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The following credible fear policies are arbitrary and capricious and contrary to law: (1) the general rule against credible fear claims relating to gang-related and domestic violence victims' membership in a "particular social group," as reflected in Matter of A-B- and the Department of Homeland Security (DHS) Policy Memorandum; (2) the heightened "condoned" or "complete helplessness" standard for persecution, as reflected in Matter of A-B- and the Policy Memorandum; (3) the circularity standard as reflected in the Policy Memorandum; (4) the delineation requirement at the credible fear stage, as reflected in the Policy Memorandum; and (5) the requirement that adjudicators disregard contrary circuit law and apply only the law of the circuit where the credible fear interview occurs, as reflected in the Policy Memorandum. Neither the Policy Memorandum nor Matter of A-B- state an unlawful nexus requirement or require asylum officers to apply discretionary factors at the credible fear stage.
Seeking an opportunity for asylum, plaintiffs, twelve adults and children, alleged accounts of sexual abuse, kidnappings, and beatings in their home countries during interviews with asylum officers. Although the asylum officers found that plaintiffs' accounts were sincere, the officers denied their claims after applying the standards set forth in a recent precedential immigration decision issued by then-Attorney General, Jefferson B. Sessions (Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018). Subsequently, plaintiffs brought the present action against the Attorney General alleging violations of, inter alia, the Administrative Procedure Act ("APA") and the Immigration and Nationality Act ("INA"), arguing that the standards articulated in Matter of A-B-, and a subsequent Policy Memorandum issued by the Department of Homeland Security ("DHS") (collectively "credible fear policies"), unlawfully and arbitrarily imposed a heightened standard to their credible fear determinations.
Were the “credible fear policies” arbitrary, capricious, and in violation of the immigration laws?
The court first held that it had jurisdiction to hear plaintiff asylum seekers' APA case alleging that standards articulated in Matter of A-B-, and a subsequent DHS Policy Memorandum unlawfully and arbitrarily imposed a heightened standard to their credible fear determinations because 8 U.S.C.S. § 1252(e)(3) affirmatively granted jurisdiction. With regard to the substantive matter of the case, the court held that the general rule foreclosing domestic violence and gang-related claims violated the APA and immigration laws because it was an impermissible reading of the statute and was arbitrary and capricious. Because the Policy Memorandum required an alien—at the credible fear stage—to present facts that clearly identified the alien's proposed particular social group, contrary to the INA, that policy was arbitrary and capricious. According to the court, neither the Policy Memorandum nor Matter of A-B- state an unlawful nexus requirement or require asylum officers to apply discretionary factors at the credible fear stage.