Update

Update (June 17, 2021): Attorney General Merrick Garland vacated Matter of A-B- in its entirety and reinstated Matter of A-R-C-G- as binding precedent. We are leaving this article up for reference purposes, but please note that the decision herein is no longer good law. We discuss the vacature and what it means going forward in a separate article [see article].

Introduction: Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018)

On June 11, 2018, Attorney General Jeff Sessions published an important immigration precedent decision in Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018) [PDF version]. In the decision, Attorney General Sessions provided a new framework for evaluating whether an applicant for asylum or withholding of removal has established “membership in a particular social group.” In so doing, he overruled the Board of Immigration Appeals’ (BIA’s) precedent decision in Matter of A-R-C-G-, 26 I&N Dec. 338 (BIA 2014) [PDF version].

Matter of A-B- focuses predominantly on the question on the question of when a victim of private violence can establish eligibility for asylum for victimization based on membership in a particular social group. Attorney General Sessions held that in order for a particular social group to be cognizable, it must exist independently of the harm asserted by the applicant. The applicant must also clearly indicate on the record the exact delineation of any proposed particular social group. Where the applicant asserts that he or she was victimized by a private actor, he or she must show that the government either condoned the private actors or demonstrated an inability to control them. The Attorney General’s decision also includes additional general directions for the Board to implement when adjudicating asylum and withholding claims based on membership in a particular social group.

Matter of A-B- is a highly unfavorable decision for asylum and withholding applicants whose claims are based on private violence. While the decision does not make it impossible for such claims to succeed, it creates a much higher bar for the applicant to clear than did the now-overruled Matter of A-R-C-G-.

In this article, we will examine most aspects of the Attorney General precedent decision in Matter of A-B-. We discuss the Attorney General’s analysis of his authority to review the matter in the first place in a separate article [see article]. Matter of A-B- is currently the subject of ongoing litigation in federal court. To learn about current injunctions against the implementation of the decision, please see our section on the issue in this article [see section].

To learn about asylum and withholding generally, please see our website’s growing sections on asylum and refugee protection [see category] and on removal and deportation defense [see category]. For a running list of our articles on administrative precedent decisions, please see our updated article [see index].

Updates on Litigation

On December 19, 2018, Judge Emmet G. Sullivan of the United States District Court for the District of Columbia abrogated Matter of A-B- to the extent that it precluded credible fear determinations in expedited removal proceedings based on claims of domestic violence and gang-related violence. Grace v. Whitaker, 344 F.Supp.3d 96 (D.D.C. 2018) [PDF version]. The decision applied specifically to United States Citizenship and Immigration Services (USCIS) policy guidance purporting to provide guidance to asylum officers in credible fear interviews based on Matter of A-B-. The injunction against the implementation of that policy does not reach other contexts, such as asylum applications in full removal proceedings. The government is pursuing an appeal of the decision with the United States Court of Appeals for the District of Columbia.

Relevant Statutes and Background: 27 I&N Dec. at 325-31

Section 208(b)(1)(A) of the Immigration and Nationality Act (INA) requires applicants for asylum to meet the statutory requirements for qualifying as a refugee set forth in section 101(a)(43)(A). Under section 101(a)(43)(A) of the INA, an applicant for asylum must establish that he or she has suffered past persecution or has a well-founded fear of future persecution on account of “race, religion, nationality, membership in a particular social group, or political opinion.” (Emphasis added.) Matter of A-B- is concerned in large part with the scope of the term “membership in a particular social group,” which is not defined in the INA. Regardless of the claimed ground of persecution, the applicant “must demonstrate that he or she is outside of his or her country of nationality and “is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country…”

The term “membership in a particular social group” is not defined in statute. The Board has recognized in several decisions, including the Matter of M-E-V-G-, 26 I&N Dec. 227, 230 (BIA 2014) [PDF version], that the term is “ambiguous.” In Fatin v. INS, 12 F.3d 1233, 1238 (3d Cir. 1993) [PDF version], then-Judge Samuel Alito, writing for the United States Court of Appeals for the Third Circuit, noted that the term “[r]ead in its broadest literal sense… is almost completely open-ended. Virtually any set including more than one person could be described as a ‘particular social group.’ Thus, the statutory language standing alone is not very instructive.” Attorney General Sessions noted that “every court of appeals to have considered the issue has recognized that the INA’s reference to the term ‘particular social group’ is inherently ambiguous and has deferred to decisions of the Board interpreting that phrase.” 8 C.F.R. 1003.1(a)(1) provides that the “determination and ruling by the Attorney General with respect to all questions of law shall be controlling.” Under precedents of the Supreme Court of the United States in Chevron, U.S.A., Inc. v. Natural Res. Def. Co, 467 U.S. 837, 844 (1984) [PDF version], the Attorney General’s reasonable construction of ambiguous statutory provisions in the INA is entitled to deference. Furthermore, under Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 980 (2005) [PDF version], administrative agencies are not bound by prior judicial interpretations of ambiguous statutory provisions.

