Acting USCIS Director Ken Cuccinelli is encouraging Asylum Officers to deny asylum applications and credible fear interviews by any means necessary. He is particularly concerned about our Southern border, where "an unprecedented number of aliens [are] overwhelming our asylum system." According to Mr. Cuccinelli, many of these aliens are "ineligible for asylum and are attempting to enter and remain in the country in violation of our laws." His latest strategy for rejecting asylum applicants involves a regulatory bar to asylum called "internal relocation."

Under existing rules, where an applicant fears harm from non-state actors, Asylum Officers and Immigration Judges should determine whether the applicant can live safely anywhere in the home country--in other words, whether the applicant can internally relocate. If the applicant can live safely within her home country, she is probably ineligible for asylum. The burden of proof in "internal relocation" cases varies, depending on whether the government is the persecutor, and whether the applicant has suffered past persecution: According to the regulations--

In cases in which the applicant has not established past persecution, the applicant shall bear the burden of establishing that it would not be reasonable for him or her to relocate, unless the persecution is by a government or is government-sponsored.

In cases in which the persecutor is a government or is government-sponsored, or the applicant has established persecution in the past, it shall be presumed that internal relocation would not be reasonable, unless the Service establishes by a preponderance of the evidence that, under all the circumstances, it would be reasonable for the applicant to relocate.

This means that where the government is not the persecutor, and the applicant has not suffered past persecution, the applicant must demonstrate that there is no place in his country where he can live safely. How do you show this? First, according to the Board of Immigration Appeals, internal relocation must be "reasonable under all the circumstances." According to the relevant regulations, "adjudicators should consider, but are not limited to considering, whether the applicant would face other serious harm in the place of suggested relocation; any ongoing civil strife within the country; administrative, economic, or judicial infrastructure; geographical limitations; and social and cultural constraints, such as age, gender, health, and social and familial ties." An example from my practice would be a single woman from Afghanistan who fears persecution from the Taliban because of her political activities. Given the restrictive culture in Afghanistan and the generally high level of violence throughout the country, especially against women, it would not be reasonable to expect her to pick up and move to a new city.

Where the persecutor is the government, or where the applicant has demonstrated past persecution, the applicant enjoys a presumption that internal relocation is impossible. Under these circumstances, the U.S. government has the burden to show by a preponderance of the evidence that safe internal relocation is possible. An example of government persecution and internal relocation might be an Evangelical Christian from Eritrea. The government there persecutes people from "banned" religions, including Evangelicals. Since the Eritrean government controls the entire country, internal relocation is not possible. The situation might be different in a country where the government does not control all its territory. For example, an applicant who fears persecution from the Iraqi government might be questioned about whether she could "internally relocate" to Kurdistan, since that area has some autonomy from the central government of Iraq. In this example, there are restrictions on a non-Kurd's ability to live in the Kurdish region, and so I doubt that the U.S. government could demonstrate that internal relocation is possible, but they might make that argument.

A more unclear situation exists where the asylum applicant suffered past persecution from a non-state actor. Here, there exists a presumption that internal relocation is not possible. However, given the Acting USCIS Director's admonition, I imagine that Asylum Officers will be encouraged to look more closely at whether such applicants can live safely within their countries.

If you are concerned about internal relocation, what can you do? Whether the burden is on you or on the government, it is a good idea to submit evidence that internal relocation is impossible. This is relatively easy where the government is the persecutor and controls the entirety of the nation's territory. In other cases, where the persecutor is a non-state actor, things become more complicated.

The "internal relocation" analysis is really a two-step process: First, is it possible to relocate within the country and avoid persecution? And second, is internal relocation reasonable under all the circumstances? Based on this framework, the first thing to do is to submit evidence that the persecutor can reach you anywhere in the country. Typically, that would be country reports or news articles showing that, for example, gang members or terrorists are ubiquitous throughout the country. The State Department puts out a crime and safety report, which is often helpful, especially given that the Trump Administration has white-washed country conditions in many of its human rights reports. Other helpful sources include UNHCR RefWorld, Human Rights Watch, and Amnesty International, to name a few. Of course, if you tried to relocate and the persecutor found you, that would also be important evidence.

If there are places inside your country where the persecutor cannot reach you, you can still avoid an asylum denial by showing that internal relocation is not reasonable. Such a determination is very country specific, but perhaps there is generalized violence that makes it unsafe to relocate, or maybe there are no jobs, or maybe there are cultural issues (like the single woman in Afghanistan). Some countries have laws that prevent people from relocating internally (like the rules in Kurdistan or the propiska in Russia). In other cases, a person's age or health might make relocation impossible. Whatever the reason, try to obtain evidence in support of your claim.

All this brings us back to Mr. Cuccinelli's latest pronouncement and his effort to block asylum seekers. He states that asylum would not be necessary for many individuals coming here "if they sought refuge within their home country, particularly given the fact that there are areas that are generally very safe within each of the countries that currently make up the bulk of our credible fear cases." There is no factual basis for this claim, and in fact, it flies in the face of available country-condition evidence. It is also an insult to the intelligence and independence of the Asylum Officers tasked with implementing our nation's asylum laws.

In this light, Mr. Cuccinelli's closing words sound ominous: "The Asylum Division work is very important, and your dedication to the mission has not gone unnoticed." Is this simply a tepid expression of Mr. Cuccinelli's appreciation for the Asylum Officers working under him? Or--coming from one who seems determined to undercut the mission of the Asylum Division--is it a warning to those who have the temerity to do their jobs according to the law? At one time, I would have considered this a ridiculous question. These days, I am not so sure.

Originally posted on the Asylumist: