Thread by @NicoletteGlazer

The dreaded #immigrationMonday is upon us. And sure enough new abomination has materialized: Matter of L-E-A justice.gov/file/1187856/d…
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Barr just gutted decades of 'particular social group' precedent by declaring that "most nuclear families are not inherently socially distinct"

1/ the Matter of L-E-A social ground was defined as the “'immediate family of his father,' who owned a store targeted by a local drug cartel."

2/ entire analysis on which Barr relies is to draw absurd distinction between clan/tribe kinship & familial relationship in a nuclear family unit by positing that the former lacks recognition as "distinct on a societal scale". This is an effort to introduce 'bigly' in asylum law

3/ It displays an utter misunderstanding of the intricacy of sub-clan societies and the protection recognized for immediate families not only in domestic law but in the international arena

4/ Since Matter of Acosta, 'PSG' has not been recognized based on size, 'official recognition' or acceptance by society at large, but on its immutability or bc its defining characteristics are so fundamental to individual’s identity that it = to the rest of protected grounds

5/ Under this new approach members of marginalized or opposition subclans would be lacking the 'bigly' trumpian 'social distinct' measure needed under Matter of L-E-A. Hey, AG Barr, asylum is not a reality TV show!

6/ Now apart from the blatant effort to scale back asylum protection to clearly eligible applicants, this decision has a vile procedural nuance that AG used to bop IJs, BIA, and ICE attorneys on the nose for actually behaving as jurists.

7/ So the procedural history is as follows:

**IJ denies asylum
** on appeal OPLA stipulated that immediate family is a congnizable social group
** BIA reversed based on the "agreement of the parties"
AG: No-No! you can stipulate in immigration court! Riiight coz we all lawyers!

8/ This is F* ridiculous, w/ the backlog in EOIR stipulating to facts, or proceeding on declarations, or narrowing the issues of dispute was the way we can do short 'clean cases' merit dockets. Now this is gone!!!

9/ Ok back to venting! Good news (Ha!) is that w this gem reversal is a virtual ... am not gonna put my foot in my mouth, but com'n, who the F* writes this in an opinion:

10/ AG Barr: "as almost every alien is a member of a family of some kind, categorically recognizing families as particular social groups would render virtually every alien a member of a particular social group."
Can we have a high five for the ultimate 'circular reasoning'?

11/ If you had doubts what the purpose of this decision, my palavar is not needed.
AG Barr: "But unless an immediate family carries greater societal
import, it is unlikely that a proposed family-based group will be “distinct” in
the way required by the INA for purposes of asylum"

12/ So the pompous as* has revamped asylum law to be available to member of families of "greater societal import" ?!? Hmm, Mr. Barr, asylum is not in existence to protect members of the French nobility.

13/ But then, concluding prag of part I is a marvel on its own. So, here is what it says (3-parter): "Board’s particular social group analysis merely cited past Board and federal court precedents recognizing family-based groups and then
agreed with the parties’ stipulations."

13-1/ "Board’s particular social group analysis [did not]
explain[] how the facts supported this finding or satisfied the particularity
and social visibility requirements"

13-2/ "This cursory treatment could not, & did not, satisfy the Board’s duty to ensure that the respondent satisfied the statutory requirements to qualify for asylum."

13-3/ Sooo, is this a new standard for BIA appellate decisions? Citing to BIA precedent without engaging in full and detailed analysis is a ground for reversal, that much is clear. I will be citing this a lot. But how, is this gonna work w the AWOs that Barr is implementing?

14/ You have figured it by now that I am apoplectic about Matter of L-E-A. It is a gut-wrenching decision as it will affect many thousands of cases already in pipelines (before IJs and BIA) and it is intended to put a giant ❌ to the vast majority of asylum cases of new arrivals.

15/ Asylum law is so F* complex on its own. We really dont need to blend it w the equally unsettled & ever changing class certification principles. For God's Sake nothing in 1158 or the term of art 'particular social group' remotely implies that Rule 23 assertainability apply.

16/ Matter L-E-A completes the vicious circle that the BIA and circuit courts have started in the last 4-5 years to blend aspect of definition of classes under Rule 23 into the 'particular social group', such as circular definition, cant define by persecution, fail safe def, etc.

17/ But PSG is not a Rule 23 class. It exists only in the context of asylum and for the protection of ppl fleeing persecution. Can't turn PSP into a run of the mill civil litigation after taught.

18/ Matter of L-E-A comes just few days after another powergrab decision by the BIA itself:Matter of D-A-C, a sleeper of an opinion that could become extremely powerful tool in the hands of biased immigration adjudicators. It rehashes factors to consider in exercising discretion

19/ In D-A,-C, Board ruled that for discretionary relief, just meeting statutory eligibility requirements is not enough, the adjudicator must exercise discretion based on what is "in the best interests of the US". Reevaluating this language in the context of Matter of LEA, ..

20/ sounds ominous, a lot more ominous than the 1st time I read it. Since the grant of asylum is ultimately in the exercise of the AG discretion, the refocusing the exercise of discretion to focus on immigration violation (manner of entry) looks like it was tailored to provide a

21/ clear nod to IJs that meeting the definition of for example 'refugee' isn't enough especially when Prez has declared that 'caravans of families and children' are a danger to national security. You get my grift!

22/ Now before you jump on the 'courts will never permit it' clowncart, keep in mind, all these cases are likely to reach SCOTUS. Refugee Convention & Protocol only guarantee the right to apply for asylum, not the right to be granted one, we sure will gonna hear that at noseum.