On Thursday, September 24, Attorney General (AG) William Barr issued a decision on certification in Matter of A-C-A-A-. In that case, which involved alleged gender-based persecution, he analyzed and reiterated the standards that the BIA must follow in reviewing asylum claims, here a gender-based claim based on parental violence. It was a hard decision (as the facts show), but the correct one in light of black-letter law.
The respondent/applicant is a Salvadoran female who entered the United States illegally in 2012. She was placed into removal proceedings in 2013, and (as if to demonstrate the deleterious effects of the immigration-court backlog), didn't concede removability until 2018. As relief from removal, she applied for asylum and other unspecified "immigration protection" (likely statutory withholding and protection under the Convention Against Torture).
The basis of her claim was that she had suffered persecution on account of her membership in the particular social group of "Salvadoran females". She further contended that she had a well-founded fear of future persecution at the hands of her former romantic partner, gang members, and the Salvadoran police. Each claim was premised on the fact, again, that she was a "Salvadoran female".
The immigration judge (IJ) found that she had suffered past persecution (physical and psychological abuse by her parents) on account of her membership in that group, but concluded that there were "changed circumstances" in her case — specifically, that she was then 29 and wouldn't be living with her parents — and no longer had a well-founded fear (required for asylum) based upon her original claim.
Despite this fact, the IJ granted the respondent "humanitarian asylum", concluding "she would face 'other serious harm' were she to return to El Salvador."
DHS appealed that decision, questioning the respondent's credibility, as well as whether she had shown the necessary nexus between the harm the IJ concluded she had suffered and her membership in the aforementioned social group.
The BIA affirmed the IJ's decision, but made short work of its legal reasoning on her asylum claim, concluding that it could "discern no clear error in the" IJ's determination that she had "established persecution on account of her membership in a particular social group." The AG held the BIA had erred in failing to examine whether the applicant had satisfied the legal requirements for that asylum grant.
The regulations are deferential to the IJ's factual findings on review, for good reason — the IJ actually hears the testimony, and is in a better position to make a credibility determination (particularly with respect to demeanor) than the BIA and any reviewing Article III courts — each of which makes its assessment of the facts based on a written record. Those factual determinations can only be overturned by the BIA if there is "clear error".
There is no deference, however, given to the IJ's legal determinations on review, again for good reason — the IJ is in no better position than reviewing courts to apply the law to the specific facts of the case. The BIA, in particular, is required to review the IJ's application of the law to the facts de novo, which is to say anew, on review.
While there is no requirement for the BIA to go into a deep dive during this review, it must at a minimum "announce its decision in terms sufficient to enable a reviewing court to perceive that it has heard and thought and not merely reacted", as the AG explained (citing Sixth Circuit precedent).
I would note that this requirement does not apply where the BIA affirms the IJ's decision without issuing its own opinion; in that case, the IJ's assessment of the facts and law is DOJ's official position during any subsequent review.
With respect to asylum claims based on membership in a particular social group, as then-AG Jeff Sessions explained (reiterating precedent) in Matter of A-B-, the applicant must show:
(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 the government is unwilling or unable to control.
While each of these factors has factual elements, at the end, each is a legal determination, and thus must be assessed by the BIA on review de novo, applying the Immigration and Nationality Act (INA), the regulations, and precedent.
AG Barr underscored how important the BIA's analysis of each of these factors is, even if DHS does not otherwise raise an issue with respect to them on appeal: "In conducting this review, the Board ... must examine whether the facts found by the immigration judge satisfy those elements as a matter of law." Or, as he put it more bluntly, "the alien either carries her burden or she does not."
The AG noted that Matter of A-B- overruled a precedent decision, Matter of A-R-C-G-, in which the BIA had held that "'married women in Guatemala who are unable to leave their relationship'" satisfied the "particular social group" standard under the asylum provisions in section 208 of the INA. Specifically, AG Sessions concluded that the BIA in Matter of A-R-C-G- had failed to show this group was "defined with particularity", or that the claimed group existed independently of the asserted persecution.
As an aside, the latter point is sometimes misunderstood, but is simple in concept. For an applicant to be granted asylum, the alien must show first that he or she has a protected characteristic (race, religion, nationality, membership in a particular social group, or a specific political opinion), and then that the alien has been persecuted, or fears persecution, on account of that characteristic.
In the "social group" context, the persecution cannot have occurred before the "membership", or the persecution could not have been on account of that membership. The problem is that many proposed social groups — particularly where harm was inflicted on account of purely personal animus (which is not generally "persecution" under the INA) or in the course of simple criminal activity (same) — are cobbled together after the fact to make an asylum claim. Unfortunately, asylum is often granted in these cases, particularly when the facts (as here) are emotionally compelling.
AG Barr concluded that the BIA below in Matter of A-C-A-A- "committed many of the same errors that were at issue in Matter of A-R-C-G-."
