear claims, including the de novo review by an immigration judge as required by Section 235
4 of the INA, 8 C.F.R. § 235.3. Instead, asylum-seekers may only seek review from an immigration judge
5 as to the application of the narrow exceptions under the Rule or the lesser claims for relief.
6 Accordingly, the Rule significantly and unlawfully curtails the role of immigration judges in asylum
7 adjudication as set forth in the INA.
8 Moreover, the idea that the Rule heightens efficiency in the asylum adjudication process is an
9 illusion. When an asylum-seeker is denied the ability to provide a credible fear of persecution,
10 Expedited Removal still requires a review of potentially more complicated claims for withholding of
11 removal and protection under the CAT. Thus, immigration judges on the one hand find their hands tied,
12 unable to review the claims of bona fide asylum-seekers, but on the other hand are required to delve
13 into the standards of withholding and CAT. Thus, the Rule turns a straightforward (and efficient)
14 asylum credible fear review into a three-part analysis: the Rule exceptions, withholding, and CAT.
15 Finally, by creating exclusions that deny asylum to refugees who appear at the U.S.-Mexico
16 border, the Rule violates U.S. obligations under the 1951 Refugee Convention. Longstanding canons of
17 statutory and regulatory construction require consideration of international law; in this case, the Rule
18 violates both the INA and international law.
19 ARGUMENT
20 I. The Rule Creates a Near-Complete Bar to Asylum for Those Seeking Asylum Protections at
the Border.
21

22 The Rule creates an absolute bar to asylum for the vast majority of migrants notwithstanding its
23 framing it as a “rebuttable presumption.” Circumvention of Lawful Pathways Rule, 88 Fed. Reg. 31314
24 (May 11, 2023). Labeling the bar to asylum as a presumption is disingenuous, as these are in fact
25 insurmountable obstacles for nearly all asylum-seekers.
26 First, it is important to distinguish a “rebuttable presumption” from a “bar,” which are terms
27 different in definition, but both commonly and distinctly used in asylum law and procedure. A
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1 rebuttable presumption is defined as a legal assumption that parties can dispute through the introduction
2 of evidence. Rebuttable Presumption, Black’s Law Dictionary (Online Edition). A presumption is “an
3 attitude or belief dictated by probability; a legal inference as to the existence or truth of a fact…drawn
4 from the known or proved existence of some other fact.” Presumption, Merriam-Webster Dictionary
5 (Online Edition). For the Rule to stand as a rebuttable presumption, it must flow from established facts.
6 Indeed, U.S. asylum law contains several presumptions in the context of common factual scenarios. For
7 instance, an asylum applicant who has suffered persecution in the past is entitled to a presumption that
8 she will face persecution in the future. 8 C.F.R. §1208.13(b)(1). That presumption can be rebutted by
9 evidence that the applicant can now live safely in her home country because, for example, the
10 government who persecuted her is no longer in power.1 Similarly, a refugee who fears persecution by
11 his government is entitled to a presumption that relocation within his country of origin would not be
12 safe. 8 C.F.R. 1208.13(b)(3)(ii). The government may rebut this presumption by offering evidence that
13 parts of the country are safe for relocation – for instance, that an opposition force securely controls that
14 part of country. These presumptions logically follow from the facts underlying them. For example, the
15 fact of actual past persecution can lay a foundation of fear for future persecution, and when an applicant
16 fears persecution from her government, she is likely to face persecution anywhere in that state’s
17 territory.
18 What the Rule calls a presumption is, in fact, a bar to asylum. A bar is “that which defeats,
19 annuls, cuts off, or puts an end to.” Bar, Black’s Law Dictionary (Online Edition). Asylum law contains
20 many bars duly enacted through the INA. For example, INA Section 208(a)(2)(B) states that a migrant
21 cannot apply for asylum more than one year after arrival in the United States. 8 U.S.C. § 1158(a)(2)(B).
22 This one-year filing bar contains exceptions for changed or extraordinary circumstances, but the
23 exceptions do not turn the bar into a presumption. 8 U.S.C. § 1158(a)(2)(D); see Alquijay v. Garland,
24

25
1
26 To satisfy this threshold, the government must prove by a preponderance of the evidence that
the changed conditions they proffer to rebut the presumption of persecution “obviate the risk to life or
27 freedom related to the original claim[.]” Kone v. Holder, 596 F.3d 141, 149 (2d Cir. 2010) (internal
quotation marks omitted).
