DOCSLIB.ORG

Federal Register/Vol. 85, No. 115/Monday, June 15, 2020

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Federal Register/Vol. 85, No. 115/Monday, June 15, 2020 36264 Federal Register / Vol. 85, No. 115 / Monday, June 15, 2020 / Proposed Rules DEPARTMENT OF HOMELAND comments prior to midnight eastern Immigration Review, 5107 Leesburg SECURITY time at the end of that day. Comments Pike, Suite 1800, Falls Church, VA specific to the proposed collection of 22041, telephone (703) 305–0289 (not a 8 CFR Parts 208 and 235 information will be accepted until toll-free call). RIN 1615–AC42 August 14, 2020. All such submissions Maureen Dunn, Chief, Division of received must include the OMB Control Humanitarian Affairs, Office of Policy DEPARTMENT OF JUSTICE Number 1615–0067 in the body of the and Strategy, U.S. Citizenship and submission. Note: Comments received Immigration Services, 20 Massachusetts Executive Office for Immigration on the information collection that are Ave. NW, Washington, DC 20529; Review intended as comments on the proposed telephone (202) 272–8377. rulemaking rather than those specific to SUPPLEMENTARY INFORMATION: 8 CFR Parts 1003, 1208, and 1235 the collection of information will be I. Public Participation rejected. [EOIR Docket No. 18–0002; A.G. Order No. Interested persons are invited to 4714–2020] ADDRESSES: If you wish to provide participate in this rulemaking by comments regarding this rulemaking, RIN 1125–AA94 submitting written data, views, or you must submit comments, identified arguments on all aspects of this rule via Procedures for Asylum and by the agency name and reference RIN one of the methods and by the deadline Withholding of Removal; Credible Fear 1125–AA94 or EOIR Docket No. 18– stated above. All comments must be and Reasonable Fear Review 0002, by one of the two methods below. • submitted in English, or accompanied Federal eRulemaking Portal: http:// by an English translation. The AGENCY: Executive Office for www.regulations.gov. Follow the Departments also invite comments that Immigration Review, Department of website instructions for submitting Justice; U.S. Citizenship and relate to the economic, environmental, comments. or federalism effects that might result Immigration Services, Department of • Mail: Paper comments that from this rule. Comments that will Homeland Security. duplicate an electronic submission are provide the most assistance to the ACTION: Joint notice of proposed unnecessary. If you wish to submit a Departments in developing these rulemaking. paper comment in lieu of electronic procedures will reference a specific submission, please direct the mail/ portion of the rule; explain the reason SUMMARY: The Department of Justice and shipment to: Lauren Alder Reid, the Department of Homeland Security for any recommended change; and Assistant Director, Office of Policy, include data, information, or authority (collectively, ‘‘the Departments’’) Executive Office for Immigration propose to amend the regulations that support such recommended change. Review, 5107 Leesburg Pike, Suite 1800, Please note that all comments governing credible fear determinations Falls Church, VA 22041. To ensure so that individuals found to have such received are considered part of the proper handling, please reference the public record and made available for a fear will have their claims for asylum, agency name and RIN 1125–AA94 or withholding of removal under section public inspection at http:// EOIR Docket No. 18–0002 on your www.regulations.gov. Such information 241(b)(3) of the Immigration and correspondence. Mailed items must be Nationality Act (‘‘INA’’ or ‘‘the Act’’) includes personally identifying postmarked or otherwise indicate a information (such as your name, (‘‘statutory withholding of removal’’), or shipping date on or before the protection under the regulations issued address, etc.) voluntarily submitted by submission deadline. the commenter. If you want to submit pursuant to the legislation Collection of information. You must