asylum

When Is A Government “Unable or Unwilling” To Protect Someone

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When is a Government “unable or unwilling” to protect? The Board of Immigration Appeals (BIA), issued a precedential decision on asylum law, providing more guidance on how asylum applicants can meet the requirements of showing that a government is “unable or unwilling” to protect them from harm by private actors. Matter of C-G-T-, 28 I&N Dec. 740 (BIA 2023). When An Asylum Applicant Doesn’t Report Their Harm/Mistreatment The Board starts by addressing the common situation where that an Applicant argues that the the government in their native country is unable or unwilling to protect them but they never reported the harm or mistreatment that they suffered because the government would not have been able or willing to do anything. The Board cites to two First Circuit cases and states that an Applicant who didn’t report the mistreatment because the government is corrupt has to provide something more than their own subjective belief that the police are corrupt to establish unable or unwilling. “[A] failure to report mistreatment—even if based on the [respondent’s] subjective belief that authorities are corrupt—is not, without more, sufficient to show that” the government is unable or unwilling to protect the respondent. Morales-Morales v. Sessions, 857 F.3d 130, 135 (1st Cir. 2017) (collecting cases, and affirming the determination that the respondent failed to demonstrate government authorities were unable or unwilling to protect him); accord Vila-Castro v. Garland, 77 F.4th 10, 13–14 (1st Cir. 2023). Matter of C-G-T-, 28 I&N Dec. 740 (BIA 2023). The Board is clear however, that an Applicant is not required to have reported the harm. “Failure to report harm is ‘not necessarily fatal’ to a claim of persecution if the applicant ‘can demonstrate that reporting private abuse to government authorities would have been futile’ or dangerous. Matter of C-G-T-, (quoting Rosales Justo v. Sessions, 895 F.3d 154, 165 (1st Cir. 2018) (quoting Morales-Morales, 857 F.3d at 135)). As an example the Board looks to an earlier decision where they found that it may be futile or dangerous for an abused child to seek protection from the authorities because of the fact that they may not be able to properly articulate their fears due to their age, or, in cases where the abuser is a family member, they may prevent the child from reporting the abuse. How to Determine Whether The Applicant’s Failure to Report Their Harm Is Reasonable The Board’s decision is that the determination is ultimately a fact-specific inquiry. There will be substantial difference in the ability of applicants to report their based on factors such as their age. The Board remanded the case back to the Immigration Judge with instructions that on remand, “the Immigration Judge should consider the reasonableness of the respondent’s failure to seek assistance from the authorities in his country as part of considering all evidence regarding whether the government was unable or unwilling to protect the respondent.“ When considering the reasonableness of the respondent/applicant’s failure to seek assistance from the authorities the Immigration Judge should considering “the respondent’s testimony, available corroborating evidence, and country conditions reports.” In other words, the Court should consider not only the Applicant’s stated reason for not reporting the harm but also all the other evidence in the record which may make their failure to report the harm reasonable. Sexual Orientation IS A Particular Social Group In this decision the Board again expressly acknowledges sexual orientation as being an immutable characteristic that is beyond the power of an individual to change or is so fundamental to individual identity that they ought not be required to change it. The Board explicitly states, I believe for the first time in a published decision since 1994, that sexual orientation is a particular social group for purposes of asylum. The Board actually compares being forced to hide one’s sexual orientation to being forced to hide one’s religion, citing Shan Zhu Qiu v. Holder, 611 F.3d 403, 409 (7th Cir. 2010), a case where the Seventh Circuit concluded that requiring a respondent to stop practicing his religion or simply hope he can evade discovery runs contrary to the asylum laws. They apply the same rationale to sexual orientation in this decision. As a general matter, we do not base consideration of an applicant’s fearof future harm on the ability or requirement to hide his or her sexualorientation. Protection under asylum and withholding of removal is availableto applicants who fear persecution on account of their membership in aparticular social group based on sexual orientation. Kadri v. Mukasey, 543F.3d 16, 21 (1st Cir. 2008); Matter of Toboso-Alfonso, 20 I&N Dec. at822–23. Sexual orientation, like other protected grounds, is “a characteristicthat either is beyond the power of an individual to change or is sofundamental to individual identity or conscience that it ought not be requiredto be changed.” Matter of Acosta, 19 I&N Dec. 211, 233 (BIA 1985),modified on other grounds by Matter of Mogharrabi, 19 I&N Dec. 439 (BIA1987). Matter of C-G-T-, 28 I&N Dec. 740 (BIA 2023). Full Decision here. The Three Takeaways From Matter of C-G-T- (1) Determining whether the government is or was unable or unwilling to protect therespondent from harm is a fact-specific inquiry based on consideration of all evidence. (2) A respondent’s failure to report harm is not necessarily fatal to a claim of persecutionif the respondent can demonstrate that reporting private abuse to government authoritieswould have been futile or dangerous. (3) When considering future harm, adjudicators should not expect a respondent to hide hisor her sexual orientation if removed to his or her native country. Full text of the decision https://www.justice.gov/eoir/page/file/1594626/download

