August 14, 2020 Roundup

I want to start off by highlighting a few Ninth Circuit cases that came down that are helpful to asylum seekers. The first is CARLA PATRICIA DAVILA v WILLIAM BAR. This case is interesting because it deals with, among other issues, two situations that come up regularly in court cases dealing with domestic violence. The first is when the victim, usually a woman, reports domestic abuse to the police but the police dismiss it; ignore it; or fail to take any action. When the abuse happens again, the victim does not report it believing that the police will not act. When this happens, the judges and the BIA raise the issue that the victim failed to “follow up” and this “failure” is taken as a negative factor. The second issue is when the judge and/or the BIA narrow their focus to the positive facts in country reports (ie, “the government is taking active role in combating domestic violence’) and ignore the negative evidence (such as reports of high rate of femicide).

The Ninth Circuit ruled that the BIA must examine the whole record. It must consider ALL evidence as why to the victim did not report abuse after the first time. The BIA cannot simply blame the victim for not following up and find that the government could have done something if the abuse had been reported again. The BIA must listen to the victim’s explanations and give it appropriate weight.

Likewise, the BIA must consider ALL the country condition evidence, the positive AND the negative, before concluding that the government can protect victims. It cannot simply pick and choose what fits its purpose. This decision is good news because, hopefully, it will force the judges and BIA to do a thorough analysis, rather than issuing superficial decisions.

The next one is YVETTE NGMENANG AKOSUNG v WILLIAM BAR. One issue I found interesting in the case dealt with “internal relocation.” The idea is that if a victim can reasonably relocate within the country and be safe from harm, then asylum request should be denied. Often, judges and BIA conclude that relocation is reasonable if a person manages to remain in the country for a lengthy period time, even if that time is spent in hiding with a constant fear of discovery and possible harm. The Ninth Circuit accepted the proposition of reasonable relocation as a bar to asylum, BUT the Court emphasized that it is not reasonable relocation if the victim is forced to live in hiding. The Court noted relocation in asylum cases most naturally refers to permanent resettlement or a change of residence, not the unstable situation of one who must always be ready to flee.

Many news outlets are reporting that the USCIS will likely proceed with its furlough of about 13,400 employees, or about two-thirds of its workforce, on August 30th. The USCIS had hoped the COVID package would be an emergency bailout to address the agency’s budget shortfall but after two weeks of negotiations, talks in Congress are stalled and both sides are blaming each other. This furlough could spell disaster for thousandth of applicants. I certainly hope a deal can be worked out.

Lastly, federal appellate court on Wednesday limited an order that had blocked the nationwide implementation of a controversial “wealth test” for green cards and immigrant visas. The policy in question allows USCIS to gather extensive financial information from applicants to determine if they will become dependent upon the US government if they are allowed to receive a green card or visa. Based upon this information, green cards and visas can be denied. The initial law suit blocked the implementation of the policy nationwide; but the new ruling allows the Trump administration to continue the policy in every state except New York, Connecticut and Vermont.

I am sure more law suits will follow. This policy is extremely intrusive and requires extensive documentation. Some commentators have noted that banks require less information for loans. Again, this policy is simply a way to discourage applicants. The Administration believes that an excessively burdensome process will force applicants to surrender, give up and “go home.” It is truly sad.