Last week, Attorney General Jeff Sessions issued a sweeping ruling that threatened to radically narrow the standards by which people fleeing domestic or gang violence could claim asylum in the US — or even be allowed to stay in the country to plead their case.

But an internal memo sent to the people actually responsible for implementing Sessions’s ruling at the border, and obtained exclusively by Vox, indicates that Sessions’s revolution isn’t as radical as it seemed — at least not yet.

That could be very good news for parents separated from their children, who will have to face an asylum screening to be allowed to stay in the US in immigration detention after they are criminally charged and convicted under the Trump administration’s “zero tolerance” policy.

The memo obtained by Vox was written by John L. Lafferty, the head of the Asylum Division for US Citizenship and Immigration Services, on Wednesday, June 13, two days after Sessions’s ruling in Matter of A- B- was released. It’s labeled “Interim Guidance” for asylum officers — the people in charge of conducting interviews for asylum and “credible fear” screening interviews for migrants at the border that determine whether they’ll be allowed to stay in the US and pursue an asylum claim.

As the “Interim” label suggests, Lafferty’s memo makes it clear that USCIS will be issuing more directives to asylum officers as it continues to analyze Sessions’s ruling. But in the meantime, it doesn’t dictate sweeping changes to asylum standards.

Related Jeff Sessions has all but slammed the door on survivors of domestic and gang violence

Michael Bars, a spokesperson for USCIS, told Vox, “Asylum and credible fear claims have skyrocketed across the board in recent years largely because individuals know they can exploit a broken system to enter the U.S., avoid removal, and remain in the country. This exacerbates delays and undermines those with legitimate claims. USCIS is carefully reviewing proposed changes to asylum and credible fear processing whereby every legal means is being considered to protect the integrity of our immigration system from fraudulent claims — the Attorney General’s decision will be implemented as soon as possible.”

But the initial implementation doesn’t appear to be quite as aggressive as that rhetoric implies.

“While the Attorney General made some very sweeping assertions in Matter of A-B-, including as to what he thinks would happen to the claims of different kinds of asylum seekers under this ruling, the legal holding of this case is considerably narrower,” said Anwen Hughes, a lawyer for the advocacy group Human Rights First, when sent the text of the memo. “This guidance focuses on what the AG’s decision actually held.”

Sessions’s ruling declared, “Generally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum.” That language isn’t replicated in the memo — which urges officers to deal with claims on a case-by-case basis.

The only specific change the memo mandates to asylum policy is for officers to stop citing a past Board of Immigration Appeals precedent, Matter of A-R-C-G-, which found that “married women in Guatemala who are unable to leave their relationship” constituted a particular social group — allowing some domestic violence victims to claim asylum based on their persecution as members of that group.

But while A-R-C-G- was the only precedent Sessions explicitly overturned, his ruling also said that “any other” precedent from the Board of Immigration Appeals was also moot if it had defined “particular social group” more broadly than Sessions did last week.

The initial implementation memo from USCIS doesn’t mention any such rulings. It emphasizes that officers should make decisions based on two precedents Sessions held up as good decisions — both of which denied asylum claims based on gang violence — but doesn’t identify any decisions that are too broad under Sessions’s standards.

That means that for the moment, at least, asylum officers would be able to determine that a victim of domestic or gang violence still deserves asylum — or deserves to plead her asylum case — if there’s another precedent decision that they think fits the case.

The USCIS memo does emphasize that people seeking asylum based on gang violence or any other “private crime” need to demonstrate that the government in their home country “condoned the behavior or demonstrated a complete helplessness to protect the victim.”

Before Sessions’s ruling, immigrants could claim asylum if they were persecuted by a nonstate group and the government was “unable or unwilling” to prevent it. Technically, that’s still the standard. But Sessions’s formulation about condoning or “complete helplessness” could set the bar higher for what counts as unable or unwilling — especially because his ruling emphasized (in a passage quoted by the implementation memo) that police ignoring crime reports doesn’t mean they’re unable or unwilling to help the victim.

This guidance could be very good news for parents separated from children

The implementation of Sessions’s asylum ruling has real and immediate impacts for asylum seekers — including the thousands of parents who have been separated from their children at the border and prosecuted in recent weeks.

After being prosecuted and sentenced (usually to “time served”), asylum seekers are returned to the custody of Immigration and Customs Enforcement (ICE) for deportation. They face “expedited” deportation, without a full immigration court hearing, unless they can demonstrate that they have a “credible fear” of persecution and should stay in the US to pursue an asylum claim.

At the moment, the overwhelming majority of people are passing their “credible fear” screenings. Sessions sees this as a sign of widespread fraud and lax standards, and his ruling last week was explicitly written to raise the bar not only for eventual approvals or denials of asylum, but for the initial screenings as well.

If Sessions’s ruling were being interpreted as broadly as possible by USCIS, many parents would likely find it impossible to pass their screening interviews, and would find themselves deported without their children and with little time to locate or contact them. But because USCIS appears to be relatively cautious in its implementation, parents in custody — at least for the moment — appear to have a better shot of staying in the US to pursue their asylum case and reunite with their children.

