scholarly journals A Step Too Far: Matter of A-B-, 'Particular Social Group,' and Chevron

2019 ◽  
Author(s):  
Jaclyn Kelley-Widmer ◽  
Hillary Rich ◽  
Cornell Library
Keyword(s):  
Domestic Violence ◽  
Social Group ◽  
Attorney General ◽  
Case Law ◽  
The United States ◽  
Central American ◽  
Legislative History ◽  
Size Limitation ◽  
Potential Basis ◽  
To Receive

Every day, thousands of Central American asylum seekers, many fleeing persecution from domestic abusers and gangs, attempt to seek refuge in the United States. To receive asylum, those escaping such violence typically must show that their membership in a “particular social group” is one central reason for their persecution. In Matter of A-B-, issued in June 2018, then-Attorney General Jefferson B. Sessions III restricted case law establishing domestic-violence-related particular social groups and attempted to destroy the viability of such claims altogether. As we demonstrate in this Article, this far-reaching decision should not receive Chevron deference from reviewing courts because it contravenes the intent of Congress.A-B- is concerning both for its potentially calamitous effect on individuals fleeing domestic and gang violence and for the abrupt, unwarranted departure from established immigration law that it represents. As a result of A-B-, individuals, many of them women, are being subjected to both different and higher standards for certain aspects of their asylum claims and must “re-invent the wheel” of establishing that domestic violence can be a basis for asylum.Federal courts reviewing immigration decisions normally apply the Chevron two-step framework to review agency decisions: first, has Congress defined the term at issue, or is it ambiguous? Second, if the term is ambiguous, is the agency interpretation of the term reasonable and therefore deserving of deference? Both steps of Chevron require a court to begin by using statutory interpretation to examine the meaning of the term.In this Article, we provide a fresh analysis of the term “particular social group” through statutory construction, legislative history, and international context to find that there are some parameters around the term that are not ambiguous. Applying these parameters to A-B- at Chevron step one, we argue that A-B- is at odds with the meaning of particular social group because it incorrectly implies that there is a size limitation to meet the particularity requirement of a group, and because the decision raises the standard when the source of persecution is a private actor.Turning to Chevron step two, we argue that A-B- contains fundamentally unreasonable interpretations of the remaining ambiguous elements of particular social group. For example, the decision contravenes the mandate that “particular social group” be a flexible category that can adapt to evolving humanitarian concerns. It also renounces consideration of the perspective of the persecutor in defining the group. In attempting to unilaterally foreclose an entire type of particular social group as a potential basis for asylum, Attorney General Sessions contradicts congressional intent, misinterprets precedent, and oversteps the discretionary authority afforded to the agency. Therefore, reviewing courts should not give A-B- Chevron deference.

Refugee surge creates Belize security fears

2017 ◽  
Keyword(s):  
United States ◽  
El Salvador ◽  
The United States ◽  
Central American ◽  
Drug Trade ◽  
Content Type ◽  
Gang Activity ◽  
To Receive

Subject Belize migration and security. Significance High levels of gang-related violence, and a tougher approach to migration in the United States, have sparked a surge in refugees seeking to enter Belize from the Northern Triangle countries of Guatemala, El Salvador and Honduras. However, Belizean authorities are reluctant to receive them, citing concerns about the potential for increased gang activity. Impacts Belize’s location could see it become an important transit point in the international drug trade. There is potential for conflict between Central American and Belizean gangs. Costa Rica’s strong institutions make it relatively well equipped to deal with an influx of refugees.

scholarly journals What Is a Social Group in the Eyes of the Law? Knowledge Work in Refugee-Status Determination

2018 ◽  
Vol 43 (04) ◽  
pp. 1257-1278 ◽  
Author(s):  
B. Robert Owens
Keyword(s):  
Social Group ◽  
Asylum Seekers ◽  
Knowledge Work ◽  
Case Law ◽  
The United States ◽  
Federal Courts ◽  
Courts Of Appeals ◽  
Statutory Interpretation ◽  
Refugee Status ◽  
Legal Concepts

This article explores the settling and unsettling of legal concepts in relation to refugee-status determination. To gain admission to the United States, asylum seekers are required to demonstrate a well-founded fear of persecution on the basis of one of five protected grounds: race, religion, nationality, political opinion, or membership in a particular social group. Accordingly, many political asylum claims turn on the interpretation of “particular social group.” This article examines case law disputes in the federal courts of appeals over the meaning of that phrase and describes how statutory interpretation by judges has contributed to the persistence of such disputes over several decades since the passage of the 1980 Refugee Act. My analysis reveals the tensions between different forms of rationality at play in judicial statutory interpretation and applies the concept of legal settling to a new empirical domain.

