PARTICULARLY ABUSED: CLOSING THE BACKDOOR ON CERTIFIABLY DENIABLE PARTICULAR SOCIAL GROUP ASYLUM CLAIMS.

• Author: Coyle, Kaitlin Ann

INTRODUCTION

Immigrants have come to the United States (U.S.) for generations in search of a better life. There is no denying the pull effect (1) that the U.S. has with a booming economy, a stable government, and the safety it offers to many refugees. (2) But what happens when the flock of people entering the U.S. becomes too much for the immigration courts to handle? (3) The system becomes overcrowded, abused, and broken. (4) No one can blame those who flood the borders--for many, it is not an easy choice (5)--and while the U.S. immigration policy is arguably the most generous, it is not limitless. (6) This note examines the current application of asylum law and the detrimental effect it has had on the immigration court system. More specifically, asylum claims made on account of the protected ground, membership in a Particular Social Group (PSG) and the meritless claims which will inevitably be denied.

Part I of this note traces the historical aspects of asylum law and the previous solutions put in place to address the influx of immigrants. Part II discusses the recent surge in asylum applications and their detrimental effect on the immigration courts' caseload. Part III explores the various ways an immigrant can apply for asylum, while Part IV analyzes the various elements an alien must establish to warrant relief and further examines the frequently asserted ground--membership in a particular social group--as well as the narrow scope immigration courts have recognized as cognizable. After addressing asylum law jurisprudence, the recent surge in applications, and the necessary elements of the law, Part V urges protecting the rule of law by continuing to follow binding immigration authority, set forth by the immigration courts. Lastly, Part VI of this note argues for the adoption of a heightened standard for what constitutes credible fear and applying this standard at the border. Further, Part VI urges immigration courts to adopt sanctions for attorneys who exploit the law, ultimately concluding that these solutions are necessary to prevent further court backlog and are essential to protect the immigrant under the spirit of the law.

1. HISTORY

   U.S. asylum law can be traced back as early as 1793 when French refugees settled in northern Pennsylvania in an attempt to escape the violence of the French Revolution. (7) Asylum law gained global traction after World War II, with over fifty million people displaced, (8) the United Nations declared that "[e]veryone has the right to seek and to enjoy in other countries asylum from persecution." (9) This international crisis led to the founding of the Office of the United Nations High Commissioner for Refugees (UNHCR) in 1950. (10) The international definition of "refugee" derives from two treaties: the 1951 United Nations Convention and the 1967 United Nations Protocol. (11) The modern legal foundation of U.S. immigration law began with the Immigration and Nationality Act (INA) of 1952. (12) However, it was not until 1980, when Congress passed the Refugee Act, (13) that the U.S. would satisfy its "international obligations." (14)

   Prior to the 1980s, there were relatively few asylum applications. (15) However, by the late decade, a large wave of Central American migrants began the journey to the U.S. seeking asylum. (16) This uptick in applications led to stricter asylum laws, including the appointment of asylum officers, (17) and the enactment of the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA). (18) IIRAIRA permitted expedited removal of any alien (19) that failed to make a "credible fear of persecution" claim. (20) After the terrorist attacks on September 11, 2001, the U.S. began to close off its borders to aliens seeking admission, decreasing the number of credible fear interviews afforded to asylum seekers by over fifty percent by 2003. (21)

   The Real ID Act was implemented in 2005, "increasing the evidentiary burden on asylum-seekers" and implementing changes "regarding credibility determinations and corroboration in asylum claims." (22) With 70.8 million displaced persons in the world today, (23) asylum applications continue to increase, (24) the immigration courts' backlog continues to grow, (25) and the law continues to change.

2. THE NEVER-ENDING BACKLOG

   In recent years, asylum applications have skyrocketed, overwhelming the immigration courts, the Executive office for Immigration Review (EoIR), and U.S. Citizenship and Immigration Services (USCIS). (26) As of September 2018, immigration courts in the U.S. had a total backlog of 1,098,468 pending cases. (27) Immigration courts, however, are not the only ones struggling to keep up with the overflow of asylum seekers. All agencies under the U.S. Department of Homeland Security (DHS) and federal courts are also affected. (28) A 2018 Congressional Research Service Report estimated that USCIS had a backlog of about 320,000 affirmative asylum applications and EOIR had a backlog of about 325,000 defensive asylum applications. (29) While many, including Attorney General (A.G.) Jeff Sessions, have deemed this pending case backlog as "not acceptable," (30) the number of asylum applications filed each year continues to increase and many fear there is no end in sight.