The Board has delineated the parameters of a “particular social group” and the requisite standard of persecution over several decades. Please note that the following survey of decisions and analysis reflects the analysis of former Attorney General Sessions. In Matter of Acosta, 19 I&N Dec. 211, 233 (BIA 1985) [PDF version], the Board applied the legal canon of ejusdem generis, meaning that it read the term “particular social group” in a manner consistent with the other four more clear grounds of persecution in section 101(a)(43)(A) of the INA. In light of that principle, the Board held that persecution on account of membership in a particular social group means “persecution that is directed toward an individual who is a member of a group of persons all of whom share a common, immutable characteristic.” Id.

In 1999, the Board published a precedent decision in Matter of R-A-, 22 I&N Dec. 906 (BIA 1999) (remanded, 23 I&N Dec. 694 (A.G. 2004) [PDF version]. Attorney General Sessions described the decision as follows: “In a thorough, well-reasoned opinion, the Board first looked to the plain language of the INA to determine whether Congress intended the Act to provide asylum to battered spouses who are leaving marriages to aliens having no ties in the United States.” The Board examined the “particular social group” ground in light of the other persecution grounds in the INA to conclude that the respondent was ineligible for asylum. The Board concluded that the alien’s claimed particular social group of “Guatemalan women who have been involved intimately with Guatemalan male companions, who believe that women are to live under male domination” did not meet the statutory standard. Id. at 917-18. It held that the proposed social group appeared “to have been defined principally, if not exclusively, for purposes of this asylum case, and without regard to the question of whether anyone in Guatemala perceives this group to exist in any form whatsoever.” Id. at 918. The Board held that, in order to establish a particular social group for purposes of asylum, the alien must establish “that the potential persecutors can in fact see persons sharing the characteristic as warranting suppression or the infliction of harm.” Id. In a broad statement, the Board held that “if the alleged persecutor is not even aware of the group’s existence, it becomes harder to understand how the persecutor may have been motivated by the victim’s ‘membership’ in the group to inflict the harm on the victim.” Id. at 919. Regarding the particular case, the Board held that, even if the social group qualified, the alien did not establish the requisite nexus between her husband’s abuse and the particular social group. Id. at 923. In short, the Board held that the husband targeted the alien because she was his wife, not because of her membership in her proposed particular social group. Id. at 920.

Former Attorney General Janet Reno vacated Matter of R-A- in 2001 in light of pending regulations. Id. at 906. No final rule resulted from the proposed regulations. Former Attorney General Michael Mukasey lifted the stay on the final disposition of the case in 2008 in Matter of R-A-, 24 I&N Dec. 629, 630 (A.G. 2008) [PDF version], and directed the Board to reconsider it in light of intervening decisions. The case was resolved when the alien and the DHS jointly stipulated that she was eligible for asylum, which the Board noted in Matter of A-R-C-G-, 26 I&N Dec. 388, 391-92 n.12 (BIA 2014). Despite the Matter of R-A-‘s being vacated in 2001, Attorney General Sessions noted that “both the Board and federal courts have continued to reply upon R-A-.”

Subsequent to Matter of R-A-, the Board has published several decisions concerning particular social groups. In Matter of C-A-, 23 I&N Dec. 951, 959 (BIA 2006) [PDF version], the Board held that a particular social group should generally be “easily recognizable and understood by others to constitute social groups.” In Matter of S-E-G-, 24 I&N Dec. 579, 584 (BIA 2008) [PDF version], the Board held that, when considering whether a social group satisfies the “particularity” requirement, one must consider “whether the proposed group can accurately be described in a matter sufficiently distinct that the group would be recognized, in the society in question, as a discrete class of persons.” The Board elaborated on this concept in Matter of E-A-G-, 24 I&N Dec. 591, 594 (BIA 2008) [PDF version], wherein it held that “the extent to which members of a society perceive those with the characteristic in question as members of a social group-is of particular importance in determining whether the alien is a member of a claimed particular social group.”

In 2014, the Board issued a pair of complementary decisions on the issue in Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2004) [PDF version], and Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014) [PDF version]. In both of those decisions, the Board listed three things that an alien seeking protection based on being persecuted as a member of a particular social group must establish:

1. The group “composed of members who share a common immutable characteristic”;
2. The group is “defined with particularity”; and
3. The group is “socially distinct within the society in question.”

Matter of M-E-V-G-, at 234, 237; Matter of W-G-R-, at 212.

