Introduction: Matter of L-E-A-, 27 I&N Dec. 581 (A.G. 2019)

On July 29, 2019, Attorney General William P. Barr published a precedential decision in Matter of L-E-A-, 27 I&N Dec. 581 (A.G. 2019) [PDF version]. The Attorney General overruled the Board of Immigration Appeals’ (BIA’s) precedent decision in Matter of L-E-A-, 27 I&N Dec. 40 (BIA 2017) [PDF version], to the extent that the Board had recognized the respondent’s father’s immediate family as a particular social group, but he affirmed the rest of the Board’s decision [see article]. The Attorney General clarified that all proposed social groups — including those based on kinship ties — must be composed of members who share a common immutable characteristic that is defined with particularity and that is socially distinct within the society in question in order for the groups to qualify as “particular social groups” for purposes of asylum and withholding of removal. Based on these three requirements, the Attorney General held that, while Board precedent has recognized certain clans and subclans as particular social groups, most nuclear families do not constitute particular social groups because of a lack of social distinction. The Attorney General took the position that his interpretation of the requirements is entitled to administrative deference from circuit courts over any contrary judicial precedents.

In general, for the past quarter-century circuit courts have been amenable to finding particular social groups based on family membership. A large number of particular social group claims are based on family membership. Matter of L-E-A- stands to be one of the most significant particular social group precedents in its tightening of scrutiny of family-based proposed social groups and the resulting exclusion of most nuclear families from the ambient of the particular social group definition. It remains to be seen to what degree the various circuit courts defer to the Attorney General’s new opinion on family-based particular social groups over the coming months and years.

The Attorney General separately addressed his authority to resolve the issue before him in the first place. To read about that section of Matter of L-E-A-, please see our article on that subject [see article].

Factual and Procedural History of Matter of L-E-A-: 27 I&N Dec. 581, 583-84 (A.G. 2019)

The respondent, a citizen of Mexico, illegally re-entered the United States in 2011 having previously departed after accepting voluntary departure. The respondent was apprehended by the Department of Homeland Security (DHS) and placed in removal proceedings. The respondent conceded removability but sought asylum.

The respondent’s asylum claim was based on his purported membership in a particular social group comprised of his father’s immediate family. The immigration judge denied the respondent’s asylum application on the basis that he had not shown he was the victim of persecution, rather than the victim of criminal activity. We discuss the facts of the respondent’s claim in more detail in our article on the 2017 Matter of L-E-A- decision [see section].

The respondent appealed to the BIA, which entered a precedent decision in Matter of L-E-A-, 27 I&N Dec. 40 (BIA 2017) [PDF version]. The Board concluded that the respondent had established his membership in the particular social group of his father’s immediate family. In so doing, the Board relied upon the fact that the DHS had conceded that the respondent’s proposed social group was cognizable. The Board buttressed its conclusion with reference to numerous Board precedents suggesting that family membership could form the basis of a particular social group, and to circuit court precedents expressly recognizing family-based particular social groups in specific cases. The Board added that the determination of whether a family constitutes a particular social group requires “a fact-based inquiry made on a case-by-case basis,” although the Attorney General would conclude in the instant case that the Board had failed to undertake its own suggested inquiry. Instead, the Board summarily concluded, based on the agreement of the DHS and the respondent, that the respondent was a member of the particular social group of his father’s immediate family. We discuss the Board’s now-overruled reasoning in detail in our article on the 2017 Matter of L-E-A- decision [see section].

After finding that the respondent’s proposed particular social group was cognizable and that he was a member of the group, the Board nevertheless denied the asylum application after finding that the respondent failed to establish the requisite nexus between his particular social group and the claimed persecution. That is, the Board concluded that the drug cartels targeted the respondent in order to increase its profits by selling drugs at the store owned by his father, but did not do so because of his being a member of his father’s immediate family (noting that the cartel did not target other members of the family). The Board held that where a persecutor targets a family member as a means to an end, there must be more to establish a nexus between family membership and persecution. We discuss the Board’s reasoning on this point in our article on the 2017 Matter of L-E-A- decision [see section]. Attorney General Barr affirmed the Board’s decision regarding the lack of nexus between the proposed group and the persecution.

The Board remanded the matter to the immigration judge for consideration of the respondent’s claim for protection under the Convention Against Torture.