personally identifying information (such implementing the Convention Against submit comments on the collection of as your name, address, etc.) as part of Torture and Other Cruel, Inhuman or information discussed in this notice of your comment, but do not want it to be Degrading Treatment or Punishment proposed rulemaking to both the posted online, you must include the (‘‘CAT’’), adjudicated by an immigration rulemaking docket and the Office of phrase ‘‘PERSONALLY IDENTIFIABLE judge within the Executive Office for Management and Budget’s (OMB) Office INFORMATION’’ in the first paragraph Immigration Review (‘‘EOIR’’) in of Information and Regulatory Affairs of your comment and identify what streamlined proceedings (rather than in (OIRA). All such submissions received information you want redacted. proceedings under section 240 of the must include the OMB Control Number If you want to submit confidential Act), and to specify what standard of 1615–0067 in the body of the business information as part of your review applies in such streamlined submission. OIRA submissions can be comment, but do not want it to be proceedings. The Departments further sent using any of the following methods. posted online, you must include the propose changes to the regulations • Email (preferred): DHSDeskOfficer@ phrase ‘‘CONFIDENTIAL BUSINESS regarding asylum, statutory withholding omb.eop.gov (include the docket INFORMATION’’ in the first paragraph of removal, and withholding and number and ‘‘Attention: Desk Officer for of your comment. You must deferral of removal under the CAT U.S. Citizenship and Immigration prominently identify the confidential regulations. The Departments also Services, DHS’’ in the subject line of the business information to be redacted propose amendments related to the email). within the comment. If a comment has standards for adjudication of • Fax: 202–395–6566. so much confidential business • applications for asylum and statutory Mail: Office of Information and information that it cannot be effectively withholding. Regulatory Affairs, Office of redacted, all or part of that comment DATES: Written or electronic comments Management and Budget, 725 17th may not be posted on http:// on the notice of proposed rulemaking Street NW, Washington, DC 20503; www.regulations.gov. must be submitted on or before July 15, Attention: Desk Officer, U.S. Citizenship Personally identifying information 2020. Written comments postmarked on and Immigration Services, DHS. located as set forth above will be placed or before that date will be considered FOR FURTHER INFORMATION CONTACT: in the agency’s public docket file, but timely. The electronic Federal Docket Lauren Alder Reid, Assistant Director, not posted online. Confidential business Management System will accept Office of Policy, Executive Office for information identified and located as set VerDate Sep<11>2014 17:38 Jun 12, 2020 Jkt 250001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4702 E:\FR\FM\15JNP2.SGM 15JNP2 jbell on DSKJLSW7X2PROD with PROPOSALS2 Federal Register / Vol. 85, No. 115 / Monday, June 15, 2020 / Proposed Rules 36265 forth above will not be placed in the permanent procedure for the admission classes of aliens 4—who are found to be public docket file. The Departments and protection of refugees, generally inadmissible under either section may withhold from public viewing defined in domestic law as: 212(a)(6)(C) of the INA, 8 U.S.C. information provided in comments that any person who is outside of any country of 1182(a)(6)(C), regarding material they determine may affect the privacy of such person’s nationality * * * and who is misrepresentations, or section 212(a)(7) an individual or is offensive. For unable or unwilling to return to, and is of the INA, 8 U.S.C. 1182(a)(7), additional information, please read the unable or unwilling to avail himself or regarding documentation requirements Privacy Act notice that is available via herself of the protection of, that country for admission, may be ‘‘removed from the link in the footer of http:// because of persecution or a well-founded fear the United States without further www.regulations.gov. To inspect the of persecution on account of race, religion, hearing or review unless the alien nationality, membership in a particular social agency’s public docket file in person, group, or political opinion. indicates either an intention to apply for you must make an appointment with the asylum under section [208 of the INA, agency. Please see the FOR FURTHER Refugee Act, sec. 201(a), 94 Stat. at 102 8 U.S.C. 1158,] or a fear of persecution.’’ INFORMATION CONTACT paragraph above (codified at section 101(a)(42) of the INA 235(b)(1)(A)(i), 8 U.S.C. for agency contact information. INA, 8 U.S.C. 1101(a)(42)). Those five 1225(b)(1)(A)(i).5 Among other things, grounds are the sole grounds for asylum expedited removal is an administrative II. Discussion 1 and refugee status. process that allows for the fair and Since World War II, the United States A. Expedited Removal and Screenings efficient removal of aliens who have has sought a comprehensive solution to in the Credible Fear Process made no claims regarding asylum or a the issues surrounding the admission of fear of return or, if they have, have not refugees into the country and the 1. Asylum-and-Withholding-Only established a fear of persecution or protection of refugees from return to Proceedings 2 for Aliens With Credible torture, without requiring lengthy and persecution. As an expression of a Fear resource-intensive removal proceedings nation’s foreign policy, the laws and In the Illegal Immigration Reform and in immigration court. policies surrounding asylum are an Immigrant Responsibility Act of 1996, Pursuant to statute and regulations, assertion of a government’s right and Public Law 104–208, div. C, 110 Stat. DHS implements a screening process, duty to protect its own resources and 3009, 3009–546 (‘‘IIRIRA’’), Congress citizens, while aiding those in true need established the expedited removal 1102, 116 Stat. at 2274 (codified at INA 103(g)(1), of protection from harm. See, e.g., process, thus establishing two primary 8 U.S.C. 1103(g)(1)); see 6 U.S.C. 521. Furthermore, Kleindienst v.
Load more

Recommended publications
  • Supreme Court of the United States
    No-_____ IN THE Supreme Court of the United States YOLANDA SANCHEZ-OCHOA, JOSE PEREZ-MURILLO, AND HECTOR PEREZ-SANCHEZ, Petitioners, v. JEFFERSON B. SESSIONS, III, ATTORNEY GENERAL OF THE UNITED STATES, Respondent. On Petition for Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit PETITION FOR A WRIT OF CERTIORARI BLAKE P. SOMERS COUNSEL OF RECORD BLAKE P. SOMERS, LLC 114 E. 8th Street Cincinnati, Ohio 45202 513.587.2892 [email protected] Counsel for Petitioners i QUESTIONS PRESENTED Petitioners seek asylum in the United States after receiving threats on their life from gang members. Petitioners’ neighbors had received similar threats, and were brutally murdered when they refused to comply with the gang’s demands. The Petitioners fled Mexico to escape death. The immigration judge found the Petitioners credible, and all agency and court decisions have recognized that this nuclear family faces a true, clear, and present danger to their safety and welfare upon their return to Mexico. But all agencies and courts have rejected Petitioners’ claims, finding, among other things, that Petitioners’ proposed “particular social group” was not cognizable under the Immigration and Nationality Act. At issue in this case is the Board of Immigration Appeals’ standard for determining when an applicant claims membership in a particular social group as a basis for asylum per 8 U.S.C. § 1101(a)(42)(A). In Matter of Acosta, 19 I&N Dec. 211 (BIA 1985), the Board of Immigration Appeals held a particular social group (PSG) must share an immutable characteristic. In a series of cases in 2008 and 2014, the Board of Immigration Appeals added two requirements to this standard: a group must be socially visible or distinct, and it must be sufficiently particular.
