Evaluating Family-Based Particular Social Group Claims for Asylum

 

Introduction

On December 1, 2023, the Board of Immigration Appeals (“BIA”) published an important precedent decision on family-based particular social groups in Matter of M-R-M-S-, 28 I&N Dec. 757 (BIA 2023) [PDF version]. The decision is significant for explaining when, and under what circumstances, an alien can establish a well founded fear of persecution for purpose of gaining asylum, or that he or she would be more likely than not to be subjected to persecution for purpose of statutory withholding of removal, on account of his or her membership in a particular social group consisting of his or her own family membership.

Background of the Decision

In order to establish eligibility for asylum or statutory withholding of removal, an alien must establish that he or she has a well-founded fear of persecution (asylum) or that he or she would more likely than not be subject to persecution (withholding of removal) on account of his or her race, religion, nationality, political opinion, or membership in a particular social group. INA 101(a)(42)(A). This article is concerned solely with the particular social group ground.

As a threshold matter, an alien must establish that he or she is a member of a cognizable particular social group in order to succeed in an asylum or withholding claim based on group membership. “An applicant for asylum or withholding of removal seeking relief based on '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) social distinct within the society in question.” Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014) [PDF version].

Most Federal circuit courts had at least entertained family-based particular social groups on appeals from Board of Immigration Appeals decisions, if not explicitly held that family-based groups can be cognizable. The Board's position on the matter had been ill-defined in precedent decisions. The Board has long recognized that kinship ties are an immutable characteristic, which is one of the three prongs of a particular social group under current law. Matter of Acosta, 19 I&N Dec. 211, 233 (BIA 1985) [PDF version]. In 1996, the Board recognized that clan membership may form the basis of a cognizable group. Matter of H-, 21 I&N Dec. 337 (BIA 1996) [PDF version]. But there was no concrete Board precedent on small family-based groups.

In 2017, the Board published a decision in Matter of L-E-A-, 27 I&N Dec. 40 (BIA 2017), which we covered in a contemporaneous article [see article]. The Board recognized that a family-based particular social group may be cognizable and held that cognizability in the family-based group context “depends on the nature and degree of the relationships involved and how those relationships are regarded by the society in question.” Moreover, assuming that the alien respondent establishes that his or her own family constitutes a particular social group in the society in question, he or she must next demonstrate that family membership is one central reason he or she fears harm.

In 2019, then-Attorney General William Barr reversed Matter of L-E-A- in part, limiting the circumstances in which a particular social group based on membership in one's own nuclear family makes for a viable particular social group [see our discussion]. However, in 2021, Attorney General Merrick Garland vacated former Attorney General Barr's decision [see article] in Matter of L-E-A-, restoring the 2017 decision in full pending further consideration of issues related in family-based particular social groups.

As we will explain below, the Board's new decision in Matter of M-R-M-S- reaffirms the 2017 Matter of L-E-A- decision, which held that particular social groups based on family membership can be cognizable under the current three-step framework for determining whether a proposed group is viable. The decision is concerned with cases wherein the alien proposes a cognizable family-based group and must establish that he or she fears persecution or faces a significant likelihood of persecution on account of that family membership.

Facts in Matter of M-R-M-S-

The Board explained the key facts in Matter of M-R-M-S-,which was on appeal from the immigration judge's denial of the respondents' applications for asylum and withholding of removal (Matter of M-R-M-S-, 28 I&N Dec. at 757-58):

The respondents were natives and citizens of Mexico.
They lived with the lead respondent's grandson.
A criminal cartel forced the respondents off their land because the cartel wanted the land.
The cartel killed the lead respondent's grandson. The reason for the killing was not clearly established.
The respondents believe that the cartel killed the grandson in furtherance of its goal to seize their land.
The cartel forced other families off their land in the same area.

The respondents applied for asylum and withholding of removal on based on their membership of a particular social group consisting of members of their family and perceived members of their household in their hometown. Id. at 758. The immigration judge denied their applications in part on the basis that they did not establish that the harm they feared was on account of their family membership. Id.

“One central reason”

Regardless of whether an asylum applicant seeks protection on account of race, religion, nationality, political opinion, or membership in a particular social group, he or she must establish that the protected ground is “at least one central reason” for the feared harm. Id. at 758; INA 208(b)(1)(B)(i).

The Board recognizes that a persecutor may have more than one reason for harming an individual. That the persecutor may be motivated in part by a non-protected ground does not necessarily mean that the protected ground is not one central reason for the feared persecution. However, the Board has held that the protected ground cannot be “incidental, tangential, superficial, or subordinate to another [non-protected] reason for harm.” Matter of M-R-M-S-, 28 I&N Dec. 759; Matter of J-B-N- & S-M-, 24 I&N Dec. 208, 211-14 (BIA 2007) [PDF version]. (Note that the United States Court of Appeals for the Third Circuit, which covers Delaware, New Jersey, and Pennsylvania, rejected the Board's exclusion of “subordinate” reasons while otherwise affirming its rule. Matter of M-R-M-S-, 28 I&N Dec. at 759 & n.6; Ndayshimiye v. Att'y Gen. of U.S., 557 F.3d 124, 130-31 (3d Cir. 2009) [PDF version].)