On December 3, 2018, Acting Attorney General Matthew Whitaker directed the Board to refer Matter of L-E-A- for review under 8 C.F.R. 1003.1(h)(1)(i). Acting Attorney General Whitaker published his referral as Matter of L-E-A-, 27 I&N Dec. 494 (A.G. 2018) [PDF version] [see article]. The 2017 Matter of L-E-A- decision was automatically stayed pending the Attorney General’s review. The question for review was whether, and under what circumstances, an alien may establish persecution on account of membership in a particular social group based on family membership. The instant decision is the resolution of that referral.

Attorney General’s Jurisdiction: 27 I&N Dec. 581, 585-86 (A.G. 2019)

We discuss the Attorney General’s conclusion that he had jurisdiction to resolve the instant case in a separate article [see article].

Analysis and Conclusions: 27 I&N Dec. 581, 586 (A.G. 2019)

The Attorney General concluded that the Board erred in finding that the respondent’s proposed social group of members of his father’s immediate family constituted a “particular social group.” Specifically, the Attorney General found that the proposed group was not socially distinct in Mexican society. He added, generally, that similar family-based groups in ordinary cases will also fail the social distinction requirement. He faulted the Board for summarily concluding that the respondent’s proposed social group was a cognizable particular social group based on the DHS’s stipulations rather than on a fact-specific legal analysis.

In the forthcoming sections, we will examine the Attorney General’s decision in detail.

BIA Legal Background: 27 I&N Dec. 581, 587-92 (A.G. 2019)

In order to qualify for asylum, the applicant bears the burden of establishing that he or she is a “refugee” as defined by section 101(a)(42)(A) of the Immigration and Nationality Act (INA). Section 101(a)(42)(A) reads as follows:

The term ‘refugee’ means any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion…”
(Emphasis added.) INA 101(a)(42)(A).

The Attorney General noted that “[n]o statute or regulation defines what constitutes a ‘particular social group.’” 27 I&N Dec. at 587.

The Board first endeavored to interpret the phrase “persecution on account of membership in a particular social group” in Matter of Acosta, 19 I&N Dec. 212, 232-34 (BIA 1985) [PDF version], modified on other grounds by Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1986). Matter of Acosta applied the doctrine of ejusdem generis, meaning it sought to interpret the phrase “particular social group” in manner similar to the other four statutory grounds in the refugee definition: race, religion, nationality, and political opinion. Matter of Acosta, 19 I&N Dec. at 232-33. Applying this approach, the Board determined that a particular social group must be comprised of individuals sharing a “common, immutable characteristic.” Matter of Acosta, 19 I&N Dec. at 232. The Board suggested that such a shared characteristic “might be an innate one such as sex, color, or kinship ties,” and that whether a particular innate characteristic qualifies must be determined on a case-by-case basis. Matter of Acosta, 19 I&N Dec. at 232. The Attorney General noted that Matter of Acosta did not resolve whether sharing a common, immutable characteristic” was, in and of itself, sufficient.

The Board did not publish a precedential case involving a particular social group based in part on family membership until 1996. In Matter of H-, 21 I&N Dec. 337, 342-43 (BIA 1996) [PDF version], the Board held that the record before it established credible evidence that the Somali Marehan subclan constituted a particular social group. The Board found that the subclan was ‘distinct and recognizable” within Somali society and that it had distinguishing “linguistic commonalities.” Matter of H-, 21 I&N Dec. at 343. The Board relied in part on a legal opinion issued by the Immigration and Naturalization Service (INS) General Counsel which concluded that Somali clan membership “is a highly recognizable, immutable characteristic,” that Somali clans were “defined by discrete criteria,” and that clan membership was “at the essence of a Somali’s identity…” Genco. Op. No. 93-91 (INS), 1993 WL 1504038, at *1—*2 (Dec. 9, 1993). The Board also noted U.S. Department of State (DOS) reports that supported the conclusion that subclans in Somalia met the Matter of Acosta standard for constituting a particular social group. Matter of H-, 21 I&N Dec. at 342-43.

The Board’s approach to particular social groups did not remain static. Although Matter of Acosta remains good law, the Board has added elements to the particular social group analysis. In 2014, the Board published complementary decisions in 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]. The decisions required that an asylum or withholding applicant claiming membership in a particular social group must establish that the 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.
Matter of W-G-R-, 26 I&N Dec. at 212; Matter of M-E-V-G-, 26 I&N Dec. at 237.

