The attorney general issued a precedent decision, Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018), last month. In the past few weeks U.S. Citizenship and Immigration Services (USCIS) and Immigration and Customs Enforcement (ICE) have both issued clarifying guidance on the impact of that decision. Both memos were issued on July 11, 2018. This article will discuss the highlights of both memos.
Guidance for Processing Reasonable Fear, Credible Fear, Asylum and Refugee Claims in Accordance with Matter of A-B- (USCIS Memo)
The USCIS memo provides instruction to asylum officers throughout the country who adjudicate reasonable fear, credible fear, affirmative asylum, and refugee applications. The memo discusses in great detail how officers are to apply the holding of Matter of A-B- in their adjudications.
Definition of Particular Social Group: The USCIS memo lays out the clearly established three-part test for establishing a Particular Social Groups (PSG), which is immutability, particularity, and social distinction. The USCIS memo echoes the AG’s analysis and states that a PSG with terms such as “married, women, unable to leave the relationship,” collectively, are “unlikely to be sufficiently particular,” even though the terms on their own, in isolation, could be considered particular. Thus, officers are instructed to view the PSG as a whole when analyzing the particularity prong of the PSG test. Further, the USCIS memo instructs, again echoing the AG’s reasoning, that if a group is defined too narrowly, it will not be socially distinct; if defined too broadly, it will not be particular. Going forward, practitioners should consider submitting ample background country condition evidence to support the PSG’s particularity and social distinction prongs and submit legal arguments that establish that supporting one prong of the analysis does not necessarily undercut another prong.
Social Group Circularity: The USCIS memo instructs officers to find that PSGs defined by the harm are not cognizable PSGs. Similar to the AG’s conclusions in Matter of A-B-, the USCIS memo states that the “unable to leave” part of the PSG is based on the harm or fear of being with the persecutor. This is mistaken logic, and thus practitioners should argue in asylum cases based on domestic violence that a woman’s “inability to leave” is not solely because she is afraid to leave, but because the male-dominated, patriarchal society she lives in will not allow her to leave her male partner. That is, the “unable to leave” part of the PSG is not the harm the applicant fears but rather what defines the relationship. Furthermore, practitioners should argue that case law and BIA precedent do not require complete independence of the harm from the PSG, just that the PSG cannot solely be defined by the harm. See Matter of W-G-R-, 26 I& N Dec. 208, 215 (BIA 2014).
Persecution by Private Actors: The USCIS memo supports the AG’s persecution definition, which consists of three elements: (1) an intent to target a belief or characteristic, (2) severe harm, and (3) that the harm suffered must be inflicted by the government or someone the government cannot control. In discussing the government’s ability and willingness to control the private actor, the USCIS memo agrees with the AG and heightens the standard, requiring the asylum applicant to show that the government “condoned” the private actions or was at least helpless in stopping the persecution. Practitioners should continue to argue that decades of well-established precedent requires that the persecution element of the asylum definition only includes a harm element, and not this three-part definition. Further, practitioners should argue that established precedent and the Immigration and Nationality Act do not require this heightened standard, articulated in the guidance, that the government condone or be completely helpless in the face of private actor harm. Practitioners should continue to document all efforts of the client to report harm and persecution to the police, the police responses, and their inability to protect.
Further, in discussing private actor harm and civil strife, the USCIS memo quotes Matter of A-B-, “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.” First, practitioners should continue to argue that this section of the decision is clearly “dicta,” or an expression of opinion that goes beyond the facts of the case and is not binding in subsequent cases. Practitioners should continue to support asylum cases with background country information that clearly establishes all prongs of the PSG test and supports the contention that the PSG is not solely based on the client’s vulnerability. For example, in domestic violence asylum cases, the PSG “women viewed as property by virtue of their position in the relationship,” should contain arguments and country-specific information that supports the argument that women are subordinate and viewed as property in a male-dominated society. While being viewed this way could make women vulnerable, it is also evidence of the group’s social distinction and particularity. Second, practitioners should continue to pursue asylum cases based on gang violence. These claims remain viable and are not foreclosed by this guidance or by Matter of A=B-, provided there is a nexus between the protected ground and the persecution or fear of persecution.
