Update

Update (June 17, 2021): Attorney General Merrick Garland has vacated Matter of L-E-A- in its entirety. Immigration judges have been instructed to no longer follow this decision. Please see our full article [see article] to learn about the impact of the vacature. We are keeping this article up for reference purposes, but please note that the decision is no longer controlling.

Attorney General William Barr issued a decision in the instant matter in Matter of L-E-A-, 27 I&N Dec. 581 (A.G. 2019). The decision sets forth new rules for considering when a family may constitute a particular social group.

We have published two articles on Attorney General Barr’s decision. The first article examines the new rules for considering when a family constitutes a particular social group and the effect of the Attorney General’s decision [see article]. The second article examines the Attorney General’s response to four challenges to his authority to review Matter of L-E-A- and why he ultimately rejected all of them [see article]. We have preserved our original article on Acting Attorney General Whitaker’s referral below for informational purposes.

Introduction: Matter of L-E-A-, 27 I&N Dec. 494 (A.G. 2018)

On December 3, 2018, Acting Attorney General Matthew Whitaker published a precedential referral in Matter of L-E-A-, 27 I&N Dec. 494 (A.G. 2018) [PDF version]. He directed the Board of Immigration Appeals (BIA), under 8 C.F.R. 1003.1(h)(1)(i), to refer its published decision in Matter of L-E-A-, 27 I&N Dec. 40 (BIA 2017), to him for review, and he automatically stayed the decision pending the review. The impending decision will be significant in the context of certain asylum claims based on membership in a particular social group. In this article, we will briefly examine the Acting Attorney General’s referral and what it may mean going forward.

Background of 2017 Matter of L-E-A- Decision

On May 24, 2017, the Board published its precedential decision in Matter of L-E-A-, 27 I&N Dec. 40 (BIA 2017), which we discuss in a full article on site [see article]. The decision dealt with when a social group composed of the family members of an applicant for asylum or withholding constitutes a “particular social group” under the immigration laws. The Board held that “Whether a particular social group based on family membership is cognizable depends on the nature and degree of the relationships involved and how those relationships are regarded by the society in question.” In order to establish eligibility for asylum or withholding on this ground], the applicant “must not only demonstrate that he or she is a member of the family but also that the family relationship is at least one central reason for the claimed harm.”

The Board’s conclusion that a particular social group can be based on family membership was consistent with its prior precedents [see section]. However, Matter of L-E-A- clarified what the asylum or withholding applicant must establish in such a case in order to establish eligibility for protection. In Matter of L-E-A- itself, the Board affirmed the immigration judge’s decision that the applicant had failed to establish a nexus between his family membership and the claimed harm was not clearly erroneous.

Acting Attorney General Referral

Acting Attorney General Whitaker referred the Board’s decision in Matter of L-E-A- to himself for review. The referral automatically stayed the Board’s decision in Matter of L-E-A- in accordance with Matter of Haddam, A.G. Order No. 2380-2001 (Jan. 19, 2001), meaning that it has no force as precedent pending the review.

Acting Attorney General Whitaker asked for briefing on the following question:

Whether and under what circumstances, an alien may establish persecution on account of membership in a ‘particular social group’ under [INA 101(a)(42)(A)] based on the alien’s membership in a family unit.

The following is the briefing schedule:

Parties must file briefs not exceeding 15,000 words on or before January 4, 2019
Interested amici may submit briefs not exceeding 9,000 words on or before January 18, 2019
The parties may submit reply briefs not exceeding 6,000 words on or before January 18, 2019

What The Referral Means Going Forward

The most noteworthy aspect of the referral is that the Acting Attorney General does not appear to presuppose that membership in a family unit can ever constitute a particular social group for purposes of asylum and withholding of removal. Note that the specific question presented asks “Whether … an alien may establish…” However, the Acting Attorney General does not rule out the possibility, also asking “under what circumstances” an alien may establish persecution on account of membership in a particular social group based on his or her membership in a family unit if such a thing is possible.

The fact that the Acting Attorney General referred the case at all and asked for briefing on whether asylum and withholding claims can be based on persecution on account of membership in a particular social group consisting of the applicant’s family suggests that he is considering, at the very least, a narrower approach to the issue than the Board adopted in Matter of L-E-A- and some of its prior precedents dating back to the 1980s. However, we cannot say for sure how the case will be resolved until a decision is issued. Furthermore, Whitaker may only serve as Acting Attorney General for up to 120 days after his appointment [see blog] or until a new Attorney General is confirmed, leaving open the possibility that his successor will eventually resolve the issue.

For the time being, the idea that asylum and withholding cases may be based on membership in a particular social group consisting of the applicant’s family are supported by older BIA precedents and the decisions of various Federal circuit courts relying on those precedents. Thus, while immigration judges cannot rely on the Board’s decision in Matter of L-E-A- pending the Acting Attorney General’s review, they appear to still be bound by older decisions on the issue which leave these types of asylum and withholding claims available to be raised.

Conclusion

We will update the website with more information on the issue as it becomes available. To learn about related issues, please see our growing collection of articles on asylum [see category] and removal and deportation defense [see category]. To see more articles on immigration precedent decisions and referrals, please see our article index with all of our articles on these issues [see index].