The first point derives from Matter of Acosta, whereas the latter two points clarified the Board’s positions from the mid-2000s. The Board framed its three-part requirements as building off its prior decisions including Matter of Acosta -and as being part of its refining its understanding of particular social groups through the process of case-by-case adjudication. Matter of W-G-R-, 26 I&N Dec. at 212; Matter of M-E-V-G-, 26 I&N Dec. at 237.

In 2018, then-Attorney General Jeff Sessions published a precedential decision in Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018) [PDF version]. We discuss Matter of A-B- in a comprehensive article on site [see article]. In Matter of A-B-, Attorney General Sessions reaffirmed Matter of W-G-R- and Matter of M-E-V-G-, while elucidating that their articulated legal standards must be applied with rigor in every case. Matter of A-B-, 27 I&N Dec. at 333-36. Matter of A-B- held that in order for a particular social group to be cognizable, it “must ‘exist independently’ of the harm asserted.” Matter of A-B-, at 334; Matter of M-E-V-G-, at 237 n.11, 243.

AG Conclusion and Contrary Federal Court Precedent: 27 I&N Dec. 581, 589-91 (A.G. 2019)

Based on Matter of W-G-R-, Matter of M-E-V-G-, and Matter of A-B-, Attorney General Barr concluded that “in the ordinary case, a nuclear family will not, without more, constitute a ‘particular social group’ because most nuclear families are not inherently socially distinct.” Matter of L-E-A-, 27 I&N Dec. at 588 (A.G. 2019).

The Attorney General recognized that his conclusion arguably conflicted with that of a number of Federal circuit courts. He noted that numerous circuit courts have either concluded, after little analysis, that nuclear families constitute particular social groups, or decided the case based on stipulations entered by both parties on the validity of a particular social group based on nuclear family (citing precedents from the United States Courts of Appeals for the Sixth and Eighth Circuits).

The Attorney General concluded, as a result, that “these cases do not reflect the thorough, case-specific analysis of the three Matter of M-E-V-G- factors that the Board’s precedents generally require. Matter of L-E-A-, 27 I&N Dec. at 589 (A.G. 2019). Attorney General Barr added that “I do not believe that a cursory analysis of a question that was either uncontested, or not dispositive to the outcome [of the case], should be taken to undermine the Board requirement that asylum applicants claiming ‘membership in a particular social group’ must establish that their group shares a common immutable characteristic, is defined with particularity, and is socially distinct. Matter of L-E-A-, at 589 (A.G. 2019).

The Attorney General noted that other Federal circuit courts have concluded that nuclear families satisfy the criteria set forth in Matter of W-G-R- and Matter of M-E-V-G-. The United States Court of Appeals for the Ninth Circuit expressly reached this result in Rios v. Lynch, 807 F.3d 1123, 1128 (9th Cir. 2015) [PDF version]. Several other decisions reached the same conclusion as the Ninth Circuit, but without explicitly considering whether the result was consistent with the framework set forth in Matter of W-G-R- and Matter of M-E-V-G-. See, e.g., Velasquez v. Sessions, 866 F.3d 188, 194 (4th Cir. 2017) [PDF version]; Villalta-Martinez v. Sessions, 882 F.3d 20, 26 (1st Cir. 2018) [PDF version]. While neither the First nor Fourth Circuits purported to contradict the Board’s framework, the Attorney General took the position that they relied upon outdated dicta from earlier Board decisions. He noted that the First Circuit’s line of cases on family-based social groups began with its 1993 decision in Gebremichael v. I.N.S., 10 F.3d 28, 36 (1st Cir. 1993) [PDF version], which relied on Matter of Acosta’s statement that kinship ties “might” be the sort of innate characteristic that can form the basis of a particular social group. Attorney General Barr concluded, however, that “the reference to ‘kinship ties’ in Matter of Acosta provides no justification for a broad assumption that an applicant’s nuclear family will constitute a valid particular social group in his society. The Board in Matter of Acosta also did not define what it meant by ‘kinship ties,’ since the respondent had described his relevant social group instead as persons ‘engaged in the transportation industry’ in his country.” Matter of L-E-A-, 27 I&N Dec. at 590; citing Matter of Acosta, 18 I&N Dec. at 232, 33. The Fourth Circuit, conversely, based its conclusion on Matter of C-A-, 23 I&N Dec. 951, 959 (BIA 2006) [PDF version], wherein the Board suggested that “family relationship” was a type of innate characteristic which could form the basis of a particular social group. Crespin-Valladares v. Holder, 632 F.3d 117, 126-27 (4th Cir. 2011) [PDF version]. The Attorney General asserted that the Fourth Circuit misread Matter of C-A-, which he explained did not concern a family-based social group and in fact cautioned against any broad recognition of family-based social groups in its articulation of the social distinction requirement. Matter of L-E-A-, 27 I&N Dec. at 591.

