Last week, Attorney General Merrick Garland issued two decisions reversing Trump-era cases that limited asylum eligibility. Here, we’ll discuss those cases and how the AG’s decision will affect asylum seekers.
The first case, Matter of A-B-, 28 I&N 307 (AG 2021), involves asylum for victims of domestic violence. There is a long history here, but the basic story is that victims of domestic violence have traditionally had a hard time qualifying for asylum. Through a series of cases between 2004 and 2014, the government created a (convoluted) path for victims of DV to receive asylum by classifying them as a “particular social group” (to qualify for asylum, an applicant must show that the feared harm is “on account of” race, religion, nationality, political opinion or particular social group). While this was an important step for DV asylum seekers, presenting a successful case was still very difficult, especially for people without a lawyer (probably the majority of applicants). The Trump Administration re-visited DV asylum starting in 2018, and essentially erased the gains made during the prior decade and a half. Now, the pendulum has swung once again, and the Biden Administration has reversed the Trump-era reversal. In other words, we are back to the not-so-great place where we were in 2017. This means that victims of domestic violence can once again obtain asylum, assuming they can satisfy the narrow definition created prior to President Trump.
The 2018 iteration of Matter of A-B- also addressed asylum eligibility for people who fear harm from non-state actors–
An applicant seeking to establish persecution based on violent conduct of a private actor must show more than the government’s difficulty controlling private behavior. The applicant must show that the government condoned the private actions or demonstrated an inability to protect the victims.
In other words, the 2018 version of A-B- attempted to make it more difficult to obtain asylum for all people fleeing harm from non-state actors; not just people fleeing domestic violence. There was debate among practitioners (and federal courts) about whether A-B- actually changed anything in this regard. While A-B- created more work for us, since we had to address it in our legal briefs, I don’t know that we actually lost any cases as a result of the more stringent standard. But I imagine that this was not universally true, and I expect that some applicants were denied asylum under Matter of A-B-.
In any event, A-B- has now bit the dust, and good riddance to it. The Attorney General has indicated that the Department of Justice and the Department of Homeland Security will issue regulations addressing who qualifies for asylum based on a “particular social group,” and so we will see how the Biden Administration tackles this problem, which has bedeviled rule makers for at least two or three decades.
The second case from last week is Matter of L-E-A-, 28 I&N Dec. 304 (AG 2021). This case vacates a prior version of L-E-A- from 2019, which again addressed the issue of “particular social group” (“PSG”) as a basis for asylum. Prior to the Trump Administration, “family” had become a well-recognized PSG, and we lawyers often relied upon that social group to obtain asylum for our clients. For example, in some Central American cases, gang members targeted not only their enemy, but also their enemy’s family members. Lawyers (including your humble blogger) have successfully argued that family members of the gang’s enemy constitute a PSG, and were thus eligible for asylum. Indeed, in one oft-cited case, the U.S. Court of Appeals for the Fourth Circuit referred to family as the “prototypical” PSG.
The 2019 version of L-E-A- stated that “family” could only qualify as a PSG if that family was “socially distinct in the eyes of its society.” In other words, we had to show that the family was not an ordinary family, but rather was somehow well-known in the community. This requirement largely ignored the legal framework established for PSGs, not to mention decades of circuit court precedent, and drew significant push-back from advocates and courts. Nevertheless, I recently lost a gang case where the Immigration Judge found that our PSG, “family members of murdered father/husband” was not a cognizable social group. In our case, the judge cited numerous bases to deny asylum (this particular IJ has a 93% asylum denial rate), and so I think we will not pursue reopening. However, in cases where asylum was denied exclusively (or mostly) based on the failure to present a cognizable family-based PSG, a motion to reopen might be worth a try (for cases in federal court, DOJ has directed its attorneys to affirmatively determine whether a remand is appropriate).
