The BIA published a decision reaffirming Matter of L-E-A-, 27 I&N Dec. 40 (BIA, 2017), which held that members of an immediate family can form a particular social group, depending on the facts and circumstances of the case. The respondents, M-R-M-S-, are a Mexican family of three adults and two minor children. They lived with the lead respondent’s grandson before he was murdered by a criminal cartel. Although they cannot confirm the reason he was killed, they believe the cartel’s motive involved their taking ownership of his land. That same cartel then forced the rest of the family off their property. The cartel also expelled other families from their land in the same area. The respondents fled Mexico and applied for asylum in the United States, arguing that they feared the cartel had targeted them on account of their family membership. The respondents also alleged that the Mexican government was unable or unwilling to protect them from the cartel.

The immigration judge (IJ) denied asylum for a lack of nexus between the cartel’s actions and the respondents’ basis for asylum. The IJ found that the cartel was motivated by a desire to control the respondents’ land rather than by their family membership. Although fear of persecution on account of family membership can be a basis for asylum, that same fear of harm or death on account of the persecutor’s desire to occupy the applicant’s land will not. The BIA affirmed the IJ’s denial. In a sweeping statement, it found that if a persecutor is targeting members of a certain family as a means of achieving some goal unrelated to the protected ground, family membership is “incidental” or “subordinate” rather than a central reason to the persecutor’s goal. The BIA held this is also true when the persecutor’s actions are motivated by a family’s failure to comply with their demands for money or property.

The BIA then concluded that to be successful in an asylum claim based on family membership, an applicant must demonstrate that the persecutor’s motive for harm is based on a desire to overcome the protected characteristic of the family or on an animus against the family. One nonexclusive way to make this showing, explained the BIA, is to demonstrate that family membership is connected to another protected ground, such as political opinion, that is intertwined with or underlies the dispute. For example, such a showing could include a politically active family or a persecutor who dislikes a certain family member and, thus, punishes the rest of the family. The BIA noted that fears of gang activity, which involve many Central American cases that are based primarily on financial gain and recruitment, rarely support a showing of nexus to a protected ground such as family membership. The BIA recognized that understanding the persecutor’s reasons requires a fact-intensive and fact-dependent inquiry.

Ultimately, the BIA relied on the facts in the record and found that the family was persecuted because of the cartel’s desire to control their land and not the applicants’ family membership. The BIA concluded this even though the cartel forced the family off their property. It found that the record did not indicate the cartel held any animus against the respondents’ family apart from their land occupation. In reaching its conclusion that family membership was not one central reason for the harm, the BIA also found it significant that there were other members of the family who were not harmed,

The BIA recognized the differing circuit case law regarding family-based claims and the varying approaches to assessing such claims where one of those non-protected grounds is at least related to an applicant’s family membership. For instance, in agreeing with the Tenth Circuit’s approach, where this case arose, the BIA disagreed with the Fourth Circuit’s approach in Hernandez-Avalos v. Lynch, 784 F.3d 944 (4th Cir. 2015). In that case, the Fourth Circuit held that the asylum applicant’s family membership was at least one central reason for the persecution by finding that her relationship to her son was the motivating factor for why she, and not another person, was persecuted. The BIA disagreed with the Fourth Circuit’s interpretation of the nexus requirement, reasoning that while it is relevant to consider why an asylum applicant and not another individual was targeted by the persecutors, this question alone does not sufficiently demonstrate that family group membership was one central reason for the harm.

Notably, the BIA confirmed that the IJ’s finding “is a permissible view of the evidence and is not clearly erroneous,” thereby limiting its holding to the facts in this case. Thus, in cases with different facts and under diverse circumstances, an IJ could find that nexus had been sufficiently established between the persecution and the family membership. Furthermore, in a footnote, the BIA recognized that the nexus standard for withholding of removal is lower in the Ninth and Sixth Circuits. Those circuits require only that the protected ground be one reason and not the central reason for the harm. In these circuits, therefore, family membership can be a reason for the claimed persecution, even if it is merely incidental or tangential to some other motive.

Implications for Practitioners:

While Matter of M-R-M-S seeks to clarify family-based particular social group claims, the nexus analysis is fact-intensive, case-specific, and depends heavily on circuit case law. For instance, despite this decision, the law in the Fourth Circuit, and in any other circuit that follows it, will continue to operate. Despite dealing heavily with the particular social group of family membership, this holding does not have any bearing on the plausibility of family membership as a particular social group. Practitioners should continue to advocate for the cognizability of the family-based particular social group and aim to demonstrate through direct or circumstantial evidence that the persecutor’s motive for the harm was a desire to overcome the protected characteristic of the family or otherwise based on animus against the family. Practitioners should also explore arguments that the family-based particular social group is intertwined with another protected characteristic, such as political opinion, and preserve all non-Particular Social Groups (PSG) protected grounds.