New Asylum Rules: Biggest Changes Of Asylum Law To Date
Author: USA Asylum lawyer Alena Shautsova
The US government published final rules related to asylum regulations that will go into effect on January 11, 2020. These rules call for multiple significant changes in how the adjudicator (an Asylum officer or an Immigration judge) shall analyze one’s asylum claim, provide for new grounds of denial of an asylum application, and change the way a person has to demonstrate his or her qualifications for asylum.
If I had to guess it, I would say that the most recent change in asylum law of this significance happened back in 1996/1997. So what are these changes and who and how they may affect?
First of all, these changes are going into effect on January 11, 2020, but the vast majority of the changes can be applied to the pending cases, regardless of the cases’ filing date. There is only one exception: the new frivolous asylum provisions will be applied to asylum claims filed on or after January 11, 2021. As such, every applicant for asylum: the one who is in the process already, as well as the one who is thinking of applying for asylum in the US shall know about these new changes.
New Changes Related To Definition Of A Refugee
Particular social group
Membership in a particular social group is one of the growing grounds of asylum in the United States. It has been used actively by victims of domestic violence, gang violence, people who were persecuted in relation to their family’s activities…The definition of a social group has been litigated in various courts and has been changing. But the new regulations make it very hard to impossible to provide a definition of a social group that would meet the new standards because the new regulations prohibit such a group if it is defined by past or present criminal activity or association (gang membership), presence in a country with generalized violence or high crime rate; being a subject of a recruitment effort by criminal organizations; being targeted due to perceiving wealth; interpersonal disputes in which government authorities were unaware; private criminal acts of which government authorities were unaware or uninvolved; or status of alien returning from the United States. These restrictions will affect victims of domestic violence claiming persecution by domestic partners; victims of clans of family fluids; targets of gang extortion, recruitment. Moreover, the specific social group now must be articulated clearly, and failure to articulate it on the record will prohibit any future motions to reopen in Immigration court.
From now on, if a person claims persecution based on generalized disapproval of government policies, or opposition to disagreement with criminal, terrorist, gang, or other non-state organizations absent expressive behavior in furtherance of a cause against such organizations related to efforts by the State to control such organization or behavior. A person who has been forced to undergo a forceful abortion or will be forced to do that will be recognized as a refugee.
The new rule specifies that “persecution” is a severe form of harm, exigent threat. Brief detention, harassment, threats with no actual effort to carry them out, as well as the laws that are rarely enforced, will not be regarded as persecution.
Here, the most significant change is that the evidence regarding cultural stereotypes will be regarded as inadmissible, or in other words, will not be taken into consideration. This, of course, presents a huge problem for certain cases where, for example, minorities or women claim persecution and discrimination related to their status and general attitude in the country. This prohibition also contradicts general evidence rules. But the evidence of an alleged persecutor holding stereotypical views will be allowed. However, as one can imagine, it is pretty hard to prove that a particular person holds particular beliefs without having direct evidence of such beliefs and motives, which are rarely present. The government will find a lack of nexus, necessary for one to prevail on their asylum claim, if the applicant alleges that he/she was persecuted because of gender, due to perceived wealth, the resistance of recruitment efforts into criminal organizations, where a person was criminally targeted...
The regulations further describe bars to asylum related to internal relocation and firm resettlement, that are connected to a person’s perceived ability to reside safely either in their home country or a third safe country.
Reasonableness of internal relocation
This concept will be analyzed differently depending on who the persecutor is. If it is the government, then there will be a presumption that the relocation is not possible, unless the government establishes that it is under the totality of circumstances. If the actor is a non-governmental actor, then there is a presumption that the relocation is possible, unless the applicant establishes by the preponderance of the evidence that it is not. This new order changes the applicant’s burden of proof. Here, the gangs, officials acting not in their official capacity, family members or neighbors who are not themselves government officials, will be regarded as non-governmental actors. This provision is relevant to land dispute cases, FMG cases, gang-related cases, domestic violence cases.
Firm resettlement is different from relocation. It will be found that a person firmly resettled in a third country if he/she: resided in a country on their way to the US and was eligible or received permanent residence status there; resided in non-permanent but indefinitely renewable status; or alien physically resided in a third country without experiencing persecution, for one year or more; or an applicant is a citizen of a country other than the one he/she is claiming asylum from and he/she was present in that country after departing the country of claimed persecution, or applicant renounced that citizenship prior to arrival to or entry into the US. DHS or Immigration judge may raise an issue of firm resettlement and then the applicant has to disprove that the firm resettlement bar does not apply.
Finally, the regulations add new discretionary factors that the government will be considered before granting one’s asylum. Such factors may include traveling through third countries prior to entering the United States; spending in unlawful status in the US for more than 12 months prior to submitting one’s asylum claim; filing taxes, reporting all income, had prior asylum claims, failed to attend an asylum interview without exceptional circumstances; failed to file a motion to reopen within one year of changed country conditions.
If you need help with asylum claim, please call our office to reserve a confidential appointment at 917-885-2261.