    [Show full text]
  • Particularized Social Groups and Categorical Imperatives in Refugee
    American University Journal of Gender, Social Policy & the Law Volume 23 Issue 4 Article 2 2015 Particularized Social Groups and Categorical Imperatives in Refugee Law: State Failures to Recognize Gender and the Legal Reception of Gender Persecution Claims in Canada, The United Kingdom, and the United States Melanie Randall The University of Western Ontario, [email protected] Follow this and additional works at: https://digitalcommons.wcl.american.edu/jgspl Part of the Civil Rights and Discrimination Commons, Comparative and Foreign Law Commons, Human Rights Law Commons, Immigration Law Commons, International Humanitarian Law Commons, International Law Commons, and the Law and Gender Commons Recommended Citation Randall, Melanie (2015) "Particularized Social Groups and Categorical Imperatives in Refugee Law: State Failures to Recognize Gender and the Legal Reception of Gender Persecution Claims in Canada, The United Kingdom, and the United States," American University Journal of Gender, Social Policy & the Law: Vol. 23 : Iss. 4 , Article 2. Available at: https://digitalcommons.wcl.american.edu/jgspl/vol23/iss4/2 This Article is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in American University Journal of Gender, Social Policy & the Law by an authorized editor of Digital Commons @ American University Washington College of Law. For more information, please contact [email protected]. Randall: Particularized Social Groups and Categorical Imperatives in Refug PARTICULARIZED SOCIAL GROUPS AND CATEGORICAL IMPERATIVES IN REFUGEE LAW: STATE FAILURES TO RECOGNIZE GENDER AND THE LEGAL RECEPTION OF GENDER PERSECUTION CLAIMS IN CANADA, THE UNITED KINGDOM, AND THE UNITED STATES MELANIE RANDALL, PH.D., LL.B.
    [Show full text]
  • "Social Visibility" in Defining a Particular Social Group and Its Potential Impact on Asylum Claims Related to Sexual Orientation and Gender
    Scholarly Commons @ UNLV Boyd Law Scholarly Works Faculty Scholarship 2008 The Emerging Importance of "Social Visibility" in Defining a Particular Social Group and Its Potential Impact on Asylum Claims Related to Sexual Orientation and Gender Fatma E. Marouf University of Nevada, Las Vegas -- William S. Boyd School of Law, [email protected] Follow this and additional works at: https://scholars.law.unlv.edu/facpub Part of the Immigration Law Commons Recommended Citation Marouf, Fatma E., "The Emerging Importance of "Social Visibility" in Defining a Particular Social Group and Its Potential Impact on Asylum Claims Related to Sexual Orientation and Gender" (2008). Scholarly Works. 419. https://scholars.law.unlv.edu/facpub/419 This Article is brought to you by the Scholarly Commons @ UNLV Boyd Law, an institutional repository administered by the Wiener-Rogers Law Library at the William S. Boyd School of Law. For more information, please contact [email protected]. YALE LAW & POLICY REVIEW The Emerging Importance of "Social Visibility" in Defining a "Particular Social Group" and Its Potential Impact on Asylum Claims Related to Sexual Orientation and Gender Fatma E. Maroufl INTROD UCTION ........................................................................................................... 48 1. FOUR APPROACHES TO DEFINING MEMBERSHIP OF A PARTICULAR SOCIAL G RO U P ................................................................................................................ 51 A. The "Protected Characteristic"Approach .............................................
    [Show full text]
  • Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018)
    Cite as 27 I&N Dec. 316 (A.G. 2018) Interim Decision #3929 Matter of A-B-, Respondent Decided by Attorney General June 11, 2018 U.S. Department of Justice Office of the Attorney General (1) Matter of A-R-C-G-, 26 I&N Dec. 338 (BIA 2014) is overruled. That decision was wrongly decided and should not have been issued as a precedential decision. (2) An applicant seeking to establish persecution on account of membership in a “particular social group” must demonstrate: (1) membership in a group, which is composed of members who share a common immutable characteristic, is defined with particularity, and is socially distinct within the society in question; and (2) that membership in the group is a central reason for her persecution. When the alleged persecutor is someone unaffiliated with the government, the applicant must also show that her home government is unwilling or unable to protect her. (3) An asylum applicant has the burden of showing her eligibility for asylum. The applicant must present facts that establish each element of the standard, and the asylum officer, immigration judge, or the Board has the duty to determine whether those facts satisfy all of those elements. (4) If an asylum application is fatally flawed in one respect, an immigration judge or the Board need not examine the remaining elements of the asylum claim. (5) The mere fact that a country may have problems effectively policing certain crimes or that certain populations are more likely to be victims of crime, cannot itself establish an asylum claim. (6) To be cognizable, a particular social group must exist independently of the harm asserted in an application for asylum.