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1 40 F.4th 1099, 1102 (9th Cir. 2022) (describing the one-year filing deadline as a “bar” to which
2 “exceptions” may apply).
3 There is no presumption to rebut in the Rule. It is a bar with very limited exceptions. Unlike the
4 presumptions based on past persecution and government action, there is no intrinsic connection
5 between the failure to book an immigration appointment through a complex digital application or the
6 lack of advance “permission” to travel to the U.S. to seek asylum, on the one hand, and the lack of a
7 cognizable claim under U.S. asylum law, on the other. Rather, the Rule’s design resembles the one-year
8 application bar codified in Section 208(a)(2)(B). As demonstrated in the context of the Section
9 208(a)(2)(B) carve-out, the existence of exceptions to a bar does not defeat the fundamental nature of
10 the regulation as a bar.
11 The distinction between a rebuttable presumption and a bar matters. To characterize the Rule’s
12 central element as a rebuttable presumption obscures its insidious power to deny relief to asylum-
13 seekers with valid compelling claims. In reality, the Rule is a bar that eviscerates the statutory process
14 for asylum claims at the U.S.-Mexico border.
15 II. The Rule’s Elimination of Nearly All Asylum Relief Arbitrarily Abrogates Congress’
Longstanding Asylum Scheme, Undermining the Integrity of the Asylum Adjudication
16 Process.
17 By creating near absolute bars to asylum in the guise of rebuttable presumptions, the Rule tries
18 to hide its radical and unlawful revision of the INA’s statutory process for evaluating asylum claims at
19 the border. This Expedited Removal process, severely flawed as it might be,2 reflects Congress’
20 judgment on how to balance the nation’s commitment to asylum with the desire to keep our
21 immigration system efficient and fair. The Expedited Removal process provides a system for fair
22 evaluation of each asylum-seeker’s claim to protection, including the important backstop that
23 immigration judges serve as the final reviewers in the asylum credible fear process. The Rule
24 eviscerates the Expedited Removal process and will result in the denial of protection to many legitimate
25 asylum-seekers, who could otherwise find refuge in the system Congress created for them.
26 2
See, e.g., Human Rights First, Pretense of Protection: Biden Administration and Congress
27 Should Avoid Exacerbating Expedited Removal Deficiencies (Aug. 2022),
https://humanrightsfirst.org/wp-content/uploads/2023/01/PretenseofProtection-21.pdf.
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1 The Immigration & Nationality Act includes two types of proceedings to evaluate claims for
2 asylum. Full adjudication of an asylum claim is conducted via removal proceedings under Section 240
3 of the INA. 8 U.S.C. § 1229(a). Section 240 proceedings, which are presided over by immigration
4 judges, provide due process for the asylum-seeker, who has a full panoply of rights, including the right
5 to have a lawyer to present her claims.3 In 1996, Congress created an exception to Section 240
6 proceedings, allowing the Executive Branch (then via the Immigration & Naturalization Service, now
7 via the Department of Homeland Security (“DHS”)) to use truncated proceedings under Section 235 of
8 the INA, commonly called Expedited Removal, applicable to migrants who are arriving at the border or
9 who recently entered the United States (virtually the same population targeted by the Rule).4
10 When DHS elects to proceed under Section 235, it may remove migrants who arrive at a U.S.
11 port of entry “without further hearing or review” if those individuals are undocumented or use
12 misrepresentation or fraud to attempt to enter into the U.S. However, Congress included important
13 protections in the Expedited Removal process in an effort to ensure that bona fide asylum-seekers are
14 not removed without an opportunity to proceed through full Section 240 proceedings.5 The protections
15 of Expedited Removal, including interviews by asylum officers and de novo review by immigration
16 judges, apply to a person requesting protection regardless of whether the migrant arrived in the U.S. at
17 an official port or by other means. 8 U.S.C. §§ 1225, 1158(a)(1).
