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USCIS: Redefining Asylum in America

Written By The Shapiro Law Group on September 10, 2018

USCIS issued a policy memo that provides guidance to asylum officers for establishing a petitioner’s eligibility for asylum or refugee status based on the decision of Attorney General Jeff Sessions in Matter of A-B-. To establish eligibility for asylum, an applicant is required to have a reasonable fear of persecution on account of membership to a particular social group or factors such as race, nationality, religion, or political opinion.

The new guidance from USCIS seeks to comply with Matter of A-B-, where Jeff Sessions overturned a case involving an El Salvadoran woman who was granted asylum on account of severe domestic violence she experienced. Sessions overturned the Board of Immigration Appeals (BIA) case law of Matter of A-R-C-G-, which had established that survivors of domestic violence can be eligible for asylum protection. Before granting asylum, the officers must consider whether internal relocation is necessary to avoid future persecution.

Cases Involving Violence Committed By Non-Government Actors

In cases that involve domestic violence or gang violence committed by non-government persecutors, an applicant must show fear of harm or suffering by individuals or groups that his or her home government is unable or unwilling to control. This means that the government either demonstrated a complete helplessness to protect victims or condoned the behavior. But one bolded statement in the memo indicates that claims based on membership in a social group and vulnerability to the harm caused by non-government actors will not establish a basis for a reasonable or credible fear of persecution, asylum, or refugee status. Thousands of individuals seeking protection from persecution and violence could be turned away.

An immigrant who has just recently entered into the U.S. has to participate in a credible fear interview, which involves verbalizing his or her fear of returning home. The immigrant is allowed to temporarily remain in the country if credible fear is established and a hearing is then scheduled to determine eligibility. The credible fear interviews under the recent USCIS policy memo will be conducted in a manner that may make it much harder for asylum seekers to even pass the first step for requesting protection.

This reshaping of the law comes after the USCIS stated that the number of applications has risen sharply in the past few years. Sessions introduced the new regulation to cut a massive backlog of immigration cases and eliminate what he referred to as “rampant fraud and abuse.”