On June 11, 2018, the Attorney General issued a precedential decision concerning the “persecution” and “particular social group” elements of asylum claims and how they may specifically apply to victims of domestic abuse and gang violence. Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018). Specifically, the AG’s decision targeted a precedential case issued by the Board of Immigration Appeals (BIA) in 2014 that held, generally, that women suffering from domestic violence could constitute a cognizable particular social group. Matter of A-R-C-G-, 26 I&N Dec. 338 (BIA 2014). The Attorney General overruled A-R-C-G- and issued eight other instructive points to be considered by, credible/reasonable fear officers, immigration judges and the BIA when deciding asylum cases and claims. Most of these instructive points simply restate existing statutory, regulatory, and Circuit Court case law, but it is the Attorney General’s general rejection gang and domestic violence claims that is most concerning.
Neither “membership in a particular social group” nor “persecution” is defined by the Immigration and Nationality Act, leaving the relevant administrative agencies and Circuit Courts to develop a standard, workable definition over time. The working parameters for the term “persecution” were established by the BIA in its 1983 decision, Matter of Laipenieks:
“The infliction of suffering or harm, under government sanction, upon persons who differ in a way regarded as offensive (e.g., race, religion, political opinion, etc.), in a manner condemned by civilized governments. The harm or suffering need not be physical, but may take other forms, such as the deliberate imposition of severe economic disadvantage or the deprivation of liberty, food, housing, employment or other essentials of life.”[i]
Subsequent decisions built upon this formulation by distinguishing harm that rises to the level of persecution (i.e., harm inflicted “in a manner condemned by civilized governments”) from harm that does not, and by clarifying when the actions of private persons can be said to be “under government sanction.”[ii] The difficulty in establishing persecution for gang violence claims pre-dates A-R-C-G- because the nature of gang activity is sometimes less persecution and more criminal acts (e.g., extortion), and is not sanctioned or encouraged by the government.[iii] Domestic violence claims are is similarly situated.
Regarding particular social group, the BIA has held that the respondent must establish that the purported social group is “(1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within society in question.”[iv] The “particularity” requirement addresses “the question of delineation,” which clarifies the point that not every immutable characteristic is sufficiently precise to define a particular social group.[v] The “social distinction” requirement clarifies the importance of perception or recognition by the public to the concept of a particular social group.[vi]
However, the BIA’s precedential decision in A-R-C-G-, which held that “married women in Guatemala who are unable to leave their relationship” was a qualifying particular social group, may have been lacking in critical legal and factual analysis.[vii] This was the result of multiple concessions by the Department of Homeland Security that presupposed (1) qualifying persecution, (2) the definition of the particular social group, (3) its particularity, and (4) its social distinctness.[viii] The only question left to the BIA to actually consider (and consequently the only real precedent in the decision) was (5) whether the Guatemalan government was unwilling or unable to control her husband.[ix] Yet until June 11th, A-R-C-G- was the BIA’s go-to standard for a prima facie showing of (1) qualifying persecution for (2) domestic violence victims as a (3) particular and (4) socially distinct group that (5) the government cannot help.
In A-B-, the Immigration Judge stalled in issuing a decision and instead asserted that recent developments in Circuit Court case law may be in conflict with A-R-C-G-, citing Fuentes-Erazo v. Sessions (8th Cir. 2017), Cardona v. Sessions (1st Cir. 2017), Marikasi v. Lynch (6th Cir. 2016), and Vega-Ayala v. Lynch 1st Cir. 2016, and relying heavily on the reasoning in Velasquez v. Sessions (4th Cir. 2017) (see Wilkinson, J., concurring). The Attorney General seized upon this case to overrule A-R-C-G-, and reiterate and reinforce the BIA’s other prior precedents. He also took the extra step to generally exclude from asylum benefits those who are fearful of victims of domestic violence and gangs by determining they are unlikely to meet the standard for persecution and membership in a particular social group:
“Generally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum. While I do not decide that violence inflicted by non-governmental actors may never serve as the basis for an asylum or withholding application based on membership in a particular social group, in practice such claims are unlikely to satisfy the statutory grounds for proving group persecution that the government is unable or unwilling to address. The mere fact that a country may have problems effectively policing certain crimes – such as domestic violence or gang violence – or that certain populations are more likely to be victims of crime, cannot itself establish an asylum claim.”[x]