As in A-B-, the Attorney General has indicated that we can expect new regulations related to PSGs. Given the current direction of the Biden Administration, I am optimistic that these new regulations will create an easier path for asylum seekers. “Easier,” but not “easy.” Domestic violence and family-based cases do not fit neatly into the legal framework of asylum. What we really need is for Congress to re-visit the asylum law and make a decision about who should qualify for protection. That’s unlikely to happen any time soon, and for now, we must be content that two awful Trump-era cases have been vacated, and that we have returned to the somewhat less awful situation of the Obama era. We can also look forward to new regulations, which will hopefully improve the prospects for many asylum seekers.
[…] and some Trump-era changes have been reversed. But even under the pre-Trump rules, it was very difficult for most Central American asylum seekers to properly present their cases, as such cases tend to be […]
Jason , reading today in the news that record surge at Southern Borders . Do all these people apply for asylum and overburdening the system. Also is this surge the reason for not shifting back to FIFO
Hi Jason,
Is there a longer than normal delay in getting EAD renewal cards . Had applied way back in December 2020 as my card was expiring in May 2021 but have not yet got the renewal card yet
There is – I would expect even with these long delays, you should have it soon. You might want to call USCIS, as your wait time is very long: 800-375-5283. Take care, Jason
Hello Jason, thanks for what you are doing for the asylum community. My family, back home had to renew their passport because it was about to expire. I have submitted their old passport to NVC while processing I-730 and their visa interview is scheduled for August. Do you think I have to resubmit/notify NVC or the embassy about their renewed passport (with new PP number) before their interview date? Will it be a problem if they show up on the interview date with their renewed passport?
I appreciate your help!
I have not encountered that situation that I can recall. My guess is that they can probably just bring the new and old passports and it will be fine, but I would recommend you email the embassy to let them know and see what they say. You can Google them and you should find an email address for Immigrant Visa processing. Take care, Jason
Please when will they consider reversing this whole ‘Lifo’ stuff most of my friends who applied asylum after me are becoming US citizens. This whole asylum process looks like a trap.
I share ur concern brother/sister…but unfortunately, I don’t think…it will happen anytime soon…I 2nd to this…
It doesn’t seem to me that any change will happen for LIFO before 2024…I am just a little worried that if…a new administration is implemented, that will throw asylum seekers in more uncertainty…
I think there is some chance they will return to FIFO. We shall see. Take care, Jason
Jason , reading today in the news that record surge at Southern Borders . Do all these people apply for asylum and overburdening the system. Also is this surge the reason for not shifting back to FIFO
It does seem like the numbers keep going up at the border. I have not seen recent data, but traditionally most people arriving at the border ask for asylum, and then receive a credible fear interview, which is an initial evaluation of asylum eligibility. The same officers who do these CFIs also do “regular” affirmative asylum cases, and so when the numbers go up at the border, it has – in the past – slowed down the affirmative asylum process. Whether that is happening now, it is difficult to know, since we are still dealing with the effects of Covid, and I have not seen any data about how many officers are currently deployed to the border. Whether any of this relates to FIFO/LIFO, I do not know, but at least to me, there is no good reason to continue LIFO. Take care, Jason
I guess I am just curious…that if…say…donald trump is re-elected in 2024…the asylum seekers overall…will probably be in a worse position, right ? I probably wouldn’t want it to change back to FIFO under a new Trump administration…I am not sure, just feel that he is more likely to reject my asylum claim. I guess my expectation is that, if FIFO is to be re-installed, it won’t happen untill 2nd Biden administration…
It is a terrible system. We have been lobbying Congress to – among other things – go back to FIFO. If you have an interest in getting involved with this effort, I did a post on April 7, 2021 with information about how people can help. Take care, Jason
Hey jason
I was granted asylum 4 months ago and today I thought about marrying my gf who is US citizen so that our relationship can move to the stable part! The question is you think shall i apply for green card through the marriage or just get married as we planned but wait and apply for the GC through my asylum?! I heard marriage brings the green card in 2-3 months !!! Second question i live in ohio so I’m related to Nebraska center so how long usually the green card through asylum takes at Nebraska center?
Congrats !
