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  • Article: Asylum Officer Training Materials on “Well-Founded Fear” Released by The USCIS in Response to a Freedom of Information Lawsuit By David L. Cleveland

    Asylum Officer Training Materials on “Well-Founded Fear” Released by The USCIS in Response to a Freedom of Information Lawsuit

    by


    US-CIS recently released asylum officer training materials dealing with well-founded fear. A 47-page Training Module, entitled “WELL-FOUNDED FEAR,” dated June 15, 2014, is available at the Louise Trauma Center website, on its FGM page: www.louisetrauma.weebly.com/fgm.html

    The Training Module was released in settlement of a Freedom of Information Act lawsuit filed by Catholic Charities of Washington DC. The module is also on the US-CIS website.

    THE “PACI” TEST

    P-A-C-I, pronounced “pah-chee,” comes from Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987), a case cited more than ten times in this module, including at page 14, where the
    asylum officers are instructed to ask four questions:
    1. Possession: does the applicant possess the protected characteristic [or is it imputed to applicant]?
    2. Awareness: the persecutor is aware, or could be aware that the applicant possesses the characteristic?
    3. Capability: persecutor has the capability to harm?
    4. Inclination: the persecutor has the inclination to harm?

    [this four-part test is repeated at pages 29-30 of the module]

    Ask the applicant: Is the persecutor still interested in you, all these years later? Do
    you know any similarly-situated persons who recently returned to the country? Do you know any similarly-situated person who, still living in the country, was recently harmed?

    EVEN AN ANONYMOUS THREAT MAY BE SUFFICIENT

    An anonymous threat “may” be sufficient to establish a well-founded fear. Page 19.
    “There is no requirement that the applicant be harmed in the past or wait to see whether the threat will be carried out.…. death squads may use anonymous threats to terrorize…. However, anonymous threats could be a result of personal problems.” Page 19. The timing of the threat could be sufficient circumstantial evidence as to the source of the threats. Page 20, note 36.

    A two-year delay in departing could justify a denial of asylum, [page 20, note 37], but a three-year delay was deemed not important where the applicant took steps to protect herself and there was violence against her family. Page 21, note 38.

    RETURNING TO THE COUNTRY IS NOT ALWAYS FATAL TO A CLAIM

    Returning to the [so-called dangerous] country could show a lack of fear. If applicant returned to Iraq every three months, for one month, to operate his business at the same location where he had suffered threats, and was not harmed, maybe his claim is not credible. Pages 35-36.
    -If applicant says he had to return to pick up paychecks, ask if someone else couldn’t pick it for him, and how is it you continue to get paid if you were not working? Page 36.
    -Did you return for vacation or to establish new business contacts? Page 36.

    However, if applicant had “compelling” reasons to return, such as “to get her child, whose custodian had died,” she is not barred. Page 22. Attending to dying relative could be compelling. Page 23. A woman whose entire family had been killed, who had no financial or emotional support, who was urged to return by a nun, showed good reason. Page 23.

    POSSESSION OF TRAVEL DOCUMENTS COULD SHOW GOVERNMENT IS NOT INCLINED TO HARM

    Possession of travel documents “may be evidence that the government is not inclined to harm the applicant;” page 23, but if passport department of government is separate from the police department, and applicant hires a broker who pays a bribe, perhaps the applicant is not barred. Page 24.

    ACTIVITIES IN THE USA CAN BE RELEVANT

    Political activities in USA are relevant. Page 24, note 46. Ask if the applicant is “active online or in social media. Page 25. Does the government “closely monitor nationals abroad?”
    Page 25. Mr. Mogharrabi was granted asylum due to his activities in the USA. Page 25.

    INTERNAL RELOCATION

    Perhaps a single woman cannot relocate “where she has no family or social safety net.” Can she get employment? Speak the dialect? Adequate medical care? Page 26.

    OTHER SERIOUS HARM

    Would applicant suffer “other serious harm?” such as being in an on-going civil war? Have to travel through an unsafe area? Is it an “uninhabitable desert”? Page 27. Does the applicant “speak a dialect or have a physical appearance” that the locals despise? Page 28.

    I suffered Female Genital Mutilation [FGM] ten years ago; can I win asylum today?

    The Training Module suggests this will be difficult.

    An applicant who has suffered past persecution is entitled to a presumption “of future persecution, on the basis of the original claim. “Page 41, emphasis supplied. This presumption can be rebutted by showing a “fundamental change in circumstances.”

    The Attorney General [AG] noted in Matter of A-T-, 24 I&N Dec. 617, 622-23 (A.G. 2008), that the applicant was subjected to FGM “on account of membership in a particular social group, not on account of FGM; FGM was the harm suffered, not the original basis on account of which the applicant was persecuted.” Pages 42-43.

