As Officials Prepare to Fully Open U.S. Borders, Biden Administration Expands Grounds for Asylum

June 30, 2021
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This month, Attorney General Merrick Garland announced the Department of Justice (DOJ) would resume allowing asylum claims based on domestic violence and family relationships.  He did so by reinstating three Obama-era decisions issued by the Board of Immigration Appeals which had been vacated by the Trump Administration.  (DOJ Memorandum, June 16, 2021)  Through the reinstatement of these opinions, the Department of Justice announced it intended to return asylum law to the pre-Trump era pending the issuance of broad regulations that will broadly expand the ability to claim asylum in the U.S. (Id.)  

Basic Asylum Law

To fully appreciate the importance of these legal opinions, it is helpful to review basic asylum law.  The Immigration and Nationality Act (INA) authorizes the U.S. to grant asylum if an alien is unable or unwilling to return to her country of origin because she has suffered past persecution or has a well-founded fear of future persecution on account of:

(1) Race;

(2) Religion;

(3) Nationality;

(4) Membership in a particular social group; or

(5) Political opinion.

(8 U.S.C. §§ 1101(a)(42)(A); 8 USC 1158(b)(1)(a), (b)(i))

Importantly, persecution must take place “on account of” the alien’s membership in one of the above categories. Indeed, federal law places the burden of proof on the alien to 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.  (8 USC 1158(b)(1)(B)(i))

The courts have further clarified that “persecution” has three specific elements. First, “persecution” involves an intent to target a belief or characteristic. (Matter of Acosta, 19 I&N Dec. 211 (BIA 1985)). Second, the level of harm must be “severe.” (Matter of T-Z-, 24 I&N Dec. 163 (BIA 2007)).  Third, 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.” (Acosta, 19 I&N Dec. at 222)

Membership in a Particular Social Group

The decisions Attorney General Garland rescinded in June relate to who may claim asylum based on membership in a “particular social group.”  What constitutes a particular social group has been the subject of debate virtually from the time it was written into law in 1980.  Because the INA does not define the term “particular social group,” the meaning of the term has been debated and tailored over time through judicial decisions issued by the Board of Immigration Appeals (BIA), the appellate body for the immigration courts.

By 2014, through multiple decisions, the Board of Immigration Appeals had concluded that aliens seeking asylum based on “membership in a particular social group” must establish that their purported social group is: (1) composed of members who share a common immutable characteristic; (2) defined with particularity; and (3) socially distinct within the society in question. (Matter of M-E-V-G, 26 I&N Dec. 227, 237 (BIA 2014)) Applicants must also show that their membership in the particular social group was a central reason for their persecution. (See 8 U.S.C. § 1158(b)(1)(B)(i); Matter of W-G-R-, 26 I&N Dec. 208, 224 (BIA 2014)) Where an asylum applicant claims that the persecution was inflicted by private conduct (someone unaffiliated with the government), she must also establish that the government was unable or unwilling to protect her. (See, e.g., Acosta, 19 I&N Dec. at 222)

In particular, an applicant seeking to establish persecution based on violent conduct of a private actor “must show more than ‘difficulty . . . controlling’ private behavior.” (Menjivar v. Gonzales, 416 F.3d 918, 921 (8th Cir. 2005) (quoting Matter of McMullen, 17 I&N Dec. 542, 546 (BIA 1980))  The applicant must show that the government condoned the private actions “or at least demonstrated a complete helplessness to protect the victims.” (Galina v. INS, 213 F.3d 955, 958 (7th Cir. 2000); see also Hor, 400 F.3d at 485)

Matter of A-R-C-G-

Later that same year, however, the Board also decided Matter of A-R-C-G-, which recognized “married women in Guatemala who are unable to leave their relationship” as a particular social group. This decision paved the way for subsequent decisions granting asylum to victims of domestic violence, including Matter of A-B-, in which the alien asserted she was eligible for asylum as the member of the following social group: “El Salvadoran women who are unable to leave their domestic relationship where they have children in common.”   Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014). 

