Legal Strategies for Victims of Gender- and Gang-Based and Similar Forms of Persecution After AG Decision in Matter of A-B-

Asylum seekers must explore new ways of framing their cases following the Attorney General's decision.

On June 11, 2018, in Matter of A-B-, Attorney General Jeff Sessions reversed years of immigration rulings and legal precedent to declare that immigrants who flee domestic violence or gang-related violence in their home countries are in most cases ineligible for asylum. (See Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018).) The Attorney General’s decision has made asylum far more complicated and difficult to obtain for victims of nongovernmental persecution. However, his decision has not closed the door entirely on relief.

Nolo’s legal update addresses the key points to be drawn from Matter of A-B-. Sessions’s decision has major implications for people seeking asylum. Victims of domestic violence, child abuse, gang-based violence, or violence based upon gender or sexual orientation may find their chances of success significantly curtailed by the Attorney General’s decision. Many vulnerable women and children, in particular, will likely face deportation following the Sessions decision.

On June 19, 2018, Vox.com leaked guidance from John Lafferty, the asylum chief for United States Citizenship and Immigration Services (USCIS). It tells government officers how to handle affirmative asylum interviews as well as credible fear interviews (CFIs) and reasonable fear screenings (RFIs). This is interim guidance; formal guidance from USCIS is forthcoming. Nolo will update as additional guidance becomes available.

Many immigration advocates have vowed to challenge the Attorney General’s decision in Matter of A-B-. In the meantime, however, the Sessions decision must be followed. Asylum seekers who have suffered at the hands of private actors should consult with qualified immigration attorneys, if possible, in order to craft alternative strategies for their cases. Applicants should also urge asylum adjudicators to analyze claims on a case-by-case basis.

Redefining the Particular Social Group With Which Applicant Identifies

The Sessions decision explicitly overruled Matter of A-R-C-G-, a landmark case that specifically acknowledged victims of domestic violence as members of a particular social group (one of the five grounds of persecution required for an asylum claim). (See Matter of A-R-C-G-, 26 I&N Dec. 338 (BIA 2014).) The Lafferty memo further emphasized that A-R-C-G- has been overruled and can no longer be the basis for an asylum decision.

Succeeding on a domestic violence claim will be significantly more difficult now. Nonetheless, immigrants and their attorneys may put forward alternative particular social group formulations. The Board of Immigration Appeals (B.I.A.) granted gender-based claims prior to A-R-C-G-, as far back as 1985. Immigrants may seek guidance in older decisions that have not been overruled under the A-R-C-G- framework.

While the Attorney General stated that A-R-C-G- was overruled, along with all other B.I.A. cases not consistent with his analysis of particular social groups, the Lafferty memo noted only that A-R-C-G- alone was no longer good law. This is positive news for immigrants and advocates, demonstrating that, at least for now, USCIS is not taking the hardline stance of broadening Sessions’s decision to other particular social group definitions. It will be up to individual immigration judges to interpret A-B- as they see fit.

Demonstrating Government ‘s Complete Helplessness in Preventing Persecution

Prior to the Attorney General’s decision in Matter of A-B, persecution by a nongovernmental entity (such as an abusive spouse or a criminal gang) met the standard for asylum so long as the government was “unable or unwilling” to prevent such persecution.

But the Attorney General heightened this requirement. Now, immigrants must demonstrate that their government “condoned the behavior or demonstrated a complete helplessness to protect the victim.” This “complete helplessness” standard is much more stringent.

The government officers and judges deciding asylum claims will now require additional evidence of a government’s complete helplessness, making documentation (beyond one’s own testimony) ever more important.

The Lafferty memo pointed out an additional statement by Sessions that police ignoring crime reports doesn’t mean they’re unable or unwilling to help the victim. Though that means police reports are no longer given much weight, they can still be persuasive in demonstrating the government’s helplessness, particularly if the asylum seeker can show evidence of having followed up or that local law enforcement provided a reason for being unwilling to pursue charges.

Furthermore, Sessions’s analysis in A-B- focuses mostly on the government being unable to protect the victim. However, this is a two-pronged test; asylum seekers can instead provide evidence that a government is unwilling to provide protection in order to meet this requirement.

CAT Relief: An Alternative to Asylum

Some asylum seekers may be eligible for relief under Article III of the United Nations Convention Against Torture (“CAT”). Potential relief under CAT can also benefit asylum seekers at the CFI/RFI interview stage. While CAT relief requires a higher standard than asylum in some respects (applicants must show it is “more likely than not” that they would be tortured), there are benefits to seeking CAT relief, as well.

Eligibility under the Convention Against Torture has not been affected by the Attorney General’s sweeping decision in Matter of A-B-. A judge or asylum officer who determines that it was more likely than not that the asylum seeker was tortured does not need to analyze the viability of a particular social group claim or other protected ground. If an asylum seeker can demonstrate he or she qualifies for CAT relief, then that relief is mandatory.

Succeeding on a domestic violence or other claim based on persecution by a non-state actor is not impossible following Matter of A-B-. However, it will now be far more difficult than before, and will likely require reframing the particular social group and providing additional evidence of the facts and circumstances surrounding the persecution in order to succeed.

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