An Analysis of the Medical Expense Deduction Post-O'Donnabhain

2012 ◽  
Vol 10 (1) ◽  
pp. 43-61
Author(s):  
Eric S. Smith ◽  
Ryan H. Pace
Keyword(s):  
Cosmetic Surgery ◽  
Case Law ◽  
The United States ◽  
The Body ◽  
Medical Expense ◽  
Legislative History ◽  
Medical Expenses ◽  
Gender Reassignment ◽  
Physical Diseases ◽  
Tax Court

ABSTRACT In 2010, the United States Tax Court upheld a taxpayer's deduction for medical expenses arising from gender reassignment surgery. This article discusses the facts of the O'Donnabhain case and the Tax Court's holding in light of relevant legislative history, and finds that a new layer of understanding now exists in the context of deductible plastic surgery: in a post-O'Donnabhain world, mental (not just physical) diseases may be treated through physical alterations to the body and give rise to deductible medical expenses. Based on the Tax Court's opinion, we posit an algorithm for application of what we consider to be a fourth case law-created exception to the disallowance of deductions for cosmetic surgery, which may have application in both LGBT- and non-LGBT-related instances.

scholarly journals The Public Safety (Public Protection Orders) Bill 2012: Is post-sentence detention of sex offenders consistent with human rights?

2021 ◽  
Author(s):  
◽  
Jasmin Moran
Keyword(s):  
Human Rights ◽  
Sex Offenders ◽  
Public Safety ◽  
Attorney General ◽  
Case Law ◽  
The United States ◽  
Bill Of Rights ◽  
The Public ◽  
Protection Orders ◽  
Rights Issues

<p>The Public Safety (Public Protection Orders) Bill 2012 was introduced by the National-led Government to address a perceived public safety problem relating to recidivist sex offenders. The Bill enables the detention of sex offenders beyond the expiration of their finite sentences, if they are seen as highly likely to reoffend. As such, the Bill raises a number of serious human rights issues. In response, the Attorney-General issued a statement contending the Bill was consistent with the New Zealand Bill of Rights Act 1990. This article analyses the correctness of that statement, with a particular focus on whether the Bill is a form of civil committal and is, in substance, different to imprisonment. Drawing on case law from the United States and Australia, where similar post-sentence detention schemes operate, this paper suggests the Bill actively engages with human rights concerns. The conclusion reached is that the Bill appropriately balances the public safety interest and the basic human rights of sex offenders.</p>

scholarly journals The Public Safety (Public Protection Orders) Bill 2012: Is post-sentence detention of sex offenders consistent with human rights?

2021 ◽  
Author(s):  
◽  
Jasmin Moran
Keyword(s):  
Human Rights ◽  
Sex Offenders ◽  
Public Safety ◽  
Attorney General ◽  
Case Law ◽  
The United States ◽  
Bill Of Rights ◽  
The Public ◽  
Protection Orders ◽  
Rights Issues

<p>The Public Safety (Public Protection Orders) Bill 2012 was introduced by the National-led Government to address a perceived public safety problem relating to recidivist sex offenders. The Bill enables the detention of sex offenders beyond the expiration of their finite sentences, if they are seen as highly likely to reoffend. As such, the Bill raises a number of serious human rights issues. In response, the Attorney-General issued a statement contending the Bill was consistent with the New Zealand Bill of Rights Act 1990. This article analyses the correctness of that statement, with a particular focus on whether the Bill is a form of civil committal and is, in substance, different to imprisonment. Drawing on case law from the United States and Australia, where similar post-sentence detention schemes operate, this paper suggests the Bill actively engages with human rights concerns. The conclusion reached is that the Bill appropriately balances the public safety interest and the basic human rights of sex offenders.</p>

Understanding Domestic Violence among Immigrant Latina Women

2018 ◽  
Author(s):  
Catherine Fuchsel
Keyword(s):  
Domestic Violence ◽  
Help Seeking ◽  
Legal Status ◽  
The United States ◽  
Legal Rights ◽  
Latina Women ◽  
Community Based ◽  
Help Seeking Behaviors ◽  
Public Benefits ◽  
To Receive

