Breaking News — New U.S. Supreme Court Decision

Today (April 17), the Supreme Court summarily reversed an en banc Ninth Circuit decision finding that a South African family could constitute a “particular social group” for purposes of the asylum laws.  The Court found that the court of appeals erred in failing to first remand the matter to the agency to first address the quesion. Click  Download gonzales_v. Thomas.pdf to see the decision.

Here is one commentary on the case:

The Supreme Court has issued a short per curiam decision (attached) reversing the Ninth Circuit’s en banc decision in Thomas, on the grounds that, under Ventura, the circuit court erred in not first remanding to the BIA to first consider the family as social group issue.

This is an unfortunate setback. The Ninth Circuit’s excellent en banc decision reaffirmed the Acosta rule on social group in the Ninth Circuit and sharply clarified that “family” could be a social group notwithstanding conflicting discussion in the Ninth Circuit.

However, it is far from clear that this is a setback for the principle that family is a social group under the law. As made clear in the strong briefing in the case by Prof. Anker et al., persecution aimed at a person for their family ties has been very widely recognized as persecution on account of a particular social group.

The growing impact of Ventura seems to lead to some incoherence in law and policy. On one hand, the Congress, the Administration and the courts express concern regarding growing backlogs and create pressure for summary procedures at both the BIA and the federal court level.

On the other, under Ventura, the federal courts are being instructed by the Supreme Court to remand back to the BIA to consider issues — even when the BIA could not be bothered to consider that issue the first time it considered the case, and/or even when the law on that issue is essentially settled around the country.

Advocates should nonetheless certainly not hesitate to use Ventura as a sword with the same aggressiveness we’re seeing from DOJ.

Stephen Knight, Deputy Director, Center for Gender & Refugee Studies, University of California, Hastings College of the Law

For a slightly different take on the decision, see Download Thomas_Per_Curiam_Memo.pdf

KJ