27 I. & N. Dec. 247
BIA2018Background
- Attorney General directed the Board of Immigration Appeals (BIA) to refer its December 8, 2016 decision in Matter of A-B- for AG review and invited party and amicus briefing on whether victims of private criminal activity can constitute a cognizable "particular social group" for asylum/withholding.
- Briefing schedule set: parties due April 6, amici April 13, replies April 20, 2018. Respondent and DHS sought extensions; DHS also asked to suspend briefing and to clarify the question presented.
- The Immigration Judge (IJ), on remand from the BIA, purported to "certify" the case back to the BIA rather than issue the required decision granting or denying relief after DHS reported background checks were clear.
- AG concluded the IJ’s certification was procedurally defective because no new IJ decision was issued on remand, so the IJ lacked authority to certify back to the BIA under applicable regulations.
- AG denied DHS’s motion to suspend briefing and denied DHS’s request to narrow/clarify the question presented, but granted a limited extension for party briefs to April 20, amici to April 27, and replies to May 4, 2018; no further extensions would be allowed.
Issues
| Issue | Respondent's Argument | DHS's Argument | Held |
|---|---|---|---|
| Whether briefing should be suspended pending BIA action on the IJ’s certification | Opposed suspension; sought extension only | Requested suspension because IJ certified on remand and BIA might act, citing Accardi | Denied — IJ certification invalid because no IJ decision on remand; BIA decision already properly before AG |
| Whether the AG should clarify/narrow the question presented re: victims of private criminal activity as a "particular social group" | Respondent urged full briefing on the legal question as framed | DHS asked for clarification, asserting Board precedent partially answers the question | Denied — AG will hear full briefing; Board precedent does not bind AG's decision-making |
| Whether to extend briefing deadlines | Respondent requested extension to gather additional evidence | DHS requested matching extension; asked suspension or clarification alternatively | Partially granted — party briefs due April 20; amici April 27; replies May 4; no further extensions |
| Whether factual development (new evidence) justifies extension | Respondent cited possible new evidence from El Salvador | DHS relied on procedural posture concerns rather than factual need | Rejected as basis for extension — AG seeks legal briefing; factual development can occur if remanded |
Key Cases Cited
- United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954) (agency decisions must be made pursuant to applicable procedures; cited by DHS but distinguished by AG)