This chapter examines domestic violence among immigrant Latina women, including prevalence and barriers to accessing services such as fear of deportation, lack of legal status, inability to speak English, and the challenges of separating from family members. Transnational elements for immigrant Latinas experiencing domestic violence is an important concept because of the implications in accessing services and support systems. In addition, help-seeking behaviors, barriers to reporting incidences of domestic violence, and understanding legal rights and services are discussed. Under the Violence Against Women’s Act, immigrant Latina women who lack legal status have legal rights in the United States and can apply for specific visas determining they were in a domestic violence–related relationship. Immigrant Latina women are also eligible to receive public benefits. Finally, an examination of domestic violence programs and interventions in community-based agencies is discussed, specifically, intervention programs for immigrant Latina women.

scholarly journals Restatement of the Law, Copyright: A Useful Resource for Practitioners and Courts or a Rashomon Exercise?

2021 ◽  
Vol 44 (3) ◽  
Author(s):  
Eric J. Schwartz
Keyword(s):  
Primary Source ◽  
Case Law ◽  
The United States ◽  
Copyright Law ◽  
Point Of View ◽  
Legislative History ◽  
The Face ◽  
American Law ◽  
The Law ◽  
Federal Statute

As the Ninth Circuit succinctly observed, when deciphering copyright law, “[w]e begin, as always, with the text of the statute.”  An examination of any aspect of copyright law commences with the text of Title 17 of the United States Code (the “statute”), and then turns to case law for adjudications and interpretations of the relevant statutory text, or as the primary source of law in the gaps in the statute.  Everything else is secondary and not, of course, a substitute for the law, whether it is legislative history, Copyright Office (and other government agency) studies, treatises, or other commentary. If copyright law consists predominantly of federal statute, how, if at all, will the American Law Institute (“ALI”) project to prepare a Restatement of the Law of Copyright (the “Restatement”) provide a useful or necessary resource for attorneys and the courts?  In the face of the primacy of the enacted statutory text, why undertake a project to recast and rephrase the law?  What, if any, use might it yield to practitioners and courts, and equally importantly, will consequential harms result? From the inception of the Restatement project, the creative community has collectively viewed the project with skepticism about its necessity and fears about its purpose and biases, and the resultant impact on the livelihoods of creators.  This Response focuses on the practical uses, if any, of the Restatement for attorneys and courts grappling with copyright issues.  The Response also examines, from a practitioner’s point of view, the Restatement’s potential to harm the ecosystem of the copyright creative community, and the likelihood that the harm will outweigh any value the Restatement might bring to clarifying the law.

A Survey of Domestic Violence Perpetrator Programs in the United States and Canada: Findings and Implications for Policy and Intervention

Partner Abuse ◽  
2016 ◽  
Vol 7 (3) ◽  
pp. 226-276 ◽  
Author(s):  
Clare Cannon ◽  
John Hamel ◽  
Fred Buttell ◽  
Regardt J. Ferreira
Keyword(s):  
United States ◽  
Domestic Violence ◽  
Intervention Program ◽  
Attorney General ◽  
The United States ◽  
Research Literature ◽  
Treatment Standards ◽  
Level Of Education ◽  
Assessment Protocol ◽  
Low Level

A 15-page questionnaire, the North American Domestic Violence Intervention Program Survey, was sent to directors of 3,246 domestic violence perpetrator programs (also known as batterer intervention programs, or BIPs) in the United States and Canada. Respondent contact information was obtained from state Coalitions Against Domestic Violence and from various government agencies (e.g., Attorney General) available on the Internet. Two hundred thirty-eight programs completed and returned the questionnaire, a response rate of 20%. The survey yielded descriptive data on respondent characteristics; program philosophy, structure, content, and service; client characteristics; treatment approach and adjunct services; and group facilitator views on intervention approaches and domestic violence policy and treatment standards. The programs varied in the extent to which they adhere to treatment approaches suggested by the empirical research literature. In addition, chi-square analyses were conducted on the associations between several factors. Significant correlations were found between respondent low level of education and adherence to a feminist-gendered program philosophy; respondent low level of education and use of a shorter assessment protocol; feminist-gendered program philosophy and incorrect facilitator knowledge about domestic violence; and feminist-gendered program philosophy and a program focus on power and control as the primary cause of domestic violence.

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