Trump-appointed Judges Show Their Independence

The past four years have been challenging for immigrants in the United States.  President Trump has made “strong borders” a cornerstone of his administration. Among the well documented and inhumane consequences of his policies are the separation of children from their families at the border and the denial of claims for asylum based on the risk of violence in one’s home country.  Republicans have expressed hope that their appointment of federal judges would bolster their political objectives by ensuring enforcement of their policies.  But when those policies conflict with the rule of law, principled judges should be trusted to make the right decisions, no matter which party appointed them.  As Chief Justice John G. Roberts, Jr. recently declared, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Mr. Roberts said . “What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”

On December 1, 2020, the United States Court of Appeals for the Fourth Circuit decided the case of asylum seeker Miriam Veronica Alvarez-Pineda in Alvarez-Pineda v. Barr, Case No. 19-1484.  The case was before the Court on a petition for review of an order of the Board of Immigration Appeals (“BIA”).  The reversal of the BIA’s order is a victory for the rule of law.

As reported in the opinion, Ms. Alvarez-Pineda is a native citizen of Guatemala.  She entered the United States “without inspection” in 2015 with her daughter.  When the Department of Homeland Security initiated deportation proceedings, Ms. Alvarez-Pineda filed an application for asylum and protection under the Convention Against Torture.

Among her fears, Ms. Alvarez-Pineda worried her husband’s family would take her daughter from her if she returned to Guatemala.  She also feared “extortion, physical harm, rape and murder from ‘gang members and delinquents’ who ‘target single-mothers that lack traditional patriarchs.’”  These gang members might also kidnap her daughter and demand ransom, or worse.

In her application, Ms. Alvarez-Pineda highlighted the Guatemalan government’s “complete lack of ability to control violence against women,” and identified “the threat of death and sexual violence” should she be made to return.

To obtain asylum in the United States, one must establish that he or she has a well-founded fear of persecution on account of race, religion, nationality, political opinion and/or a particular social group.  If the latter, the BIA requires the asylum seeker to identify clearly the particular social group to which that person belongs that is subject to persecution.  In this case, Ms. Alvarez-Pineda initially identified herself as a member of a social group comprised of “single mothers in Guatemala.”

In early January 2018, Ms. Alvarez-Pineda testified in a merits hearing before an Immigration Judge.  Asked to clarify the social group to which she belongs, her lawyer identified the group as “single mothers in Guatemala that lack traditional family structure.”  Finding that such a group is not cognizable under the Immigration and Nationality Act, the Immigration Judge denied the petition for asylum and ordered that Ms. Alvarez-Pineda and her daughter be removed to Guatemala. Pouring salt in the wound, the Immigration Judge further found that even if the group were cognizable under the Act, the fear of harm from family members amounts to a “custody dispute” – a personal conflict – and does not constitute persecution by virtue of her membership in a particular group.

Ms. Alvarez-Pineda appealed to the BIA.  But the BIA simply “agreed with the Immigration Judge” and noted that Ms. Alvarez-Pineda “testified that her former domestic partner physically abused her on several occasions in Guatemala,” but failed to show “that victims of domestic violence are perceived as a distinct group within society, rather than each as a victim of a particular abuser in highly individualized circumstances.”

On appeal, in a unanimous opinion written by United States District Judge Stephanie A. Gallagher (sitting by designation in the Court of Appeals) and joined by Circuit Judges Stephanie D. Thacker and A. Marvin Quattlebaum, the Court reversed the decision of the BIA.  Both Judges Gallagher and Quattlebaum were appointed by President Trump.  Judge Thacker was appointed by President Obama.  Here, they spoke as one.

Ms. Alvarez-Pineda asserted that she was persecuted a member of the group “single mothers in Guatemala that lack traditional family [patriarchal] structure.”  Finding that it is “well-established” that the BIA commits legal error when its “removal order rejects a group different from that which was proposed,”  the Court seized on the BIA’s reference merely to “victims of domestic violence,” and found reversible error. Calling the BIA’s characterization of Mr. Alvarez-Pineda’s claim “not accurate,” the Court chastised the BIA for framing the issue as one of past domestic violence rather than the future “threat of death and sexual violence that stems from her fear of delinquents on the street who know she is a single mother, not from [her daughter’s father] or anyone in his family.”

In the end, the Court rejected the BIA’s characterization of Ms. Alvarez-Pineda as a “victim of domestic violence” rather than one who would be targeted as a “single mother in Guatemala” who lacks a traditional family structure.  As for the Government’s argument that the BIA is not required to “write an exegesis” on every argument presented, the Court admonished that “the BIA must still get its facts right.”

With that, the case was remanded to the BIA so it can do just that.  While Ms. Alvarez-Pineda and her daughter have not yet obtained the asylum they seek, this case is a victory for the rule of law in the face of an immigration process keen to bend the facts in search of a dying political objective – the unwarranted expulsion of vulnerable immigrants.

Charles N. Curlett, Jr. is a partner at Rosenberg Martin Greenberg, LLP.  He is a member of the Federal Courts Committee of the New York City Bar Association and a past Chair of the Criminal Law Section of the Federal Bar Association.