As my colleague Dan Cadman noted in a July 30, 2019, post, on July 29, 2019, Attorney General (AG) William Barr issued a decision in Matter of L-E-A-, which reversed a key finding of the Board of Immigration Appeals (BIA) that a family can form a "particular social group" (PSG) for purposes of meeting the test for asylum eligibility. In that decision, the AG both provided bright-line rules for adjudicators to follow in determining when a "family" constitutes a PSG for asylum purposes (which will speed adjudications) and, importantly, reiterated his authority under the Immigration and Nationality Act (INA) to "constru[e] and apply[] provisions in the immigration laws."
By way of background, section 208 gives the attorney general the authority to grant asylum to any alien who has applied for that protection "if the Attorney General determines that such alien is a refugee within the meaning of section 101(a)(42)(A)" of the INA.
Section 101(a)(42)(A) of the INA, in turn, defines the term "refugee" as:
[A]ny 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.
Section 208(b)(1)(B)(i) of the INA, as amended by section 101(a)(3) of the REAL ID Act of 2005, sets the standard for proving an asylum claim:
The burden of proof is on the applicant to establish that the applicant is a refugee, within the meaning of section 101(a)(42)(A). To establish that the applicant is a refugee within the meaning of such section, the applicant must establish that race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant.
PSG is fundamentally different from the other bases for asylum relief because it is much more ambiguous and open to interpretation than the other four bases. As then-Third Circuit Court of Appeals Judge (now Justice) Samuel Alito noted in Fatin v. INS: "Read in its broadest literal sense, the phrase is almost completely open-ended. Virtually any set including more than one person could be described as a 'particular social group.' Thus, the statutory language standing alone is not very instructive."
In Matter of A-B-, then-AG Jeff Sessions attempted to add some clarity to the issue. To do so, he turned to fundamental issues of asylum law, including what "persecution" is, how a "PSG" is defined, and the importance of the requirement that there be a "nexus" between the PSG identified and the persecution that was purportedly inflicted or is feared.
Based upon prior BIA precedent, AG Sessions held that in order for an asylum applicant to establish membership in a PSG, that applicant must demonstrate:
(1) membership in a particular 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; (2) that her membership in that group is a central reason for her persecution; and (3) that the alleged harm is inflicted by the government of her home country or by persons that the government is unwilling or unable to control.
Most significantly, to be cognizable as a "PSG," the group must "'exist independently' of the harm asserted in an application for asylum or statutory withholding of removal." As he explained:
If a group is defined by the persecution of its members, then the definition of the group moots the need to establish actual persecution. For this reason, "[t]he individuals in the group must share a narrowing characteristic other than their risk of being persecuted."
Referring to the BIA's decision in Matter of M-E-V-G-, AG Sessions also noted that a PSG must have "requisite particularity," not be "amorphous, overbroad, diffuse, or subjective," and that "not every 'immutable characteristic' is sufficiently precise to define a" PSG. The attorney general also reiterated that to be a PSG, the group must be "recognizable by society at large."
Importantly, he stated:
Social groups defined by their vulnerability to private criminal activity likely lack the particularity required under M-E-V-G-, given that broad swaths of society may be susceptible to victimization. ... Victims of gang violence often come from all segments of society, and they possess no distinguishing characteristic or concrete trait that would readily identify them as members of such a group.
Turning to the definition of "persecution," the attorney general noted that this concept has "three specific elements": "an intent to target a belief or characteristic;" that "the level of harm must be 'severe;'" and that "the harm or suffering must be 'inflicted either by the government of a country or by persons or an organization that the government was unable or unwilling to control."
As for the first element, AG Sessions noted: "private criminals are motivated more often by greed or vendettas then by an intent to 'overcome the protected characteristic of the victim.'"
With respect to the "severity" element, he conceded that "[p]rivate violence" could satisfy this standard.
Addressing the third element for "persecution," Sessions held:
An applicant seeking to establish persecution based on violent conduct of a private actor "must show more than 'difficulty ... controlling' private behavior." ... The applicant must show that the government condoned the private actions "or at least demonstrated a complete helplessness to protect the victims." ... The fact that the local police have not acted on a particular report of an individual crime does not necessarily mean that the government is unwilling or unable to control crime, any more than it would in the United States. There may be many reasons why a particular crime is not successfully investigated and prosecuted. Applicants must show not just that the crime has gone unpunished, but that the government is unwilling or unable to prevent it.
He also addressed the critical "nexus" requirement for asylum relief. He noted that, when assessing whether persecution was inflicted on account of a protected ground, the focus is on the motive of the persecutor, that is, "why the persecutor[] sought to inflict harm."
AG Sessions held:
A criminal gang may target people because they have money or property within the area where the gang operates, or simply because the gang inflicts violence on those who are nearby. ... That does not make the gang's victims persons who have been targeted "on account of" their membership in any social group.
AG Barr applied these standards (which, as noted, all were based upon already prevailing case law at the time Matter of A-B- was issued) to asylum claims based upon membership in the PSG of "family". This was necessary because, as I explained in a November 5, 2018, post:
I have recently been told that applicants have been converting claims that would otherwise be barred by [Matter of A-B-] into claims premised on familial relationships to targeted individuals, such as the parents of males targeted for gang recruitment. The minors in question can then "ride" on the parents' asylum applications.