In 2018, through a lengthy legal opinion, Attorney General Jeff Sessions, through the authority delegated to him by law, vacated A-R-C-G-, arguing that the case was wrongly decided and should not have been issued as a precedential decision.”  In particular, he noted that while the immigration judge originally denied the claim for asylum, on appeal the government simply conceded nearly all the legal points necessary for the alien to win her case, including that alien had claimed a social group that was based on a common, immutable characteristic, was defined with particularity, and was socially distinct within Guatemalan society. To the extent that the Board examined the legal questions, Sessions argued, its one-page analysis of whether the alien’s proposed class was cognizable “lacked rigor and broke with the Board’s own precedents.” 

Sessions further argued, “Had the Board properly analyzed the issues, then it would have been clear that the particular social group was not cognizable. The Board’s approach in A-R-C-G- was contrary to the appropriate way that the Board has in the past, and must in the future, approach such asylum claims. By accepting DHS’s concessions as conclusive, the Board in A-R-C-G- created a misleading impression concerning the cognizability of similar social groups, and the viability of asylum claims premised upon persecution on account of membership in such groups.” Based on this reasoning, the concluded that the BIA’s decision in A-R-C-G- was improperly decided and should not have been issued as precedent.

Matter of A-B- and Matter of A-B- II

Having vacated Matter of A-R-C-G-, Attorney General Sessions simultaneously vacated Matter of A-B-, which was expressly decided based on A-R-C-G- precedent.  In Matter of A-B-, the alien claimed that she was eligible for asylum because she was persecuted 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. She asserted that her ex-husband, with whom she shares three children, repeatedly abused her physically, emotionally, and sexually during and after their marriage. Although the immigration judge originally denied her claim, on appeal the BIA reversed and granted asylum. 

In vacating Matter of A-R-C-G- and Matter of A-B-, Attorney General Sessions provided the following guidance to the immigration courts:

“Generally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum. While I do not decide that violence inflicted by non-governmental actors may never serve as the basis for an asylum or withholding application based on membership in a particular social group, in practice such claims are unlikely to satisfy the statutory grounds for proving group persecution that the government is unable or unwilling to address. The mere fact that a country may have problems effectively policing certain crimes—such as domestic violence or gang violence—or that certain populations are more likely to be victims of crime, cannot itself establish an asylum claim.”

The Acting Attorney General subsequently affirmed this guidance and provided more specificity in a related decision, Matter of A-B- II, issued in January 2021. 28 I&N Dec. 199 (A.G. 2021)  Again, the Attorney General emphasized that difficulties enforcing laws would not alone justify an asylum claim.

“While every civilized state seeks to protect its citizens from harm, no government can provide ‘a crime-free society.’  The level of inaction or ineffectiveness required to rise to the level of persecution should, accordingly, be high. The Refugee Act should not be read to guarantee freedom from crime, or even to guarantee the same crime-fighting resources that are available in more wealthy countries…. The word

‘persecution’ therefore should be read to require that the government in the home country has fallen so far short of adequate protection as to have breached its basic duty to protect its citizens, or else to have actively harmed them or condoned such harm. Where the government is actively engaged in protecting its citizens, failures in particular cases or high levels of crime do not establish a breach of the government’s duty to protect its citizenry.”

Matter of L-E-A-

Using a similar analysis, Attorney General Barr issued another legal opinion regarding general crime and asylum in the case of Matter of L-E-A-.  Here, Attorney General Barr determined that the Board of Immigration Appeals improperly recognized the alien’s father’s immediate family as a “particular social group” for purposes of qualifying for asylum.  The case was filed by an alien, who, after he was apprehended twice for illegal entry, claimed he was eligible for asylum because he was persecuted on account of his membership in “his father’s immediate family” who owned a store that was targeted by gang members. 

The immigration judge denied the alien’s claim for asylum on the ground that the had not shown he was the victim of anything more than criminal activity. On appeal, (during the first few months of the Trump Administration) the government once again simply conceded the alien was a member of a particular social group, namely “his father’s immediate family,” and that this group met the criteria for granting asylum.  The Board then accepted the government’s stipulation but ultimately denied asylum because the alien had not established that he was persecuted due to his membership in the family.   

In his legal opinion, Barr explained that the alien will not meet his burden of demonstrating membership in a particular social group by showing that his proposed social group has been the target of private criminal activity. “The fact that a criminal group—such as a drug cartel, gang, or guerrilla force—targets a group of people does not, standing alone, transform those people into a particular social group.”

Reviewing prior decisions, Barr noted that the Board has recognized that “kinship ties” may be one of the kinds of common, immutable characteristics that might form the basis for a “particular social group” under the INA. Still, he wrote, the Board has never held that every type of family grouping would be cognizable as a particular social group.  “[W]hat qualifies certain clans or kinship groups as particular social groups” he wrote, “is not merely the genetic ties among the members. Rather, it is that those ties or other salient factors establish the kinship group, on its own terms, as a ‘recognized component of the society in question.’” Based on these decisions, Barr ruled that “an alien’s family-based group will not constitute a particular social group unless it has been shown to be socially distinct in the eyes of its society, not just those of its alleged persecutor.”

Barr thus vacated Matter of L-E-A- and concluded with the following:

“As Attorney General Sessions previously explained, “[a]n alien may suffer threats and violence in a foreign country for any number of reasons relating to her social, economic, family, or other personal circumstances. Yet, the asylum statute does not provide redress for all misfortune.” A-B-, 27 I&N Dec. at 318. The term “particular social group” may not receive such an elastic and unbound meaning that it includes all immediate-family units, regardless of whether the applicant’s proposed family is particular and socially distinct in his society.”

The Biden Administration Vacates the Trump-Era Legal Decisions

Immigration advocates and activists complained bitterly that the Trump Administration had implemented outrageous and “cruel” policies to narrow the grounds for claiming asylum, even though the BIA decisions granting asylum based on domestic violence and family membership represented a completely novel interpretation of refugee/asylum law and had only been on the books for 2-3 years.  Ms. Magazine, for example, wrote that in overturning the grant of asylum to a victim of domestic violence, Attorney General Sessions “wiped out decades of legal precedents that recognized survivors as deserving of protection and doubled down on the antiquated and misogynistic notion that domestic violence is a ‘private’ matter that governments have no obligation to address.” Karen Musalo, one of the defense lawyers in Matter of A-B-, declared: “What this decision does is yank us all back to the Dark Ages of human rights and women’s human rights and the conceptualization of it.” (New York Times, June 11, 2018)

In response, Joe Biden during the 2020 presidential campaign vowed to “end Trump’s detrimental asylum policies” and “and restore our asylum laws,” specifically promising to restore asylum eligibility for domestic violence victims. (Id.) (JoeBiden.com/immigration, accessed June 2021) During his first days as President, he issued an executive order that directed the Department of Justice to review and promulgate regulations “addressing the circumstances in which a person should be considered a member of a ‘particular social group.)  (Exec. Order No. 14010, Section 4(c)(ii), Feb. 2, 2021)

Attorney General Garland used this executive order as justification for rescinding the Trump-era legal decisions in Matter of A-R-C-G-, Matter of A-B-, and Matter of L-E-A-, reinstating the Obama-era decisions in those cases, and once again allowing asylum cases to be based on domestic violence and family relationships. He then directed the immigration courts to no longer follow the Trump-era legal opinions.  See Matter of A-B-, 28 I&N Dec. 307 (A.G. 2021)  and Matter of L-E-A-, 28 I&N Dec. 304 (A.G. 2021).  Garland said that he was rescinding these opinions “so as to return the immigration system to the preexisting state of affairs pending completion of the ongoing rulemaking process and the issuance of a final rule addressing the definition of ‘particular social group.’ (Id.)

The Biden Administration’s move to dramatically expand the grounds for asylum comes just as officials prepare to rescind the Title 42 authority to expel migrants and fully open the U.S-Mexico border, possibly by the end of July.  At that point, due to the termination of the Remain in Mexico policy, there will be a flood of migrants, potentially thousands per day, coming across the border.  According to The New York Times, the Biden Administration is considering a plan to handle this flood by placing all asylum seekers in “Alternatives to Detention,” which means releasing them into the U.S. with some form of monitoring device or reporting requirements until their court dates years away.  Aside from the fact that doing so would contradict federal regulations that require asylum seekers at the border to be detained until their credible fear determination, immediately releasing asylum seekers would no doubt encourage more illegal border crossers to claim asylum.  And, combining immediate release with expanded grounds for asylum would only lead to new waves of Central Americans who will pay the cartels to help them make the perilous journey north to reach the U.S. and claim asylum.  This truly could lead to the perfect storm developing over the U.S.-Mexico border.