Matter of H-C-R-C-, 28 I&N Dec. 809 (BIA 2024) (1) Applicants bear the burden of establishing their own credibility, and no statute or legal precedent compels an Immigration Judge to conclude that an applicant’s testimony is credible. (2) Rape is sufficiently severe to constitute torture and can never be a lawful sanction under the Convention Against Torture.
President Biden has announced new executive actions to address the situation at the southern border. These actions aim to deter unlawful border crossings and manage the high volume of encounters. The key points are: Barring Asylum for Unlawful Crossings: Migrants who cross the southern border unlawfully will be ineligible for asylum, with exceptions for those who use lawful pathways or seek protection in a country they traveled through. Expedited Removal: The administration will streamline processes to remove individuals without a legal basis to remain in the U.S. more quickly. Increased Resources: Additional personnel and resources will be allocated to support border management efforts. These measures will be implemented when the number of encounters exceeds the government’s capacity to process them promptly, as is currently the case. Presumably this means that the rule will take effect immediately. The President emphasized the importance of securing the border while upholding America’s commitment to providing protection for those fleeing persecution. He also expressed disappointment over the failure of Congress to pass comprehensive immigration reform, which would have addressed these issues more effectively. See the White House’s Fact Sheet. There are two measures being taken to further the goal of stemming the influx of migrants at the southern border. Presidential Proclamation: This temporarily suspends the entry of noncitizens across the southern border. Joint DHS-DOJ Interim Final Rule: This restricts asylum eligibility for those who enter the U.S. irregularly across the southern border, including both the southwest land and southern coastal borders. According to the announcement, these actions aim to: Deter irregular migration: By increasing the consequences for unauthorized entry and restricting asylum eligibility, the administration hopes to discourage individuals from attempting to cross the border illegally. Manage the border: The measures are designed to help manage the high number of encounters at the southern border and ensure a more orderly process. Protect national security: The administration emphasizes the importance of border security for protecting the nation. The administration continues to call on Congress to provide additional resources and support for border security efforts. You can find more information about these measures in the official fact sheet. SEE VIDEO OF ANNOUNCEMENT
May 13, 2024, US Citizenship and Immigration Services announced that the San Francisco Asylum Office will be opening a temporary location in Oakland, California. In announcement made on Monday, May 13, 2024: USCIS’ San Francisco Asylum Office is opening an additional temporary location in Oakland, California. Effective May 15, 2024, asylum applicants under the jurisdiction of the San Francisco Asylum Office may receive an interview notice to appear at the asylum office located in Oakland instead of San Francisco. This additional location increases the San Francisco Asylum Office’s capacity to schedule and conduct affirmative asylum interviews more efficiently. The addresses of the new temporary Oakland-based office within the San Francisco Asylum Office’s jurisdiction are: Physical Address: 1301 Clay StreetOakland, CA 94612 Mailing Address: P.O. Box 77530San Francisco, CA 94107 Opening this additional location will not affect the operations of the current asylum office location in San Francisco. Beginning May 15, 2024, the San Francisco Asylum Office will schedule and conduct affirmative asylum interviews at both locations.