In Matter of L-E-A-, the BIA recently reiterated that family may be a "[PSG]" for purposes of asylum under section 208 of the [INA]. It held, however:
[M]embership in such a group does not necessarily establish a nexus to a ground protected under the Act. Rather, the respondent must demonstrate that the family relationship is at least one central reason for the claimed harm to establish eligibility for asylum on that basis.
Such determinations are fact-based, however, and are therefore time-intensive because they require the consideration of significant evidence, both country-conditions evidence as well as applicant testimony and documentation.
The Matter of L-E-A- referenced in the foregoing passage was part of the case below that then-Acting AG Matthew Whitaker took on certification, which led to his successor's, AG Barr's, decision in Matter of L-E-A-.
Bright-line rules in this area are necessary because the concept of "family" as a PSG had not been subject to the same rigorous analysis as other claimed PSGs: rather, they had simply been assumed as such, a point the AG detailed at some length in his decision.
Specifically, he noted that: "Asylum applicants generally seek to establish family-based groups as 'particular social groups' by raising one of two principal arguments.":
First, many applicants assert a specific family unit as their "particular social group." ... But to qualify under the statute and Board precedent, when an applicant proposes a group composed of a specific family unit, 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.
With respect to such applications, Barr clarified:
In analyzing these claims, adjudicators must 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. If an applicant claims persecution based on membership in his father's immediate family, then the adjudicator must ask whether that specific family is "set apart, or distinct, from other persons within the society in some significant way." ... It is not sufficient to observe that the applicant's society (or societies in general) place great significance on the concept of the family. If this were the case, virtually everyone in that society would be a member of a cognizable particular social group. The fact that "nuclear families" or some other widely recognized family unit generally carry societal importance says nothing about whether a specific nuclear family would be "recognizable by society at large." ... The average family — even if it would otherwise satisfy the immutability and particularity requirements — is unlikely to be so recognized. [Emphasis added.]
The second principal argument that Barr identified (mirroring my observation above) are those asylum applicants who contend that their particular social group consists of "a collection of familial relatives of persons who have certain shared characteristics." Among these, the AG included decisions that defined social groups that included: "immediate family members of Honduran women unable to leave the domestic relationship"; "family members of persons who have been killed by rival gang members"; "relatives of assassination suspects"; "families of Salvadoran young adults who were subjected to, and rejected, gang recruitment"; "family members of those who actively oppose gangs in El Salvador by agreeing to be prosecutorial witnesses"; and "members of families who sought police assistance against the Mara 18."
He noted:
Often, this category of family classifications fails 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. ... Furthermore, when proposing these kinds of groups, applicants risk impermissibly defining their purported social group in terms of the persecution it has suffered or that it fears.
After surveying several administrative decisions interpreting PSG for purposes of asylum, the AG held: "Based upon these immigration decisions, 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."
Despite this, he made clear that not all family-based social groups are barred from qualifying for asylum. That said, he warned that "unless an immediate family carries greater societal import [like Somali subclan membership], it is unlikely that a proposed family-based group will be 'distinct' in the way required by the INA for purposes of asylum."
More generally, Barr also advised adjudicators to "be skeptical of social groups that appear to be 'defined principally, if not exclusively, for purposes of litigation ... without regard to the question of whether anyone in a given country perceives those groups to exist in any form whatsoever." [Brackets removed.] This addresses the sort of "reverse-engineered" asylum claim in which an applicant bases such claim upon a series of cobbled-together characteristics the applicant possesses, to assert a basis for asylum that is actually the result of criminal activity or generalized harm.
The AG also used that opportunity to clarify and highlight his legal authority to interpret ambiguous provisions in the INA (like "PSG") as a preliminary matter, likely anticipating circuit-court challenges to his decision.
As he stated, the "primary responsibility for construing and applying provisions in the immigration laws" rests with him. Specifically, under section 103(a)(1) of the INA, his "determination and ruling ... with respect to all questions of law shall be controlling." He continued:
Plainly, the term "particular social group" is ambiguous, and every court of appeals to address the proper application of the phrase "particular social group" has deferred to decisions of the Board in the phrase's application. Congress thus delegated to the Attorney General the discretion to reasonably interpret the meaning of "membership in a particular social group," and such reasonable interpretations are entitled to deference. ... As the Supreme Court has recognized, "'ambiguities in statutes within an agency's jurisdiction to administer are delegations of authority to the agency to fill the statutory gap in reasonable fashion. Filling these gaps ... involves difficult policy choices that agencies are better equipped to make than courts.'" ... This principle holds even in cases where the courts of appeals might have interpreted the phrase differently in the first instance.
The power of the AG to use the certification process to shape immigration policy and law has been underutilized for decades. That is likely more a factor of the neglect with which the immigration courts and the BIA have been treated for decades than in a volitional determination to allow those bodies and the federal courts to interpret the INA.
Needless to say, this has changed significantly under the Trump administration, for the better. Providing more and clearer guidance to adjudicators, and in particular immigration judges, in interpreting ambiguous language (like "PSG") in the INA will enable them to more quickly make determinations, meaning fewer continuances, quicker decisions, and eventually, a smaller backlog of pending cases.