INTRODUCTION TO ASYLUM LAW & PROCEDURE

1. INTRODUCTION TO ASYLUM LAW & PROCEDURE

2. OBJECTIVES To be introduced to the following concepts: • Definition of asylum; • Enumerated grounds for an asylum claim; • Past persecution; • Well-founded fear of persecution; • Nexus; • Particular Social Groups; • Matter of A-B-; • Bars to a grant of asylum; • Discretionary factors; • Credibility/Supporting evidence; • Overview of Withholding of Removal & Relief under Article III of the Convention against Torture

3. Definition of Asylum An individual may be granted asylum if s/he meets the definition of a refugee if there are no mandatory bars, and a positive exercise of discretion is warranted. A refugeeis “any person who is outside any country of such person’s nationalityor, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecutionon account ofrace, religion, nationality, membership in a particular social group, or political opinion. . . .” I.N.A. §101(a)(42)(A). (Emphasis Added). The asylum process is the counterpart of the refugee process for those who seek refugee status but are already on U.S. soil. I.N.A. § 208(a)(1).

4. Sources of Asylum/Refugee Law • Immigration and Nationality Act / U.S. Code/Regs • INA § 208 • 8 CFR §§ 208, 1208 • Court Cases: • U.S. Supreme Court • U.S. Circuit Courts of Appeals • Board of Immigration Appeals (BIA) Decisions • Immigration Court Decisions (not precedential) • Agency Guidelines: • Asylum Officer’s Basic Training Course (not precedential)

5. Element: Persecution or Fear of Persecution INA §101(a)(42)(A): “Any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of (past) persecution or a well-founded fear of (future) persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”

6. What is Persecution? • Infliction of serious “harm or suffering” • Must be sufficiently severe to constitute persecution • Determined on case by case basis: • Threats to life or freedom • Physical abuse • Confinement • Physical harm • Extreme emotional harm • Economic restrictions so severe they constitute a threat to life or freedom

7. What is not Persecution?

8. Past Persecution • Establishing having suffered past persecution, creates a rebuttable presumption of well-founded fear of future persecution

9. Past Persecution • To dislodge this presumption Government must rebut it by showing either: • Fundamental change in country conditions; or • Reasonable possibility of internal relocation • In some cases past persecution may be sufficiently severe to grant humanitarian asylum. Matter of L-S-, 25 I&N Dec. 705 (BIA 2012)

10. Well-Founded Fear of Future Persecution • If past persecution not established or rebutted, applicant must establish a well-founded fear of future persecution • A 10% likelihood that you will be persecuted if returned to your country of origin. INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) • The applicant must prove: 1) a subjective fear that is, 2) objectively reasonable. • Subjective fear established through credible testimony • Objective fear established through client’s past experiences as well as country conditions evidence

11. Government Action Harm or suffering had to be inflicted either by the government of a country or by persons or an organization that the government was unable or unwilling to control.”Matter of Acosta, 19 I&N Dec. 211, 222 (BIA 1985) “A State is not expected to guarantee the highest possible standard of protection to all its citizens all the time, but protection needs to be real and effective.” United Nations High Commissioner for Refugees Applicant not expected to have sought police protection where country conditions demonstrate that it would have been futile. Matter of S-A-, 22 I&N Dec. 1328, 1335 (BIA 2000)

12. Element: Nexus to Protected Ground(s) i.e., Why was the harm inflicted? INA §101(a)(42)(A): “Any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”

13. The Five Protected Grounds • Race • Religion • Nationality • Political Opinion • Membership in a Particular Social Group

14. Mixed Motives • Mixed motives • The protected ground must be “at least one central reason” for the persecution • Motivation to harm on account of protected ground must be a central reason for persecution but need not be the ONLY reason!!

15. Membership in a Particular Social Group • A particular social group (PSG) is solely: • composed of persons who hold a “common immutable characteristic”; • defined with “particularity”; and • “socially distinct” • Matter of M-E-V-G, 26 I&N Dec. 227 (BIA 2014) and W-G-R, 26 I&N Dec. 2018 (BIA 2014).

16. Defining PSGs • Immutability: • Characteristic cannot be changed or should not reasonably be expected to be changed • Particularity: • Terms have commonly accepted definitions in the society • Social distinction: • Perceived or recognized by society as a group • Characteristic need not be visible to the eye • The group cannot be defined exclusively by the fact that the members have been subjected to harm OJO!!!: Keep the analysis of your PSG SEPARATE from that of your nexus analysis. These are 2 SEPARATE ELEMENTS which raise different legal questions!

17. Matter of A-B- (A.G. 2018) • Decision by former Attorney General Jefferson B. Sessions III which attempts to upend asylum law and eliminate hard won protections for women felling gender-based persecution and victims of persecution by private actors. • In Matter of A-B- the AG reversed a grant of asylum for a woman, Ms. A.B., who fled more than 15 years of extreme DV at hands of her husband. • Posed social group: “El Salvadoran women who are unable to leave their domestic relationships where they have children in common” with their partners. • AG reversed the BIA’s grant of asylum to Ms. A.B. and used her case as a vehicle to overrule a landmark decision by the BIA known as Matter of A-R-C-G-, which affirmed that domestic violence survivors can meet the refugee definition and qualify for asylum.