18 If the Executive Branch opts to apply Expedited Removal proceedings to an asylum-seeker
19 under Section 235, it is required to interview that person to determine whether she has a credible fear of
20 persecution or torture on the basis of race, religion, nationality, membership in a particular social group,
21 or political opinion.6 INA § 235(b)(1); 8 U.S.C. §§ 1225, 1158(a)(2)(A). If the migrant cannot show a
22 credible fear of persecution (i.e., the basis for asylum), the review process may then also include claims
23
3
8 U.S.C. §1362; 8 C.F.R. § 1240.3.
24 4
U.S. Citizenship and Immigration Services, Questions & Answers: Credible Fear Screening
(Updated May 11, 2023) (“USCIS Credible Fear Screening Q&A”),
25 https://www.uscis.gov/humanitarian/refugees-and-asylum/asylum/questions-and-answers-credible-fear-
screening.
26 5
If an asylum-seeker were to be afforded an asylum hearing in Section 240 proceedings, the
27 Rule would still apply the same bars to asylum.
6
See also USCIS Credible Fear Screening Q&A.
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1 for withholding of removal and protection under CAT. These credible fear determinations involve a
2 two-step administrative process, critical to vindicating the full force of the INA, in which immigration
3 judges play a central role. First, the migrant interviews with an asylum officer, who makes an initial
4 credible fear determination. If the asylum officer does not find that the asylum-seeker credibly fears
5 persecution, the asylum-seeker can request that an immigration judge review the officer’s decision.
6 Only when the migrant does not ask for an immigration judge to review their case, or when the
7 immigration judge agrees with the asylum officer that no credible fear exists, may ICE then remove the
8 person from the U.S. However, if the asylum-seeker asks for an immigration judge’s review and the
9 judge finds a credible fear, the individual may seek asylum in full Section 240 proceedings. See USCIS
10 Credible Fear Screening Q&A.
11 To establish a credible fear of persecution, the asylum-seeker must demonstrate to the asylum
12 officer a “significant possibility” that, in Section 240 proceedings, she could convince an immigration
13 judge that she has been persecuted, or has a well-founded fear of persecution “on account of his or her
14 race, religion, nationality, membership in a particular social group, or political opinion if returned” to
15 their country of origin. See USCIS Credible Fear Screening Q&A.7 Congress designed this standard as
16 a “low screening standard for admission into the usual full asylum process.” 142 Cong. Rec. S11491-02
17 (daily ed. Sept. 27, 1996) (statement of Sen. Hatch). In adopting the option of Expedited Removal,
18 Congress emphasized that “there should be no danger that an alien with a genuine asylum claim will be
19 returned to persecution.” H.R. Rep. No. 104-469, Pt. 1, at 158 (1996).
20 Through this statutory scheme, Congress allowed the Executive to screen out fraudulent asylum
21 claims, but instructed it to use a “low screening standard” for the Credible Fear Determination process
22 to protect asylum-seekers. Congress gave no authority to eliminate paths to relief and deny asylum to
23 those who seek it under a legitimate threat of persecution or torture. The Rule clashes with
24 Congressional intent by imposing arbitrary requirements on broad categories of people, excluding them
25 from relief regardless of whether their asylum claims are worthy of relief. An asylum-seeker who can
26 7
Alternatively, to establish a credible fear of torture under CAT or for persecution under
27 withholding of removal, a migrant must show under the same standard a “significant possibility” that
they will endure torture if returned to their country of origin.
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1 establish before an asylum officer or immigration judge that she faces the fear of murder in her country
2 of origin on the basis of her race, for example, would be barred from relief if she simply did not find a
3 way to present that claim via the new, narrow exceptions to the Rule’s ban. If she doesn’t have access
4 to the right kind of mobile phone to download the CBP One application? Too bad. If she cannot
5 understand and navigate that application and make the appointment? Too bad. If she didn’t apply for
6 asylum as she fled through a foreign country, even if that country offered no notice, assistance, or
7 accessible process for asylum? Too bad. If she simply didn’t know these new rules as she fled for her
8 life? Too bad. Nothing in the Expedited Removal scheme contemplated these arbitrary hurdles. The
9 Rule runs afoul of the INA by creating these unprecedented bars.
10 Even as it stands, Expedited Removal is a complicated process for asylum-seekers. This
11 procedural complexity makes the role of immigration judges as the last reviewer in Expedited Removal
12 even more important. Immigration judges are the last chance for an asylum-seeker to have her claim
13 considered during this process, if the asylum officer has not found a credible fear. 8 C.F.R.