This statement presumes ineligibility for certain asylum claims and will have a practical application on the implementation of U.S. immigration laws – laws that affect real people. According to the most recent EOIR Asylum statistics,[xi] 65,218 asylum applications were filed in FY2016. The Northern Triangle countries constituted about 60% of those applications (17,709 El Salvador; 11,354 Guatemala; 10,818 Honduras).[xii] But when tracking Northern Triangle asylum claims from FY2012 through FY2016, the numbers show that rates of denials are consistently three, four, and five times higher than rates of approvals.[xiii]
Unfortunately, the data does not separate asylum applications by their protected ground, but only by country of origin, so we cannot tell how many of these asylum claims originating from gang or domestic violence were approved or denied. According to Reuters analysis of date from the EOIR, “[a]t least 230,000 of the 711,000 cases before U.S. immigration courts involve asylum petitions from Central America and Mexico…. Attorneys said most claims from this region are based on domestic or gang violence.”[xiv] But if the denial rate is repeatedly double or triple the approval rate for Northern Triangle asylum applicants, either these types of claims are frequently outside the protections of U.S. asylum law or the attorneys or pro se litigants are doing a terrible job in developing their claim. The Attorney General concluded the former, stating: “asylum was never meant to alleviate all problems – even all serious problems – that people face every day all over the world.”[xv]
To be clear, the Attorney General has not precluded the filing of asylum applications that originate from a fear of gang or domestic violence, but he has established a presumption of non-eligibility. Cases currently pending will likely be denied, but A-B- is even more concerning because it has immediate applicability to aliens from the Northern Triangle (and Mexico) who are presenting themselves at ports of entry and requesting a credible fear interview. Previously, an expression of fear due to gangs or domestic violence was often enough to get into the United States and pursue an asylum claim before USCIS or the immigration courts. But the plain language of A-B- indicates that a significant number of these hopeful aliens could be immediately turned back without even having an honest and fair chance to state their claim.
While that may not seem to be a problem for some, especially in light of the denial rate and backlog, I am not convinced that is the proper way for asylum claims to be initially heard and considered. Asylum applicants are not above the law and must demonstrate eligibility and prove their case like any other alien or petitioner filing requesting an immigration benefit. Still, asylum exists to shelter those suffering and, in my opinion, the initial screening process should err on the presumption of eligibility, not ineligibility, as it previously has done. The consequences of not proceeding in this fashion are dire.[xvi] Once the claim is established, the merits of the case are fully developed and decided and if the case falls short of the standard it will (under this Administration) be denied. The Attorney General’s decision perverts that presumption in what appears to be an effort to simply reduce the total number of asylum applications filed in general. And while this may do wonders for the backlog, I would like to believe that, when considering changes to asylum laws, the genuine concern is not for the weak case that was approved but for the strong case that was turned away. A presumption of ineligibility turns cases away.
To be clear, the Attorney General has clear and unchallenged power to review any decision in immigration proceedings under INA § 103(a)(1), INA 103(g)(2), and 8 C.F.R. § 1003.1(h)(1). That includes review of precedential decisions and does not require acceptance of long-standing case law. His decision in A-B- should be afforded Chevron deference at the Circuit Court level,[xvii] unless there is a successful legal challenge on the underlying procedural issues.[xviii] His interpretation need not be the one that the appellate courts would have adopted had it interpreted the statute on its own. Rather, the interpretation need only be deemed “reasonable” in order to be upheld.[xix]
Key Holdings from Matter of A-B-:
(1) Matter of A-R-C-G-, 26 I&N Dec. 338 (BIA 2014) is overruled. That decision was wrongly decided and should not have been issued as a precedential decision.
(2) An applicant seeking to establish persecution on account of membership in a “particular social group” must demonstrate: (1) membership in a group, which is composed of members who share a common immutable characteristic, is defined with particularity, and is socially distinct within the society in question; and (2) that membership in the group is a central reason for her persecution. When the alleged persecutor is someone unaffiliated with the government, the applicant must also show that her home government is unwilling or unable to protect her.
(3) An asylum applicant has the burden of showing her eligibility for asylum. The applicant must present facts that establish each element of the standard, and the asylum officer, immigration judge, or the Board has the duty to determine whether those facts satisfy all of those elements.
(4) If an asylum application is fatally flawed in one respect, an immigration judge or the Board need not examine the remaining elements of the asylum claim.
(5) The mere fact that a country may have problems effectively policing certain crimes or that certain populations are more likely to be victims of crime, cannot itself establish an asylum claim.
(6) To be cognizable, a particular social group must exist independently of the harm asserted in an application for asylum.
