A Deferential Crisis: The Board of Immigration's Chevron Struggle Concerning Refugee Principles.

• Author: Armstrong, Kristen

"Until the Board clarifies how otherwise legitimate refugees are to frame and prove their groups, [particular social group] doctrine will become increasingly problematic, and the United States will fail its noblest of humanitarian duties." (1)

1. INTRODUCTION

   Those seeking refuge in the United States are arguably among the most vulnerable population. (2) The 1951 United Nations Refugee Convention (1951 Convention) sets forth traditional asylum and withholding provisions; it allows aliens seeking refuge to avoid removal to their country of origin if it is likely that their life or freedom will be threatened upon return because of their "race, religion, nationality, [or] membership of a particular social group." (3) Though the United States was not a party to the 1951 Convention, in 1948 the Attorney General (AG) was granted statutory discretion to admit aliens to the United States and to provide aliens with deportation relief. (4) The United States used a similar process to that of the 1951 Convention to incorporate in 1967, by official protocol, the Protocol Relating to the Status of Refugees (1967 Protocol). (5) The Refugee Act of 1980 (1980 Act) ultimately codified the 1967 Protocol into U.S. law. (6)

   Today, noncitizens can invoke the nonreturn right by seeking a withholding of removal, a process that is commonly referred to as "non-refoulment" (or "nonreturn" from the French word "refouler" for "send back"), to avoid being sent back to their country of origin due to fear of persecution. (7) This process begins at the administrative level with a determination from an Immigration Judge (IJ), and, if taken up on appeal, the case then goes to the Board of Immigration Appeals (BIA). (8) The BIA is the lead administrative agency that applies the INA, which is the primary immigration statute covering the removal of noncitizens, and interprets the statute's occasionally ambiguous language. (9) One such ambiguous phrase is "particular social group" (PSG), which is a significant avenue for relief for withholding of removal applicants. (10)

   The BIA first defined PSG via administrative interpretation--a valuable agency rulemaking power. (11) Since first defined in 1985, what constitutes a PSG under the U.S. Code has been the source of much debate, and, as the topic of immigration has evolved and become a forefront issue, it has also garnered attention from the federal courts. (12) In a series of cases in 2006, the BIA put forth two requirements to further define PSG: social visibility (later called social distinction) and particularity. (13) The BIA subsequently stated in two separate decisions that an applicant must establish that the group is composed of members who share a common immutable characteristic, the group must be "socially distinct" within the society in question, and the group must be defined with "particularity." (14) Such an endeavor to interpret the statute has been done absent legislative intent or guidance, and has immense impacts for refugees seeking withholding of removal. (15) Presently, there is a circuit split between the Third and Seventh Circuits and the majority as to whether the BIA should be afforded deference in its determination of who qualifies as belonging to a PSG for the purposes of withholding of removal. (16) More specifically, the circuit split concerns whether the BIA should be provided Chevron deference--a longstanding deference principle establishing stricter guidelines for agency-judicial relationships than the traditional Administrative Procedure Act (APA). (17)

   This Note explores the history of immigration in America, the 1951 Convention, and the subsequent incorporation of the 1951 Convention principles into U.S. law. (18) This Note then discusses the inception of BIA responsibility, Chevron deference, and its application in the administrative-judicial context. (19) Through a review of the international and domestic legislative intent and applicable BIA case law, this Note tracks the evolution of the definition of what constitutes a PSG. (20) This Note then applies the two-prong Chevron test to the current definition and argues that it should not be afforded deference. (21) The current definition should be changed as it contravenes U.S. immigration law principles and, as evidenced by the current circuit split, misleads litigants and advocates alike. (22) Trying to achieve Chevron deference, the BIA should eliminate the "particularity" and "social distinction" requirements, and re- broaden the definition to the original immutability definition. (23) The BIA operated at its highest utility when applying PSG's original definition, and this Note offers reasons in support of providing deference to the agency for that definition. (24)

