International Files

Recent Developments in Asylum Law

By Judith L. Wood

Judith L. Wood is an immigration attorney in Los Angeles, where she practices immigration law and also litigates before the U.S. courts of appeals. She was also a public defender for the state of New Mexico. In addition, she clerked for Chief Justice William Federici at the New Mexico Supreme Court. Prior to becoming an attorney, Wood was a teacher, actress, dancer, and artist. On Dec. 11, 2020, the Department of Homeland Security, the Department of Justice, and the Executive Office for Immigration Review published a Final Rule on Procedures for Asylum and Withholding of Removal, Credible Fear, and Reasonable Fear Review, which was to become effective on Jan. 11, 2021.1 In an order dated Jan. 8, 2021, Judge James Donato of the U.S. District Court for the Northern District of California preliminarily enjoined the government from implementing, enforcing, or applying this rule.2

The Biden administration has proposed rolling back restrictions on asylum, making it possible to apply for and be granted asylum in several situations. First, the Biden administration has made a commitment to reunite children who have been separated from their parents. Indeed, many of them have found their parents already. Children seeking asylum will no longer be held in cages. Instead, there will be opportunities for families to remain together while they litigate their cases. In addition, the Remain in Mexico program has now ended, and those refugees who have been waiting at the border will now be able to come into the country and present their cases before a U.S. immigration judge.3

Favorable developments in asylum law may also be anticipated in light of the Biden administration’s enforcement priorities, and the fact that the administration has directed the Departments of Homeland Security and Justice to promulgate regulations addressing the circumstances in which an applicant should be considered a member of a particular social group.4 These priorities are likely to shift Trump-era policies which narrowed access to asylum.

In 2018, Attorney General Jeff Sessions issued a decision in Matter of A-B-,5 which limited access to asylum for victims of private violence. In that case, a woman had fled El Salvador to escape threats and persecution from her husband. While some courts held that Matter of A-B- did not change the rules of asylum, many others used this decision to significantly narrow eligibility for victims of gender-based and gang violence. It is possible that women fleeing domestic violence will now be able to articulate a credible fear based on membership in a particular social group and, therefore, will be eligible for asylum. This could mean tremendous relief for women across the globe. Women who survive domestic and political violence (the two are often intertwined) may now be eligible to receive asylum in the United States.

The Biden administration is also proposing legislation that would promote the interests of “Dreamers”—those who came to the United States at a young age and remain here. There is bipartisan interest in creating a path to citizenship for these worthy individuals as well as for “essential workers,” which include farm workers.6 All of these new proposals put forth by the new administration will have to be voted on by Congress, and there will be compromises and adjustments, but hopefully, a large portion will become the law of the land.

It appears that a more humanitarian approach toward immigration, which will be more in line with international law, is on the horizon. The UN Convention7 and Protocol8 Relating to the Status of Refugees, to which the United States is a party, is the principal international agreement governing U.S. obligations toward refugees. The protocol governs the treatment of individuals fleeing persecution and contains provisions that are incorporated into our own domestic laws.9 The UN High Commissioner for Refugees (UNHCR) Handbook is also an important tool which is used to interpret how to apply the law of asylum.10

The UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) is also important in the adjudication of cases where the applicant fears being tortured.11 The difference between asylum, withholding of removal, and relief under CAT is also worth noting. While an applicant for asylum must file within one year of entry,12 applicants for withholding of removal do not have this requirement.13 Also, individuals who have been convicted of various crimes may no longer be eligible for asylum.14 However, withholding of removal remains an available form of relief in some circumstances. While applicants for asylum and withholding require the applicant to have been persecuted on account of one of five grounds (race, religion, political opinion, nationality, or membership in a particular social group), this requirement does not exist for relief under CAT. However, one must be able to prove that the foreign government engaged in torture or has or will acquiesce to torture.15 The significance of these

international law documents should not be diminished. Rather, to remain a part of the “civilized world” we must adhere to the ideals proclaimed in these important documents. 