    The first full paragraph on page 44 of the Module has three sentences, explaining A-T-:

    The first sentence: “For most claims based on the infliction of FGM” the applicant asserts she was a member of a particular social group [PSG] of a group of women who have not yet undergone FGM.

    The second sentence: “In many cases, after having been subjected to FGM in the past, the applicant will no longer be a member of the particular social group on account of which she was persecuted.”

    Third sentence: “Therefore, having undergone FGM removes the applicant from the particular social group for which she was targeted, and will often constitute a fundamental change in circumstances such that the applicant’s fear of harm on the basis of the original claim no longer will be well-founded.”

    A-T- recognizes that some women may suffer additional FGM in the future: she may suffer infibulation [sewing] after giving birth; or, more FGM may be required because the first FGM was insufficient. Page 44.

    Mohammed v. Gonzales, 400 F.3d 785, 801 (9th Cir. 2005) ruled that FGM constituted a permanent and continuing act of persecution, such that “the presumption of well-founded fear in such cases cannot be rebutted.” This ruling is inconsistent with A-T-, therefore, officers “should not rely” on it. Page 45. Published notes from a public meeting with the Los Angeles Asylum Office, dated July 20, 2014, concur.

    The AG recognized that “humanitarian” asylum is possible for some: Matter of S-A-K- and H-A-H-, 24 I&N Dec. 464 (BIA 2008) recognizes that some FGM is so severe and atrocious that a grant of asylum is proper, even in the absence of a well-founded fear of future persecution.

    The AG also recognized that if there has been a change in circumstances such that the presumption of well-founded fear is rebutted, the applicant can be granted asylum if she would suffer “other serious harm” upon return. Page 45.

    EXCEPTION FOR CASES IN THE SECOND CIRCUIT

    In Bah v. Mukasey, 529 F.3d 99 (2d Cir. 2008), the Court noted that “the woman could be subjected to other forms of harm on account of the protected characteristic for which she was subject to FGM.” The Court also stated: “Nothing in the regulations suggest that the future threats to life or freedom must come in the same form or be the same act as the past persecution.” (Emphasis in original). Pages 44-45.

    Bah is precedent law in the Second Circuit; “all other circuits need to apply the Attorney General’s decision in Matter of A-T-.” Page 45.

    Comments of the author

    1. It is incongruous for the AG to state that FGM is terrible and horrifically brutal; internationally recognized as a violation of the rights of women and girls, a felony in the United States, but then to state “No asylum for you, sister!”

    FGM happened on Monday. This is past persecution. Did something happen on Tuesday to constitute a fundamental change in circumstances? “Change in circumstances” means a change. What was the change from Monday to Tuesday? There was no change; the analysis of the AG is flawed.

    2. What particular social group is your client a member of? If you say, “Young girls in the X tribe opposed to FGM,” the AG will rule against you. In other training materials, USCIS has suggested these groups:
    - “females of ___ nationality or ethnicity who are subject to gender-related cultural traditions”
    - “[Nationality] women viewed as property because of their position in a domestic partnership”
    - “Chinese daughters who are viewed as property by virtue of their position within a domestic relationship” Hui v. Holder, 76 F.3d 984 (8th Cir. 2014)

    3. Determine if more FGM is threatened in the future. Ask your client about the threat of
    future infibulations.

    4. Try to argue that the FGM suffered by your client is of such “severity” that she has therefore “demonstrated compelling reasons for being unwilling” to return to her country. 8 C.F.R. section 1208.13(b)(1)(iii)(A). In other words, because her FGM was “atrocious,” she deserves asylum, even if there is nothing to fear in the future.

    5. Try to argue that your client will suffer “other serious harm,” such as living in a civil war
    area, or amongst people who despise her.

    6. I am aware of four unreported BIA decisions which seem to ignore the teachings of
    this training module. They are available on the FGM page of the Louise Trauma Center website: www.louisetrauma.weebly.com

    Matter of Y, (BIA Feb 6, 2014) [AILA InfoNet Doc. 1402-1250]
    The BIA found that the DHS has not rebutted the presumption.

    Matter of X, (BIA Dec 31 2013) [AILA InfoNet Doc. No. 1402-0450]. Perhaps the applicant
    deserved “humanitarian” asylum because of the “severity” of her FGM. The BIA further noted the “heavy burden” on the part of the DHS to show changed circumstances.

    Matter of Z, (BIA Dec. 12, 2013): Applicant deserves “humanitarian” asylum. The applicant stated she did not fear being subjected to FGM upon her return. However, this is “insufficient to rebut the presumption of future persecution.”

    Matter of C, (BIA October 10, 2012): Arising in the Second Circuit, the DHS stipulated it could not rebut the presumption arising from the past FGM.


    About The Author

    David L. Cleveland. David L. Cleveland, a staff attorney at Catholic Charities of Washington, DC, was Chair of the AILA Asylum Committee (2004-05) and has secured asylum or withholding for people from 46 countries.


    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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