Cert Pending in Possible Major Administrative Deference Case

Attorneys with the Department of Justice have filed a petition for certiorari in Thomas v. Gonzales, 409 F.3d 1177 (9th Cir. 2005) (en banc), a case a South African asylum applicant who suffered persecution on account of her race.. According to Debbie Anker, the DOJ is

“arguing for an extreme form of agency deference that could restrict the ability of courts to provide meaningful review in immigration cases and significantly increase the amount of time it takes for petitioners to obtain relief. In the instant case, the government’s argument would let it sidestep the Ninth Circuit’s recent decision—derived from years of Board and Circuit rulings—that persons who fear persecution on account of their family membership are entitled to protection in the United States. More generally, the government’s argument could undermine years of development in asylum law, especially in the area of protection of women and families who often seek asylum under the “particular social group” category, which is one of the core grounds for protection under U.S. and international asylum law. It would also make it more difficult for courts to correct increasingly aberrant positions taken by the DOJ in asylum cases, such as its recent argument that the asylum statute offers no protection to individuals persecuted for peacefully practicing their religion in a manner that conflicted with discriminatory government restrictions.”

For a memo on the case, see Download Thomas_Cert_Memorandum.pdf

KJ