Of course, asylum claims and initial screenings are both partly up to the discretion of individual asylum officers. It’s totally possible that some asylum offices will interpret this memo as an instruction to get much harsher. But the memo doesn’t force them to do that, at least in its interim form.

The text of the memo obtained by Vox is below.

From: Lafferty, John L

Sent: Wednesday, June 13, 2018 5:20 PM

To: [redacted by Vox]

Subject: Asylum Division Interim Guidance - Matter of A- B-, 27I&N Dec. 316 (A.G. 2018)

Asylum Division colleagues:

I’m sure that most of you have heard and/or read about the decision issued by Attorney General Sessions on Monday in Matter of A- B-, 27I&N Dec. 316 (A.G. 2018).

Below is our Office of Chief Counsel’s summary of the AG’s decision, which is followed by Asylum’s summaries of two 2014 decisions - Matter of M-E-V-G and Matter of W-G-R- - that were cited by the AG in support of his decision. While we continue to work with our OCC colleagues on final guidance for the field, we are issuing the following interim guidance on how to proceed with decision-making on asylum cases and CF/RF [credible fear/reasonable fear] screening determinations:

Matter of A-R-C-G- has been overruled and can no longer be cited to or relied upon as supporting your decision-making on an asylum case or in a CF/RF determination.

Effective upon issuance of this guidance, no affirmative grant of asylum or positive CF/RF screening determination should be signed off on by a supervisor as legally sufficient, or issued as a final decision/determination, that specifically cites to or relies upon Matter of A-R-C-G- as justification for the result. Instead, it should be returned to the author for reconsideration consistent with the next bullet.

All pending and future asylum decisions and CF/RF screening determinations finding that the individual has shown persecution or a well-founded fear of persecution on account of membership in a particular social group must require that the applicant meet the relevant standard by producing evidence that establishes ALL of the following:

A cognizable particular social group that is 1) composed of members who share a common immutable characteristic; 2) defined with particularity, and 3) socially distinct within the society in question;

Membership in that PSG;

That membership in the PSG was or is a central reason for the past and/or future persecution; and

The harm was and/or will be inflicted by the government or by non-governmental actors that the government is unable or unwilling to control.

When the harm is at the hands of a non-governmental actor, the applicant must show that the government condoned the behavior or demonstrated a complete helplessness to protect the victim. This new decision stresses that, in applying this standard, “[t]he fact that the local police have not acted on a particular report of an individual crime does not necessarily mean that the government is unwilling or unable to control crime, any more than it would in the United States. There may be many reasons why a particular crime is not successfully investigated and prosecuted. Applicants must show not just that the crime has gone unpunished, but that the government is unwilling or unable to prevent it.” A-B- at 337-338. (See RAIO Lesson Plan - Definition of Persecution and Eligibility Based on Past Persecution, Section 4.2 “Entity the Government Is Unable or Unwilling to Control”, for further guidance).

The mere fact that a country may have problems effectively policing certain crimes or that certain populations are more likely to be victims of crime, cannot itself establish an asylum claim.

Every asylum decision and CF/RF screening determination must consider and analyze whether internal relocation would be reasonable, as provided for at 8 CFR 208.

If you have questions on this interim guidance, please raise them up your local chain of command so that they can be brought to the attention of HQ Asylum QA Branch.

Thank you!!

_______

OCC Summary

On June 11, 2018, the Attorney General (AG) issued a precedent decision in Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018), an asylum case based on domestic violence in which the AG addressed issues relating to whether, and under what circumstances, being a victim of private criminal activity constitutes a cognizable particular social group for purposes of asylum and statutory withholding of removal. In the decision, the AG overruled the Board of Immigration Appeals’ (BIA) precedent decision in Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014), on which the BIA had relied in finding the respondent eligible for asylum. The AG found that, in analyzing the particular social group at issue in A-R-C-G-, “married women in Guatemala who are unable to leave their relationship,” the BIA had failed to correctly apply the standards for cognizable particular social group set forth in Matter of M-E-V-G, 26 I&N Dec. 227 (BIA 2014), and Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014), which require that a group be composed of members who share a common immutable characteristic, defined with particularity, and socially distinct within the society in question. In addition, the AG articulated that membership in the particular social group must be a central reason for the persecution, and asylum officers must consider whether internal relocation is reasonable in every case before granting asylum. In cases where the persecutor is a non-government actor, the applicant must show the government condoned the behavior or demonstrated a complete helplessness to protect the victim.

Under 8 CFR 1003.1(g), “decisions of the [BIA], and decisions of the Attorney General, shall be binding on all officers and employees of the Department of Homeland Security…” and “shall serve as precedents in all proceedings involving the same issue or issues.” Accordingly, Matter of A-B- is effective immediately and binding on officers. Officers should not cite or rely upon Matter of A-R-C-G- in any adjudications going forward. Officers should continue to follow other binding precedent to the extent they are consistent with Matter of A-B-, including Matter of M-E-V-G and Matter of W-G-R-, both of which were cited favorably in the AG’s decision. As a reminder, we have reproduced below the guidance issued in 2014 in reference to those decisions.