In Matter of M-E-V-G-, at 238, the Board held that the “socially distinct” requirement “considers whether those with a common immutable characteristic are set apart, or distinct, from other persons within the society in some significant way.” It added that the group “must be perceived as a group by society.” Id. at 240. The pertinent question, added the Board, was whether the group is recognized by the society in question, not the persecutor.” Id. at 242. However, the persecutor’s perception is relevant to the question of whether the alleged harm occurred on account of the particular social group.

Mere months after publishing Matter of M-E-V-G- and Matter of W-G-R-, the Board published a precedential decision in Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014). In that decision, the Board held that “married women in Guatemala who are unable to leave their relationship” can constitute a particular social group for purpose of withholding of removal depending on the facts of the particular case. Attorney General Sessions described the decision as not properly applying the particular social group framework that had been developed starting with Matter of Acosta. For reasons that we will explain later in this article, the Attorney General would overrule Matter of A-R-C-G- [see section].

Facts of the Instant Case: 27 I&N Dec. at 320-23

The respondent, a native of El Salvador, entered the United States illegally. She was placed in removal proceedings in July 2014. In proceedings, the respondent applied for asylum, withholding of removal, and withholding of removal under the Convention Against Torture (CAT).

The respondent claimed that she had been persecuted in El Salvador based on her membership in the particular social group of “El Salvadoran women who are unable to leave their domestic relationships where they have children in common” with their partners. The respondent asserted in her applications for protection that her ex-husband, with whom she shared three children, abused her physically, emotionally, and sexually during their marriage.

The immigration judge denied the respondent’s applications for asylum, withholding of removal, and protection under CAT in a December 2015 decision. The immigration judge found that the respondent was not credible. Furthermore, the immigration judge held that the respondent’s purported particular social group was not a “particular social group” under section 101(a)(42)(A). The immigration judge held that, even if the purported particular social group status was granted, the respondent failed to establish that her membership in the particular social group was one central reason for her persecution. Finally, the immigration judge concluded that the respondent had failed to show that the El Salvadoran government was either unable or unwilling to help her.

One year later, the Board reversed the immigration judge’s decision and remanded with instructions to grant the respondent’s application for asylum. The Board found that the immigration judge’s adverse credibility finding regarding the respondent was clearly erroneous. Relying on Matter of A-R-C-G-, the Board held that the respondent’s asserted particular social group was substantially similar to the one it had approved in the prior decision. “[T]he Board held that the immigration judge clearly erred in finding that the respondent could leave her ex-husband, and that the respondent established that her ex-husband persecuted her because of her status as a Salvadoran woman unable to leave her domestic relationship.” The Board also concluded that the El Salvadoran government was unable or unwilling to protect the respondent.

On remand, the immigration judge issued an order that purported to certify and administratively return the matter to the Board based on intervening changes in the law. The Attorney General noted that the immigration judge’s certification was procedurally defective and that no further action had been taken prior to the Attorney General’s referral. The immigration judge noted that several circuit courts had held in individual cases decided between the Board’s decision and his purported certification to the Board on remand that domestic-violence victims had failed to establish eligibility for asylum based on persecution on account of membership in a particular social group. From this, the immigration judge suggested that the precedents relied upon by the Board in its 2015 reversal of his decision were no longer good law. The immigration judge relied heavily on the decision of the United States Court of Appeals for the Fourth Circuit in Velasquez v. Sessions, 866 F.3d 188 (4th Cir. 188) [PDF version]. In Velasquez, the Fourth Circuit held that “[e]vidence consistent with acts of private violence or that merely shows that an individual has been the victim of criminal activity does not constitute evidence of persecution on a statutorily protected ground.” Id. at 194. It added that “the asylum state was not intended as a panacea for the numerous personal altercations that invariably characterize economic and social relationships.” Id. at 195. The Fourth Circuit distinguished the case from Matter of A-R-C-G- in that the DHS had conceded all of the pertinent questions regarding the respondent’s particular social group claim in Matter of A-R-C-G-.

The Attorney General directed the Board to refer the matter to him for review on March 7, 2018 [see article]. We examine challenges to the Attorney General’s referral of the matter to himself for review in a separate article [see article].

Overruling Matter of A-R-C-G-: 27 I&N Dec. at 331-39

In Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014), the Board addressed an asylum claim based on membership in a particular social group composed of “married women in Guatemala who are unable to leave their relationship.” In that case, the DHS had already conceded that the respondent suffered harm rising to the level of past persecution, that the respondent’s persecution was on account of her membership in a proposed particular social group, and that the social group was cognizable under the INA. Id. at 392-95. The only question that had not already been conceded by the DHS was whether the Guatemalan government was unable or unwilling to control the respondent’s husband. Instead of resolving on the ground of that open question, the Board remanded to the immigration judge for further proceedings.