The United States Court of Appeals for the Seventh Circuit is the only circuit to not apply the three-part particular social group standard articulated in Matter of W-G-R- and Matter of M-E-V-G-. Melnik v. Sessions, 891 F.3d 278, 286 n.22 (7th Cir. 2018) [PDF version]. It continues to apply only Matter of Acosta, and has used that standard to conclude that nuclear families may constitute particular social groups. Torres v. Mukasey, 551 F.3d 616, 629 (7th Cir. 2008) [PDF version]; Iliev v. INS, 127 F.3d 638, 642 & n.4 (7th Cir. 1997) [PDF version]. Attorney General Barr took the position that “[t]he Seventh Circuit’s refusal to reconsider its position in light of Matter of M-E-V-G- and Matter of W-G-R- has left in place circuit precedent dating from the 1990s positing, without analysis, that every family would constitute a cognizable social group under the INA. Matter of L-E-A-, 27 I&N Dec. at 590.

The Attorney General held that “[t]o the extent … that any court of appeals decision is best interpreted as adopting a categorical rule that any nuclear family could constitute a cognizable ‘particular social group,’ I believe that such a holding is inconsistent with both the asylum laws and the long-standing precedents of the Board.” Matter of L-E-A-, 27 I&N Dec. at 591. He noted that post-Acosta precedents require that any proposed social group be particular and socially distinct, with each point requiring a fact-specific inquiry based on case-specific evidence. The Attorney General stated that “[t]he application of contradictory rules by the courts of appeals is inappropriate because whether a specific family group constitutes a ‘particular social group’ should be determined by the immigration courts in the first instance, as an exercise of the Attorney General’s delegated authority to interpret the INA.” Matter of L-E-A-, 27 I&N Dec. at 591. To this effect, the Attorney General cited to the decision of the Supreme Court of the United States in Gonzales v. Thomas, 547 U.S. 183, 185-87 (2006) (per curiam) [PDF version], wherein the Supreme Court vacated a decision of the Ninth Circuit and remanded after finding that the Ninth Circuit impermissibly determined that an alien’s family constituted a particular social group in the first instance.

Attorney General’s Position Entitled to Deference: 27 I&N Dec. 581, 591-92 (A.G. 2019)

Under section 103(a)(1) of the INA, the ‘determination and ruling by the Attorney General with respect to all questions of law shall be controlling.” Thus, the Attorney General has the primary responsibility of interpreting the immigration laws. The Attorney General noted that the term “particular social group” is ambiguous. For this reason, the proper application of the phrase has been deferred to the BIA, which acts on authority delegated by the Attorney General. Under Supreme Court precedent, reasonable interpretations of ambiguous statutory phrases are entitled to administrative deference by the courts. Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844 (1984) [PDF version]. The Supreme Court has extended the doctrine of Chevron deference to situations where the courts had previously interpreted an ambiguous statutory phrase in a manner different than a subsequent administrative interpretation. Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 980 (2005) [PDF version]. The Attorney General concluded, the section: “I therefore interpret the ambiguous term ‘particular social group’ in the manner that I believe to be most faithful to the text, purpose, and policies underlying the asylum statute.” Matter of L-E-A-, 27 I&N Dec. at 592 (A.G. 2019).

Articulating Standard as Applied to Family-Based Social Groups: 27 I&N Dec. at 592-97 (A.G. 2019)

The Board recognized in Matter of Acosta that “kinship ties” may be the sort of common, immutable characteristic that could form the basis of a particular social group. Matter of Acosta, 19 I&N Dec. at 233. The Board never specified, generally, the rule for when kinship ties could form the basis of a particular social group. The Board acknowledged in Matter of C-A- that it had held that clan membership in one instance constituted a particular social group (Matter of H-), but made clear that it “did not rule categorically that membership in any clan would suffice.” Matter of C-A-, 23 I&N Dec. at 959. Applying the standard to the instant case, the Attorney General noted that the respondent failed to “show that anyone, other than perhaps the cartel [he alleged persecution from], viewed the respondent’s family to be distinct in Mexican society.” Matter of L-E-A-, 27 I&N Dec. at 592. The Attorney General added that “[i]f cartels or other criminals created a cognizable family social group every time they victimized someone, then the social-distinction requirement would be effectively eliminated.” Matter of L-E-A-, 27 I&N Dec. at 592.