Endnotes

185 Fed. Reg. 80274 (Dec. 11, 2020). 2Pangea Legal Servs, et al. v. DHS, et al., Case No. 20-cv-09253-JD (N.D. Cal. 2021). 3See The Biden’s Administration’s Enforcement Priorities: Background and Legal Considerations (2021), https:// crsreports.congress.gov. 4Memorandum From Acting Secretary Pekoske, Review of and Interim Revision to Civil Immigration Enforcement and Removal Policies and Priorities (Jan. 20, 2021), https://www.dhs.gov/sites/ default/files/publications/21_0120_enforcement-memo_signed.pdf. 527 I&N Dec. 316 (A.G. 2018). In Diaz-Reynoso v. Barr, No. 18-72833, 2020 WL 4557855 (9th Cir. Aug. 7, 2020), where the Guatemalan petitioner applied for withholding of removal because she had been persecuted by her partner on account of her membership in the particular social group “indigenous women in Guatemala who are unable to leave their relationship,” a Ninth Circuit panel held that Matter of A-B- does not categorically bar the granting of domesticviolence-based asylum claims. The court explained how “despite the general and descriptive observations set forth in the opinion, Matter of A-B- did not announce a new categorical exception to withholding of removal for victims of domestic violence or other private criminal activity, but rather it reaffirmed the Board’s existing framework for analyzing the cognizability of particular social groups, requiring that such determinations be individualized and conducted on a case-bycase basis.” Id. The court held that in Matter of A-B-, the attorney general barred any mention of the harm feared in the proposed social group, did not better define the issue of circularity, and simply stated that a particular social group must exist independently of the harm asserted. Also, in De Pena-Paniagua v. Barr, 957 F.3d 88, 94 (1st Cir. 2020), the First Circuit held there is no categorical rule precluding asylum or withholding of removal applicants from establishing membership in a particular social group defined in material part as women “unable to leave” a domestic relationship. 6The Biden’s Administration’s Enforcement Priorities, supra note 3. 7Convention Relating to Status of Refugees, July 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S 150 (entered into force Apr. 22, 1954). 8Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S 267 (entered into force Oct. 4, 1967). 9Refugee Act of 1980, Pub. L. 96-212, 94 Stat. 102 (1980). 10United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees (Feb. 2019), https://www.unhcr.org/en-us/publications/legal/5ddfcdc47/ handbook-procedures-criteria-determining-refugee-status-under1951-convention.html. 11Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85 (enacted into U.S. law on Oct. 21, 1998, through the FY 1999 Omnibus Consolidated and Emergency Supplemental Appropriations Act, Pub. L. 105-277, 112 Stat. 2681-822, 105th Cong. 2d Sess. (1998)). 128 U.S.C. § 1158(a)(2)(B). 138 U.S.C. § 1231(b)(3). 148 U.S.C. § 1158(b)(2). 158 C.F.R. § 208.18(a)(7).

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See, e.g., Viper Nurburgring Record LLC v. Robbins Motor Co., No. 5:18-cv-04025, 2019 U.S. Dist. LEXIS 152931, at *27-28 (D. Kan. Sept. 9, 2019). See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 594 (1994) (“[I]t is impossible to deal with the fourth factor except by recognizing that a silent record on an important factor bearing on fair use disentitled the proponent of the defense . . . to summary judgment.”); cf. Seuss Enters., L.P. v. ComicMix LLC, 256 F. Supp. 3d 1099, 1109 (S.D. Cal. 2017) (defendant’s motion to dismiss based on fair use denied where first and fourth factors were “in equipoise”). 28Keeping the ultimate burden of persuasion with the defendant makes sense in order to avoid the “danger of the plaintiff not being able to capture the full value of his or her work if forced to face weak or even frivolous defenses that would coerce him or her to settle disputes.” Shifting the burden of persuasion to the plaintiff, on the other hand, could “reduce the potency of the property right as it would render it difficult to defend in practice against a multitude of trespassers.” Apostolos G. Chronopoulos, Strict Liability and Negligence in Copyright Law: Fair Use as a Regulation of Activity Levels, 97 Neb. L. Rev. 384, 408-09 (2018). But see Loren, supra note 2, at 708 (commenting that “[t]he need to shift the burden of production is an indication that the burden of persuasion has not been properly allocated”). 29See Brief of the Copyright Alliance as Amicus Curiae Supporting Petitioner at 13-15, Dr. Seuss Enters., L.P. v. ComicMix LLC, 983 F.3d 443 (9th Cir. 2020) (No. 19-55348). 30Harper & Row, Publrs. v. Nation Enters., 471 U.S. 539, 568 (1985) (quoting Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 451 (1984)); Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605, 613 (2d Cir. 2006); VHT, Inc. v. Zillow Grp., Inc., 918 F.3d 723, 744 (9th Cir. 2019). See also Matthew Sag, Copyright and Copy-Reliant Technology, 103 Nw. U. L. Rev. 1607, 1653 (2009) (“The aggregation of any harm that is likely to result from widespread use is relevant in evaluating the fourth factor.”). 31See Chronopoulos, supra note 28, at 409-10.