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New Guidance to IJs and AOs pursuant to Grace v. Whitaker

January 14, 2019 (2 min read)
Karen MusaloBank of America Foundation Chair in International Law and Professor & Director, Center for Gender & Refugee Studies at U.C. Hastings College of the Law writes:
"Following up on U.S. District Court Judge Emmet Sullivan’s powerful decision in Grace v. Whitaker, which found major elements of Matter of A-B- and the related USCIS Policy Memorandum to be inconsistent with the law, we are pleased to share the instructions which the Court ordered USCIS and EOIR to provide asylum officers and immigration judges conducting credible fear interviews and reviews of negative credible fear findings.  This guidance takes immediate effect and should be relied upon and cited to by advocates.
The Court declared that the following policies contained in Matter of A-B- and the related USCIS Policy Memorandum are arbitrary, capricious, and in violation of immigration law as applied to credible fear proceedings:

1.     The general rule against claims relating to domestic and gang violence.

2.     The requirement that a noncitizen whose claim involves non-governmental persecutors “show the government condoned the private actions or at least demonstrated a complete helplessness to protect the victim.”   

3.     The Policy Memorandum’s rule that domestic violence-based particular social group definitions that include “inability to leave” a relationship are impermissibly circular and therefore not cognizable. 

4.     The Policy Memorandum’s requirement that individuals must delineate or identify any particular social group in order to satisfy credible fear based on the particular social group protected ground.   

5.     The Policy Memorandum’s directive that asylum officers should apply federal circuit court case law only “to the extent that those cases are not inconsistent with Matter of A-B-.” 

6.     The Policy Memorandum’s directive that asylum officers should apply only the case law of “the circuit” where the individual is “physically located during the credible fear interview.”

While the Court’s order is limited to credible fear interviews in the expedited removal process, we urge advocates to use the Court’s reasoning in merits hearings before the Asylum Office and the Immigration Court, and on review before the BIA and circuit courts.  Of the six findings above, only (4) and (6) are specific to the nature of the credible fear process, which is intended to be a low screening standard, providing the applicant with the benefit of the most advantageous case law.  The other four findings (1,2,3, and 5) are more broadly based on Judge Sullivan’s interpretation of key statutory terms of the refugee definition, and his reasoning should be adopted and argued in the merits context as well."