Harvard Law Review Comments on Undocumented Immigrants and the Second Amendment, Particular Social Group in Asylum
Volume 135, issue 4 of the Harvard Law Review has two comments that may be of interest to blog readers:
By the Harvard Law Review
18 U.S.C. § 922(g)(5) prohibits undocumented immigrants from possessing firearms. Every circuit court that has heard Second Amendment challenges to the law has rejected them, upholding §922(g)(5)’s constitutionality. It might therefore seem that the Second Circuit’s recent decision in United States v. Perez was an easy one. But in deciding the case by applying an intermediate scrutiny analysis rather than asking the threshold question of whether undocumented immigrants are even covered by the Second Amendment, the court illustrated the fundamental difficulty that courts face when upholding §922(g)(5) against Second Amendment challenges. It is nearly impossible to do so without either undermining the reasoning extending protection of other provisions of the Bill of Rights to noncitizens, or watering down intermediate scrutiny for Second Amendment challenges so much so that a class of people purportedly protected can be completely prohibited from possessing firearms.
Matter of A-B-
By the Harvard Law Review
In 2018, former–Attorney General Sessions issued a decision that reinterpreted the phrase “particular social group” as applied to asylum jurisprudence, thus making it more difficult for survivors of domestic violence to obtain asylum. Recently, in Matter of A-B- (A-B- III), Attorney General Garland vacated this decision and returned particular social group jurisprudence to its former state. The author argues that Attorney General Garland’s decision was in line with existing federal circuit court and administrative precedent, and that this vacatur has, inter alia, two important and desirable practical consequences: reduced uncertainty and expanded eligibility for domestic violence survivors who are seeking asylum.
KJ