Nexus: With regard to establishing nexus to a protected ground, the USCIS memo, mirroring the language in Matter of A-B-, states: “…when a private actor inflicts violence based on a personal relationship with the victim, the victim’s membership in a larger group will often not be “one central reason” for the persecution.” According to this statement, asylum seekers who have been harmed by someone they have a prior relationship with can almost never prove that the harm they suffered was on account of a protected ground. Clearly, this is erroneous and in all asylum case where a private actor is the persecutor, practitioners should continue to argue that private actor harm where there is a personal relationship does not preclude a finding of nexus to the protected characteristic. Persecutors do not have to target everyone in the social group (or any protected characteristic), for the applicant to prove persecution and, in any event, “mixed motives” can satisfy the nexus requirement so long as the protected characteristic is “one central reason” for the harm.
Internal Relocation: The USCIS memo restates the asylum regulations at 8 CFR § 208.13(b), which essentially require that the internal relocation must be both safe and reasonable to deny an asylum seeker protection on this ground. Going forward, practitioners should clearly argue that both prongs of the internal relocation requirement must be met. Testimony, country conditions and expert testimony should be used to establish why internal relocation is not safe and/or reasonable.
Credibility: The USCIS memo highlights long-established principles of credibility in asylum adjudications and reiterates that credibility determinations should be based on the “totality of the circumstances,” which can include demeanor, candor, responsiveness, plausibility, and consistency. Practitioners should continue to insist that credibility findings must be based on a complete record and that clients have an opportunity to explain any credibility issue that comes up during an interview.
Discretion: The USCIS memo instructs asylum officers to consider an asylum applicant’s illegal entry, circumvention of refugee procedures, and/or third country resettlement in making a discretionary determination. Discretionary determinations are based on the “totality of the circumstances,” and one such circumstance is flight from danger or imminent harm. See Matter of Pula, 19 I&N 467, 473 (BIA 1987). While both the USCIS guidance and Matter of A-B- cite Pula, they both leave out the most critical part of the holding—“the danger of persecution should generally outweigh all but the most egregious of adverse factors.” Id. at 474. Arguing for a positive exercise of discretion was not necessarily important in the past, but practitioners should start supporting the record with positive discretionary evidence, reasons why clients were forced to enter the United States unlawfully, and arguments for a favorable exercise of discretion.
Credible Fear and Reasonable Fear Screenings: The USCIS memo reiterates the credible fear standard, which is “significant possibility,” and the reasonable fear standard, which is “reasonable possibility.” However, more significantly, the USCIS memo essentially instructs asylum officers that “few gang-based or domestic-violence claims involving particular social group defined by the members’ vulnerability harm” will be able to pass the extremely low credible fear standard, or the reasonable fear standard. The credible fear standard has historically been a low screening standard to allow persons feeling persecution who have a colorable claim to pursue asylum before the immigration judge. However, under this guidance asylum officers will essentially be screening out eligible asylum claims where there is a PSG or gang persecutor, in contrast to the regulations. Additionally, as mentioned above, various parts of Matter of A-B- which touch on different aspects of asylum such as government protection, internal relocation and nexus, however asylum seekers first arriving to the US border will generally not be able to supplement their credible fear cases with enough information and evidence to satisfy this de facto heightened standard. Practitioners who represent credible fear applicants should try to construct as many PSGs and novel arguments possible, and argue that a positive credible fear finding is warranted so that these arguments can be given the full consideration before the immigration judge. 8 C.F.R. §208.30(a)(4). Alternatively, practitioners should try to advance claims under the Convention Against Torture (CAT), especially if the persecutor operates with the acquiesces or in the “blind eye” of the government such as gangs and cartels.