14 §1003.42(a).8 Immigration judges are given the authority to consider any relevant statement – written
15 or oral – and evaluate the applicable law as the Court hears the credible fear claim de novo. 8 C.F.R.
16 §1003.42(c), (d). This role is not ministerial, by any means. The immigration judge must weigh the
17 facts and complex legal questions, such as whether a “particular social group” meets the “particularity”
18 and “socially distinct” thresholds, or whether the migrant has proven that they face a “significant
19 possibility” of persecution or torture. Matter of Acosta, 19 I&N Dec. 211, 233 (BIA 1985), overruled in
20 part on other grounds by INS v. Cardoza-Fonseca, 480 U.S. 421 (1987).
21 In the decades since the INA’s enactment, changes in asylum law have made the evaluation of
22 asylum claims at the border far more fact-intensive and legally complicated. Three decades ago, the
23
8
24 Immigration judges serve as an important check on the initial determination conducted by the
asylum officer. As of February 2023, in just over 25% of cases that have reached immigration judges
25 since 1998, the immigration judge overturns the initial decision of the asylum officer who found no
credible fear, paving a potential path toward relief for asylum-seekers. Since 100,000 migrants have
26 had a credible fear hearing before an immigration judge since 1998, these reversals out of the expedited
removal process have created the possibility of a potentially life-saving outcome for more than 25,000
27 migrants.

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1 typical “asylum-seeker” was a political activist fleeing their country out of fear of persecution. Now,
2 through the development of the law, especially interpretations of the term “particular social group,”
3 asylum may be available to people persecuted for many reasons, including gang violence and domestic
4 violence.9
5 Because the law has begun to recognize a path toward asylum relief for more groups, courts had
6 to develop additional requirements to account for new circumstances giving rise to asylum relief. By
7 way of illustrative example, if an asylum-seeker claims that they have a credible fear of persecution
8 based on their membership in a particular social group, she must prove not only a fear of persecution,
9 but three different elements to show a qualifying particular social group. First, the migrant must show
10 that the particular social group shares a common, immutable characteristic. Matter of Acosta, 19 I&N
11 Dec. at 233. Second, the migrant must satisfy the “particularity” requirement: the identified group must
12 have clearly-defined boundaries. Third, the group must be “socially distinct” in that society at large
13 must recognize the group as such. Matter of M-E-V-G-, 26 I&N Dec. 227, 237 (BIA 2014).
14 The BIA added the second and third of these requirements in 2006 and 2007, respectively, a
15 decade or longer after Congress created the credible fear process. See Matter of C-A-, 23 I&N Dec. 951,
16 957 (BIA 2006); Matter of A-M-E & J-G-U-, 24 I&N Dec. 69, 71 (BIA 2007). And in practice, these
17 elements often require immigration judges to consider country conditions evidence that are often not
18 yet available to the migrant at the credible fear stage. Indeed, these standards have spawned significant
19 amounts of litigation seeking clarity on the meaning of these terms.10
20 When determining whether to grant asylum after making a finding of credible fear, an asylum
21 officer or immigration judge must also consider potential bars to asylum relief, including whether the
22 individual persecuted others on protected bases, whether the individual has been found guilty of a
23 “particularly serious crime,” and whether there are reasonable grounds to believe that the asylum-
24 seeker poses a threat to American national security. See USCIS Credible Fear Screening Q&A.
25 9
See Fatma E. Marouf, The Emerging Importance of “Social Visibility” in Defining a
26 “Particular Social Group and Its Potential Impact on Asylum Claims Related to Sexual Orientation
and Gender, 27 Yale L. & Pol’y Rev. 47 (2008).
10
27 See Fatma E. Marouf, Becoming Unconventional: Correcting the 'Particular Social Group’
Ground for Asylum, N.C. J. Int’l Law, Summer 2019.