18. Matter of A-B- Discussion of Asylum Elements • Decision also attempts to heighten the standard for demonstrating government inability to protect, reframe the standard for demonstrating the reasonableness of relocation, and attempts to tie the adjudication of asylum cases to his “zero tolerance” policy of prosecuting individuals who enter the U.S. without authorization by including past immigration violations in an adjudicator's discretionary analysis. • Although much of the language is Dicta, USCIS and ICE have attempted to transform this the dicta into actual policy and many adjudicators are in agreement. • Reminder: The AG’s decision did not establish a blanket rule foreclosing any DV or gang violence based asylum claim. Advocates should assert that any social groups advanced must be analyzed on a case by case basis. • Reminder: DV and gang based claims may raise valid claims on account of other grounds, such as political opinion, religion, race, or nationality. Put forth multiple relevant social groups/and or statutorily protected basis.

19. Burden Of Proof and Corroboration • The burden of proof is ALWAYS on your client 8 § C.F.R. 1208.13(a) • Testimony alone, if credible, persuasive, and specific, can be sufficient to sustain burden of proof • Corroborating evidence should be provided where reasonable and, if unavailable, your client must be able to articulate steps taken in an attempt to obtain corroboration and why those steps were unsuccessful • Where the Court determines that the applicant should “provide evidence that corroborates otherwise credible testimony, such evidence must be provided unless the applicant does not have the evidence and cannot reasonably obtain the evidence.” INA § 208(b)(1)(B)(ii); see Yan Juan Chen v. Holder, 658 F.3d 246 (2d Cir. 2011) (finding that an undocumented alien’s fear of being arrested if he appeared at his wife’s asylum hearing did not render him “unavailable” to testify since his testimony would have been to his benefit for purposes of derivative asylum).

20. Credibility • CREDIBILITY IS PARAMOUNT! Under REAL ID Act, any inconsistency can be the basis for an adverse credibility finding, even if it does not go to the heart of the applicant’s claim. REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 302, 303 (May 11, 2005). • Prior immigration applications also taken into account – KNOW YOUR RECORD!

21. Supporting Evidence • THE APPLICANT HAS THE BURDEN OF PROOF TO ESTABLISH ELIGIBILITY FOR ASYLUM! UNDER REAL ID ACT, YOU MUST PROVIDE SUPPORTING EVIDENCE THAT IS REASONABLY AVAILABLE. I.N.A. § 208(b)(B)(ii). • Corroborative evidence must be submitted, including but not limited to the following: • Identity documents (birth, marriage certificates, etc. ) • Police/Court records • Hospital/medical records • Statements by individuals with knowledge of what client suffered (notarized and with Identity documents) • Professional documents (work ID cards, certificates, employment confirmation letters, etc.) • Diplomas • Local newspaper articles • Country conditions reports

22. Bars to AsylumI.N.A. § 208(a)(2)(B);I.N.A. § 208(b)(2)(A)(i)-(v)

23. One-Year Filing Deadline • Applicants must establish by clear and convincing evidence that they have filed for asylum within one year of last arrival in the United States. • Changed circumstances – 8 C.F.R. 1208.4(a)(4)(i)(A)-(C) • Changed country conditions • Changes in applicant‘s circumstances that materially affect his/her eligibility for asylum • Derrivative reaches 21 years old and must file independent claim • Extraordinary circumstances- 8 C.F.R. 1208.4(a)(5)

24. Discretionary Factors • A grant of asylum is not mandatory, but based on a positive exercise of discretion. See 8 C.F.R. §§ 208.14(a) and 208.14(b). Examples of positive equities: • Family Ties; • Community Involvement/Volunteer Work; • Tax returns!!! • If criminal history– anything indicating rehabilitation? See Matter of Pula, 19 I. &N. 467 (B.I.A. 1987): use of false documents to flee persecution does not necessarily defeat a bona fide asylum claim. But, c.f.,Matter of O-D-, 21 I.&N. Dec. 1079 (B.I.A. 1998) (false identity document may damage overall credibility).

25. WITHHOLDING OF REMOVAL & RELIEF UNDER CONVENTION AGAINST TORTURE

26. Withholding of Removal:INA §241(b)(3) • “[T]he Attorney General may not remove an alien to a country if the Attorney General decides that the alien’s life or freedom would be threatened in that country because of the aliens’ race, religion, nationality, membership in a particular social group, or political opinion.”

27. Convention Against Torture (CAT) • Convention Against Torture Art. 3: • “No State Party shall expel, return (refouler) or extradite a person to another State where there are substantial grounds for believing that he or she would be in danger of being subjected to torture.” • 8 CFR §208.18(a): • Incorporates definition of torture in CAT Art. 1.

28. Differences between Asylum, Withholding of Removal, and CAT

29. Differences between Asylum, Withholding of Removal, and CAT

30. Affirmative vs. Defensive Applications Affirmative Applications Defensive Applications Applicant in removal proceedings (NTA issued) Filed with Immigration Court Adversarial hearing before immigration judge Decision on asylum or withholding or CAT in alternative • Applicant not in removal proceedings • Filed with USCIS • Non-adversarial hearing before asylum officer • Decision only on asylum