The government recently issued two parallel guidance memos following a decision by District Court Judge Emmet Sullivan in Grace v. Whitaker. United States Citizenship and Immigration Services (USCIS) issued a guidance memo and the Executive Office for Immigration Review (EOIR) recently issued a similar guidance memo; both memos limit the holding of Matter of A-B- in the context of credible fear interviews (CFIs). While the Grace ruling only covers CFIs, the logic behind the holding, and the new guidance memos, can also be helpful in arguing asylum merits cases.

 

Background on Matter of A-B-

In June 2018, then Attorney General Sessions issued a decision, Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018) in a domestic violence-based asylum case that sought to greatly limit adjudicators’ abilities to grant asylum cases. The actual holding of Matter of A-B- is narrow:—it overturns Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014), because the Board of Immigration Appeals did not adequately assess whether the particular social group (PSG) in that case met each prong of the PSG definition. However, Matter of A-B- included sweeping dicta stating that “most” domestic violence and gang-related claims should be denied.

On July 11, 2018, one month after the Matter of A-B- decision, USCIS issued guidance for asylum officers on how to apply Matter of A-B-  in both asylum interviews and CFIs. See CLINIC, DHS Clarifies is Guidance on Matter of A-B-. The USCIS guidance went further in narrowing asylum eligibility than the Matter of A-B- decision itself; this guidance took dicta from the Matter of A-B- decision and repeated it as actual law for asylum officers. In particular, the USCIS guidance stated, in bold print, “In general, in light of the above standards, claims based on membership in a putative particular social group defined by the members’ vulnerability to harm of domestic violence or gang violence committed by non-government actors will not establish the basis for asylum, refugee status, or a credible or reasonable fear of persecution.” By adopting the language of A-B-’s dicta as guidance, USCIS essentially raised the CFI standard beyond the statutory “significant possibility” of winning asylum standard.

 

Background on Grace v. Whitaker

The Center for Gender and Refugee Studies and the American Civil Liberties Union sued the government, seeking to enjoin the use of the July USCIS guidance in the context of expedited removal. As a result, the limited question before the federal court was whether the guidance could be properly applied in CFIs.

Under INA § 235(b)(1)(B)(v), an asylum seeker in expedited removal must demonstrate a “significant possibility” of success on his or her asylum case in order to pass a CFI with a USCIS asylum officer. If the asylum seeker establishes credible fear before the asylum officer, the asylum seeker is placed into removal proceedings under INA § 240 and can seek asylum and any other possible form of relief before an immigration judge. If the asylum officer does not find that the asylum seeker has a credible fear, the asylum seeker can seek review of that decision before an immigration judge. If the immigration judge upholds the negative credible fear finding, Immigration and Customs Enforcement will summarily remove the asylum seeker from the United States with no further appeals.

The lawsuit, Grace v. Whitaker, argues that the July USCIS guidance raises the legal standard for CFIs above the “significant possibility” standard laid out in the INA and Code of Federal Regulations. The lawsuit, therefore, sought to enjoin (stop) the government from implementing the guidance and to declare that the guidance violates the law.

On Dec. 17, 2018, Judge Sullivan issued a decision enjoining USCIS and EOIR from implementing certain aspects of its July guidance in the CFI context. Thereafter, on Dec. 19, 2018, USCIS and EOIR issued guidance for adjudicating CFIs. Under the new guidance required by the ruling, in the CFI context, asylum officers and immigration judges can no longer:

• Rely on a general rule against domestic violence and gang-related asylum claims. The new guidance requires that “[e]ach claim must be evaluated on its own merits.”
• Elevate the standard for private harm cases to “complete helplessness” by the government. Instead, the new guidance requires that asylum officers and immigration judges use the longstanding test of whether the government is “unable or unwilling to control” a non-government persecutor.
• Categorically reject particular social groups (PSGs) that are based, in part, on the applicant’s inability to leave a domestic relationship. The new guidance requires that each PSG be evaluated on a case-by-case basis.
• Require a CFI applicant to articulate his or her own PSGs during the CFI. The new guidance requires that asylum officers and immigration judges consider any potential PSG.
• Disregard federal circuit court precedent that contradicts Matter of A-B- or limit their analysis to precedent within the circuit where the CFI is taking place. The new guidance requires asylum officers and immigration judges to apply the federal circuit law most favorable to the applicant during CFIs.

It is important to understand that the plaintiffs in Grace only challenged the application of Matter of A-B- in the context of CFIs. Thus, Judge Sullivan’s order, and the newly released USCIS and EOIR guidance, only directly enjoin the government from the actions outlined above when adjudicating CFIs.

 

How Advocates Can Use the Government Guidance Ordered by the Grace Ruling Going Forward

Credible Fear Interviews

First, the Grace decision and the revised government guidance provide important safeguards for asylum seekers who are placed in expedited removal proceedings. The July 2018 USCIS guidance had set up almost impossible barriers for many asylum seekers from Central America in expedited removal. Thus, the Grace decision and changes to government guidance concerning Matter of A-B- provide crucial protections to asylum seekers at one of the most vulnerable moments in their journey and at a moment with very few procedural protections.

 

Beyond Credible Fear Interviews

The Grace decision and the government guidance following the decision only address the legal standard for CFI interviews. However, the legal standard for credible fear is intrinsically linked to the asylum standard. To succeed in a CFI, the applicant must show a “significant possibility” of success on the underlying asylum application. While the issue before Judge Sullivan in Grace was the CFI standard, as a matter of logic, it would not be possible for an asylum seeker with a domestic violence or gang-based claim to demonstrate that he or she had a “significant possibility” of winning asylum if the government could continue to employ a blanket policy against granting all such cases. Similarly, it would be illogical that an asylum seeker who could show that the government was “unwilling or unable to protect” her from a private actor could establish a “significant possibility” of winning asylum if that same asylum seeker would need to meet a higher standard of “complete government helplessness” before the immigration judge.

Advocates can therefore use the decision in Grace and the language in the revised government guidance to demonstrate that there can be no blanket rule against domestic violence or gang-based asylum and that adjudicators must continue to use the longstanding “unable or unwilling to protect” standard for private actor asylum claims. Moreover, the judge in Grace did not grant Chevron deference to Matter of A-B- in the CFI context. The strongly worded Grace decision may also provide persuasive reasoning in individual petitions for review that challenge the restriction imposed by Matter of A-B-  on the merits of asylum cases.