Supreme Court Oppostion to Cert Petition in Immigration Case
Care of Debbie Anker
The Harvard Immigration and Refugee Clinic and the Law Offices of Errol Horwitz have filed a Brief in Opposition to the Solicitor General’s Certiorari Petition in Thomas v. Gonzales, 409 F.3d 1177 (9th Cir. 2005). The Opposition Brief is available in PDF format at http://www.gbls.org/immigration/Respondent’s_Brief_in_Opposition_To_Petition_for_a_Writ_of_Certiorari.pdf
Other documents relating to the case can be found at http://www.gbls.org/immigration.
In its petition, the government argued that the Ninth Circuit contravened INS v.Ventura, 537 U.S. 12 (2002), and created far-reaching legal precedent when it found that (1) mistreatment of the Thomas family was connected to its immutable kinship ties, and (2) that those ties gave rise to a particular social group. According to the government, no Board or circuit court decision had ever held that family, “without more,” may constitute a particular social group. The petition also argued that since the harm suffered by the Thomases involved criminal conduct by nonstate actors, recognizing the Thomas family as a particular social group opens the door for victims of “ordinary crimes” to receive asylum status. According to the petition, the court’s inquiry should have ended upon finding that family *may* constitute a particular social group. It argues that the Ninth Circuit overreached by finding that the Thomas family did constitute a particular social group and that it had been harmed on this basis. The government alleged an ongoing practice by the Ninth Circuit of reaching out to decide issues unaddressed by the agency in immigration cases, and of creating far-reaching legal precedent on matters that the agency had not had the opportunity to consider in the first instance. The Opposition Brief points out that the Ninth Circuit had remanded all but the nexus and particular social group issues (both properly before the court) to the Board. Most significantly, the petition’s concerns about crime were misplaced because they implicated the standard of protection due the Thomases by their government and the question of country-wide persecution, both encompassed within the “persecution” issue remanded to the Board. The Opposition Brief goes on to establish that Acosta’s immutability framework is settled law, that the Board had specifically found kinship ties to give rise to a particular social group, and that no decision of the Board or federal courts has imposed additional requirements on the Acosta framework where the putative social group is a family. The brief argued that the Ninth Circuit fully complied with INS v. Ventura, and that other decisions cited by the government revealed no significant conflict with either Supreme Court precedent or the decisions of other circuit courts. Finally, it contended that in view of circuit courts’ strong concerns about IJ adjudication and BIA streamlining, it would not be appropriate to grant the government’s apparent request for a stronger form of deference in immigration matters. Respect for an agency’s primary jurisdiction does not require circuit courts to ignore their responsibility to provide meaningful review of agency decisions.
KJ