2. HISTORY

   1. America as a Safe Harbor?

      The United States of America was an "[o]pen [f]rontier" for the first hundred years of its existence, where legislation barring immigration was scarce and unpopular; in fact, much of the legislation encouraged immigration and protection of immigrants on U.S. soil. (25) The opinions of those who opposed this "open frontier" finally gained legislative traction with a series of statutes between 1875 and 1917 that barred certain groups, races, and nationalities from entering the United States, mandated that immigrants receive medical inspections upon arrival, and implemented a "head tax" on immigrants. (26) The Immigration Acts of 1917 and 1924 incorporated qualitative person-by-person restrictions and numerical, population-related limitations on immigration; each of these Acts provided broad discretion to bar and deport certain groups of people. (27) In the wake of WWII, the United States began admitting large numbers of refugees and displaced persons to its shores, indicating a shifting attitude toward immigration. (28)

      The Displaced Persons Act that followed WWII was considered the "major liberalization" of immigration policy; thus, it is no surprise that this immediately preceded the INA, which afforded individuals seeking asylum or withholding of removal the first glimpses of avenues for relief. (29) The INA "authorized" the AG to withhold deportation based on his or her opinion, granting the AG broad discretionary powers. (30) The INA, however, was not free from criticism, as laid out in President Truman's veto letter: "Conferring powers like [those given to the President in the Alien Act to deport any alien deemed dangerous] upon the [AG] is unfair to him ... [and] to our alien residents.... The change from objective findings to subjective feelings is not compatible with our system of justice. (31)

      While immigration policy in America was shifting, 109 countries signed the 1951 Convention, which is considered one of the most important international instruments, primarily because it defines the term "refugee." (32) Arguably one of the most important provisions of the 1951 Convention is Article 33(1), which mandates all signing parties to withhold deportation of refugees who would otherwise face persecution. (33) Because the United States was not a party to the 1951 Convention, this provision was incorporated into U.S. law through the 1967 Protocol, which "effectively adopted and extended the Convention's protections." (34) It is unclear, however, whether the 1967 Protocol had the profound effect on immigration that it holds claim to, as courts still applied an objective "well-founded fear" test in contravention of the 1951 Convention and numerous procedural inconsistencies created varying results for refugees seeking asylum. (35)

      On March 17, 1980, Congress enacted the 1980 Act, a crucial piece of legislation that "demonstrated [the United States'] concern for ... the defenseless, and the persecuted peoples who fall victim to tyrannical and oppressive governmental regimes." (36) The 1980 Act provided procedure where there was none and "depoliticized" the admissions process, providing asylum seekers "absolute protection." (37) This "absolute protection" provided a procedure for withholding removal of a person physically present in the United States or at the border, eliminated the AG's discretionary function, and mandated withholding removal if the applicant met the statutory requirements. (38) The modern day statute incorporates the 1980 Act directly and states that the AG may not remove an alien if his or her life or freedom would be threatened because of their "race, religion, nationality, membership in a particular social group, or political opinion." (39)

   2. Board of Immigration: Origins

      1. Judicial Review

         In 1940, the AG created the BIA, which is the leading agency for adjudicating immigration cases. (40) The BIA's primary mission is "resolving the questions before it in a manner that is timely, impartial, and consistent with the immigration laws," and "to provide clear and uniform guidance" to the Department of Homeland Security, IJs, and the public. (41) As an agency, the BIA is part of the administrative "fourth branch" of government. (42) Since its inception, the BIA has been primarily responsible for interpreting the INA, reviewing IJs' decisions, and issuing binding, precedential authority--all of which are subject to judicial review. (43)

         The APA governs the general concept of judicial review of agency decisions; however, pre-APA, and even in the nascent years of the APA, there was little agreement on what (if any) standard to apply. (44) The Supreme Court was historically deferential to agencies for the first hundred years of their existence, noting that "the Administrator's policies are made in pursuance of official duty, based upon ... specialized experience and broader investigations." (45) Further, before 1948, "an agency needed no evidence, no record, and no statement of reasons to support a rule[,] rules were rarely challenged[,] and challenges were rarely successful." (46)

      2. Chevron Deference

         Today, the review process is much stricter. (47) To avoid having a decision or...