Affirmative Asylum Applicants Must Provide Interpreters Starting September 13, 2023

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U.S. Citizenship and Immigration Services announced that affirmative asylum applicants must bring an interpreter to their asylum interview if they are not fluent in English or wish to proceed with their interview in a language other than English, starting September 13, 2023. Sign language interpreters are the only exception to this requirement. USCIS continues to provide sign language interpreters as a disability accommodation. Follow the instructions on your interview notice to request this disability accommodation. If you need an interpreter and do not bring one, or if your interpreter is not fluent in English and the language you speak USCIS may consider this a failure to appear for your interview and dismiss your asylum application or refer your asylum application to an immigration judge. USCIS will make such determinations based on “good cause” on a case-by-case-basis. Requirements To Be An Interpreter For An Asylum Interview The interpreter must be: Who CANNOT Be An Interpreter The interpreter must not be: On Sept. 23, 2020, USCIS published a temporary final rule (TFR) due to COVID and health guidelines that were in place to stop the spread at that time. The TFR has expired and with the expiration of the TFR, USCIS is reverting back to the long-standing regulatory requirement for an affirmative asylum applicant to provide an interpreter under 8 CFR 208.9(g).

Asylum Interview Interpreter Requirements Updated

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USCIS announced to policies that will be taking effect on September 13, 2023. Anyone attending an asylum interview after September 13, 2023, will be required to bring an interpreter to their interview if they are not able to do the interview in English. See the new affirmative asylum interpreter requirements below. AFFIRMATIVE ASYLUM INTERPRETER REQUIREMENTS Starting September 13, 2023, affirmative asylum applicants must bring an interpreter to their asylum interview if they are not fluent in English or wish to do their interview in a language other than English. If an affirmative asylum applicant needs an interpreter and does not bring one, or if their interpreter is not fluent in English and a language the applicant speaks, and the applicant does not establish good cause, USCIS may consider this a failure to appear for the interview and may dismiss the asylum application or refer the asylum application to an immigration judge. USCIS will determine good cause on a case-by-case basis. INTERPRETER REQUIREMENTS: BACKGROUND On Sept. 23, 2020, USCIS published a temporary final rule (TFR) requiring affirmative asylum applicants to use our contracted telephonic interpreters for their asylum interviews, instead of bringing an interpreter to the interview. We published this TFR to reduce the spread of COVID-19 during asylum interviews with USCIS asylum officers while the COVID-19 national emergency and public health emergency were in effect. We published four subsequent TFRs extending the requirement, with the current extension effective through Sept. 12, 2023. This fourth extension provided additional time after the national and public health emergencies expired to allow USCIS to prepare to return to the prior regulatory requirement. With the expiration of the TFR, we will be reverting back to the long-standing regulatory requirement for an affirmative asylum applicant to provide an interpreter under 8 CFR 208.9(g). MORE INFORMATION Please see USCIS’ Preparing for Your Affirmative Asylum Interview webpage for more information.

