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Hot Topics in Asylum: An Examination of Particular Social Group and Other Serious Harm

Moderator: Rená Cutlip-Mason, Ombudsman's Office
Panelists: Chuck Adkins-Blanch, DOJ Executive Office for Immigration Review (EOIR) Immigration Appeals (BIA)
Pamela Goldberg, United Nations High Commissioner for Refugees (UNHCR)
Karen Musalo, Center for Gender and Refugee Studies
Dorothea Lay, USCIS Office of Chief Counsel

 

This roundtable covered developments in asylum law including changes in the definition of a "particular social group" (PSG), as well as an examination of "other serious harm" in claims for asylum. In Matter of Acosta, 19 I&N Dec. 211at 233 (BIA 1985), the BIA held that a PSG is defined by an "immutable" or "fundamental" characteristic. These characteristics may include sexual identity, family, clan membership, and former occupation or status. The BIA has added requirements of "social visibility" along with "particularity" to the PSG analysis. Social visibility has come to mean that the PSG is a perceived as a group within society. Particularity refers to the ability to distinguish the group as a distinct class of persons.

Ms. Musalo explained the origins of PSG as a ground for asylum and noted that case law serves as the sole means for definition of a PSG. Ms. Goldberg also noted that, in 1992, UNHCR published guidelines on gender-related persecution and membership of a PSG. In 2000, DOJ proposed regulations attempting to define PSG, but final regulations have not been issued.

Ms. Musalo explained that case law on gender as a PSG has been dynamic. Domestic violence as a basis for PSGs developed significantly with Matter of R-A-, 22 I&N Dec. 906 (BIA 1999), vacated, 22 I&N Dec. 906 (A.G. 2001), remanded, 23 I&N Dec. 694 (A.G. 2005), remanded, 24 I&N Dec. 629 (A.G. 2008). DHS provided supplemental briefs for Matter of R-A- that helped define social visibility and explained the methodology for showing membership in a PSG.

Ms. Lay noted PSG differs from other protected grounds because it is still being developed by new case law, which is difficult to reconcile with administering benefits. USCIS provides its Asylum Division with up-to-date training on PSG.

Ms. Lay noted that the way PSG is generally analyzed does not present a realistic version of the persecutor/persecuted dynamic. The primary questions are whether the persecutor perceives the trait common to the PSG and whether the persecutory action is then based on that perception. USCIS Asylum Officers use a three-part test to adjudicate claims involving PSG: 1) immutability/fundamentality of the characteristic (Acosta); 2) whether the PSG is socially distinct (C-A-); and 3) ensuring that a persecutory act or terrorist activity is not the basis of the trait. The analysis in Acosta is valuable in defining a trait as it discusses innate sex, color, or kinship ties, along with shared part experience as being characteristics upon which to form a PSG.

Ms. Lay said that while shared past experience may be an immutable trait, the experience may still not be socially distinct. For example, in the case of past service in the military or police, an individual being targeted for harm as revenge or because he or she frustrated a criminal activity would not be seen a socially distinct. However, in instances where former service in the military or police rises to level of social status, one may be able to show to show how this relates to a PSG. Ms. Goldberg explained that particularity was not construed as a legal test, and whether a social group is particular should be determined by the nature of the group itself.

Ms. Lay stated that voluntary assumption of risk is also "very fact-specific" and may itself be evidence of an immutable trait. USCIS understands that social visibility does not mean literal visibility but whether society distinguishes between the trait and societal protection from persecution because of that trait. Ms. Lay noted that an immutable trait is viewed through the perception of the persecutor. Abuse or harm in of itself cannot be an immutable trait. Ms. Goldberg stated that while there is no hard and fast rule, analysis must take into consideration the identity of the persecutor. If a non-state actor is the persecutor, the focus must be placed on whether the state is unable or unwilling to protect the asylum-seeker.

Mr. Adkins-Blanch noted that there are seven new board members since PSG-related case was last considered by the BIA. He stated that cases on PSG since 2007 have been disposed of without consideration en banc by the BIA.