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1 Under the Rule, both asylum officers and immigration judges are now prohibited from
2 evaluating these complex issues of fact and law, as Congress intended when it created Expedited
3 Removal. Instead of considering a full claim for credible fear, they are simply to examine whether the
4 asylum-seeker booked an appointment via the CBP One app or was denied asylum in Mexico, or
5 otherwise fit into an exceedingly narrow exception to the Rule. The important statutory roles asylum
6 officers and immigration judges are intended to serve in evaluating asylum claims in the Expedited
7 Removal process are now severely diminished.
8 III. The Rule Will Prolong Cases and Complicate the Role of Immigration Judges in Subsequent
Proceedings.
9

10 The government seeks to justify the Rule as a mechanism of efficiency, and while it is indeed
11 brutally efficient in sweeping away the ability of bona fide refugees to seek asylum at the U.S.-Mexico
12 border, it in fact makes Expedited Removal and later proceedings more complicated. While the Rule all
13 but eliminates asylum at the U.S.-Mexico border, it does not touch the potential forms of relief of
14 withholding of removal and protection under CAT, as explained supra at 7. Both withholding of
15 removal and CAT protection require higher thresholds of proof as compared to asylum claims, and they
16 confer insufficient relief on migrants who should be able to pursue asylum claims and obtain the
17 benefits thereof.11 Accordingly, the idea that the Rule will mean the “swift returns” of migrants who do
18 not meet its qualifications, “ensure that the processing of migrants seeking protection in the United
19 States is done in an effective, humane, and efficient manner,” and reduce the “inefficient” effects of
20 allowing migrants to remain in the U.S. while awaiting the outcomes of their proceedings, is illusory.
21 Circumvention of Lawful Pathways Rule, 88 Fed. Reg. 31314 (May 11, 2023).
22 Under the Rule, an asylum officer or immigration judge may have an easy time pretermitting
23 what would have been a strong asylum claim, but still must consider alternative forms of relief. The
24 11
See American Immigration Council & National Immigrant Justice Center, The Difference
25 Between Asylum and Withholding of Removal, at 2 (Oct. 2020)
https://www.americanimmigrationcouncil.org/sites/default/files/research/the_difference_between_asylu
26 m_and_withholding_of_removal.pdf (“Withholding of removal provides a form of protection that is
less certain than asylum, leaving its recipients in a sort of limbo. A person who is granted withholding
27 of removal may never leave the United States without executing that removal order, cannot petition to
bring family members to the United States, and does not gain a path to citizenship.”).
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1 credible fear interview thus turns into a reasonable fear interview, and every bona fide asylum-seeker
2 now becomes an applicant for relief for withholding of removal (essentially, an asylum claim with a
3 higher standard of proof and significantly reduced benefits) and for protection under the CAT (a
4 different set of considerations). In other words, instead of one claim for asylum, the decision-maker in
5 Expedited Removal must consider the Rule’s exceptions, withholding of removal, and CAT for nearly
6 every applicant.
7 And if the applicant passes the reasonable fear review and shows a likelihood of proving
8 eligibility for that relief, what awaits is a Section 240 proceeding with a higher burden of proof and
9 more complicated procedures. When granting withholding of removal, an immigration judge approves
10 a removal order against the migrant, but then orders the federal government not to remove that person
11 to their country of origin. If a third-party country, however, consents to accepting the migrant, then the
12 U.S. government may remove that person to the other country.12 Additionally, for a migrant to achieve
13 relief under the withholding of removal process, she must show that it is “more likely than not” – a
14 significantly higher standard than the ten percent required in the context of asylum relief – that she will
15 face persecution if deported to her home country. Victoria Nielson et al, Asylum Manual, Immigration
16 Equality. This heightened evidentiary standard and enduring state of limbo puts stress on the individual
17 and on the system.
18 And for the erstwhile asylum-seeker, withholding is not the only form of potential relief. Under
19 the Convention Against Torture, a migrant must show it is more likely than not that she would face
20 statutorily-defined torture and that such torture would be committed by or at the acquiescence of the
21 government. 8 C.F.R. § 1208.18(a)(1). This high evidentiary standard and multi-prong requirement
22 yields protections for migrants that are weak compared to those conferred by asylum. Under CAT,
23 migrants have no lawful immigration status; they merely avoid facing deportation to a nation likely to
24 torture them.
25 Not only does the Rule turn nearly every asylum-seeker at the U.S.-Mexico border into an
26 applicant for withholding and CAT relief, complicating both Expedited Removal and 240 Proceedings,
27 12
See supra n.11.