    [Show full text]
  • Membership of a Particular Social Group’
    LEGAL AND PROTECTION POLICY RESEARCH SERIES The ‘Ground with the Least Clarity’: A Comparative Study of Jurisprudential Developments relating to ‘Membership of a Particular Social Group’ Michelle Foster University of Melbourne, Australia DIVISION OF INTERNATIONAL PROTECTION AUGUST 2012 PPLA/2012/02 DIVISION OF INTERNATIONAL PROTECTION UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES (UNHCR) CP2500, 1211 Geneva 2 Switzerland E-mail: [email protected] Website: www.unhcr.org The opinions expressed in this paper are those of the authors and do not necessarily represent the position of the United Nations or the United Nations High Commissioner for Refugees. This paper may be freely quoted, cited and copied for academic, educational or other non-commercial purposes without prior permission from UNHCR, provided that the source and authors are acknowledged. The paper is available online at http://www.unhcr.org/protect. © United Nations High Commissioner for Refugees 2012. Table of Contents 1. INTRODUCTION AND BACKGROUND ....................................................................................................... 2 2. THE EMERGENCE OF TWO DOMINANT APPROACHES: PROTECTED CHARACTERISTICS/ EJUSDEM GENERIS AND SOCIAL PERCEPTION ....................................................................................... 5 2.1 THE REJECTION OF EARLIER APPROACHES AND SOME POINTS OF CONSENSUS ........... 5 2.2 PROTECTED CHARACTERISTICS/EJUSDEM GENERIS ................................................................... 6 2.3 SOCIAL PERCEPTION/SOCIOLOGICAL
    [Show full text]
  • A Particularly Serious Exception to the Categorical Approach
    A PARTICULARLY SERIOUS EXCEPTION TO THE CATEGORICAL APPROACH ∗ FATMA MAROUF INTRODUCTION ............................................................................................ 1428 I. THE CATEGORICAL APPROACH ........................................................ 1430 A. The Significance of the Word “Convicted” .............................. 1432 B. Conviction for a “Particularly Serious Crime” ....................... 1436 C. The BIA’s Quasi-Categorical Approach .................................. 1445 1. The Unidentified Elements of a Particularly Serious Crime ................................................................................. 1448 2. Ad Hoc Decisions About Whether to Use an Element-Based or Fact-Based Approach ......................................................... 1452 II. THE INDIVIDUALIZED APPROACH ..................................................... 1454 A. Historical Origins ..................................................................... 1454 B. UNHCR’s Interpretation .......................................................... 1457 C. The BIA’s Deviation from UNHCR’s Approach ....................... 1459 1. Failing to Consider All Mitigating Factors ......................... 1459 2. Dropping Dangerousness .................................................... 1461 3. Failure to Apply the Principle of Proportionality ............... 1463 III. POSSIBLE PATHS FORWARD ............................................................. 1469 A. Applying the Categorical Approach ........................................