The former Attorney General stated that the Board only performed “cursory analysis” of the social group factors because the DHS had already conceded that the respondent’s proposed social group satisfied the INA criteria. The Board held that the proposed social group was “composed of members who share the common immutable characteristic of gender” and that “marital status can be an immutable characteristic where the individual is unable to leave the relationship.” Id. at 392-93. The Board concluded that the particularity requirement was met because the terms “married,” women,” and “unable to leave the relationship” had commonly understood meanings in Guatemalan society. Id. at 393. The Board concluded that the proposed social group was socially distinct because of evidence showing Guatemala’s “culture of machismo and family violence.” Id. at 332. It stated that this culture weakened Guatemala’s enforcement of its laws against domestic violence. Id.

Former Attorney General Sessions stated that the Board had read Matter of A-R-C-G- “as categorically extending the definition of a ‘particular social group’ to encompass most Central American domestic violence victims.” He faulted these decisions for “not perform[ing] the detailed analysis required.” He noted that several Federal appellate courts, including the Fourth Circuit in Velasquez, have expressed skepticism about asylum claims concerned on personal, private conflict in light of Matter of A-R-C-G-.

As an initial matter, the Attorney General held that “[t]he Board should not have issued A-R-C-G- as a precedential opinion because DHS conceded most of the relevant legal questions.” 8 C.F.R. 1003.1(d)(1) provides that the Board must provide uniform guidance on legal questions in precedential opinions. Regarding Matter of A-R-C-G-, Sessions noted that the key legal questions had been decided on consent, and then added that “such concessions should not set precedential rules.” The Supreme Court of the United States held in Swift & Co. v. Hocking Valley Ry. Co., 243 U.S. 281, 289 (1917) [PDF version], that “[i]f the stipulation is to be treated as an agreement concerning the legal effect of admitted facts, it is obviously imperative; since the court cannot be controlled by agreement of counsel on a subsidiary question of law.”

The former Attorney General stated that had the Board analyzed the issues conceded by DHS, “it would have been clear that the particular social group was not cognizable.” Thus, by accepting the DHS concessions as conclusive and designating the decision as precedential, Sessions stated that “the Board in A-R-C-G- created a misleading impressing concerning the cognizability of similar social groups, and the viability of asylum claims premised upon persecution on account of membership in such groups.”

Because the DHS had conceded that the proposed social group was cognizable and was both particular and socially distinct, “[t]he Board … avoided considering whether A-R-C-G- could establish the existence of a cognizable particular social group without defining the group by the fact of persecution.”

Citing to Matter of W-G-R-, 26 I&N Dec. at 215, the Attorney General explained that a particular social group must “exist independently” of the asserted harm in order to be cognizable.” In Rreshpja v. Gonzales, 420 F.3d 551, 556 (6th Cir. 2005) [PDF version], the Sixth Circuit held that “[t]he individuals in the group must share a narrowing characteristic other than their risk of being persecuted.” Regarding Matter of A-R-C-G-, the Attorney General wrote that the Board never considered that the proposed social group “was effectively defined to consist of women in Guatemala who are victims of domestic abuse because the inability ‘to leave’ was created by the harm or threatened harm.”

Attorney General Sessions found the Board’s conclusions regarding the particularity of the proposed social group in Matter of A-R-C-G- to be unavailing. He held that to state that the three terms used to describe the group had commonly accepted definitions in Guatemalan society was to “miss[] the point.” “To say that each term has a commonly understood definition, standing alone, does not establish that these terms have the requisite particularity in identifying a distinct social group as such, or that people who meet all those criteria constitute a discrete social group.” In Matter of M-E-V-G-, 26 I&N Dec. at 239, the Board held that “not every ‘immutable characteristic’ is sufficiently precise to define a particular social group.”

The Attorney General stated that “[s]ocial groups defined by their vulnerability to private criminal activity likely lack the particularity required under M-E-V-G-, given that broad swaths of society may be susceptible to victimization.” For example, he noted that “[v]ictims of gang violence often come from all segments of society, and they possess no distinguishing characteristic or concrete trait that would readily identify them as members of such a group.” Regarding the group at issue in Matter of A-R-C-G- itself, the Attorney General held that “[p]articular social group definitions that seek to avoid particularity issues by defining a narrow class-such as ‘Guatemalan women who are unable to leave their domestic relationships where they have children in common’-will often lack sufficient social distinction to be cognizable as a distinct social group, rather than a description of individuals sharing certain traits or experiences.” He added that “[a] particular social group must avoid, consistent with the evidence, being too broad to have definable boundaries and too narrow to have a larger significance in society.”