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1 but in the name of “efficiency” it also imposes life-changing adverse consequences for migrants who
2 are eligible for asylum under the INA but are precluded from applying for it under the Rule.
3 IV. The Rule Runs Afoul of International Law.
4 By undermining Congress’ statutory Expedited Removal scheme and eviscerating asylum
5 protections, the Rule also directly violates the protections provided to asylum-seekers by international
6 law. The relevant principles of international law, found in the 1951 Refugee Convention, do not allow a
7 receiving country to deny refugee protection on the basis of how a migrant enters that country’s
8 territory. Congress confirmed that U.S. commitment to these international law principles through the
9 Refugee Act of 1980, which enacted a broad definition of “refugee,” heightening the United States’
10 refugee protections to comply with international law under the United Nations Convention and Protocol
11 Relating to the Status of Refugees. Pub. L. No. 96-212, 94 Stat. 102 (1980). Congress’ goal was to give
12 “statutory meaning to our national commitment to human rights and humanitarian concerns.” S. Rep.
13 No. 96-256, at 4 (1979), reprinted in 1980 U.S.C.C.A.N. 141, 144.
14 Moreover, as construing federal laws to avoid violating international law has been a “maxim of
15 statutory construction” in American law for more than two centuries, the Rule was required to consider
16 not only the INA, but the backdrop of international refugee laws. Lauritzen v. Larsen, 345 U.S. 571,
17 578-79 (1953); MacLeod v. United States, 229 U.S. 416, 434 (1913); Murray v. Schooner Charming
18 Betsy, 6 U.S. (2 Cranch) 64, 118 (1804). Indeed, the Board of Immigration Appeals and the Courts
19 have long looked to the Refugee Convention and the UNHCR Handbook for guidance on a statute or
20 rule’s compliance with the Refugee Convention. See, e.g., INS v. Cardoza-Fonseca, 480 U.S. 421, 438-
21 39 (1987). As the Handbook explains, under the Refugee Convention, the receiving country has the
22 burden of determining whether a person is a refugee; the person does not need to prove her status as a
23 refugee to receive appropriate protections. U.N. Refugee Agency, Handbook on Procedures and
24 Criteria for Determining Refugee Status and Guidelines on International Protection, ¶ 28 (2019). The
25 Rule entirely sets this standard on its head—it denies a refugee that recognition merely by her mode of
26 transit or compliance with an arbitrary appointment-scheduling app.
27

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1 The Rule also creates new bars to asylum where none are permitted by the Refugee Convention,
2 which includes very limited Exclusion and Cessation Clauses that define when asylum-seekers may be
3 denied protection. Specifically, Article I(C) contains a number of cessation provisions, which focus on
4 circumstances where the refugee has gained protection or otherwise is no longer in need of protection.
5 Convention Relating to the Status of Refugees, art. 1, July 28, 1951, 189 UNTS 137. Article 1(F) sets
6 forth Exclusions from protection to those who have engaged in war crimes, crimes against humanity, or
7 other particularly serious crimes. Id. None of these cessation or exclusion clauses apply to an asylum-
8 seeker who has merely transited through another country or, in the Rule’s new argot, has “circumvented
9 pathways,” lawful or not. Indeed, Article 31 of the Refugee Convention specifically precludes signatory
10 countries from imposing “penalties, on account of illegal entry or presence.” Id.
11 The Rule bars the U.S. from recognizing refugees at the border for reasons that are well beyond
12 those permitted by international law and the INA. It should therefore be enjoined.
