Asylum law as adjudicated in the immigration system and federal courts draws on a relatively limited set of laws, regulations and jurisprudence. Adjudications primarily depend on Section 208 of the Immigration and Nationality Act (INA). Agency regulations — at 8 CFR § 208 — supplement the statute. An extremely limited pool of agency memoranda also provides guidance to adjudicators. The vast majority of asylum cases are decided by Asylum Officers without issuance of a written decision and by Immigration Judges (IJs) whose decisions are only put on paper if the decision is appealed. Decisions by IJs are not binding on other IJs or on Asylum Officers though they can be persuasive. At a minimum, if an attorney is making a creative argument to one IJ, they may feel less uncomfortable accepting the attorney’s argument if she knows another IJ has accepted it in the past.
All asylum adjudicators — including federal courts, the Board of Immigration Appeals (“BIA”), Immigration Judges, and Asylum Officers — are, of course, bound by U.S. Supreme Court decisions. To date there have been no Supreme Court cases on LGBTQ/H asylum matters.
Removal orders, and denials of asylum, withholding and Convention Against Torture claims, are appealed from the IJ to the BIA, an administrative tribunal. (See Chapter 28). The vast majority of BIA decisions are unpublished. Unpublished BIA decisions may also be persuasive but are not binding. Published BIA decisions are binding across the country unless there is a Circuit Court decision in direct conflict with the decision.
Decisions by the BIA, or affirmances without opinion issued by the BIA, are appealed directly to the federal Court of Appeals via a petition for review. As in all litigation, only decisions from within the Circuit hearing the case are binding on that Court of Appeals. Likewise, Circuit decisions are only binding on adjudicators within the Circuit. Thus, a California Asylum Officer in the liberal Ninth Circuit may be applying a more lenient standard in asylum cases than an Asylum Officer in Minnesota who is bound by the decisions of the conservative Eighth Circuit.
International law can be used as persuasive evidence in asylum cases. Because the statutory definition of asylum draws directly from the Protocol on the Status of Refugees, foreign courts and international human rights tribunals are often interpreting the same language and definition in refugee and asylum matters. These foreign court decisions, while not binding, can be used to support a novel argument on the interpretation of the definition of a refugee.
Sources of Law Table
|INA||Other IJ decisions|
|8 CFR||BIA non-precedent cases|
|INS, DHS and EOIR Memoranda||Foreign court cases|
|BIA Precedent||UNHCR Handbook|
|U.S. Court of Appeals|
|U.S. Supreme Court|
This Manual is intended to provide information to attorneys and accredited representatives. It is not intended as legal advice. Asylum seekers should speak with qualified attorneys before applying.