The Attorney General referred to the ejusdem generis canon, that the “particular social group” ground should be read in the context of the other four statutory grounds in section 101(a)(42)(A) of the INA. He contrasted this approach to viewing the “particular social group” ground as an “omnibus catch all” for all cases that do not fall within the other four grounds for seeking asylum. Matter of L-E-A-, 27 I&N Dec. at 592. The Attorney General noted that the INA expressly provides for asylum for spouses and children of principal asylees when they are accompanying or following to join the principal. INA 208(b)(3)(A). The INA does not, however, provide that family is an independent basis for qualifying or asylum relief.

The Attorney General also raised prudential concerns regarding the position taken by the Board in the 2017 Matter of L-E-A- decision: “as almost every alien is a member of a family of some kind, categorically recognizing families as particular social groups would render virtually every alien a member of a particular social group.” Matter of L-E-A-, 27 I&N Dec. at 593. He stated that “[t]here is no evidence that Congress intended the term ‘particular social group’ to cast so wide a net.” Id. The Attorney General further noted that section 101 of the INA — which includes the definition of “refugee” — includes the word “family” on ten other occasions, but never in the context of the refugee provisions. From this, the Attorney General inferred that “[i]f Congress intended for refugee status to turn on one’s suffering of persecution ‘on account of’ family membership, Congress would have included family identity as one of the expressly enumerated covered grounds for persecution.” Matter of L-E-A-, 27 I&N Dec. at 593.

The Attorney General reiterated that an applicant for asylum based on membership in a family-based particular social group “must demonstrate that his family group meets each of the immutability, particularity, and social distinction requirements.” Matter of L-E-A-, 27 I&N Dec. 593. He noted that,while many family relationships will satisfy the “immutability” requirement, many will fail the particularity requirement — meaning that the group must have discernable boundaries. The Board previously identified this potential issue with family-based groups in Matter of S-E-G-, 24 I&N Dec. 579, 585 (BIA 2008) [PDF version]. He explained that many more family groups will fail to satisfy the requirement that the proposed group be socially distinct, that is “set apart, or distinct, from other persons within the society in some significant way,” Matter of M-E-V-G-, 26 I&N Dec. at 238, because the family must be perceived as a group by the society in which it is situated. Matter of W-G-R-, 26 I&N Dec. at 217.

The Attorney General observed that asylum applicants claiming membership in a family-based proposed social group generally raise one of two arguments.

“First, many applicants assert a specific family unit as their ‘particular social group.’” One example would be the applicant’s nuclear family. The Attorney General noted the difficulty for such claims: “[T]o qualify under the statute and Board precedent, when an applicant proposes a group composed of a specific family unity, he must show that his proposed group has some greater meaning in society. It is not enough that the family be set apart in the eye of the persecutor, because it is the perception of the relevant society-rather than the perception of the alien’s actual or potential persecutors-that matters.” Matter of L-E-A-, 27 I&N Dec. at 594. In considering such claims, Attorney General Barr instructed adjudicators to “be careful to focus on the particular social group as it is defined by the applicant and ask whether that group is distinct in the society in question.” Matter of L-E-A-, 27 I&N Dec. at 594. That an applicant’s society may place great significance on the family is not, in and of itself, sufficient to establish social distinction, for “[i]f this were the case, virtually everyone in that society would be a member of a cognizable particular social group.” Id. That nuclear families generally may carry societal importance says nothing of a particular nuclear family. Id. The Attorney General suggested that “[t]he average family-even if it would otherwise satisfy the immutability and particularity requirements-is unlikely to be so recognized.” Id.