In Matter of A-R-C-G-, the DHS admitted that the proposed particular social group was socially distinct by conceding its cognizability. The Board elaborated on this point by discussing evidence of Guatemala’s “culture of machismo and family violence.” The Attorney General stated that “[t]he Board provided no explanation for why it believed that that evidence established that Guatemalan society perceives, considers, or recognizes ‘married women in Guatemala who are unable to leave their relationship’ to be a distinct social group.” He stated, with reference to Matter of W-G-R-, 26 I&N Dec. at 217, that “social groups must be classes recognizable by society at large.” For example, he cited favorably to Matter of H-, 21 I&N Dec. 337, 342-43 (BIA 1996) [PDF version], wherein the Board held that a clan or tribe can be socially distinct for purposes of the particular social group requirements. The Attorney General contrasted that with the proposed group in Matter of A-R-C-G-, stating that “there is significant room for doubt that Guatemalan society views these women, as horrible as their personal circumstances may be, as members of a distinct group in society, rather than each as a victim of a particular abuser in highly individualized circumstances.”

The Attorney General then found fault with the DHS’s concession in Matter of A-R-C-G- that the respondent established that she had suffered past persecution. He identified three general requirements for establishing persecution:

1. “'[P]ersecution’ involves an intent to target a belief or characteristic.” Matter of L-E-A-, 27 I&N 40, 44 n.2 (BIA 2017) [see article]; Matter of Acosta, 19 I&N Dec. at 222. In Matter of Kasinga, 21 I&N Dec. 357, 365 (BIA 1996) [PDF version], the Board recognized that private criminals may be motivated by things such as greed or vendettas rather than by an intent to “overcome [the protected] characteristic of the victim. The Attorney General again referenced Matter of R-A-, 22 I&N Dec. at 920, wherein the Board held that the respondent’s husband targeted her “because she was his wife, not because she was a member of some broader collection of women, however defined, whom he believed warranted the infliction of harm.”
2. “[T]he level of harm must be ‘severe.’” Matter of T-Z-, 24 I&N Dec. 163, 172-73 (BIA 2007) [PDF version]. The Attorney General acknowledged that “[p]rivate violence may well satisfy this standard…”
3. “[T]he harm or suffering must be ‘inflicted either by the government of a country or by persons or an organization that the government was unable or unwilling to control.’” Matter of Acosta, 19 I&N Dec. at 222. In Matter of A-R-C-G-, the Board remanded for the immigration judge to consider this issue. Mere “difficulty” controlling private behavior is not sufficient. Menjivar v. Gonzales, 416 F.3d 918, 921 (8th Cir. 2005) [PDF version]. The Seventh Circuit held in Galina v. INS, 213 F.3d 955, 958 (7th Cir. 2000) [PDF version], that the applicant must show that the government either condoned private actions “or at least demonstrated a complete helplessness to protect the victims.” The Attorney General held that “[t]he fact that the local police have not acted on a particular report of an individual crime does not necessarily mean that the government is unwilling or unable to control crime, any more than it would be in the United States.” Thus, “[a]pplicants must show not just that the crime has gone unpunished, but that the government is unwilling or unable to prevent it.”

The DHS also conceded the nexus requirement in Matter of A-R-C-G-, that is, they agreed that the respondent’s membership in the purported social group was at least one central reason for her victimization by her husband. As a result, “the Board did not evaluate the conclusion that A-R-C-G- was persecuted “on account of” her status as a married woman in Guatemala who was unable to leave her relationship.” The Sixth Circuit recognized in Zoarab v. Mukasey, 524 F.3d 777, 780 (6th Cir. 2008) [PDF version], that the alien is not eligible for asylum where the persecution is motivated by something other than one of the five asylum grounds. The Board held in Matter of R-A-, 22 I&N Dec. at 920, that in the particular social group context, “the persecution or well-founded fear of persecution [must] be on account of, or, in other words, because of, the alien’s membership in that particular social group.” The Supreme Court held in INS v. Elias-Zacarias, 502 U.S. 478, 483 (1992) [PDF version] that the paramount concern is “the persecutors’ motives…”

The Attorney General stated that, where private actors inflict violence based on a personal relationship with the victim, “the victim’s membership in a larger group may well not be ‘one central reason’ for the abuse.” The Board has noted that this may even apply in cases where the victimizer is a government official in Matter of Y-G-, 20 I&N Dec. 794 (BIA 1994) [PDF version]. The Attorney General stated that the Board in Matter of A-R-C-G- “cited no evidence that [the respondent’s] ex-husband attacked her because he was aware of, and hostile to, ‘married women in Guatemala who are unable to leave their relationship.” Instead, referencing Matter of R-A-, the attorney General suggested that “he attacked her because of his preexisting personal relationship with the victim.”

For the foregoing reasons, Attorney General Sessions overruled Matter of A-R-C-G-.