Further, the USCIS memo, in changing course with prior policy, now requires officers to apply the circuit court law in the location where the asylum applicant is currently detained or interviewed. In the past, the law most favorable to the applicant was applied in credible fear screenings. See Credible Fear Lesson Plan, 2017. This is an important change because case law varies significantly with regard to PSGs based on family membership, “former gang members,” and witnesses to criminal activity. Since asylum officers are bound by the holding in Matter of A-B-, asylum claims based on domestic violence most likely will not succeed.Practitioners should screen clients for potential claims based on CAT, where there is no nexus requirement. For example, if the client was harmed by an intimate partner who is also a gang member, there could be a potential for CAT eligibility if the client can testify to police acquiescence to gang activity.
Guidance to ICE Trial Attorneys – “Litigating Domestic Violence-Based Persecution Claims following Matter of A-B-” (OPLA Memo)"
The ICE Office of the Principal Legal Advisor (OPLA) released a memo on July 11, 2018, guiding trial attorneys on how to litigate domestic violence-based asylum cases before the immigration court. The OPLA memo contains pages of analysis and reasoning similar to that of the USCIS memo. Here are a few distinguishing points.
Guidance Related to PSG Formulation: The OPLA memo requires that ICE attorneys make sure that immigration judges (“IJ”) and the Board of Immigration Appeals (“BIA”) rigorously analyze all claims, which could mean that ICE attorneys may take a more active role in asylum hearings. Interestingly, the OPLA memo highlights that while Matter of A-R-C-G- was overruled, that does not mean all PSGs based on private actor harm or those based on domestic violence will never qualify for asylum or withholding of removal. Thus, practitioners should continue to distinguish Matter of A-B- before both the Asylum Office and the IJ.
The OPLA memo also mentions, similar to the USCIS memo, that the PSG must “exist independently” of the harm. However, the memo goes on to note that based on the reasoning in Matter of M-E-V-G-, 26 I&N Dec. 227, 243 (BIA 2014), harm can sometimes define the PSG. Thus, in cases where harm is part of the PSG formulation, practitioners should cite to the OPLA memo, as well as controlling case law.
Testimony: The OPLA memo discusses specific questions trial attorneys should ask asylum seekers whose claims are based on domestic violence. While acknowledging that corroboration is not always required, the ICE memo instructs trial attorneys to consider questioning asylum applicants on the specific details of the persecutors. Such questions can include biographical information, names of the persecutor’s family, physical characteristics, photographs, employer information, military service, health information, other relationships, and information about every contact the persecutor had with the asylum seeker. This is a very exhaustive list of information. In cases where clients do not have such information, practitioners should argue that cultural constraints and trauma-induced memory loss could be reasons, among others, as to why a person would not possess this knowledge about the persecutor.
Predictions: The OPLA memo makes a few predictions. First the memo states that it is likely there will be an increase in voluminous, pre-packaged country-specific materials supporting the asylum claim, and instructs ICE attorneys to submit any reports that contain information to the contrary. While ICE attorneys have always had the option to submit their own country conditions materials, practitioners may start seeing ICE trial attorneys focus more on their own submissions. Asylum practitioners should therefore be prepared to challenge the documents’ applicability to their client’s case. A second prediction in the memo is that with Matter of A-R-C-G- overruled, it is likely that DHS and the Executive Office of Immigration Review (EOIR) will be forced to determine whether a “gender–alone” PSG, such as “Guatemalan women” is valid. ICE attorneys are instructed not to take a position on this PSG. Practitioners should advance as many PSGs that are legally supportable and viable before the IJ, including those defined solely by gender. Practitioners should also be sure to explore other claims such as political opinion and religion.
Both memos are instructive and illustrate the breadth of the AG’s decision in Matter of A-B-.Regardless, practitioners should still consider representing asylum seekers whose claims are based on domestic violence, build a solid record, attempt to distinguish Matter of A-B-, and continue to argue that all cases must be evaluated on a case-by-case basis. In order to receive guidance on post-Matter of A-B- cases, please consult the Center for Gender and Refugee Studies for the most up to date information, technical assistance and practice advisories.