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Attorney General Sessions and DHS Secretary Nielsen Join Force Again, This Time to Close the Door on Asylum

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USCIS issued a memo on Wednesday that strong-arms adjudicators tasked with deciding the fate of thousands of asylum seekers to deny virtually all cases involving women fleeing horrific abuse, kids and others running from ruthless gangs, and most others claiming fear of persecution, where the persecution is not directly caused by a government.  

This memo is the result of a legally flawed, politically motivated decision by Attorney General Jeff Sessions issued last month – Matter of A.B. – applying to all immigration judges under his jurisdiction. Now, USCIS is following this flawed decision. Taken together, the Attorney General’s decision and the USCIS memo are closing the door on many refugee claims that were granted before this double-barreled assault on our nation’s asylum system.

Why is one decision by the Attorney General – Matter of A.B. – so consequential?

When a person entering the U.S. expresses a fear of persecution, her case is referred to USCIS  for a credible fear interview within weeks of arrival. This is intended to initially determine which cases have a significant possibility of being granted asylum once thoroughly reviewed under the law. If the person passes the credible fear interview, his or her case is referred to an immigration court for a complete review and consideration by a non-politically appointed immigration judge. Denied cases may be appealed to the Board of Immigration Appeals (BIA), a board also made up of career public servants. Under the law, decisions by the BIA are binding on all immigration judges and all DHS employees, including USCIS making decisions on asylum cases.

If an immigrant already inside the U.S. expresses a fear of persecution, they may apply to USCIS for asylum. If denied, their case is referred to an immigration court for a hearing before an Immigration Judge.

Under the law, the politically-appointed Attorney General, on his own volition, has the authority to re-decide BIA cases he disagrees with for whatever reason and the decision has the same binding authority on all immigration judges and DHS employees, just as the non-political BIA decisions. This is the authority Sessions used to decide Matter of A.B. and, as a result, Matter of A.B. is binding all immigration judges and adjudicators at USCIS who decide asylum cases.

Because Sessions’ politically-motivated Matter of A.B. is binding on DHS, USCIS issued Wednesday’s memo to guide asylum adjudicators on how to apply Matter of A.B. in the thousands of asylum cases they review.

Matter of A.B. is a poorly-reasoned and flawed attempt to force immigration judges and USCIS asylum adjudicators to deny a large group of asylum applicants

1. Attempts to close door on groups of asylum applicants without a required case-by-review

Although Matter of A.B. restates, without changes, the existing legal test that immigration judges and USCIS adjudicators have been using to consider whether the facts in a particular case meet the legal standard for certain asylum claims, Matter of A.B. goes on to say:

Generally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum. While I do not decide that violence inflicted by non-governmental actors may never serve as the basis for an asylum or withholding application based on membership in a particular social group, in practice such claims are unlikely to satisfy the statutory grounds for proving group persecution that the government is unable or unwilling to address.

The major flaw in Matter of A.B. is located in this paragraph. Because asylum cases are determined by considering facts in a case-by-case review against an established legal test reaffirmed in this case, Sessions should not pre-determine that virtually all such cases would generally not qualify without applying the legal test against the facts in each case.

2. Cynical attempt to close door on asylum to those now being prosecuted under Sessions’ zero tolerance policy

Relegated to a footnote in small font, Sessions attempts to force USCIS asylum adjudicators to redefine a well-settled understanding of how discretion should be used by adjudicators by claiming that an asylum applicant who entered the country unlawfully may not be granted asylum as a matter of discretion. When adjudicators determine that a person is eligible for asylum, they must also decide whether the person should be granted asylum as a matter of discretion and should consider various factors. For decades, however, asylum adjudicators have understood that “[t]he danger of persecution will outweigh all but the most egregious adverse factors,” including unlawful entry, as instructed by the BIA. Practically, that means in most cases where a person enters the U.S. other than through a port of entry with valid documents adjudicators will rarely deny her meritorious asylum claim on that basis. And that makes sense because Congress clearly provided that people seeking safe haven in the U.S. may apply for asylum regardless of whether or not they arrived “at a designated port of arrival.”

In April, less than two months before Matter of A.B. was issued, Sessions issued a zero tolerance policy that requires 100% prosecution for all caught crossing the border outside of lawful border checkpoints, a misdemeanor. Under the footnote in Matter of A.B., Sessions attempts to instruct USCIS asylum adjudicators to use such prosecutions to deny asylum to even those with strong and legitimate claims to asylum.

3. Attempt to close door to asylum before a person fleeing persecution even has a fair chance to explain

When a person arrives at the border and expresses a fear of persecution, the first step is to provide an initial check – a credible fear interview. It is not an involved review of facts and evidence, but, instead, a simple interview conducted usually within two weeks of arrival and is intended to weed out the clear cases that would fail before an immigration judge and allow credible cases to move forward for full review and consideration.

Relegated to another footnote in small font, and without any legal analysis, Sessions says “few such claims [based upon domestic and gang violence] would satisfy the legal standard to determine whether an alien has a credible fear of persecution.”

Again, without a case-by-case review, Sessions is improperly attempting to instruct USCIS credible fear adjudicators to deny virtually all cases involving domestic and gang violence even before the person has a fair chance to provide evidence and fully explain their case to an immigration judge.

Matter of A.B. could apply to thousands of asylum cases before immigration judges and USCIS

According to USCIS, there were almost 80,000 credible fear requests and more than 141,000 asylum requests. According to Department of Justice statistics, more than 50,000 asylum cases per year are filed with immigration courts for review.  Although it is unclear how many of these cases are based upon claims of persecution caused by non-government actors, such claims are often the basis of asylum applicants coming from Central America and could close the door on asylum for so many fleeing Central America today.

Ur Jaddou, Director of DHS Watch and former USCIS Chief Counsel, said: “The law requires a case-by-case review of each asylum claim, not a predetermined conclusion that the vast majority of a large class of asylum seekers are barred from asylum. Like they did with their egregious family separation policy, Sessions and Nielsen are once again joining forces to inhumanely abuse their authority and thwart the rule of law to block women, children and others in desperate need of protection afforded under our law.”  

David Leopold, Partner, Ulmer & Berne LLP and Counsel to DHS Watch, said: “Attorney General Jeff Sessions is abusing his authority over the immigration courts to impose extremist anti-immigrant vision for America; a vision that includes refusing to give women and children fleeing horrific violence their day in court. His recent decision in Matter of A.B. is not a well-reasoned statement of the law. It’s a political statement masquerading as a precedent decision designed to force asylum adjudicators and immigration judges to advance an extremist anti-immigrant agenda. Despicably, that agenda includes barring women and children fleeing horrific violence from legally applying for asylum in the U.S.”