Note on Matter of L-E-A-, 27 I&N Dec. 333 n.8

The Attorney General noted that in Matter of L-E-A-, 27 I&N Dec. 40 (BIA 2017) [PDF version], “the Board similarly used key concessions by DHS to recognize a particular social group that might not have withstood rigorous legal analysis required by Board precedent.” In that case, the Board recognized that the respondent and the DHS had agreed that the immediate family unit of the respondent’s father constituted a particular social group. More broadly, they agreed “that if family membership is a central reason for persecuting an asylum applicant, nexus may be established.” Id. at 42.

The Attorney General stated that although the analysis in Matter of L-E-A- was beyond the scope of the opinion in Matter of A-B-, he stated that “the case reflects another instance where the Board purported to decide significant legal questions based upon concessions by the parties, rather than the appropriate legal analysis.” He added that “[t]here is reason to doubt that a nuclear family can compose a particular social group under the statute.”

On December 3, 2018, then-acting Attorney General Matthew Whitaker stayed the decision in Matter of L-E-A- and referred it to himself for review in Matter of L-E-A-, 27 I&N Dec. 494 (A.G. 2018) [see article]. That case remains pending before the current Attorney General, William Barr, as of April 29, 2019. You may read about the now-stayed decision in Matter of L-E-A- from 2017 in a separate article [see article].

Attorney General’s Decision in Matter of A-B-: 27 I&N Dec. at 340

Having overruled Matter of A-R-C-G-, the Attorney General vacated the Board’s 2016 decision in Matter of A-B- as well, noting that the Board’s “cursory analysis” in the instant case “consisted of a general citation to A-R-C-G-…” The Attorney General held that “[n]either immigration judges nor the Board may avoid the rigorous analysis required in determining asylum claims, especially where victims of private violence claim persecution based on membership in a particular social group…” (Emphasis added.) Under 8 C.F.R. 208.13(a), the applicant for asylum bears the burden of presenting facts establishing each element necessary for establishing eligibility for asylum, “and the asylum officer, immigration judge, or the Board has the duty to determine whether those facts satisfy all of the legal requirements for asylum.”

The Attorney General moved to address several flaws in the Board’s decision in Matter of A-B- and set forth new guidance for evaluating asylum applications.

Board Erred in Finding Several IJ Factual and Credibility Determinations to be “Clearly Erroneous”: 27 I&N Dec. at 340-42

Under 8 C.F.R. 1003.1(d)(3)(iv), the Board is precluded from fact-finding on appeals. The regulation prohibits the Board from engaging in de novo (from the beginning) review of findings of fact determined by the immigration judge. When reviewing an immigration judge’s factual findings, the Board is restricted under 78 C.F.R. 1003.1(d)(3)(i) to determining whether they are “clearly erroneous.” The Ninth Circuit held in Rodriguez v. Holder, 683 F.3d 1164, 1171 (9th Cir. 2012) [PDF version], that the immigration judge should be entitled to even greater deference regarding credibility determinations. Regarding the clear error standard of review, the Ninth Circuit held in Ridore v. Holder, 696 F.3d 907, 917 (9th Cir. 2012) [PDF version], that the Board “cannot … override or disregard evidence in the record” or rely “simply on its own interpretation of the facts.” In that same decision, the Ninth Circuit held that a “conclusory pronouncement” that the immigration judge committed clear error is insufficient.

The Attorney General explained that the Board admitted that the immigration judge identified discrepancies and omissions in the respondent’s testimony in finding that the respondent was not credible. The Board declined to defer to the immigration judge’s conclusion after determining that supporting affidavits and the respondent’s explanation of some of the discrepancies outweighed the negative factors cited to by the immigration judge. The Attorney General held that “the Board failed to give adequate deference to the credibility determinations and improperly substituted its own assessment of the evidence.”

The Attorney General held that “[w]hen an asylum applicant makes inconsistent statements, the immigration judge is uniquely advantaged to determine the applicant’s credibility, and the Board may not substitute its own view of the evidence on appeal.” Under section 208(b)(1)(B)(iii), there is no presumption of credibility in favor of the asylum applicant. The Attorney General noted that the Fourth Circuit held in Djadjou v. Holder, 662 F.3d 265, 273-74 (4th Cir. 2011) [PDF version], that inconsistent statements may support an adverse credibility determination even if they do not “go[] to the heart of the applicant’s claim.”

Board Erred in Finding IJ’s Conclusion About Respondent’s Ability to Leave Her Relationship and El Salvador’s Ability to Protect Her Clearly Erroneous: 27 I&N Dec. at 342, 343-44

The immigration judge had concluded that the respondent was able to leave her relationship with her abusive husband. In support of this conclusion, the immigration judge cited evidence that the respondent had divorced her ex-husband and moved away from him. The immigration judge also concluded that the El Salvadoran government was able to protect the respondent. The immigration judge noted that the respondent had successfully obtained multiple protective orders against her ex-husband. The Board found that both of these findings of fact were clearly erroneous in light of other evidence.

