Attorney General issues precedent decision, Matter of A-B-, seeking to limit protection for asylum seekers
Attorney General Jeff Sessions issued the precedent decision, Matter of A-B-, 27 I&N Dec. 227 (A.G. 2018), on June 11, 2018, where he overruled a prior Board of Immigration Appeals (BIA) case, Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014). Matter of A-R-C-G- essentially held that victims of domestic violence can qualify for asylum based on their particular social group (PSG) of “married women in Guatemala who are unable to leave their relationship.” Under U.S. law, to qualify for asylum, an asylum seeker must establish past persecution or a well-founded fear of persecution on account of a protected ground, and one of those protected grounds is “particular social group.” Further, the protected ground must be “at least one central reason” for the harm.
Procedural history of Matter of A-B-
Matter of A-B- has taken a very complicated and unusual procedural path. On March 7, 2018, Sessions certified an unpublished BIA decision, Matter of A-B-, to himself. A-B-, a woman from El Salvador, suffered severe emotional, sexual and physical abuse from her ex-husband, with whom she has three children. A-B- tried to escape her husband, but he continued to pursue her throughout the country. She applied for asylum and the immigration judge (IJ) denied her application based on four reasons: 1) she was not credible; 2) she was not a member of a qualifying “PSG”; 3) even if she did establish a cognizable “PSG,” her membership in this group was not “one central reason” for the harm she suffered; and 4) she failed to show that the Salvadoran government was unwilling or unable to protect her. A-B- appealed to the BIA. The BIA applied Matter of A-R-C-G-, reversed the IJ’s decision, and held that A-B- qualified for asylum based on the domestic violence she had suffered and the Salvadoran government’s unwillingness or inability to protect her. The BIA then remanded the case to the IJ for background checks and a grant of asylum. However, instead of granting the case, the IJ issued an order purporting to certify and return the case to the BIA.
In March 2018, after admitting that the IJ’s sua sponte decision to certify the case back to the BIA was erroneous, the attorney general (AG) nonetheless certified the case to himself under 8 CFR § 1003.1(h)(1)(i). This was considered a procedural irregularity because the AG can only certify cases before the BIA, and technically Matter of A-B- was still before the IJ. In response to this certification, several organizations, including CLINIC, submitted amicus curiae briefs; the Center for Gender and Refugee Studies (CGRS) represented A-B- on the certification. In the briefing, the Department of Homeland Security (DHS) even conceded that Matter of A-R-C-G- was decided correctly. The briefing can be found here. Regardless of the procedural irregularity of the case, and DHS’s position in the case, the AG issued his decision overturning Matter of A-R-C-G- and attempting to upend other aspects of settled asylum law.
The development of particular social group law at the BIA
Asylum jurisprudence based on gender, and domestic violence in particular, has followed a long and winding path through the BIA and federal courts. In order to understand the impact of the Matter of A-B- decision, it would be helpful to briefly review the history of the law.
The first BIA decision to consider gender and sex as an immutable characteristic that could define a PSG was Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996), which granted asylum and found a PSG in the context of female genital cutting. In 1999, the BIA first visited the issue of domestic violence as a ground for asylum in Matter of R-A-. This is the well-known case of Rosie Alvarado, who suffered decades of physical abuse at the hands of her former military husband in Guatemala. The IJ granted Ms. Alvarado asylum and applied the test in Matter of Acosta 19 I&N Dec. 211 (BIA 1985), which concluded that immutable characteristics such as age and gender can form a PSG. However, in 1999, the BIA reversed the grant of asylum and held that the claim was not based on a cognizable PSG. It also held that even if it were based on a valid ground, there had been no showing of a nexus between the harm and the protected ground. Matter of R- A-, Int. Dec. 3403 (BIA 1999), vacated (AG 2001).