Specifically, the BIA failed to consider whether "Salvadoran females" was "defined with particularity" (or, as the AG put it, "whether the respondent established the existence of the particular social group of 'Salvadoran females'"), and if so, whether the applicant's membership in that particular social group was "at least one central reason" for the persecution she alleged she suffered at the hands of her parents (as required under section 208(b)(1)(B)(i) of the INA).
Again, as an aside, the "at least one central reason" standard is often misunderstood, but is simple in its application. Harm may be inflicted for a number of reasons at the same time (so-called "mixed-motive" cases), but in order to be granted asylum, the applicant must show that at least one central reason was a characteristic protected under the asylum laws.
Take, for instance, violent force used in the interrogation of a terrorism suspect. Was that harm inflicted simply to obtain information to prevent a future terrorist attack? To identify other terrorists? To punish the suspect for that terrorist act? To deter future acts of terrorism? Or because of the political opinion of the group to which that individual belongs? This is a mixed factual and legal question, the latter requiring application of statute, regulations, and precedent in making that determination.
The AG noted that this was an especially important determination, where "the asserted particular social group encompasses millions of Salvadorans", some of whom can "demonstrate the required nexus" (that is, that the protected characteristic is or would be the reason for the harm suffered or feared), but most of whom likely cannot.
And, in a case like this — involving alleged gender-based abuse within the home — that determination is frankly difficult, as well. Domestic violence is real and often gut-wrenching, but due to the constraints of the law, rarely a basis for asylum.
Reiterating the nexus standards, the AG next noted: "An alien's membership in a particular social group cannot be 'incidental, tangential, or subordinate to the persecutor's motivation for why the persecutor sought to inflict harm.'" (Ellipses and brackets omitted.) Again, that membership has to be "at least one central reason" for the harm.
As noted, purely personal animus or retribution is usually insufficient to establish "persecution" for asylum relief. Further, as the AG held, where "the persecutor has neither targeted nor manifested any animus toward any member of the particular social group other than the applicant, then the applicant may not satisfy the nexus requirement", in accordance with precedent.
If the applicant here is credible, this is an emotionally compelling case. As the AG makes clear, however, that does not relieve her of the obligation of showing that she is eligible for asylum as a matter of law, nor does it relieve the BIA of its responsibility to determine whether the IJ's legal conclusions are correct.
The AG concluded that the BIA failed to do so in this case:
Here, even though DHS specifically challenged the immigration judge's determination that the applicant's membership in the particular social group of "Salvadoran females" was at least one central reason for her persecution at the hands of her parents, the Board's decision gave no indication that it gave this question more than fleeting consideration.
There was plenty of evidence to support DHS's position, as the AG found. The IJ cited no evidence that the applicant's parents "had ever said or done anything to express hostility to 'Salvadoran females' in general, as opposed to having made statements and taken actions based upon their personal feelings about the" applicant, their daughter.
Nor did the BIA assess whether there was any evidence that the applicant's "parents bore animosity toward other 'Salvadoran females' or that her parents — including her mother, who would have been a member of the group as well — perceived all 'Salvadoran females' as a distinct social group."
In what is likely the most important excerpt from that decision, the AG concluded:
Indeed, it seems unlikely that the respondent will be able to demonstrate that she suffered persecution based on membership in a social group as broad as all "Salvadoran females," because of the need to establish that the private violence reflected a general animus against a broad social group rather than the personal animus arising from the relationship between the purported persecutors and the asylum applicant.
That said, the AG did not find that "there are no circumstances where an applicant's membership in a gender-based particular social group may be 'one central reason' for an applicant's persecution" — although his decision is likely to be characterized as such. Rather, any applicant making such a claim must comply with the same standards as any other alien applying for asylum, and in particular making an asylum claim premised upon "membership in a particular social group". And the BIA must follow the same standards in reviewing that claim on appeal, as well.
Finally, as noted, the IJ found that the applicant no longer had a well-founded fear of persecution, but concluded that she was eligible for "humanitarian" asylum, due to "other serious harm" she would face if returned to El Salvador.
Pursuant to regulation, an alien who had suffered past persecution but who no longer has a well-founded fear of persecution (again, the standard for an asylum grant), can still be granted asylum if he or she "has established that there is a reasonable possibility that he or she may suffer other serious harm upon removal to that country."
Because the BIA erred in its review of the applicant's past persecution claim, the AG held, it was up to the BIA on remand to determine whether she satisfied this requirement for humanitarian asylum, as well. Accordingly, he remanded the matter back to the BIA.
As I made clear above, claims like this are difficult for any adjudicator. But IJs and the BIA have to make and review (respectively) all asylum decisions — including those involving domestic violence and those with admittedly sympathetic applicants — under the same standards. This is a hard case, but the AG made the correct decision.
Keep in mind, Congress could always amend the asylum provisions in the INA to make domestic violence a ground for asylum — as it did with respect to coercive population control in section 601(a)(1) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. Until it does so, however, attempts to shoehorn such claims into the standards for asylum relief will likely be unavailing.