The Attorney General held that the Board erred in finding the immigration judge’s findings of fact on these two issues clearly erroneous. He held that the proper standard was whether the immigration judge’s conclusions were “illogical or implausible” (Rodriguez, 683 F.3d at 1170), or “without support from the record.” Finding that the immigration judge’s conclusions were neither illogical nor implausible nor without support from the record, the Attorney General held that the Board improperly “substituted its view of the evidence for that of the immigration judge, again violating the standard of review applicable to the factual determinations of immigration judges.”

Regarding the Board’s overruling the immigration judge’s factual finding that the respondent failed to establish that the El Salvadoran government was unable or unwilling to protect her from her ex-husband, the Attorney General noted that “[n]o country provides its citizens with complete security from private criminal activity, and perfect protection is not required.” In the instant case, the evidence indicated that the respondent sought help from the police, received various restraining orders, and had her ex-husband arrested on at least one occasion.

The Attorney General noted that “domestic violence is a particularly difficult crime to prevent and prosecute, even in the United States…” He stated that the persistence of domestic violence in El Salvador does not, in and of itself, “establish that El Salvador was unable or unwilling to protect A-B- from her husband, any more than the persistence of domestic violence in the United States means that our government is unwilling or unable to protect victims of domestic violence.” For these reasons, the Attorney General held that “the Board erred in finding, contrary to the record and the immigration judge’s findings, that El Salvador was unable or unwilling to protect A-B- and that she thus had no choice but to flee the country.”

Board Erred in Finding IJ’s Conclusion About Lack of Nexus Between Harm and Group Membership Clearly Erroneous: 27 I&N Dec. at 343

In Zavaleta-Policiano v. Sessions, 873 F.3d 241, 247-48 (4th Cir. 2017) [PDF version], the Fourth Circuit characterized the question of whether the asylum applicant had established the requisite nexus between the harm she suffered and the applicable ground of persecution as a “classical factual question” subject to the clear error standard of review.

The Board concluded that the evidence in record “indicate[d] that the ex-husband abused [the respondent] from his position of perceived authority, as her ex-husband and the father of her children.” From this, the Board concluded that the “record as a whole supports a finding that the respondent’s membership in the particular social group of ‘El Salvadoran women who are unable to leave their domestic relationship where they have children in common’ is at least one central reason that the ex-husband abused her.”

The Attorney General stated that although the Board identified the correct standard of review, it “did not apply it in summarily dismissing the immigration judge’s findings.” He took the position that “the Board’s legal analysis was deficient.” Specifically, although the Board was required to find that a finding of fact by the immigration judge was clearly erroneous, it “pointed to no record evidence that respondent’s husband mistreated her in any part ‘on account of’ her membership in the particular social group of ‘El Salvadoran women who are unable to leave their domestic relationship where they have children in common.’” The Attorney General faulted the Board for rendering its decision without citing to any evidence that the respondent’s ex-husband knew that the social group existed or that he persecuted his wife for reasons other than their personal relationship. For these reasons, the Attorney General held that “[t]here was simply no basis in the Board’s summary reasoning for overturning the immigration judge’s factual findings, much less finding them clearly erroneous.”

Guidance for Asylum Officers, Immigration Judges, and the BIA: 27 I&N Dec. at 344-46 & n.12

Having reversed the Board’s decision in the instant case, the Attorney General moved to provide clear guidance for adjudicators in future cases.

Citing to Matter of W-Y-C- & H-O-B-, 27 I&N Dec. 189, 190-91 (BIA 2018) [PDF version] [see article], the Attorney General held that “an applicant seeking asylum or withholding of removal based on membership in a particular social group must clearly indicate, on the record and before the immigration judge, the exact delineation of any proposed particular social group.” The immigration judge must “ensure that the specific social group being analyzed is included in his or her decision…” Id. at 191. This is because for purpose of appellate review, it is critical “that the proposed social group is clear and the record is fully developed.” Id. The Board cannot sustain an asylum applicant’s appeal based on a newly articulated social group that was not presented before or analyzed by the immigration judge. Id. at 192.