(7) An applicant seeking to establish persecution based on violent conduct of a private actor must show more than the government’s difficulty controlling private behavior. The applicant must show that the government condoned the private actions or demonstrated an inability to protect the victims.
(8) An applicant seeking asylum based on membership in a particular social group must clearly indicate on the record the exact delineation of any proposed particular social group.
(9) The Board, immigration judges, and all asylum officers must consider, consistent with the regulations, whether internal relocation in the alien’s home country presents a reasonable alternative before granting asylum.
Ryan Morgan Knight is an associate attorney with Haynes Novick Immigration in Washington, DC, focusing his practice on a broad spectrum of employment-based nonimmigrant and immigrant visas. He has prior experience with asylum and removal defense.
[i] Matter of Laipenieks, 18 I&N Dec. 433, 456-457 (BIA 1983), rev’d on other grounds, 750 F.2d 1427 (9th Cir. 1985). While Laipenieks itself distinguished prosecution – or the “punishment of criminal conduct” – from persecution, it noted that “where that punishment entails such things as severe beatings or being sent to a Nazi concentration camp … and is motivated by one of the specified grounds, such punishment would constitute persecution under the Act.” Id., 459 n.18.
[ii] Asylum and Gang Violence: Legal Overview, Congressional Research Service, Kate M. Manuel, September 5, 2014, page 6.
[iii] See Martinez-Beltrand v. Attorney General, 536 F. App’x 243, 245 (3rd Cir. 2013) (gang’s actions were “attempt[s] to extort money” and, thus, “orindary criminal activity” of the sort that “does not rise to the level of persecution necessary to establish eligibility for asylum) and Conseca-Cruz v. Holder, 533 F. App’x 847, 848 (10th Cir. 2013); but compare Lopez-Soto v. Ashcroft, 383 F.3d 228, 234 (4th Cir. 2004) (noting, of the Mara 18 gang in Guatemala, that “there is no dispute that Petitioner has a well-founded fear of persecution by an organization which the government is unable to control”) and Ulloa Santos v.
Attorney General, 552 F. App’x 197, 199 n.1 (3d Cir. 2014) (noting that the government of El Salvador had “publicly acknowledged” the failure of its “manu duro,” or “firm hand,” policy as to the gangs).
[iv] Matter of M-E-V-G-, 26 I&N Dec. 227, 237 (BIA 2014), see also Matter of Acosta, 19 I&N Dec. 211, 232-33 (BIA 1985).
[v] Matter of W-R-G-, 26 I&N Dec. 208, 214 (BIA 2014).
[vi] Id., 216.
[vii] See A-B-, 319.
[viii] A-R-C-G-, 392-95.
[ix] A-B-, 331.
[x] Matter of A-B-, 320.
[xi] U.S. Department of Justice, Executive Office for Immigration Review, Office of Planning, Analysis, and Technology, Immigration Courts, Asylum Statistics, FY 2012 – 2016
[xii] During FY2016, Mexican nationals filed over 12,000 asylum applications, rounding out the top four source countries for asylum applications. By comparison, Indian and Chinese nationals both submitted less than 2,000 asylum applications, despite rampant domestic violence in the former and religious persecution in the latter.
[xiii] U.S. Department of Justice, Executive Office for Immigration Review, Office of Planning, Analysis, and Technology, Immigration Courts, Asylum Statistics, FY 2012 – 2016
[xiv] https://www.reuters.com/article/us-usa-immigration-asylum/thousands-of-us-asylum-claims-in-doubt-after-sessions-decision-idUSKBN1J82RZ; see also www.latimes.com/politics/la-na-pol-sessions-asylum-20180611-story.html
[xvi] In June 1939, the German ocean liner St. Louis and its 937 passengers, almost all Jewish, were turned away from the port of Miami, forcing the ship to return to Europe; more than a quarter died in the Holocaust.
[xvii] Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 US 837 (1984).
[xviii] See Brief Amici Curiae of Sixteen Former Immigration Judges and Members of the Board of Immigration Appeals Urging Vacatur of Referral Order and In Support of Respondent (2018).
[xix] See, e.g., Claros Cantarero v. Holder, 734 F.3d 82, 86 (1st Cir. 2013) (“We cannot say that the BIA’s interpretation is either unreasonable or impermissible.”); but compare Encino Motors, LLC v. Navarro, 136 S. Ct. 2117, 2126 (2016) (“[A]n ‘[u]nexplained inconsistency’ in agency policy is ‘a reason for holding an interpretation to be an arbitrary and capricious change from agency practice,’” and thus finding that the interpretation is not entitled to Chevron deference).