Following that decision, and after strong advocacy from women’s and immigrants’ rights organizations, the Department of Justice issued proposed asylum regulations, which also included guidance on gender based asylum claims. The regulations were never promulgated, however, and Ms. Alvarado’s case continued to be litigated before the BIA and Ninth Circuit. Eventually, attorneys for DHS agreed with the premise that domestic violence can be a basis for asylum under the Acosta test, and urged that Ms. Alvarado be granted asylum based on her PSG of “married women in Guatemala who are unable to leave the relationship.” Eventually, the BIA remanded the case back to the IJ and Ms. Alvarado was granted asylum by the IJ in 2009. Matter of R-A-, 24 I&N Dec. 629 (A.G. 2008).
While Ms. Alvarado’s case was pending, however, the BIA issued Matter of C-A-, 23 I&N Dec. 951 (BIA 2006), another PSG-based asylum case involving a witness to a crime. In this decision, the BIA further delineated the PSG test and added to it, finding that for a PSG to be cognizable, in addition to being based on an immutable characteristic, it also must have “social visibility.”
In 2009, following Matter of C-A-, the BIA considered another domestic violence asylum case of a Mexican woman in a non-marital relationship, Matter of L-R-. Once again, DHS recognized the validity of asylum based on domestic violence, and in applying this new two-pronged test, it proposed PSGs of “Mexican women who are unable to leave a domestic relationship” or “Mexican women who are viewed as property based on their position within a domestic relationship.” Matter of L-R- was remanded back to the IJ who granted the respondent asylum in 2010. After Matter of R-A- was vacated in 2004, practitioners had been successful in pursuing asylum claims based on domestic violence both before the asylum office and the IJ.
The BIA issued two more PSG cases that dealt with gang-related issues. These decisions, Matter of W-G-R, 26 I&N Dec. 208 (BIA 2014), and Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014), established a three-prong PSG test. Under these cases, each PSG must demonstrate the following: immutability, social distinction and particularity, and that each social group formulation be considered on a “case by case” basis.
In 2014, the BIA decided Matter of A-R-C-G-, a case of a Guatemalan woman in a marital relationship who had suffered decades of physical and sexual abuse at the hands of her husband. While the decision is narrow, the BIA concluded that the PSG of “married women in Guatemala who are unable to leave the relationship” was cognizable because it met the three-part test. First, the immutability prong was met with the characteristics of gender and in some cases marital status. Second, the particularity prong was met because the terms “married” “women” “unable to leave the relationship” can be combined to create a group with discrete boundaries. Finally, the social distinction prong was met with evidence that Guatemala has a culture of “machismo and family violence” and thus the enforcement of domestic violence laws was virtually impossible. The BIA remanded the case to the IJ for further proceedings to determine whether the Guatemalan government was unwilling or unable to control ARCG’s ex-husband – a private actor.
The AG’s Decision in Matter of A-B- Overrules Matter of A-R-C-G-
Attorney General Sessions overruled Matter of A-R-C-G- on June 11, 2018, and placed domestic violence-based PSGs again in the nebulous area. Matter of A-B- touched on several aspects of asylum law, but most notably domestic violence, as a basis for asylum and whether private actor harm supports a past persecution finding.
First, the decision attacks the social group formulation of “married women in Guatemala who are unable to leave their relationship” because the group is “defined by the harm.” In other words, the reason that A-R-C-G- could not leave the relationship was because she was being abused, which is a circular analysis. Further, the decision indicates that the BIA did not engage in a full PSG analysis applying the three-part test, especially “particularity,” in Matter of A-R-C-G-.
Second, the decision attacks the past persecution analysis made in A-R-C-G-. One of the many things A-B- does, based on flawed analysis, is to elevate the burden in “private actor” harm. The decision states that the “applicant must show that the government condoned the private actions or at least demonstrated a complete helplessness to protect the victims.” Matter of A-B-, 27 I&N Dec. at 337. Decades of jurisprudence, and the INA, clearly establish that harm from private actors can form the basis of an asylum claim and that the burden on the asylum applicant is to show that the government was “unwilling or unable” to control the private actor persecutor. See INA § 101(a)(42).
