Immigration Article of the Day: Forced Back into the Lion’s Mouth: Per Se Reporting Requirements in U.S. Asylum Law by Amelia Steadman McGowan

This Article makes a significant contribution to scholarship on asylum law by identifying and calling for the abolition of a deadly (but unexplored) development in asylum law: per se reporting requirements. These requirements automatically bar protection to asylum seekers solely because they did not report their non-state persecutors (such as cartels or domestic abusers) to the authorities before fleeing, even if reporting would have been futile or even subjected the applicant to greater harm. These requirements bar relief even in the face of evidence that the applicant did not report because the police openly support their persecutor. As a result, per se reporting requirements are a deadly end-run around asylum law that improperly bar claims by many, if not most, people seeking protection from non-state persecutors.

As this Article argues, these reporting requirements have no basis in the law. To the contrary, the Board of Immigration Appeals—the highest level of administrative appeal in immigration cases—rejected them in a 2000 precedential opinion binding on the Board itself and all immigration courts. Nevertheless, this Article has revealed that in the more than twenty years since that case, immigration judges around the country have surreptitiously continued to impose these requirements. The Board of Immigration Appeals itself has even applied them in unpublished opinions since that decision, in direct opposition to its own precedent. While five courts of appeals have rejected these requirements, two have outright adopted them, and four have not taken a firm position on them.

While much of the recent scholarship in asylum law has focused on high-profile cases and policies such as Matter of A-B-, Title 42, and the “Remain in Mexico” policy, this Article argues that these reporting requirements are a far more surreptitious—but just as noteworthy and deadly—attack on the lives and safety of asylum seekers and the rule of la w. The agencies and federal courts that adopt these requirements not only shirk their duty to meaningfully review claims for protection (and, at times, ignore their own precedent) and violate U.S. treaty obligations, but also perpetuate the violence against the very people they are supposed to protect.

The Article also offers solutions for legislative, administrative, and legal advocacy to abolish per se reporting requirements and to protect the safety and lives of asylum seekers. These reforms would establish a system that complies with the letter and spirit of U.S. asylum law, ensures adherence to U.S. treaty obligations, encourages adjudicators to fulfill their duty to consider the record meaningfully, and provides a uniform nationwide standard—preventing the current system’s unjust foreclosure of asylum claims in some regions of the country where these requirements bar protection. As immigration courts continue to apply these reporting requirements, this Article also will se rve as a particularly important guide for immigration practitioners and asylum applicants, increasing awareness of these requirements and offering strategies to challenge them.

KJ