   The number of asylum applications filed each year continues to multiply.

   According to the Department of Homeland Security Office of Immigration Statistics (35), the number of asylum applications have increased by almost 150% since 2014, (36) and 2017 demonstrated the "eighth consecutive annual increase and the highest [number of applications filed] since 1995." (37) This uptick in applications is due to an almost 800% increase in affirmative asylum seekers from Central American countries such as El Salvador, Guatemala, and Honduras. (38) "More than three quarters (78 percent) of the applications pending at the end of 2017 were filed within the last two years...." (39) Affirmative applications are not the only claims contributing to the pending case backlog. Defensive applications filed with EOIR have consecutively increased at an alarming rate since 2009. (40) "According to EOIR, as of June 18, 2018, it had [an estimated] 720,000 pending cases, and some 325,000 of those 'about 45%' included asylum applications." (41) There is no doubt the alarming increase in asylum applications is contributing to the overwhelming backlog of the courts. The question that presents itself now are how to address the current backlog, prevent further backlog, and protect the immigrant under the spirit and color of the law.

3. APPLYING FOR ASYLUM

   Aliens can seek asylum either in the affirmative or in the defensive. To affirmatively apply for asylum the alien must be physically present in the U.S. (42) The alien must then file an I-589, Application for Asylum and for Withholding of Removal (41,) with USCIS within one year of arrival. (44) The alien will then be fingerprinted and receive a background check. (45) Next, a credible fear interview will be scheduled with an asylum officer, and that officer will make a determination (46) on whether the alien is eligible to apply for asylum, (47) meets the definition of a refugee, (48) or is barred from being granted asylum. (49) The asylum officer will either grant the alien asylum, (50) refer the case to an immigration court, (51) give notice of intent to deny, (52) or give a final denial decision. (53)

   If an alien is seeking asylum in the defensive, it means she (54) is currently in removal proceedings (55) before an immigration court with the EOIR. (56) An alien may be placed in removal proceedings because she violated her immigration status; is illegally present in the U.S.; or attempted to enter the U.S. without proper documentation and an asylum officer (57) apprehended her at a port of entry. If apprehended at a port of entry, an asylum officer may place the alien in expedited removal proceedings, (58) if it is found that she does not have a "credible fear of persecution." (59) The immigration judge will then conduct a hearing and either order the alien removed from the U.S. or grant the alien asylum. (60)

   No wonder asylum applications contribute to the substantial backlog of the courts. The American Immigration Council suggests that after an alien files her asylum application, (61) it takes almost one thousand days until a merits hearing is held and a final decision is made. (62)

4. ELIGIBILITY FOR ASYLUM

   Once the alien files for asylum, she has the burden (63) to show eligibility by proving that she fits the definition of a refugee. A refugee is defined as:

   [A]ny person who is outside any country of such person's nationality ... and who is unable or unwilling to return to and is unable or unwilling to avail... herself of the protection of, that country because of persecution or a wellfounded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. (64) The Board of Immigration Appeals (BIA) in Matter of Acosta determined that an alien seeking asylum must establish four elements to meet the definition of a refugee. (65)

   First, "the alien must have a 'fear' of 'persecution.'" (66) Fear must be the alien's primary motive when applying for asylum. (67) To establish persecution, (68) "harm or suffering had to be inflicted upon an individual in order to punish h[er] for possessing a belief or characteristic a persecutor sought to overcome." (69) Further, under the color of the law, that harm or suffering had to have been inflicted by the country's government or by someone the "government was unable or unwilling to control." (70)

   Second, the fear must be "well-founded." (71) Fear is "well-founded" if there is "a reasonable possibility of suffering such persecution" if the alien is forced to return to her country. (72) An alien can also establish a finding of "wellfounded fear of future persecution" upon showing evidence of past...