Matter of A-B-, 27 I&N Dec. 227 (A.G. 2018): AG Requests Briefs on Private Criminal Activity Victim and Particular Social Groups

 

Update

April 2, 2018 Update: On March 30, 2018, Attorney General Sessions denied a request by the Department of Homeland Security (DHS) to suspend briefing in this case and to clarify the question presented. However, the Attorney General provided more time for the parties and interested amici to brief the issue [see section]. You may read about the new decision in our full article on Matter of A-B-, 27 I&N Dec. 247 (A.G. 2018) [see article].

Introduction: Matter of A-B-, 27 I&N Dec. 227 (A.G. 2018)

On March 7, 2018, Attorney General Jeff Sessions issued an immigration precedent decision in Matter of A-B-, 27 I&N 227 (A.G. 2018) [PDF version]. In the decision, he referred a decision of the Board of Immigration Appeals (BIA) to himself for review, and he requested briefing on the central issue in the case. The issue concerns whether a being the victim of private criminal activity constitutes a cognizable particular social group for purpose of establishing eligibility for asylum or withholding of removal. In this article, we will examine the question presented and what this may mean going forward.

To learn more about immigration precedent decisions issued by the Attorney General, please see our article on the subject [see article].

Referral

8 C.F.R. 1003.1(h) sets forth scenarios in which the Board is required to refer one of its decisions to the Attorney General for review. 8 C.F.R. 1003.1(h)(1)(i) states that the Board shall refer to the Attorney General for review its decision in any case that “[t]he Attorney General directs the Board to refer to him.” In the instant case, Attorney General Sessions directed the Board to refer its decision to him for review. The Board's decision in Matter of A-B- is thereby automatically stayed pending review by Attorney General Sessions, in accord with Matter of Haddam, A.G. Order No. 2380-2001 (Jan. 19, 2001) [PDF version see 23 I&N Dec. 700, 701-04].

Issue

Attorney General Sessions invited both the parties in Matter of A-B- and any interested amici curiae (friends of the court) to submit briefs on points relevant to deciding the case. Specifically, the Attorney General requested briefing on the following issue:

“Whether, and under what circumstances, being a victim of private criminal activity constitutes a cognizable 'particular social group' for purposes of an application for asylum or withholding of removal.”

The parties must submit briefs by April 6, 2018. Interested amici must submit briefs by April 13, 2018. The parties will be permitted to submit reply briefs on or before April 20, 2018.

Analysis

An applicant for asylum must establish that he or she was persecuted or has a reasonable fear of future persecution in his or her home country based on one of five specified grounds (see section 208(b)(1)(A) and (1)(B)(i) of the Immigration and Nationality Act (INA)). An applicant for withholding of removal must establish that his or her life or freedom would be threatened in his or her home country based on one of the same five specified grounds (see section 241(b)(3)(A)). In both cases, one of the five statutory grounds is “membership in a particular social group.”

The leading Board precedents on the meaning of the term “particular social group” is its precedent decisions in the Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014) [PDF version], and Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014) [PDF version]. In both decisions, the Board held that in order for a particular social group to be “cognizable,” it must have an element of “social visibility.” The Board clarified that “social visibility” did not refer to “ocular visibility,” but rather “social distinction.” Secondly, the Board held that an applicant for asylum or withholding basing his or her claim on persecution based on membership in a particular social group must establish that the particular social group is:

  1. composed of members who share a common immutable characteristic,
  2. defined with particularity, and
  3. socially distinct within the society in question.

To see a selection other Board decisions on the topic, please see the relevant section of our A.G./BIA precedent decision topic index [see section].

In the instant case, Attorney General Sessions asked the parties and amici to address a series of questions regarding whether being a victim of private criminal activity constitutes membersghip in a “cognizable” “particular social group.” As we explained, the Board has defined “cognizable” as having an element of “social distinction.” Attorney General Sessions' first question is whether being the victim of private criminal activity can ever constitute a cognizable particular social group. Second, if the brief takes the position that being the victim of private criminal activity can constitute a particular social group, the Attorney General asked for briefing addressing the circumstances in which this would this be the case.

Conclusion

Many asylum and withholding claims are based on membership in a particular social group. Accordingly, any change to the criteria for the establishment of a particular social group could have far-reaching ramifications in asylum law. The instant case restricts its inquiry to a specific question: when, if ever, does being the victim of private criminal activity constitute membership in a cognizable particular social group? We will follow the case as it goes forward and update the site when Attorney General Sessions ultimately issues his decision in the case.