Mr. Adkins-Blanch turned the discussion to "other serious harm", another path to asylum. Analysis of an asylum claim includes whether the asylum-seeker: 1) suffered severe past persecution under Matter of Chen, 20 I&N Dec. 16 (BIA 1989); or 2) has a "reasonable possibility of suffering other serious harm." 8 C.F.R. ¤ 208.13(b)(iii)(B). While a finding of past persecution makes for a presumption of well-founded fear, the presumption may be rebutted. If the presumption is rebutted and the court determines the applicant no longer has a well-founded fear, the applicant may still be eligible for asylum if they can demonstrate "other serious harm" may be suffered in the home country. "Other serious harm" need not be based on a protected ground, nor related to the original persecution. Federal regulations in 2001 added "other serious harm" as the second prong of humanitarian grounds for asylum.

Mr. Adkins-Blanch stated that "other serious harm" should be "equal in severity" to persecution reviewed in the primary analysis. Federal Circuit Courts have been remanding this issue for analysis. Remands have been identified as coming from four areas: 1) economic deprivation; 2) civil strife; 3) emotional harm (e.g. family separation); and 4) mental/physical health (e.g. difficulty in obtaining housing).

Conference attendees also had an opportunity to ask questions of the panelists, some of which are included below.

What is the current status of the proposed regulations relating to Matter of R-A- concerns?

Ms. Lay shared that USCIS cannot comment on set dates, but both DOJ and DHS are actively working on this issue. Ms. Goldberg suggested that the advocacy community should articulate what they want to see in the regulations.

Can the IJ apply a balancing test when the current existence of a well-founded fear is often debatable or unclear? Which precedent is applicable?

Mr. Adkins-Blanch suggested that if past persecution was shown and then rebutted, a claim of well-founded fear must still be considered. Other serious harm is a second prong considered when the presumption of well founded fear has been rebutted.

If a claim is based on two protected grounds i.e. PSG and Political Opinion, do asylum officers think about both arguments being made? Would a weak argument undermine the strength of another argument? Should both be made? Is it appropriate to argue other serious harm at the affirmative stage?

Ms. Musalo explained that it is appropriate to present all possible grounds. She suggested it is wrong to dismiss a possible theory because another is stronger. Ms. Lay explained that it is not USCIS policy to ignore any part of the claim. USCIS will resolve the case based on what is presented in a claim. "Other serious harm" is considered, and USCIS provides training for its Asylum Officers on this.

Could you address imputed social groups?

Ms. Lay shared that imputation requires a closer reading of nexus. It is about if the persecutor sees the trait. Ms. Lay referenced INS v. Elias-Zacarias as to whether persecution may occur because a persecutor perceives someone to have a trait that he or she actually does not.

What is the processing time for an appeal with the BIA?

Mr. Adkins-Blanch shared that there is a 90 day limit according to regulatory guidelines. This is a set time for staff and the Board to complete a case. If a Board member misses a deadline, the case goes to the Board Chairman and then to the Attorney General. The BIA has met all of its deadlines, and a case has not reached the Attorney General's desk.

It seems that when cases are referred to USCIS Headquarters for asylum quality assurance reviews that there is a long turnaround time. Are there any ways to expedite that review, for example with minors? Have any steps been taken to reduce the delay?

When queried after the conference, USCIS responded that during the last year or so, there have been two primary reasons for delays in the Headquarters quality assurance review process. First, some cases are unavoidably delayed because USCIS is awaiting guidance on certain issues, such as terrorism related inadmissibility grounds. USCIS works to clear these cases quickly whenever guidance allows these cases to be adjudicated. Second, staffing shortages have caused delays in review. For much of the last year, the quality assurance team has been functioning with half its staff. USCIS took actions to remedy this situation by bringing in short-term detailees and hiring new staff. USCIS expects to be fully staffed by January 2012. Once, fully staffed, USCIS will be able to more efficiently address the pending workload and remain current in its review.

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