Tuesday, September 15, 2020
Immigration Article of the Day: Un(avail)able Protection: The Shifting Legal Landscape in the Eighth Circuit and Beyond for Asylum-Seekers Fleeing Nonstate Persecution by Charles Ellison and Anjum Gupta
Un(avail)able Protection: The Shifting Legal Landscape in the Eighth Circuit and Beyond for Asylum-Seekers Fleeing Nonstate Persecution by Charles Ellison and Anjum Gupta, 25 Bender’s Immigration Bulletin 1061, 2020
While asylum claims by individuals fleeing non-state actor persecution have had success in U.S. courts, the Trump administration has sought to significantly curb such claims. As part of the administration’s overall assault on the U.S. asylum system, Attorney General Sessions issued Matter of A-B-, a sweeping decision with the apparent objective of dramatically reducing the probability of success for refugees fleeing non-state persecutors. In particular, Matter of A-B- sought to utilize language from the Seventh and Eighth Circuit Courts of Appeals, which provided that an applicant fleeing a non-state persecutor must show that her government "condoned" her persecution or at least demonstrated "a complete helplessness" to prevent it. The condone-or-complete-helplessness language stands in stark contrast to the long-standing "unable-or-unwilling to protect" standard. This article discusses developments in non-state actor jurisprudence leading up to Matter of A-B-, as well as litigation in the Eighth Circuit and beyond to fight back against efforts to heighten this requirement.