Third, the decision touched on the nexus element of the asylum definition. The decision states that Matter of A-R-C-G- does not cite to any evidence that A-R-C-G-’s husband attacked her based on her PSG, but rather that he attacked her because of his personal relationship with her. The decision goes on to note that if the “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.” Id. at 339.
Finally, the decision, in dicta, discusses gang-related asylum claims and makes the assertion that “[g]enerally…gang violence perpetrated by non-governmental actors will not qualify for asylum.” This assertion was not supported with any evidence or case law, nor was gang violence an issue in A-B- or in A-R-C-G-.
There are more issues discussed in A-B-, including credibility, internal relocation, discretion, and in referencing Matter of W-Y-C- & H-O-C- 27 I&N Dec. 189 (BIA 2018), the requirement that a PSG be clearly indicated on the record. While a careful reading of this decision is recommended, the decision does not necessarily alter the existing law as to these other issues.
Asylum post Matter of A-B-
Representatives and advocates should understand and argue vigorously that Matter of A-B- does not foreclose asylum for domestic violence survivors or those fleeing gang violence.
First, while the AG’s intention with Matter of A-B- may have been to foreclose asylum from private actors by attempting to heighten the standard in such cases, it provides very little legal basis to do so. Practitioners should continue to argue the correct legal standard set out in the INA and interpreted by the federal courts. (See, for example, Nabulwala v. Gonzales, 481 F.3d 1115 (8th Cir. 2007)). Practitioners should be aware that adjudicators may see A-B- as requiring a heightened legal standard and should be prepared to fully document failed efforts by the authorities to provide protection from persecution. Practitioners should supply country conditions materials on the government’s unwillingness or inability to protect and, in defensive cases, where feasible, enlist expert witnesses to provide evidence on this issue.
Second, the existing legal framework for PSG claims set out in Matter of M-E-V-G- was not altered by Matter of A-B-. Therefore, claims based on domestic violence can still be advanced as they were before the BIA decided Matter of A-R-C-G-. The BIA must look at every asylum case on a “case by case” basis and adjudicators should not construe Matter of A-B- as a blanket rejection of all domestic violence asylum claims. While there may be push back from IJ’s, it is all the more important to properly screen clients for other protected grounds and to advance as many legally supported alternative PSGs based on gender or other characteristics as possible. Practitioners should fully support the three-part social group test with testimony, expert testimony, and country condition information. In formulating a domestic violence based PSG, practitioners should not mirror the A-R-C-G- PSG of “married women who are unable to leave the relationship,” since A-B- held that A-R-C-G- was wrongly decided.
Third, when supporting a nexus finding where the harm is from a private actor, practitioners should be careful to support the record with both direct and circumstantial evidence, as well as argue that the case law supports a mixed motive analysis. Under the law, the protected characteristic must be “at least one central reason” for the persecutor’s actions, but it does not have to be the only reason.
Finally, asylum based on gang violence has not been foreclosed and its mention in Matter of A-B- should be construed as dicta. Advocates should continue to advance gang-based asylum claims as long as there is a nexus to a protected ground. For example, although A-B- attacks family as a PSG in a footnote, Matter of L-E-A-, 27 I&N Dec. 40 (BIA 2017), is still good law.
While Matter of A-B- is definitely as step backwards, it should not be considered as a blanket rejection of domestic violence-based asylum claims since they will continue to be considered for now, at least by USCIS. Furthermore, with both the procedural irregularities in the AG issuing a decision in A-B- and his frequent mischaracterizations of established asylum law, it remains to be seen how federal courts will respond to Matter of A-B-. It is therefore critical that practitioners advance every argument possible in cases where noncitizens fear return to their home countries.
For a thorough analysis on the Matter of A-B- decision, its impact, and practice pointers going forward, please consider reviewing this webinar and related PowerPoint from the Center for Gender and Refugee Studies. IN addition, continue to check the CGRS website as they will be issuing a practice advisory on representing asylum claims post Matter of A-B-.