Before granting asylum, the adjudicator in question “must consider, consistent with the regulations, whether internal relocation in the alien’s home country presents a reasonable alternative…” Under 8 C.F.R. 1208.13(b)(3)(i), an asylum applicant who has not established past persecution “bear[s] the burden of establishing that it would not be reasonable for him or her to relocate, unless the persecution is by a government or government-sponsored.” Under 8 C.F.R. 1208.13(b)(1)(i), an immigration judge has the discretion to deny an application for asylum based on past persecution if the immigration judge finds “by a preponderance of the evidence” that “the applicant could avoid future persecution by relocating to another part of the applicant’s country of nationality … and under all the circumstances, it would be reasonable to expect the applicant to do so.” The Attorney General described this as an “additional challenge” for applicants whose claims are based on “private violence” because in these cases, unlike cases where the persecutor is the country’s government, “internal relocation would seem more reasonable…”

In a final note, the Attorney General stated that “there are alternative proper and legal channels for seeking admission to the United States other than entering the country illegally and applying for asylum in a removal proceeding.” He stated that “[a]liens seeking a better life in America are welcome to take advantage of existing channels to obtain legal status before entering the country.” In the instant case, the respondent “entered the country illegally, and when initially apprehended by Border Patrol agents, she stated that her reason for entering the country was ‘to find work and reside’ in the United States.” The Attorney General said that aliens who are seeking an improved quality of life “should seek legal work authorization and residency status, instead of illegally entering and claiming asylum.”

In a footnote, the Attorney General reiterated that “[a]sylum is a discretionary form of relief from removal” when sought in the context of removal proceedings. Thus, under sections 208(b)(1) and 240(c)(4)(A) of the INA, the applicant for asylum must show not only that he or she is eligible, but also that she merits asylum as a matter of discretion. Because neither the immigration judge nor the Board addressed discretion in the instant case, the Attorney General “decline[d] to do so in the first instance.” However, he instructed “all asylum adjudicators that a favorable exercise of discretion is a discrete requirement for the granting of asylum and should not be presumed or glossed over solely because an applicant otherwise meets the burden of proof for asylum eligibility under the INA.” To this effect, the Attorney General listed several discretionary factors that adjudicators should consider when determining whether an asylum applicant merits the favorable exercise of discretion:

The circumvention of orderly refugee procedures;
Whether the alien passed through any other countries or arrived in the United States directly from her country;
Whether orderly refugee procedures were in fact available to help her in any country she passed through;
Whether she made any attempts to seek asylum before coming to the United States;
The length of time the alien remained in a third country; and
Her living conditions, safety, and potential long-term residency there.

In rendering the list, the Attorney General cited to Matter of Pula, 19 I&N Dec. 467, 473-74 (BIA 1987) [PDF version]. It is important to note that the foregoing list of discretionary factors is non-exhaustive. It is clear in the footnote, however, that the decision considers irregular entry to be a potentially adverse factor weighing against granting asylum in the exercise of discretion. Here, it is important to distinguish asylum from two similar forms of protection available in removal proceedings — withholding of removal under the INA and withholding under CAT. Both forms of withholding of removal have more stringent statutory requirements than does asylum. However, an applicant who establishes eligibility for either form of withholding must be granted relief, whereas the decision to grant asylum is ultimately discretionary.

Attorney General’s Conclusions: 27 I&N Dec. 346

The Attorney General acknowledged the abuse that the respondent reported suffering at the hands of her ex-husband and “the harrowing experiences of many other victims of domestic violence around the world.” However, citing to Velasquez, 866 F.ed at 199 (Wilkinson, J., concurring), he noted that the “asylum statute is not a general hardship statute.” Again quoting from the concurring opinion in Velasquez, he stated that “membership in a particular social group” is not “some omnibus catch-all” for every “heart-rending situation.” Id.

For these reasons, the Attorney General overruled Matter of A-R-C-G- and all other decisions inconsistent with his decision in Matter of A-B-. He remanded Matter of A-B- to the immigration judge for further proceedings consistent with his opinion.

Conclusion

Matter of A-B- is a significant asylum precedent in that it sweeps away Matter of A-R-C-G- and subsequent unpublished decisions that interpreted the “particular social group” persecution ground as being amenable to asylum claims based on private violence. While Matter of A-B- does not categorically preclude asylum claims based on private violence, its rules on particular social groups will likely make it far more difficult to prevail on such claims. Adjudicators have now been instructed to be wary of any particular social group that is defined in terms of that asserted persecution. Furthermore, footnote 12 to the decision instructs adjudicators to generally consider whether an applicant’s manner of entry are adverse factors weighing against granting asylum where the applicant may have circumvented the laws of the United States regarding asylum and refugees. It is likely that this decision and the broader issue will be the subject of further litigation for years to come.

An alien who believes that he or she has a case for asylum or a similar form of relief should consult with an experienced immigration attorney immediately. An experienced attorney will be able to assess the applicant’s case, determine which forms of relief or protection may be available, and vigorously represent the applicant in pursuing such forms of relief.

To learn more about this and related issues, please see our website’s sections on asylum and refugee protection [see category] and removal and deportation defense [see category].