13 CONCLUSION
14 For the reasons stated above, amici respectfully urge the U.S. District Court for the Northern
15 District of California to rule that the Circumvention of Lawful Pathways Rule is unlawful.
16

17 Dated: June 7, 2023 Respectfully submitted,
/s/ Ashley Vinson Crawford
18

19 ASHLEY VINSON CRAWFORD
AKIN GUMP STRAUSS HAUER & FELD LLP
20
Counsel to Amici Former Immigration Judges &
21 Former Members of the Board of Immigration
Appeals
22

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1 APPENDIX A
Former Immigration Judges and Members of the Board of Immigration Appeals
2

3 Hon. Steven Abrams, Immigration Judge, New York, Varick St., and Queens Wackenhut, 1997-2013
4 Hon. Terry A. Bain, Immigration Judge, New York, 1994-2019
5 Hon. Dayna M. Beamer, Immigration Judge, Honolulu, 1997-2021
6 Hon. Sarah M. Burr, Assistant Chief Immigration Judge and Immigration Judge, New York, 1994-2012
7 Hon. Jeffrey S. Chase, Immigration Judge, New York, 1995-2007
8 Hon. Joan V. Churchill, Immigration Judge, Washington, D.C. and Arlington, VA, 1980-2005
9 Hon. George T. Chew, Immigration Judge, New York, 1995 - 2017
10 Hon. Matthew D’Angelo, Immigration Judge, Boston, 2003-2018
11 Hon. Bruce J. Einhorn, Immigration Judge, Los Angeles, 1990-2007
12 Hon. Cecelia M. Espenoza, Appellate Immigration Judge, Board of Immigration Appeals, 2000-2003
13 Hon. Noel A. Ferris, Immigration Judge, New York, 1994-2013
14 Hon. James R. Fujimoto, Immigration Judge, Chicago, 1990-2019
15 Hon. Gilbert Gembacz, Immigration Judge, Los Angeles, 1996-2008
16 Hon. Jennie Giambastiani, Immigration Judge, Chicago, 2002-2019
17 Hon. Alberto E. Gonzalez, Immigration Judge, San Francisco, 1995 - 2005
18 Hon. John F. Gossart, Jr., Immigration Judge, Baltimore, 1982-2013
19 Hon. Paul Grussendorf, Immigration Judge, Philadelphia and San Francisco, 1997-2004
20 Hon. Miriam Hayward, Immigration Judge, San Francisco, 1997-2018
21 Hon. Charles M. Honeyman, Immigration Judge, New York and Philadelphia, 1995-2020
22 Hon. Rebecca Jamil, Immigration Judge, San Francisco, 2016-2018
23 Hon. William P. Joyce, Immigration Judge, Boston, 1996-2002
24 Hon. Samuel Kim, Immigration Judge, San Francisco, 2020-2022
25 Hon. Carol King, Immigration Judge, San Francisco, 1995-2017
26 Hon. Eliza C. Klein, Immigration Judge, Miami, Boston, Chicago, 1994-2015; Senior Immigration
27 Judge, Chicago, 2019-2023
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1 Hon. Elizabeth A. Lamb, Immigration Judge, New York, 1995 - 2018
2 Hon. Dana Leigh Marks, Immigration Judge, San Francisco, 1987-2021
3 Hon. Margaret McManus, Immigration Judge, New York, 1991-2018
4 Hon. Steven Morley, Immigration Judge, Philadelphia, 2010-2022
5 Hon. Charles Pazar, Immigration Judge, Memphis, 1998-2017
6 Hon. Robin Paulino, Immigration Judge, San Francisco, 2016-2020
7 Hon. Laura Ramirez, Immigration Judge, San Francisco, 1997-2018
8 Hon. John W. Richardson, Immigration Judge, Phoenix, 1990-2018
9 Hon. Lory D. Rosenberg, Appellate Immigration Judge, Board of Immigration Appeals, 1995-2002
10 Hon. Susan G. Roy, Immigration Judge, Newark, 2008-2010
11 Hon. Paul W. Schmidt, Chairperson and Appellate Immigration Judge, Board of Immigration Appeals,
12 1995-2003; Immigration Judge, Arlington, VA, 2003-2016
13 Hon. Helen Sichel, Immigration Judge, New York, 1997-2020
14 Hon. Patricia M. B. Sheppard, Immigration Judge, Boston, 1993-2006
15 Hon. Ilyce S. Shugall, Immigration Judge, San Francisco, 2017-2019
16 Hon. Andrea Hawkins Sloan, Immigration Judge, Portland, 2010-2017
17 Hon. Gabriel C. Videla, Immigration Judge, New York and Miami, 1994-2022
18 Hon. Robert D. Vinikoor, Immigration Judge, Chicago, 1984-2017
19 Hon. Polly A. Webber, Immigration Judge, San Francisco, 1995-2016
20 Hon. Robert D. Weisel, Assistant Chief Immigration Judge, Immigration Judge, New York, 1989-2016
21

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