    [Show full text]
  • Correcting the 'Particular Social Group' Ground for Asylum
    NORTH CAROLINA JOURNAL OF INTERNATIONAL LAW Volume 44 Number 3 Article 5 Summer 2019 Becoming Unconventional: Correcting the 'Particular Social Group' Ground for Asylum Fatma Marouf Follow this and additional works at: https://scholarship.law.unc.edu/ncilj Part of the Law Commons Recommended Citation Fatma Marouf, Becoming Unconventional: Correcting the 'Particular Social Group' Ground for Asylum, 44 N.C. J. INT'L L. 489 (2019). Available at: https://scholarship.law.unc.edu/ncilj/vol44/iss3/5 This Article is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina Journal of International Law by an authorized editor of Carolina Law Scholarship Repository. For more information, please contact [email protected]. Becoming Unconventional: Constricting the ‘Particular Social Group’ Ground for Asylum Fatma Marouf† I. Introduction ............................................................... 487 II. The Evolution of the PSG Ground in U.S. Asylum Jurisprudence ............................................................. 489 III. Recent Developments Constricting the PSG Ground 493 A. Procedural Constrictions ..................................... 493 1. Imposing an Exceedingly Strict Pleading Standard for PSG Claims ............................... 493 2. Prohibiting Revision or Clarification of the PSG at the Administrative Level ........................... 500 B. Substantive Constrictions ................................... 506 1. Restricting Entire Categories
    [Show full text]
  • The Problem of Defining a Particular Social Group a Professional Monthly Newsletter Produced by the by Katherine A
    U.S. Department of Justice Executive Office for Immigration Review http://eoirweb/library/lib_index.htm Immigration Law Advisor December 2007 A Monthly Legal Publication of the Executive Office for Immigration Review Vol 1. No.12 Gang Violence and Asylum: The Immigration Law Advisor is The Problem of Defining a Particular Social Group a professional monthly newsletter produced by the By Katherine A. Smith Executive Office for Immigration Review. The purpose of the leeing the strife of civil war in El Salvador, a group of immigrants in publication is to disseminate Los Angeles in the 980s formed the Mara Salvatrucha, or MS-3, judicial, administrative, F gang. Initially, these immigrants created MS-3 to protect themselves regulatory, and legislative from already established L.A. gangs. MS-3, however, has now come to be developments in immigration law considered one of the most violent and dangerous criminal gangs in the world. pertinent to the mission of the MS-3 now has a presence in many parts of the United Immigration Courts and Board of States. In addition, because many gang members were removed Immigration Appeals. to Central America in recent years, the influence of MS-3 is now widespread in the region. The State Department notes that: [O]ver the past decade, criminal gang organizations have emerged as a serious and pervasive socio-economic challenge to the security, stability and welfare of El Salvador and other nations of Central America. This problem ... has evolved In this issue... into a transnational phenomenon impacting regional law enforcement and security concerns Page : Feature Article: for Mexico, the United States and other countries.
    [Show full text]
  • Basic Procedural Manual for Asylum Representation Affirmatively and in Removal Proceedings
    BASIC PROCEDURAL MANUAL FOR ASYLUM REPRESENTATION AFFIRMATIVELY AND IN REMOVAL PROCEEDINGS June 2019 224 South Michigan Avenue Suite 600 Chicago, Illinois 60604 Phone 312-660-1370 Fax 312-660-1505 www.immigrantjustice.org TABLE OF CONTENTS * * * ACRONYMS AND TERMS .................................................................................................................................. 4 INFORMATION ON THE PRO BONO PROGRAM .......................................................................................... 5 THE NATIONAL IMMIGRANT JUSTICE CENTER ..................................................................................................................... 5 NIJC’S CLIENTS ..................................................................................................................................................................... 5 WHAT PRO BONO ATTORNEYS CAN EXPECT FROM NIJC ................................................................................................... 6 WHAT NIJC EXPECTS FROM PRO BONO PARTNERS ............................................................................................................. 6 OBTAINING A CASE ................................................................................................................................................................ 7 FIRST STEPS ........................................................................................................................................................................... 7 THE BASICS OF ASYLUM LAW ......................................................................................................................