ASYLUM EMPLOYMENT AUTHORIZATION

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GETTING EMPLOYMENT AUTHORIZATION (EAD) THROUGH ASYLUM AND THE 180 DAY ASYLUM CLOCK HOW DO I APPLY FOR EMPLOYMENT AUTHORIZATION AFTER I HAVE APPLIED FOR ASYLUM? For instructions on how to apply for employment authorization after you have applied for asylum, visit the USCIS website at www.uscis.gov/i-765 to review the Form I-765, Application forEmployment Authorization, and the related form instructions. WHAT IS THE 180-DAY ASYLUM EAD CLOCK? The “180-day Asylum EAD Clock” measures the time period during which an asylum application has been pending with the U.S. Citizenship and Immigration Services (USCIS) asylumoffice and/or an Immigration Court with the Executive Office for Immigration Review (EOIR). USCIS service centers adjudicate the Form I-765, Application for Employment Authorization,and use the 180-day Asylum EAD Clock to determine eligibility for employment authorization. You may file a Form I-765, Application for Employment Authorization, based on your pendingasylum application (the (c)(8) category) 150 days after you filed your asylum application. You are not eligible to receive an Employment Authorization Document (EAD) until yourasylum application has been pending for at least another 30 days, for a total of 180 days (8 CFR 208.7(a)(1)). The 150-day waiting period and the 180-day eligibility period, commonlyreferred to as the 180-Day Asylum EAD Clock, do not include delays that you request or cause while your asylum application is pending with an asylum office or with the ImmigrationCourt (8 CFR 208.7(a)(2)). WHAT STARTS THE 180-DAY ASYLUM EAD CLOCK? For asylum applications first filed with an asylum office, USCIS calculates the 180-day Asylum EAD Clock starting on the date that a complete asylum application is received by USCIS, inthe manner described by the Instructions to the Form I-589, Application for Asylum and for Withholding of Removal. If the asylum office refers an asylum application to an immigrationcourt, the applicant may continue to accumulate time toward employment authorization eligibility while the asylum application is pending before an immigration judge. FOR ASYLUM APPLICATIONS FIRST FILED WITH EOIR, USCIS CALCULATES THE 180-DAY ASYLUM EAD CLOCK IN ONE OF TWO WAYS: 1) The applicant will start to accumulate time toward eligibility for employment authorization on the date that a complete asylum application is filed with the immigration court.2) If a complete asylum application was previously “lodged” with the immigration court, whether at the court window or by mail, the applicant will start to accumulate time towardeligibility for employment authorization on the date of lodging. WHAT STOPS THE 180-DAY ASYLUM EAD CLOCK? The 180-day Asylum EAD Clock does not include any delays you request or cause while your asylum application is pending with USCIS and/or EOIR. FOR CASES PENDING WITH AN ASYLUM OFFICE DELAYS YOU MAY REQUEST OR CAUSE MAY INCLUDE: If you are required to receive and acknowledge your asylum decision at an asylum office but fail to appear, your 180-Day Asylum EAD Clock will stop and you may be ineligible toreceive employment authorization. If your case has been referred to an Immigration Court, your 180-Day Asylum EAD Clock will not begin again until your first hearing with an immigrationjudge. If you fail to appear for your asylum interview, the 180-day Asylum EAD Clock will stop on the date of your missed interview, and you may be ineligible for employment authorization unless you send a written request to the asylum office to reschedule the interview within 45 days and you demonstrate “good cause” for missing the interview. If you request to reschedule your interview with the asylum office after 45 days have passed from your missed interview, you must demonstrate “exceptional circumstances,” which is a higher standard than good cause. If you establish exceptional circumstances for missing your asylum interview and you are currently in removal proceedings before an immigration judge, the asylum office can reopen your asylum application and reschedule you for an asylum interview upon your request if the immigration judge dismisses your removal proceedings. If the asylum office determines that your failure to appear for an interview was due to lack of notice of the interview appointment, the asylum office will not attribute a delay to you and the asylum office will reschedule your interview. For more information about reschedule requests and missed asylum interviews, see “Preparing for Your Asylum Interview” on the Asylum Division’s website at www.uscis.gov/Asylum FOR CASES PENDING WITH EOIR: Asylum cases pending with EOIR are adjudicated at hearings before an immigration judge. At the conclusion (or “adjournment”) of each hearing, the immigration judge will determine the reason for the adjournment. If the adjournment is attributed to you, you will stop accumulating time toward the 180-day Asylum EAD Clock until your next hearing. If the adjournment is attributed to the Immigration Court or the Department of Homeland Security, you will continue accumulating time toward your 180-day Asylum EAD Clock. If you are an asylum applicant who has been released from detention and whose case is automatically transferred to a non-detained hearing location, your 180-Day Asylum EAD Clock will run until the date of your next hearing. For example, you may stop accumulating time toward the 180-Day Asylum EAD Clock if, at a hearing: In such cases, you will stop accumulating time when the immigration judge grants the motion. You may or may not begin to accumulate time again after the next hearing, depending on thereason for the adjournment of the next hearing. Additional information regarding codes used by the immigration courts that affect the 180-day Asylum EAD Clock can be found at Appendix O – Adjournment Codes, in the EOIR Policy Manual, at https://www.justice.gov/eoir/eoir-policymanual/Appendix/AdjournmentCodes.

Immigration Judges that Deny and Grant the Most Asylum Cases

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Immigration Judge Who Denies The Most Cases NYC The Judge with the highest percentage of asylum denials is a tie between IJ Menkin  and IJ Burns both with 83% denial rates for asylum cases. This does not include the detained docket where denial rates are usually higher for multiple reasons.  Immigration Judge Who Grants The Most CasesNYC IJ Chew 7.1% denial rates and IJ McManus with a 7.4% denial rate on asylum cases. Surprising to me, is that IJ Bukszpan (now retired) has the third lowest asylum denials rate in New York with 10%. I only had decide one case in its merits prior to her retirement so I have no reason to be surprised.   These numbers are from TRAC,  Syracuse University, which tracks Government agencies and provides a ridiculous amount of data to the public along with reports summarizing their findings. I cite to their cite often because they have so much information available, on several government agencies not just immigration. You should check it out.  I Since they cannot track all decisions for every year with any reliability, the numbers in this post are based solely on asylum decisions. The TRAC website has approval and denial rates for every Judge in every Immigration Court across the U.S. from 2017-2022. Source: