A-B
27 I&N Dec. 316 (2018)
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Rule of Law:
An applicant seeking asylum based on membership in a 'particular social group' must demonstrate the group shares a common immutable characteristic, is defined with particularity, is socially distinct within the society, and exists independently of the harm asserted, with membership being a central reason for persecution; when the persecutor is a private actor, the applicant must also show the home government is unwilling or unable to protect them, as mere governmental difficulty policing crimes or higher victimization rates is insufficient. This decision overrules Matter of A-R-C-G-.
Facts:
- A-B- is a native and citizen of El Salvador who entered the United States illegally and was apprehended by U.S. Customs and Border Protection agents in July 2014.
- A-B- claimed eligibility for asylum due to persecution on account of her membership in the purported particular social group of 'El Salvadoran women who are unable to leave their domestic relationships where they have children in common' with their partners.
- A-B- asserted that her ex-husband, with whom she shares three children, repeatedly abused her physically, emotionally, and sexually during and after their marriage in El Salvador.
- A-B- was able to divorce her ex-husband and move away from him.
- A-B- obtained multiple protective orders against her ex-husband from the El Salvadoran government, and he was arrested on at least one occasion.
- When initially apprehended by Border Patrol agents, A-B- stated her reason for entering the country was 'to find work and reside' in the United States.
Procedural Posture:
- A-B- filed an application for asylum and withholding of removal under the INA and for withholding of removal under the regulations implementing the United Nations Convention Against Torture.
- In December 2015, an Immigration Judge (IJ) denied all relief and ordered A-B- removed to El Salvador, finding she was not credible, her group did not qualify as a 'particular social group', her membership in a social group was not a central reason for persecution, and the El Salvadoran government was not unable or unwilling to help her.
- A-B- appealed the IJ's decision to the Board of Immigration Appeals (BIA).
- In December 2016, the BIA reversed the IJ's decision and remanded with an order to grant A-B- asylum after the completion of background checks, finding the IJ's adverse credibility determinations clearly erroneous and A-B-'s particular social group substantially similar to the one recognized in Matter of A-R-C-G-, and that the El Salvadoran government was unwilling or unable to protect her.
- In August 2017, the Immigration Judge issued an order purporting to certify and administratively return the matter to the BIA, believing that intervening appellate court decisions undermined the BIA's reliance on A-R-C-G-.
- On March 7, 2018, the Attorney General directed the BIA to refer the matter to him for review, seeking briefing on whether, and under what circumstances, being a victim of private criminal activity constitutes a cognizable 'particular social group' for purposes of an application for asylum or withholding of removal.
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Issue:
Does being a victim of private criminal activity constitute a cognizable 'particular social group' for purposes of an application for asylum or withholding of removal under the Immigration and Nationality Act?
Opinions:
Majority - Attorney General
No, being a victim of private criminal activity does not, in most circumstances, constitute a cognizable 'particular social group' for asylum purposes unless the stringent, long-established legal standards are met. Attorney General Sessions vacated the Board of Immigration Appeals (BIA) decision, overruling Matter of A-R-C-G- (2014) because it was wrongly decided and based on DHS's concessions rather than rigorous legal and factual analysis. The Attorney General clarified that to establish a 'particular social group,' an applicant must demonstrate: (1) membership in a group with a common immutable characteristic, defined with particularity, and socially distinct within the society; (2) that membership was a central reason for persecution; and (3) for private persecutors, the home government is unwilling or unable to protect. The group must exist independently of the asserted harm. A-R-C-G- failed to properly apply these standards, circularly defining the group by the harm (inability to leave abusive relationships). The Attorney General reiterated that 'persecution' is something a government does (directly or indirectly by failing to control private actors), and private criminals are often motivated by personal reasons or greed, not group identity. He emphasized the 'on account of' nexus requirement, stating that personal relationships are often the primary motive, not membership in a broader social group. The AG also stressed that the BIA erred in overturning the Immigration Judge's (IJ) credibility findings and findings regarding A-B-'s ability to leave her relationship and El Salvador's ability to protect her, noting that imperfect government protection does not automatically establish an asylum claim. Internal relocation must also be considered before granting asylum.
Analysis:
This decision significantly narrows the scope of 'particular social group' asylum claims, particularly for victims of domestic and gang violence perpetrated by non-state actors. By overruling A-R-C-G- and reiterating a strict, multi-pronged test, the Attorney General shifted the burden heavily onto applicants to prove social distinction and nexus independent of the persecution itself, and to demonstrate a government's complete helplessness rather than mere difficulty in controlling crime. This ruling makes it considerably more challenging for individuals fleeing private violence to obtain asylum in the U.S., potentially increasing denials and limiting the types of harms that qualify as statutorily protected persecution.
