Continuing Persecution: An Argument for Doctrinal Codification in Light of In re A-T- and Brand X

• Author: Amy B. Kretkowski
• Position: J.D. Candidate, The University of Iowa College of Law, 2008
• Pages: 02

J.D. Candidate, The University of Iowa College of Law, 2008; B.F.A., New York University, Tisch School of the Arts, 1988. I would like to thank the following people: Professor Arthur E. Bonfield for his invaluable mentorship during my law-school career; Professor Barbara A. Schwartz for her encouragement and editorial guidance; the editors and student writers of Volumes 93 and 94 of the Iowa Law Review for their hard work in making this Note publication-ready; my family and friends for their patience and love; and Paul for being Paul. All errors and omissions are my own.

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I Introduction

Two forms of persecution have received an extraordinary amount of attention over the past several decades from academics, advocates, human-rights activists, and politicians spanning the ideological spectrum: coercive population control policies¹ and the ritualistic practice of female genital mutilation ("FGM").² The administrative adjudication of asylum cases in the United States involving victims of these practices and those who fear becoming victims is best described as schizophrenic. The evolution of the coercive population control cases should serve to inform the treatment of FGM cases-if only for the reason that the two forms of persecution are comparably horrific and have similarly permanent consequences-but the Board of Immigration Appeals³ seems wholly determined to repeat history, including past mistakes.⁴

Although the Immigration and Nationality Act ("INA") does not define "persecution," the BIA and federal courts developed the doctrine of continuing persecution in the context of asylum cases involving victims of coercive population control policies.⁵ The doctrine's premise is straightforward: the fact that a particular form of persecution, such as forced sterilization, can only be performed once cannot preclude an applicant who has already been subjected to that form of persecution from obtaining asylum relief, as long as that persecutory act has permanent and continuing consequences.⁶

In its 2007 decision In re A-T- the Board refused to extend the continuing persecution doctrine to a victim of FGM, even though it had previously extended the doctrine to other FGM victims in prior unpublished Page 335 decisions.⁷ The Board held that because FGM is normally only performed once, the fact that a person has already been subjected to it constitutes a "'fundamental change in circumstances' such that an asylum applicant no longer has a well-founded fear of persecution."⁸ The Board announced that FGM should not be viewed as a "continuing persecution," tantamount to forced sterilization, for the primary reason that Congress has not expressly addressed victims of FGM in the way that it addressed victims of coercive population control policies.⁹ In reaching this decision, the Board misinterpreted the legislative purpose behind the 1996 amended definition of "refugee" and failed to follow its own regulatory framework.¹⁰

The potential harm of In re A-T- stretched beyond its facts because the BIA chose to publish it as one of forty precedent decisions in 2007,¹¹ making this decision binding on all immigration judges as well as the Board.¹² while publishing such a clearly flawed decision as precedent can be criticized as a poor policy choice by the BIA, the silver lining to this cloud is that In re A-T-galvanized a community of immigration advocates from across the country who joined forces to "right a wrong."¹³ The attention these advocates brought to the case shone a light not only on the plight of FGM victims who seek refuge in this country, but also on the BIA's inconsistent treatment of certain noncitizens and on the pressing need for both procedural and statutory reform.¹⁴ On September 22, 2008, Attorney General Michael Mukasey heeded the call of these advocates and members of Congress by vacating In re A-T- and remanding the case to the BIA for reconsideration.15 His opinion echoed several of the issues raised by immigration advocates, but he expressly declined to address the BIA's position on the continuing persecution doctrine and its applicability to victims of FGM.¹⁶

The circuit courts are split on the issue of applying the continuing persecution doctrine to victims of FGM.¹⁷ Normally, the BIA follows circuit Page 336 law in cases arising within that circuit.¹⁸ In recent years, however, government immigration attorneys have relied on a 2005 Supreme Court decision, National Cable & Telecommunications Ass'n v. Brand XInternet Services, to reclaim judicial deference where the BIA's interpretation of an ambiguous statute differs from a circuit court's prior interpretation of that statute.¹⁹ Thus, even in a circuit that extended the continuing persecution doctrine to FGM victims in the past, there is a chance that, under Brand X, the very same court may be required to defer to an agency's "reasonable interpretation" of its statute and refuse to extend the doctrine in the future.²⁰

Three days after the Attorney General remanded In re A-T-, he remanded another asylum case to the BIA, In re R-A-, in which he cited Brand X in defining the parameters of the Board's review: "Insofar as a question involves interpretation of ambiguous statutory language, the Board is free to exercise its own discretion and issue a precedent decision establishing a uniform standard nationwide."²¹ The Attorney General noted that prior to Brand X, "the Board had held that it was generally bound to apply existing circuit precedent in cases arising in that circuit. . . . [T]hose decisions are no longer good law with respect to cases involving the interpretation of ambiguous statutory provisions."²² In re R-A- can potentially impact the BIA's reconsideration of In re A-T- since both cases involve similar issues of statutory interpretation.²³ In both cases, the Board must determine whether a victim of a "persecution" (FGM in In re A-T- and domestic violence in In re R-A-) has met the statutory definition of "refugee" (and is, thus, eligible for relief) by establishing that she was persecuted on account of her "membership in a particular social group."²⁴ While immigration advocates applauded the Attorney General's remand of In re A-T-, the subsequent remand of In re R-A- may have rendered any celebration premature.²⁵ Page 337

This Note follows the trajectory of In re A-T- as a vehicle through which to explore the development of the continuing persecution doctrine and the BIA's refusal to extend this doctrine to victims of FGM. Part II of this Note provides an overview of asylum law in the united states and the adjudication of immigration cases.²⁶ This Part also explores how government attorneys are relying on Brand X to obtain judicial deference for the Board's decisions.²⁷ Part III examines the evolution of the continuing persecution doctrine through a review of the coercive population control cases and FGM cases by the BIA and the federal circuit courts.²⁸ Part IV outlines the most critical flaws in In re A-T- and describes the response this case generated from immigration advocates and members of congress.²⁹

Finally, Part V discusses the initial concerns raised in classifying FGM as a form of persecution and how those concerns drove the subsequent opposition to extending the continuing persecution doctrine to victims of FGM.³⁰ This Part ultimately proposes that congress amend the governing statute by adding a definition of "persecution" that codifies the essential logic of the continuing persecution doctrine.³¹ Statutory clarification may be the only way to ensure the consistent and fair treatment of all victims of persecution who seek relief in the immigration courts.³²

II Asylum Law, Adjudication of Immigration Cases, and Judicial Review of Administrative Decisions

Asylum law, unlike any other area of law in the United States, is fundamentally grounded in international law.³³ statutes and domestic cases-both federal and administrative-govern the adjudication of asylum cases.³⁴

Under the INA, a "refugee" is defined as:

[A]ny person who is outside any country of such person's nationality . . . and who...