U.S. Citizenship and Immigration Services (USCIS) issued a policy memorandum last week providing guidance for asylum officers in the field to use in adjudicating refugee, asylum, reasonable fear, and credible fear claims following the recent decision of the attorney general (AG) in Matter of A-B-. That guidance, which faithfully implements the AG's decision, will likely significantly increase the denial rates for asylum claims, as well as the number of negative credible- and reasonable-fear findings.
I have written extensively on the AG's decision in Matter of A-B-. Succinctly, however, that decision applies the same legal standards that are applied to other asylum claims premised on persecution due to membership in a particular social group to claims where the persecution (or feared persecution) is inflicted by a non-governmental criminal actor.
Such claims are often made by nationals of the so-called "Northern Triangle" countries of El Salvador, Honduras, and Guatemala. For example, the Council on Foreign Relations has reported:
The number of asylum seekers worldwide originating from the Northern Triangle reached 110,000 in 2015, a five-fold increase from 2012. Unaccompanied minors accounted for much of this surge. Migrants from all three countries cite violence, forced gang recruitment, and extortion, as well as poverty and lack of opportunity, as their reasons for leaving. While Belize, Nicaragua, Costa Rica, and Panama have reported a sharp increase in flows from the Northern Triangle since 2008, most migrants are passing through to settle in the United States.
In Matter of A-B-, however, the AG explained:
An applicant seeking to establish persecution based on violent conduct of a private actor must show more than the government's difficulty controlling private behavior. The applicant must show that the government condoned the private actions or demonstrated an inability to protect the victims.
Implementing this guidance, the new USCIS policy memorandum states:
In cases where the persecutor is a non-government actor, the applicant must show the harm or suffering was inflicted by persons or an organization that his or her home government is unwilling or unable to control, such that the government either "condoned the behavior or demonstrated a complete helplessness to protect the victim."
Such claims have been difficult to evaluate in the past because of the lack of specific guidance in assessing whether they establish a legitimate "particular social group". Often, those claims appear to have been "reverse engineered" to fit the characteristics of the applicant.
For example, in gang recruitment cases, applicants will often assert some variation of the claim that they belong to the particular social group of "nationals of 'X' country who resist gang recruitment".
Consistent with Board of Immigration Appeals (BIA) case law, however, the AG held in Matter of A-B-: "To be cognizable, a particular social group must 'exist independently' of the harm asserted in an application for asylum or statutory withholding of removal." In this context, for example, there would have to be an attempt at forcible gang recruitment (an element of the persecution) in order for the claimants to resist it.
Any other conclusion than that reached by the AG would require pretzel logic: that the alien has been persecuted on account of his or her membership in a group defined by the fact that it has been subject to persecution. Simply put, under Matter of A-B-, the "particular social group" must exist independently of the persecution itself.
The policy memorandum reflects this by using as an example the particular social group directly at issue in Matter of A-B-, "married women in Guatemala who are unable to leave their relationship":
The Attorney General observed that this formulation "was effectively defined to consist of women in Guatemala who are victims of domestic abuse because the inability 'to leave' was created by [the] harm or threatened harm." Such a formulation would generally not share a "'narrowing characteristic other than their risk of being persecuted.'" ... The above analysis casts doubt on whether a particular social group defined solely by the ability to leave a relationship can be sufficiently particular. Even if "unable to leave" were particular, the applicant must show something more than the danger of harm from an abuser if the applicant tried to leave, because that would amount to circularly defining the particular social group by the harm on which the asylum claim was based. Officers should carefully examine any proposed particular social group to ascertain whether it contains any attributes that "exist independently of the harm asserted."
Other claims are premised on the fact that some harm has been inflicted, or would be inflicted, on the claimant because of the claimant's opposition to a gang or other criminal group. For example, claimants will assert that they have been recruited, extorted, or threatened by a specific criminal organization because they oppose its existence or actions.
As an aside, it is always questionable whether any gang would elect to recruit a specific individual who is vocally opposed to the gang's activities. Such individuals would likely make poor recruits, and even if the recruitment were successful, one could logically question the recruit's allegiance to the gang's actions and goals.
With respect to such claims, consistent with BIA precedent, the AG held in Matter of A-B-:
Social groups defined by their vulnerability to private criminal activity likely lack the particularity required ... given that broad swaths of society may be susceptible to victimization. For example, groups comprising persons who are "resistant to gang violence" and susceptible to violence from gang members on that basis "are too diffuse to be recognized as a particular social group." ... Victims of gang violence often come from all segments of society, and they possess no distinguishing characteristic or concrete trait that would readily identify them as members of such a group.
Implementing this, the policy memorandum states:
The Attorney General reaffirmed that the particular social group also must be defined with particularity. ... Officers must analyze each case on its own merits in the context of the society where the claim arises. An officer's analysis of a proposed social group is incomplete whenever the defining terms of the proposed group are analyzed in isolation, rather than collectively.
Similarly, the Attorney General addressed proposed groups defined by their vulnerability to crime. A "particular" social group is a specific segment of the population. ... Persecution on account of a protected ground can occur within the context of generalized violence. ... However, in societies where virtually everyone is at risk of crime — or broad swaths of society are at risk of crime — groups defined by vulnerability to crime are not a subdivision of the society, but instead are typical of the society as a whole. ... "[G]roups comprising persons who are 'resistant to gang violence' and susceptible to violence from gang members on that basis 'are too diffuse to be recognized as a particular social group.' ... Victims of gang violence often come from all segments of society, and they possess no distinguishing characteristic or concrete trait that would readily identify them as members of such a group." ... Thus, "[s]ocial groups defined by their vulnerability to private criminal activity likely lack the particularity required ... given that broad swaths of society may be susceptible to victimization."
The policy memorandum also emphasizes the discretionary nature of asylum relief, which the AG referenced in a footnote in Matter of A-B-. I detailed this last month in a post captioned "The Safe-Third Country Sleeper Footnote in Matter of A-B-":
[I]n footnote 12 of that decision, the attorney general reiterated the fact that asylum is a discretionary form of relief, and reminded "all asylum adjudicators that a favorable exercise of discretion is a discrete requirement for the granting of asylum and should not be presumed or glossed over solely because an applicant otherwise" satisfies the other requirements for asylum relief under the Immigration and Nationality Act (INA).
Implementing the AG 's guidance, the policy memorandum states:
USCIS personnel may find an applicant's illegal entry, including any intentional evasion of U.S. authorities, and including any conviction for illegal entry where the alien does not demonstrate good cause for the illegal entry, to weigh against a favorable exercise of discretion. In particular, "the circumvention of orderly refugee procedures" factor may take into account whether the alien entered the United States without inspection and, if not, whether the applicant had other ways to lawfully enter this country. For example, the applicant might show that the illegal entry was necessary to escape imminent harm and that he or she was thereby prevented from presenting himself or herself at a designated United States POE. An officer should consider whether the applicant demonstrated ulterior motives for the illegal entry that are inconsistent with a valid asylum claim that the applicant wished to present to U.S. authorities.
Taking the AG's guidance in Matter of A-B- as a whole, the policy memorandum sets forth the following framework for officers to use in evaluating persecution claims on these grounds:
For claims based on membership in a particular social group, an applicant has the burden to prove: (1) membership in a particular group, which is composed of members who share a common immutable characteristic, is defined with particularity, and is socially distinct within the society in question; (2) that her membership in that group is a central reason for her persecution; and (3) that the alleged harm is inflicted by the government of her home country or by persons that the government is unwilling or unable to control.
One final point of particular interest in the policy memorandum, relating to the law to be applied in making a credible fear determination, might otherwise go unnoticed. It is, however, of significant importance given the higher number of credible fear claims from aliens apprehended after entering illegally in Texas (and in particular in the Rio Grande Valley (RGV)) and considered by the Houston Asylum Office (designated ZHN in the statistics), as opposed to those apprehended along the Arizona and California borders and considered by the Los Angeles Asylum Office (ZLA). The policy memorandum states:
When conducting a credible fear or reasonable fear interview, an asylum officer must determine what law applies to the applicant's claim. The asylum officer should apply all applicable precedents of the Attorney General and the BIA ... which are binding on all immigration judges and asylum officers nationwide. The asylum officer should also apply the case law of the relevant federal circuit court, to the extent that those cases are not inconsistent with Matter of A-B-. ... The relevant federal circuit court is the circuit where the removal proceedings will take place if the officer makes a positive credible fear or reasonable fear determination.
But removal proceedings can take place in any forum selected by DHS, and not necessarily the forum where the intending asylum applicant is located during the credible fear or reasonable fear interview. Because an asylum officer cannot predict with certainty where DHS will file a Notice to Appear or Notice of Referral to Immigration Judge, and because there may not be removal proceedings if the officer concludes the alien does not have a credible fear or reasonable fear and the alien does not seek review from an immigration judge, the asylum officer should faithfully apply precedents of the Board and, if necessary, the circuit where the alien is physically located during the credible fear interview. [Emphasis added.]
The RGV and ZHN are in Texas, which falls under the jurisdiction of the Court of Appeals for the Fifth Circuit. Arizona and California, on the other hand, are within the jurisdiction of the Court of Appeals for the Ninth Circuit. Although not a hard and fast rule, the Ninth Circuit generally takes a more expansive view of asylum eligibility than the Fifth Circuit. For example, the most recent edition of the Department of Justice's Office of Immigration Litigation's "Immigration Law Advisor" (from the winter of 2017-2018) shows that from January through November 2017, the Ninth Circuit reversed the BIA 13.8 percent of the time, while the Fifth Circuit reversed the BIA only 5.6 percent of the time.
While the statistics also include removal cases not strictly dealing with asylum claims, this reversal rate demonstrates that the Fifth Circuit is more likely to side with the government on immigration matters than the Ninth Circuit is, generally.
In contrast to the guidance in the policy memorandum, the Asylum Division Officer Training Course on credible fear from February 2017 directed asylum officers to use "the interpretation most favorable to the applicant ... when determining whether the applicant meets the credible fear standard" whenever there is a disagreement among circuit courts "as to the proper interpretation of a legal issue", absent Department of Homeland Security or Asylum Division policy or guidance on that issue.
Therefore, under the policy memorandum, an alien claiming credible fear who is apprehended in the RGV and given a credible fear determination there may have his or her claim evaluated and denied under Fifth Circuit law, even if that claim would have received positive treatment in the Ninth Circuit.
All told, the policy memorandum will likely reduce the number of favorable credible fear findings, giving foreign nationals who are contemplating entering the United States illegally less incentive to do so. That is a good thing.