    [Show full text]
  • In the Supreme Court of the United States
    No. ___ – ______ In the Supreme Court of the United States WILFREDO GARAY REYES, Petitioner, V. JEFFERSON B. SESSIONS, III, ATTORNEY GENERAL, Respondent. ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT PETITION FOR A WRIT OF CERTIORARI LORI ALVINO MCGILL Counsel of Record DAVID FRIEDMAN RUTH VINSON WILKINSON WALSH + ESKOVITZ LLP 1900 M Street, NW Suite 800 Washington, DC 20036 (202) 847-4035 [email protected] Counsel for Petitioner [Additional counsel listed on inside cover] ALMA L. DAVID GLOBAL JUSTICE LAW GROUP, PLLC 216 First Ave. S. Suite 420 Seattle, WA 98104 (206) 787-1406 [email protected] ZACHARY A. ALBUN EISENBERG LAW FIRM, PLLC 75 Broad Street Suite 2120 New York, NY 10004 (212) 951-0753 [email protected] BENJAMIN CASPER SANCHEZ JAMES H. BINGER CENTER FOR NEW AMERICANS UNIVERSITY OF MINNESOTA LAW SCHOOL 190 Mondale Hall 229 19th Ave. S. Minneapolis, MN 55455 (612) 625-6484 [email protected] Counsel for Petitioner i QUESTION PRESENTED Under the Immigration and Nationality Act, an alien is eligible for asylum or withholding of removal, if, inter alia, the alien is unwilling or unable to return to his country of origin due to persecution “because of . membership in a particular social group.” 8 U.S.C. § 1231(b)(3)(A); 8 U.S.C. § 1101(a)(42)(A). For more than two decades, the Board of Immigration Appeals (BIA) interpreted the term “particular social group” to mean “a group of persons all of whom share a common, immutable characteristic” that “the members of the group either cannot change, or should not be required to change because it is fundamental to their individual identities or consciences.” Matter of Acosta, 19 I.
    [Show full text]
  • February 2021 Bi RELIEF from REMOVAL Table of Contents ASYLUM, WITHHOLDING of REMOVAL and the CONVENTION AGAINST TORTURE
    RELIEF FROM REMOVAL Table of Contents ASYLUM, WITHHOLDING OF REMOVAL and the CONVENTION AGAINST TORTURE .................................................................................................................1 I. THE CONTEXT ..............................................................................................1 II. ASYLUM ........................................................................................................3 A. Burden of Proof .....................................................................................3 B. Defining Persecution .............................................................................5 1. Cumulative Effect of Harms ....................................................... 6 2. No Subjective Intent to Harm Required ..................................... 7 3. Forms of Persecution .................................................................. 7 a. Physical Violence ............................................................. 7 (i) Physical Violence Sufficient to Constitute Persecution ............................................................. 9 (ii) Physical Violence Insufficient to Constitute Persecution ...........................................................11 b. Torture ............................................................................11 c. Threats ............................................................................12 (i) Cases Holding Threats Establish Persecution ......12 (ii) Cases Holding Threats Not Persecution ...............14 d. Detention
    [Show full text]
  • Asylum and Gang Violence: Legal Overview
    Asylum and Gang Violence: Legal Overview Kate M. Manuel Legislative Attorney September 5, 2014 Congressional Research Service 7-5700 www.crs.gov R43716 Asylum and Gang Violence: Legal Overview Summary The recent increase in the number of unaccompanied alien children (UACs) apprehended at the border between Mexico and the United States has raised questions about the role that gang-related violence in Central America may play in determining whether such children are eligible for refugee status and asylum. Only aliens who are “refugees,” as that term is defined by the Immigration and Nationality Act (INA), qualify for potential refugee status or asylum (two forms of discretionary relief that could enable UACs to enter or remain in the United States). The INA’s definition, in turn, generally encompasses individuals outside their home country who are unable or unwilling to return to that country because of “persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” However, key terms within this definition—including persecution and particular social group—are not defined by statute or regulation. Instead, they have been construed by the Board of Immigration Appeals (BIA), the highest administrative tribunal for interpreting and applying immigration law, through a process of case-by-case adjudication, with the federal courts generally deferring to the BIA’s interpretation insofar as it is based on a “permissible construction” of the INA. These cases center upon eligibility for asylum, because denials of applications for refugee status cannot be appealed. Denials of asylum by immigration judges in the course of formal removal proceedings, in contrast, may be appealed to the BIA and the federal courts of appeals.
    [Show full text]