In the context of claims based on membership in one's own family, the alien's family membership must be “one central reason” why the people the alien fears want to harm him or her. Assuming the people the alien fears are motivated in part by the alien's family membership and in part by a non-asylum ground, the alien must establish that his or her family membership is not “incidental, tangential, or subordinate to” the non-protected reason for harm. As we noted in a parenthetical, family membership could be “subordinate” to a non-protected reason for harm within the jurisdiction of the Third Circuit (cases arising in Delaware, New Jersey, or Pennsylvania), but not incidental, tangential or superficial to an non-protected reason for harm.

Matter of L-E-A- offered an example of how the Board applies these rules in family-based cases. In that case, the respondent was threatened by cartel members who wanted to sell drugs from his father's store. Matter of M-R-M-S-, 28 I&N Dec. at 759; Matter of L-E-A-, 28 I&N Dec. at 41. The Board concluded that the cartel's desire to sell drugs from the respondent's store was the one central reason for its threats against the respondent and that the respondent's family membership was incidental to the cartel's general criminal motivations. Matter of M-R-M-S-, 28 Dec. at 759; Matter of L-E-A-, 28 I&N Dec. at 42-45. Thus, the Board denied the respondent's application for asylum.

What is Needed to Establish Family Membership as One Central Reason

“To be successful in an asylum claim based on family membership, an applicant must demonstrate that the persecutor's motive form harm is a desire to overcome the protected characteristic of the family or otherwise based on animus against the family.” Matter of M-R-M-S-, 28 I&N Dec. at 760; Matter of L-E-A-, 28 I&N Dec. at 44-45.

The Board offered a couple of examples of what a successful family-based claim may look like in practice (See generally Matter of M-R-M-S-, 28 I&N Dect at 760):

“While not necessary to succeed on a family-based claim, one possible way for an applicant to establish that family status is one central reason for the claimed harm is by showing it is connected to another protected ground-such as political opinion-that is intertwined with or underlies the dispute.”
“Another instance in which family membership may be one central reason for harm is where a persecutor's animus directed against one family member is intertwined with mistreatment against another family member.”

With respect to the Board's first suggestion regarding situations where family membership is “connected to another protected ground,” it will not always be the case that family membership is the strongest claim. For example, a case where family membership is connected to political opinion as a reason for harm may, depending on the facts, present a stronger imputed political opinion claim than family-based particular social group claim. We only add this to note that asylum and withholding applications depend on the facts of a particular case and the precedents of the controlling judicial jurisdiction in which the application is being adjudicated.

Cases Where Family-Based Claims Will Usually Fail

Family-based particular social group claims will usually fail when family membership is too secondary to a non-protected motivation for harming the respondent. The Board explained that “courts have regularly rejected family-based claims of persecution by gangs, cartels, and other criminal organizations when the family ties are, at most, incidental or tangential to more commonplace goals, including financial gain and furthering, or preventing, interference in, a criminal enterprise.” Matter of M-R-M-S-, 28 I&N Dec. at 760.

As a general matter, fear of gang activity or general lawlessness alone will not make an alien eligible for asylum or withholding of removal. However, in the context of family-based claims, courts have adopted different approaches to assessing claims where one of those non-protected grounds is at least related to an alien's family membership. The Board highlighted differing approaches taken by the United States Courts of Appeals for the Tenth and Fourth Circuits respectively. Below, we discuss the Board's summary of these approaches:

Orellana-Recinos v. Garland, 993 F.3d 851 (10th Cir. 2021) [PDF version]: “In that case, the applicant claimed persecution on account of her membership in her son's immediate family because gang members threatened to harm the applicant and her son if the son refused to sell drugs.” Matter of M-R-M-S-, 28 I&N Dec. 760-61; discussing Orellana-Ramos, 993 F.3d at 853-54. “The Tenth Circuit concluded that substantial evidence supported the Immigration Judge's determination that resistance to her son's recruitment was one central reason for the gang's threat to harm the applicant but her membership in her immediate family was not.” Matter of M-R-M-S-, 28 I&N Dec. at 761; discussing Orellana-Recinos, at 858. “The court observed that the gang members 'would have the same attitude against anyone-teacher, good friend, or employer-who they thought could influence' the applicant's son.” Id.
Hernandez-Avalos v. Lynch, 784 F.3d 944 (4th Cir. 2015) [PDF version]: “[A]n applicant sought asylum based on membership in a particular social group of her nuclear family after gang members repeatedly threatened to kill her if she did not allow her son to join her gang.” Matter of M-R-M-S-, 28 I&N Dec. at 761; discussing Hernandez-Avalos v. Lynch, at 944, 947, 949. “The Fourth Circuit … conclud[ed] that the applicant's relationship to her son is why she, and not another person, was targeted.” Matter of M-R-M-S-, 28 I&N Dec. at 761; discussing Hernandez-Avalos, at 949-50.

