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Abstract

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. In jurisdictions

where they apply, per se reporting 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

where reporting would have been futile or dangerous. These requirements

similarly provide no exception where law enforcement openly support an

applicant’s persecutor.

This Article demonstrates that even though per se reporting requirements

have no basis in asylum law, individual immigration judges throughout the

United States have developed and imposed them surreptitiously on asylum

applicants for over twenty years. These adjudicators have done so in the face

of a rare precedential Board of Immigration Appeals (BIA) decision—binding

on all immigration courts—rejecting the application of a reporting requirement

in 2000. Even the BIA itself has applied reporting requirements in unpublished

opinions since that decision, in direct opposition to its own precedent. While

five courts of appeals have rejected these requirements, one has outright

adopted them, and five have not taken a firm position on them.

This Article argues that reporting requirements are a surreptitious—but

noteworthy—attack on the lives and safety of asylum seekers and the rule of

law. The administrative bodies and federal courts that apply these requirements

not only shirk their duty to meaningfully review claims for protection (and, at

times, ignore their own precedent), but also violate U.S. treaty obligations and

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 nationwide, ensures adherence to

U.S. treaty obligations, and encourages adjudicators to fulfill their duty to

consider the record meaningfully.

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