For nearly a century, the United States has upheld a fundamental promise: no person shall be deported to a country where they would face persecution. In line with laws enacted to honor this commitment, tens of thousands of individuals seek protection in the United States each year. The majority of these individuals apply for asylum. Those who are granted asylum can pursue permanent residence in the United States and a pathway to citizenship. Additionally, they have the opportunity to request that their spouse and children join them in the United States. However, not everyone is eligible to apply for asylum. For those individuals who fear persecution in their home country but do not meet the criteria for asylum, an alternative avenue for protection exists, known as withholding of removal. This form of relief is more challenging to obtain and comes with fewer benefits. The Difference Between Asylum and Withholding of Removal An individual granted asylum enjoys several significant benefits, including protection from being returned to their home country. They are eligible to apply for work authorization in the United States, can request a Social Security card, seek permission for overseas travel, and have the option to petition for the reunification of family members in the United States. Asylees may also qualify for certain government programs such as Medicaid or Refugee Medical Assistance. It’s essential to understand that asylum is technically a discretionary benefit, and there are legal restrictions on who can be granted asylum. For instance, individuals who have been previously deported and subsequently reentered the United States, or those who did not apply for asylum within one year of their arrival, are prohibited from applying for asylum. In such cases, individuals who are ineligible for asylum may generally seek “withholding of removal” instead. Much like in the case of asylum, an individual granted withholding of removal is shielded from being sent back to their home country and is granted the right to remain in the United States, where they can work legally. However, it’s important to note that at the conclusion of the court process, an immigration judge issues a deportation order, but the government is instructed not to carry out that order. In essence, the person’s “removal” to their home country is “withheld.” Nevertheless, the government retains the authority to deport this individual to a different country if that country agrees to accept them. Withholding of removal offers a form of protection that is less certain compared to asylum, placing its recipients in a kind of limbo. Those granted withholding of removal may not leave the United States without executing the removal order. They are unable to petition for the reunification of family members in the United States, and there is no pathway to citizenship. Unlike asylum, in cases where a family seeks withholding of removal together, a judge may grant protection to a parent while denying it to the children, potentially leading to family separation. Furthermore, withholding of removal does not provide permanent protection or a route to permanent residence. If conditions improve in an individual’s home country, the government can revoke withholding of removal and once again seek their deportation. This revocation can occur even years after the person has been granted protection. Some individuals, including those who were convicted of “particularly serious crimes,” are not eligible forwithholding of removal. Noncitizens that are ineligible for withholding of removal are further limited to applying for relief under protection under the Convention Against Torture, a protection that is even more difficult to win than withholding of removal and that offers even fewer benefits. How Do I Apply For Withholding of Removal? Unlike asylum, which can be granted by asylum officers employed by U.S. Citizenship and Immigration Services (USCIS), withholding of removal is exclusively within the authority of immigration judges working within the immigration court system. Individuals may find themselves in immigration court through various means, including an unsuccessful asylum application, apprehension within the country by U.S. Immigration and Customs Enforcement (ICE), or apprehension by U.S. Customs and Border Protection (CBP) at or near the border. Withholding Only Proceedings In situations where individuals with prior deportation orders are apprehended after reentering the United States, the law allows for the reinstatement of the earlier removal order. If someone with a prior removal order who fears persecution is encountered by ICE or CBP, they are not eligible for full removal proceedings in immigration court but may seek withholding of removal in what are referred to as “Withholding Only Proceedings.” When an individual expresses a fear of persecution to an immigration officer who is considering the reinstatement of a previous removal order, the officer is mandated to initially refer the individual to an asylum officer. Those who can demonstrate to the asylum officer that they have a “reasonable fear” of persecution in their home country are subsequently sent to immigration court for a specialized form of removal proceedings, in which the only relief they may pursue are withholding of removal or protection under the Convention Against Torture. Withholding-only proceedings represent a relatively small subset of asylum in immigration court. In recent years, between 70,000 and 80,000 asylum seekers have been referred to immigration court annually through the credible fear process.24 In total, more than 213,000 people applied for asylum in Fiscal Year (FY) 2019. The most common pathway for individuals to enter withholding-only proceedings is through an interview conducted at the border with an asylum officer. Individuals without prior orders of deportation who can establish a “credible fear” of persecution in their home country are directed to standard removal proceedings, where they may apply for asylum. However, individuals with previous deportation orders are ineligible for asylum and face a more demanding burden of proof. If they can successfully demonstrate to the asylum officer that they have a “reasonable fear” of persecution in their home country, they are then directed to withholding-only removal proceedings, where they may seek withholding of removal, but not asylum. Since 2012, the number of individuals found to … Read more
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
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).