USICS Issues New Guidance to Comply with Matter of A-B-, Redefining Who Qualifies for Asylum

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On July 11, 2018, U.S. Citizenship and Immigration Services (“USCIS”) issued a new policy memorandum, intending to provide guidance to USCIS officers for determining whether a petitioner is eligible for asylum or refugee status in light of the Attorney General’s decision in Matter of A-B-.

About Matter of A-B-:

Factual Background: Mrs. A-B was born in El Salvador. In her 20s, she met a man there who was to become her husband. After she married her husband, he subjected her to horrific physical, sexual, and emotional violence for 15 years. Mrs. A-B constantly feared for her life; she sought protection from the El Salvadorian authorities, but to no avail. She moved two hours away, but he managed to find her and the abuse continued. She filed for divorce, but a month after the divorce was finalized her ex-husband found her and accosted her and told her that divorce didn’t mean anything and that her life was in danger. One week before she planned to leave the country, her ex-husband found her again and physically assaulted her. Believing that she had nowhere else to turn and that her life was in imminent danger, Mrs. A-B fled El Salvador to seek protection in the United States.

Procedural Background: The procedural path to Matter of A-B- is both complicated and unusual. Here’s a summary:

  • Mrs. B-A applied for asylum, but the immigration judge (“IJ”) denied her application for these four reasons: (1) she was not credible; (2) she was not a member of a qualifying particular social group (“PSG”) asylum category; (3) even if she was able to establish that she was a member of a qualifying PSG, her membership in this PSG was not the one central reason for the harm she experienced at the hands of her husband; and (4) she failed to prove that the government in El Salvador was unable or unwilling to protect her from her husband.
  • Mrs. A-B appealed the decision of the IG to the Board of Immigration Appeals (“BIA”).
  • The BIA, applying Matter of A-R-C-G, reversed the IJ’s decision. The BIA held that Mrs. A-B qualified for asylum based on the domestic violence she had endured and the Salvadorian government’s inability or unwillingness to protect her from this harm. The BIA remanded the case back to the IJ to perform background checks and grant asylum to Mrs. A-B.
  • In March 2018, Attorney General (“AG”) Jeff Session admitted that the IJ’s decision to certify the case back to the BIA was wrong. Nevertheless, he certified the case to himself under 8 CFR § 1003.1(h)(1)(i). This is considered procedurally unusual because the AG can only certify cases before the BIA and this case was still technically before the IJ.
  • In his June 11, 2018 opinion, the AG overruled the prior decision of Matter of A-R-C-G-, which had held that in some circumstances, victims of domestic violence could receive asylum protection. Also, the AG’s decision in Matter of A-B- attacks asylum claims by those harmed by non-state actors.

Main Takeaways from the USCIS Policy Memo:

The USCIS policy memo applies Attorney General Jeff Session’s opinion in Matter of A-B- to credible fear interviews in a manner that may make it significantly more difficult for asylum seekers to even get past the first step for requesting protection via asylum.

Credible fear interviews take place when an immigrant, who has just recently entered into the U.S. and would be subject to expedited removal, verbalizes his or her fear of returning home. If the asylum officer finds that the immigrant has a credible fear, the immigrant is allowed to temporarily remain in the U.S. and is given a hearing to determine whether he or she qualifies for asylum.

One of the most disturbing things about the USCIS policy memo is that it goes further than the AG’s decision in the Matter of A-B-. When it comes to asylum claims based on membership in a PSG, the memo instructs asylum officers to consider that the standards the AG set in this Matter of A-B- decision generally exclude claims based on domestic violence or gang violence committed by non-government actors.

This USCIS instruction to asylum officers raises the standards for credible fear interviews, which determine whether an asylum seeker may pursue a case at all. The threshold to establish a credible fear is supposed to be low. Unfortunately, this new higher standard set forth in the USCIS memo might weed out some immigrants who could have successfully applied for asylum, even under AG’s new guidelines in Matter of A-B-.

There is one bolded statement in the USCIS memo. It reads, “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.”

USCIS asking asylum officers to pre-judge these immigrants’ claims is antithetical to the fundamental asylum law principle that each asylum case is unique and should accordingly be judge on its merit.

Immigrants who are not well-versed in the U.S. legal system and do not have an immigration attorney to guide them through the process, may not realize which part of their story they should emphasize in order to give them the strongest asylum claim. This deficiency can cause valid asylum claims to be overlooked at the initial credible fear stage.

If you have a pending asylum case, it is in your best interests to retain an experienced asylum attorney as your legal counsel. As a layperson, unfamiliarity with the U.S. legal system and the asylum application process can cause you to make a fatal error in the process and lose your chance to be able to successfully apply for asylum. As such, there is simply too much at stake to go at it alone.

If you think you might have a claim for asylum, consider contacting the asylum attorneys at Kuck | Baxter Immigration partners. Our seasoned immigration attorneys have years of experience handling a wide variety of asylum cases from all over the world.

To learn more about Kuck | Baxter Immigration Partners and the immigration law services we offer, check out our firm’s website. To schedule your consultation with one of our seasoned immigration lawyers, contact us using our website’s online contact form or you can reach us at:

Kuck | Baxter Immigration Partners LLC

365 Northridge Road

Suite 300

Atlanta, GA 30350

Tel: (404) 816-8611

Kuck | Baxter Immigration Partners LLC

367 Prince Avenue #3

Suite K

Athens, GA 30606

Tel: (404) 816-8611

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Charles Kuck

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