Further guidance will be forthcoming as we continue to review the decision in Matter of A-B- and consult with other components of DHS.

Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014)—available at http://www.justice.gov/eoir/vll/intdec/vol26/3795.pdf

The respondent in M-E-V-G- was a citizen of Honduras who feared persecution at the hands of gangs in Honduras. He claimed membership in a PSG of Honduran youth who have been actively recruited by gangs but who have refused to join because they oppose the gang. The Board decided M-E-V-G- on remand from the Third Circuit, following oral arguments before the Board in December 2012. See Validiviezo-Galdamez v. Attorney General of the U.S., 663 F.3d 582 (3d Cir. 2011).

In response to the Third Circuit’s remand of Validiviezo-Galdamez, the Board in M-E-V-G- posited a three-part test to flesh out the definition of a PSG. An applicant for asylum or withholding of removal seeking relief based on “membership in a particular social group” must establish that the group is: (1) composed of members who share a common immutable characteristic; (2) defined with particularity; and (3) socially distinct within the society in question. The Board noted that when Matter of Acosta, 19 I&N Dec. 211 (BIA 1985), was decided, there were few PSG claims, but the experience of three decades indicated that Acosta has led to confusion and inconsistency. The Board noted that it added the social visibility and particularity requirements as a refinement in order to provide clarification. The Board reasoned that a refinement is necessary because in making the PSG ground like other protected grounds of race, religion, nationality, and political opinion, the protected grounds share not only an immutable characteristic, but also “an external perception component within a given society.” M-E-V-G-, 26 I&N Dec. at 236.

Specifically, the Board in M-E-V-G- renamed the “social visibility” requirement as “social distinction,” clarifying that social distinction does not require literal visibility or “outwardly observable characteristics.” 26 I&N Dec. at 238. Rather, social distinction involves examining whether “those with the characteristic in the society in question would be meaningfully distinguished from those who do not have it.” Id. The Board also clarified that social distinction relates to society’s, not the persecutor’s, perception, though the persecutor’s perceptions may be relevant to social distinction. The Board defined particularity as requiring that a group “be defined by characteristics that provide a clear benchmark for determining who falls within the group.” Id. at 239. Membership in a PSG can be established through “[e]vidence such as country conditions reports, expert witness testimony, and press accounts of discriminatory laws and policies, historical animosities, and the like.” Id. at 244.

The Board in M-E-V-G- noted that it had rejected the respondent’s gang-related claim in the past based on its decisions in the companion cases of Matter of S-E-G-, 24 I&N Dec. 579 (BIA 2008), and Matter of E-A-G-, 24 I&N Dec. 591 (BIA 2008). The Board, however, acknowledged that S-E-G- and E-A-G- “should not be read as a blanket rejection of all scenarios involving gangs.” M-E-V-G-, 26 I&N Dec. at 251. The Board remanded M-E-V-G- to the Immigration Judge for further proceedings consistent with the Board’s clarifications.

Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014)—available at http://www.justice.gov/eoir/vll/intdec/vol26/3794.pdf

The respondent in W-G-R- was a citizen of El Salvador who was a member of the Mara 18 gang for less than a year and who was attacked by members of his former gang after he left the gang. The respondent claimed that he feared persecution on account of his membership in a PSG consisting of “former members of the Mara 18 gang in El Salvador who have renounced their gang membership.” An Immigration Judge found that the respondent did not establish that he was persecuted on account of his membership in a PSG.

On appeal, the Board found that the respondent did not establish that ““former members of the Mara 18 gang in El Salvador who have renounced their gang membership” constitute a PSG or that there is a nexus between the harm feared by the applicant and his status as a former gang member.

The Board in W-G-R- first determined that the respondent is not a member of a PSG. According to the Board, the group of “former members of the Mara 18 gang in El Salvador who have renounced their gang membership” does not constitute a PSG because it fails both the particularity and social distinction requirements. On particularity, the Board required further specificity, stating that “when a former association is the immutable characteristic that defines a proposed group, the group will often need to be further defined with respect to the duration or strength of the members’ active participation in the activity and the recency of their active participation….” 26 I&N Dec. at 221-22. On social distinction, the Board found little evidence that Salvadoran society recognized the proposed PSG as a distinct group. While the Board referenced one report asserting a stigma against tattooed former gang members, the Board questioned whether the discrimination was instead due to the difficulty in distinguishing former gang members from individuals suspected to be active gang members.

In addition, the Board concluded that the respondent’s claim lacked a nexus between the feared harm and his status as a former gang member. The Board attributed the gang’s motives to their “desire to enforce their code of conduct and punish infidelity to the gang,” rather than the respondent’s status as a former gang member. W-G-R-, 26 I&N Dec. at 224. Accordingly, the respondent’s appeal was dismissed.

For more on the family separations at the border, listen to the June 18 episode of Today Explained.