Un(avail)able Protection: The Shifting Legal Landscape in the Eighth Circuit and Beyond for Asylum-Seekers Fleeing Nonstate Persecution

Abstract

As part of the administration’s overall assault on asylum in the U.S., Attorney General Sessions issued Matter of A-B-, a sweeping decision with the apparent objective of dramatically narrowing the pathway to protection 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.

Keywords: Matter of A-B-, Jimenez-Galloso v. Barr, Non-state Actor, Asylum