The Board concurred with the Tenth Circuit's approach and with the Eleventh Circuit's describing the Fourth Circuit's approach in Hernandez-Avalos as “expand[ing] the nexus inquiry to include family status as a central reason even when it is 'incidental' and 'subordinate to another reason for harm.'” Matter of M-R-M-S-, 28 I&N Dec. at 761; quoting Sanchez-Castro v. U.S. Att'y Gen., 998 F.3d 1281, 1287 (11th Cir. 2021) [PDF version]. Having agreed with the approaches of the Tenth and Eleventh Circuits and disagreed with the approach of the Fourth Circuit, the Board explained the outline of a situation wherein family membership is not one central reason for harm:

“If a persecutor is targeting members of a certain family as a means of achieving some other ultimate goal unrelated to the protected ground, family membership is incidental or subordinate to that other ultimate goal and is therefore not one central reason for harm.” Matter of M-R-M-S-, 28 I&N Dec. at 762; See also Sanchez-Castro, 998 F.3d at 1287.
“[W]hen a persecutor's threats to harm family members are contingent on one or more of the family members acting or failing to act in a certain way-such as failing to comply with demands for money or other property-family membership is unlikely to be one central reason for that harm and instead will be merely a means to another end.” Matter of M-R-M-S-, 28 I&N Dec. at 762; Matter of L-E-A-, 27 I&N Dec. at 46-47.

The above two points are general rules. Because every case is fact-specific, there may be family-based claims that, on the surface, appear as if they may run afoul of one of the two above rules, but will ultimately be distinguishable from the examples provided by the Board of claims that should be denied. “Applicants for asylum claiming that gangs or other criminal organizations are targeting them on account of family membership have the burden to establish, through either direct or circumstantial evidence, that their family membership i s more than incidental, tangential, superficial, or subordinate to other motives.” Matter of M-R-M-S-, 28 I&N Dec. at 762.

We note additionally that rules may vary depending on case jurisdiction. For example, as of the publishing of this article, it is unclear how the Fourth Circuit, whose methodology was rejected by the Board, will react to Matter of M-R-M-S-. Moreover, as we noted, family membership can be “subordinate” to another protected ground within the jurisdiction of the Third Circuit.

Applying the Board's Rules to Facts in Matter of M-R-M-S-

Having completed its legal discussion, the Board applied its new, clarified rules regarding family-based particular social groups to the specific facts in Matter of M-R-M-S-. We summarized the facts in an [earlier section].

The Board found that the immigration judge's reasoning for denying the respondents' application for asylum was free of clear error. It explained why the immigration judge's interpretation of the facts presented was permissible based on the evidence in record:

“Although the cartel forced the respondents and others from the land, the record does not indicate that the cartel held any specific animus against the respondents' family apart from their occupation of the land.” Matter of M-R-M-S-, 28 I&N Dec. at 762-73.
“Although one family member was killed by the cartel and others were threatened, the respondents cannot establish a claim simply by showing that they and some other family members faced similar harm.” Id. at 763.
“[T]he record shows that the cartel levied similar threats against neighboring landowners to obtain their land … As win the neighboring landowners, the respondents' possession of the land was an impediment to the cartel's goal.” Id.
“While the respondents' claim necessarily focuses on their family status, the cartel's actions reflect that its focus-the impetus for its conduct-was the desire to take control of the family's land, not the family itself.” Id.

In short, the Board found that the cartel's desire for respondents' land was the central reason for its harming the respondents' family. That the respondents' family owned the land, and not the respondents' family in and of itself, was what motivated the cartels. “A cartel wanting property to advance their criminal purposes and benefit their operations … does not qualify as persecution on account of membership in a particular social group.” Id.; See also Matter of M-F-O-, 28 I&N Dec. 408, 412 (BIA 2021) [PDF version] (observing that cartels and gangs frequent wide segments of society to expand their power and operations).

Conclusion

The Board of Immigration Appeals rules for family-based particular social group claims have been in flux in recent years. Matter of M-R-M-S helps clarify the current environment. Under the rules in effect as of the publication of this article, family-based particular social groups may be cognizable depending on the facts of the particular case. Nuclear-family based groups are not presumptively disfavored, although they may not be cognizable in every case. Assuming arguendo that a family-based group has been established, the alien(s) must establish that his or her group membership is at least one central reason for his or her fear of persecution. While one central reason is a requirement for all asylum claims, Matter of M-R-M-S- highlights specific concerns with respect to establishing one central reason in family-based particular social group cases.

Asylum and withholding of removal applications are fact-intensive. As always, we recommend consulting with an experienced immigration attorney in the areas of asylum and refugee protection prior to pursuing an application for asylum and/or withholding of removal, regardless of whether it is an affirmative application with the United States Citizenship and Immigration Services or a defensive application in immigration court.