I think either path is fine. Generally, the marriage path is more expensive (since there are more forms to fill) and you become dependent on your spouse, but you probably will get the GC faster and US citizenship faster as well (assuming you remain married). On the other hand, filing based on asylum is somewhat less expensive and have full control over your own case. So there are advantages and disadvantages to each. In terms of processing times, you can check those at http://www.uscis.gov. Take care, Jason
Hello Mr. Dzubow,
We were granted asylum in 2018, sent our I-485 in December 2019, received receipts and biometric appointments, and gave fingerprints in January 2020. Today, we received I-797 saying that our forms were received and the old fingerprints are going to be used. We never got a second informative notice for our I-765 and I-131. Does this mean good news? Did they start reviewing our forms now?
Hi, asylee, I received the same notice too, and the dates for I-485 almost the same as yours, was granted in July 2018, filed I-485 in October 2019, 2019 November did biometrics. But have no clue what does it mean, I want to believe that there is a movement with the pending I-485.
Ashlee,
Same here, have you heard anything else? I’m at TSC. Thanks!
I have been seeing those letters as well. I guess it at least means USCIS is working on the case, so in that sense, it is good news. How much longer you will have to wait, I do not know, but hopefully this is a sign that the case is almost complete. Take care, Jason
Jason,
For the cases you received similar letters, any updates yet? I have received the same on July 2nd. Nothing else since then.
Thank you so much!
Not yet, but it really only has been in the last couple weeks and so it is too soon to know. Take care, Jason
Hi Ashlee,
I received the same. I’m at the TSC. Have you heard anything else since then? I’m patiently waiting. Thanks!
I meant to say “ASYLEE”. It seams that iPhones don’t like this title too much. Imagine the rest of the country… 🙂 poor us caring it around begging for merci and GCs.
May I ask do I have to worry about whether ICE will arrest or detain me while I appear for asylum interview or biometrics ? I’ve heard of people who go into field offices only to be apprehended by ICE agents
That is extremely rare. Maybe if you are a wanted criminal, but otherwise, it is not something to worry about. Take care, Jason
Sounds good :). this really helps.
Hi, may I ask what’s the earliest date that I can file for renewal of my C8 EAD ? is it 180 days or 120 days ?
The earliest you can file to renew a c-8 EAD is 180 days before it expires. Take care, Jason
Thanks for the confirmation 🙂 Guess I will have to renew soon…
Hi Jason, thank you for your help.
I have a question, today I received Form I-797C, Notice of Action for my pending I-485, that I filed in 2019. What does it mean, any good news or it’s just late action of notice, or maybe there’s a movement within my pending I-485?
Thank you!
We received a couple of those today for cases filed in 2019 and I am not sure why they bother. I guess it at least informs us that USCIS did not forget about the case, and so hopefully it is a sign that we will get some news soon. Take care, Jason
Hi Jason,
I hope you can read my message and help me in any way.
I’m a pending asylum seeker who applied in 2016. I’m solely dependent on work permits to get by and without it my situation would very difficult to manage. I applied to for EAD renewal on October 2020 which got rejected because I didn’t include the fingerprint fees. I re applied this past February, and I have received a notice of receipt this past March. Since then, nothing happened to my EAD application… the tracking number I have received in the notice tells me that my application has been received on March 2021 and this is the last update.
I don’t know what to do Jason, I’m without a job since February 2021 and its taking more than I can afford to wait for my current EAD to be processed.
I’m looking for your advice please on what can be done to expedite the processing of my application, anything that might help.
Thank you.
2nd to this
If your old card was valid when you filed, the receipt from new EAD automatically extends work eligibility by 6 months. If you filed after the old EAD expired, you do not get the automatic extension (and the rejected filing would not count for this purpose). You can try to expedite the EAD case with USCIS – I wrote about that on January 29, 2020. Also, if you work without authorization, it has no effect on an asylum case (though it could affect certain other applications). Take care, Jason
hi jason I had my interview last month. Due to covid i guess they made me sign decision will be mailed documnt. When I check case status online it shows decision was mailed and to follow instruction on the letter. My question how long it takes for me to receive the decision because I have been waiting for it. The stress level is too high.
Does it shows EAD clock stopped online? Ir Ead fees were waived?