Second, in lieu of claiming membership in a particular social group comprised of close family members, some applicants “define the relevant ‘particular social group’ as a collection of familial relatives of persons who have certain shared characteristics.” The Attorney General provided a list of examples, including: S.E.R.L. v. Att’y Gen. U.S.A., 894 F.3d 535, 541 (3d Cir. 2018) [PDF version] (“immediate family members of Honduran women unable to leave a domestic relationship”); Cordova v. Holder, 759 F.3d 332, 336 (4th Cir. 2014) [PDF version] (“family members of persons who have been killed by rival gang members); and Vumi v. Gonzales, 502 F.3d 150, 152 (2d Cir. 2007) [PDF version] (“relatives of assassination suspects”). Citing to additional similar cases, the Attorney General noted that this type of claim is common in cases where the applicant is seeking protection based on gang violence. The Attorney General observed that these types of groups often “fail[] the social distinction requirement because there is little evidence to indicate that families sharing these characteristics are seen in society as cohesive and identifiable groups.” Matter of L-E-A-, 27 I&N Dec. at 595. The Attorney General added that these types of groups often run afoul of the prohibition against defining social groups in terms of the persecution suffered or feared by the applicant — referencing Matter of M-E-V-G-‘s holding that particular social groups must exist independently of the harm asserted.

The Attorney General made clear that his opinion does not bar all family-based social groups from satisfying the particular social group criteria. He noted that an applicant may well establish that his or her kinship group or clan meets all of the substantive requirements to constitute a particular social group. In addition to Matter of H-, the Attorney General cited favorably to the Ninth Circuit’s decision in Ali v. Ashcroft, 394 F.3d 780, 785 (9th Cir. 2005) [PDF version]. In the case of an immediate family rather that a clan, however, “unless an immediate family carries greater societal import, it is unlikely that a proposed family-based group will be ‘distinct’ in the way required by the INA for purposes of asylum.” Matter of L-E-A-, 27 I&N Dec. at 595. In a general note of caution, Attorney General Barr reminded adjudicators to be skeptical of social groups that appear to be “defined principally, if not exclusively, for the purposes of [litigation] … without regard to the question of whether anyone in [a given country] perceives [those] group[s] to exist in any form whatsoever.” Citing to Matter of R-A-, 22 I&N Dec. 906, 918 (BIA 1999; A.G. 2001) [PDF version], remanded for reconsideration Matter of R-A-, 24 I&N Dec. 629 (A.G. 2008).

In the instant case, the Attorney General concluded that the Board’s analysis of the respondent’s proposed social group cited past federal court precedents and adopted the parties’ stipulations. The Board then summarily concluded that the immediate family of the respondent’s father’s constituted a valid particular social group. The Attorney General faulted the Board for not explaining how the facts of the particular case supported its conclusion or satisfied the particularity and social visibility requirements. He added: “This cursory treatment could not, and did not, satisfy the Board’s duty to ensure that the respondent satisfied the statutory requirements to qualify for asylum.” Matter of L-E-A-, 27 I&N Dec. at 596 (A.G. 2019). For these reasons, Attorney General Barr reversed the Board’s decision in Matter of L-E-A- to the extent that it concluded that the respondent’s father’s immediate family constituted a particular social group. The Attorney General affirmed the Board’s decision with regard to the respondent’s failure to establish a nexus between his proposed particular social group and the alleged persecution. The Attorney General remanded the record to the Board for further proceedings consistent with his opinion.

Conclusion

Matter of L-E-A- is a significant decision in the context of asylum law. Attorney General Barr rejected the premises upon which most Federal circuit courts have approved of family relationships as particular social groups dating back to the early 1990s. In so doing, the Attorney General called for a rigorous application of the standards of the current BIA and Attorney General to proposed family-based proposed particular social groups. Although the Attorney General took the position that his interpretation of the term “particular social group” is entitled to administrative deference from the courts, it is unclear how many courts will defer to his new decision. The issue will likely be heavily litigated in the months and years to come.

The immediate effect of the decision will make it significantly more difficult to prevail on claims of social groups based on family relationships in administrative immigration proceedings, absent the rejection by circuit courts of the new precedent. While certain types of groups based on family relationships such as large and/or recognizable clans may be relatively unaffected by Matter of L-E-A-, most family-based claims will likely be detrimentally affected.

A noncitizen seeking asylum or withholding of removal should always first consult with an experienced immigration attorney in the area of asylum law, and, where applicable, removal and deportation defense. An experienced attorney will be able to carefully assess the facts of the particular case and determine whether they may support a claim for asylum, withholding, or some other form of relief or protection under the immigration laws. If the noncitizen decides to go forward, an experienced attorney may help him or her present the best case given the particular facts and circumstances and the controlling law of the jurisdiction in which the case arises.