Federal Agencies, Practice Resources

Practice Pointer: Matter of A-B- and Discretion

10/15/18 AILA Doc. No. 18101631. Asylum, Removal & Relief

On June 11, 2018, the Attorney General (hereinafter A.G.) issued a precedential decision, Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018), overturning Matter of A-R-C-G-, 26 I&N Dec. 338 (BIA 2014). This decision is binding on both the Executive Office of Immigration Review and United States Citizenship and Immigration Services (USCIS). On July 11, 2018, Immigration and Customs Enforcement (ICE) sent guidance to ICE attorneys on litigating domestic violence-related asylum cases impacted by the decision. The same day, USCIS issued a Policy Memorandum, "Guidance for Processing Reasonable Fear, Credible Fear, Asylum, and Refugee Claims in Accordance with Matter of A-B-" [hereinafter "USCIS guidance"] that provides guidance to all USCIS officers-including asylum and refugee officers-on applying Matter of A-B-. A great deal of attention has been given to Matter of A-B- as it applies to asylum seekers fleeing domestic and gang violence, and to a lesser extent to asylum seekers more broadly fleeing harm at the hands of non-state actors. One aspect of the decision, however, of which practitioners must also be mindful-and that this Practice Pointer examines-is the language (arguably dicta) on the exercise of discretion in granting asylum more generally.

Discretion and Asylum Following Matter of A-B-

A footnote in Matter of A-B- suggests that adjudicators should perform a more careful discretion analysis, reminding adjudicators that the discretion requirement "should not be presumed or glossed over solely because an applicant otherwise meets the burden of proof for asylum." 27 I&N Dec. at 345 n.12. The decision then discusses several potential negative factors to consider, including manner of entry, circumvention of "orderly refugee procedures," and passage through third countries on the way to the United States. Id.

Likewise, the USCIS guidance on Matter of A-B- states under the heading "USCIS Officers' General Duties" that "if eligibility is established, the USCIS officer must then consider whether or not to exercise discretion to grant the application." The USCIS guidance later includes a full section on discretion that seems even more restrictive than the A.G.'s decision itself. The USCIS guidance states, "[f]or example, the applicant might show that the illegal entry was necessary to escape imminent harm and that he or she was thereby prevented from presenting himself or herself at a designated United States POE. An officer should consider whether the applicant demonstrated ulterior motives for the illegal entry that are inconsistent with a valid asylum claim that the applicant wished to present to U.S. authorities." Thus, clients should be prepared for the possibility of being questioned as to why they crossed the border irregularly rather than presenting themselves at a port of entry. If the client did try to enter at a port of entry and was turned away, he should be sure to include this fact in his declaration. It is unclear what USCIS might mean by "ulterior motives" that are inconsistent with asylum, but this phrasing is reminiscent of language used by Administration officials, including the A.G., who have frequently made unfounded attacks on so-called "loopholes" in the asylum system.

The ICE guidance on Matter of A-B- only mentions discretion in passing in part of its summary of the decision. It does not direct its attorneys to specifically question respondents on matters of discretion.

In responding to a more rigorous discretion analysis, practitioners should be sure to argue that Matter of A-B- does not overrule existing BIA case law on discretion, including Matter of Pula, 19 I&N Dec. 467 (BIA 1987), which makes clear that the use of fraudulent documents by an asylum seeker in entering the United States is just one factor to be used in the totality of the circumstances analysis. Indeed, Matter of Pula specifically states that an asylum seeker's circumvention of proper immigration procedures could not be a sole dispositive factor against the claim and "should not be considered in such a way that the practical effect is to deny relief in virtually all cases." Id. at 473. Matter of Kasinga, 21 I&N Dec. 357, 367 (BIA 1996), also makes clear that the "[d]anger of persecution will outweigh all but the most egregious adverse factors." (citing Matter of Pula).

Practitioners must also be aware of evolving case law as circuit courts wrestle with this issue. For example, Hussam F. v. Sessions, 897 Fed. 3d 707 (6th Cir. 2018), may be helpful in pushing back on potential discretionary denials of asylum where an asylum applicant entered without inspection or was prosecuted for illegal entry. Specifically, in a case involving a Syrian asylum seeker who had used a fraudulent passport to gain entry into the United States, the court stated:

Although such circumvention may be taken into account as a "serious adverse factor," it must be considered as just one factor in the "totality of the circumstances." Pula, 19 I. & N. Dec. at 473. In other words, although the BIA may consider an alien's failure to comply with established immigration procedures, it may not do so to the practical exclusion of all other factors. Here, Petitioner certainly should have been more forthcoming with immigration officials. But under Pula, the Board's analysis may not begin and end with his failure to follow proper immigration procedures. See Zuh v. Mukasey, 547 F.3d 504, 511 n.4 (4th Cir. 2008) (citing Pula and noting that "the presence of immigration law violations" is a relevant factor, but "the BIA has cautioned against affording it too much weight.").

Id. at 718.

Furthermore, while purporting to discuss discretion in Matter of A-B-, the A.G. seemed to conflate the firm resettlement bar with the factors to consider in exercising discretion. One of the factors the A.G. articulated in a footnote about discretion was "whether the alien passed through any other countries or arrived in the United States directly from her country." Matter of A-B-, 27 I&N Dec. at 345 n.12. However, Pula made clear that this was just one of a number of discretionary factors to be considered. Pula, 19 I. & N. Dec. at 467. Practitioners should emphasize the facts that caused their client to flee to the United States as a place of safety. The leading BIA case on the firm resettlement bar, Matter of A-G-G-, 25 I&N Dec. 486, 503 (BIA 2011), sets out a clear four-part test to determine whether an asylum seeker has been firmly resettled and whether her time spent in another country bars her from asylum protection.

If there are negative discretionary factors in an asylum seeker's case, the practitioner should address those factors directly. For example, if the asylum seeker used fraudulent documents to enter the United States, rather than waiting for DHS to identify this issue, the asylum seeker should affirmatively explain why she had to resort to using fraudulent documents to seek safety. In the asylum seeker's detailed asylum declaration or even on Form I-589, Application for Asylum and for Withholding of Removal, itself, the practitioner can help the asylum seeker clarify any negative discretionary issues. An asylum seeker's positive equities-community contributions, religious affiliations, attempts to integrate, learn English, provide for family and community, etc.-should all be captured and supported by evidence, and filed along with the asylum claim. Likewise, compelling sympathetic factors, including the severity of the past persecution endured, tender age, mental or physical health conditions, family unity or ties in the United States, length of residence in the U.S. and other hardship if removed, along with other humanitarian factors, should be documented and addressed.

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Feedback Requested from Practitioners

  • Practitioners who have a case before a U.S. court of appeals that implicates Matter of A-B- should contact CGRS through this link.
  • Practitioners may also help CGRS collect information on compelling cases denied under Matter of A-B- (even if not yet ripe for circuit court appeal) by emailing CGRS-ABtracking@uchastings.edu.
  • Alternatively, practitioners may reach out to AILA's Asylum and Refugee Committee concerning Matter of A-B- cases by emailing AILA's Policy Counsel Jason Boyd at jboyd@aila.org.

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