If online doesn’t show EAD clock was stopped or fees were waived then unfortunately they referred you the court as a deny! If the EAD clock is stopped then you’re approved
Asyleq,
That may not be accurate.
The online status may have updated many times prior to Asylee seeing the update.
From what I have read from others, once a decision is reached, the status updates many times in the case of an approved case.
If you did not catch initial updates, and only caught the decision mailed status, you will just have to wait to know what the decision is.
In my case, I stopped checking the online status due to high anxiety, and have shared here that when I saw USPS incoming mail notification from USCIS, I quickly checked my status and it was decision mailed.
Based on what I read before my experience, I was expecting a referral, but my case was approved.
Asylee’s question was how long it will take for him to get the letter, and he also mentioned that his stress level is high.
We should not make it worse with negativity, especially if we are not sure.
This is good advice. Until you receive the letter, you cannot know for certain. Take care, Jason
Asylee,
I feel you on the stress. I have been there.
Hopefully, you receive a positive decision soon.
Hopefully you will receive it in the coming days. Once they say that they have mailed it, it should not take more than a week or two. Good luck, Jason
Does anyone know how and where I can file for advance parole in emergency situation?
I think the first step is to call USCIS at 800-375-5283. You will need to get an in-person appointment so they can process the case. It is not easy to reach a person to get that appointment, but eventually, you should. Make sure you have completed the form and bring everything that is required in the instructions (form I-131, available at http://www.uscis.gov). I think you will need a bank check for the fee, but maybe you can use a credit card. You can ask when you call. Good luck, Jason
Dear asylum community, may I ask that do you feel antipathy from the general public, and will that bother you ? If not, how do you grow out of it ? Asking because I have been running scenarios, if I poll Americans or people from my country of origin the question “Do you think I (or anyone) who (fill in the details) should be granted asylum in the United States”, I have a feeling that most asylum seekers will receive less than majority of support among Americans or people from his/her/their country of origin (tho the reasons behind this non-support could be varied)…does this minority support bother you or make you feel there is a lot of opposition against the ongoing asylum claims ? And how to ignore the negative feelings this likely reality brings about you ? I just feel a little sad that how hard it is for most asylum seekers, yet still there is still a lot of opposition, in the U.S., outside the U.S. that are actively working against them…rather frustrating…
Dear Jason,
I want to thank you for all you do for us.
Please,I want to ask if it’s advisable to travel to a third world country (UK) to visit my family with the World Passport,since my country’s passport is expired?
Also is the World Passport recognized by the United States government ?
I will appreciate your quick response or that of someone that has got the idea,particularly someone who has used it before to travel.
Thank you.
What is a World Passport ???
There is one (or maybe more) organization that issues the “passport” and the idea is that anyone can use it, even stateless people. I think few if any government officially recognize these types of documents, and anyone who plans on using them should be careful. Take care, Jason
I looked into the World Passport some years ago (there are several versions of this, I think). I would be very careful. While many countries seem to have recognized this “passport” in the certain cases, I suspect that those were mostly mistakes, and I think there is a good chance that this passport will not work. I would want to find more reliable info about it before I tried it, as I do not trust that you will be able to use it. Take care, Jason
Hi there,
Anyone here recently approved from Houston TX? Please share. I have been waiting for my first interview since 2015 during that time I have gone through many surgeries and pain.
Thank you.
I think therapy helped, and then, Allah/God/YHWH stepped in when the COVID-denier leader of the extremist organization died of COVID last year after leading rallies during the lockdown. And I was present in my COP when that happened. Sweet karma.
Dear asylum community, I know the most important issues for us is how to reach safety. To those who have achieved this…have you thought about about hold the persecutors accountable or bring them to justice ? Because there could be many like you who are suffering and who have no way out…Do you ever feel indignant ? how do you let go of your anger towards state or non-state persecutor…It’s because of them, you have to run around the Earth to find safety…Will you ever forgive these actors ?
You sound like a disguised and very malicious agent, looking to incite violence and trap people. Why are you trying to make everybody feel as miserable as you do?