29 I. & N. Dec. 207
BIA2025Background
- Respondent (a Honduran woman) applied for asylum alleging persecution based on political opinion and membership in several particular social groups (e.g., Honduran women resisting male domination) and claimed the Honduran government was unwilling or unable to protect her.
- An Immigration Judge denied asylum and withholding in part relying on Matter of A-B- I; the Board affirmed but avoided relying on A-B- I because it had been vacated by A-B- III.
- The Fifth Circuit granted remand to allow the Board to reconsider issues implicated by the legal standards in A-B- I and A-B- II.
- Attorney General Garland had vacated A-B- I and A-B- II in A-B- III pending anticipated rulemaking that never occurred; Garland instructed courts to follow pre–A-B-I precedent (including Matter of A-R-C-G-).
- On review, the Attorney General concluded A-B- III was incorrect, reinstated the legal standards from A-B- I and A-B- II, overruled A-B- III (and by extension Matter of A-R-C-G-), and remanded the case to the Board for reconsideration under A-B- I/A-B- II standards.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether A-B- III correctly vacated and displaced A-B- I and A-B- II pending rulemaking | A-B- III wrongly abandoned settled legal standards and created uncertainty; A-B- I/A-B- II were proper exercises of AG authority | A-B- III argued vacatur was appropriate to await executive rulemaking and to avoid confusion | A-B- III vacatur was incorrect; A-B- I and A-B- II are reinstated and A-B- III is overruled |
| Standard for attributing private-actor persecution to a government | Private-actor persecution may be attributed to the government only in limited circumstances; applicants must show government unwillingness or inability to protect when persecutor is nonstate | Government (as rephrased by A-B- I/A-B- II) requires applicants to show flight is necessary because government is unwilling/unable to protect | Reinstituted A-B- I/A-B- II: traditional requirement stands; government role must be established and government failure-to-protect cases are uncommon |
| Whether A-B- I altered the longstanding "unable or unwilling" test | A-B- I did not change the standard but clarified and applied it; any perceived change is due to misreading | Some courts read A-B- I as imposing a more demanding new standard, causing confusion | A-B- I/A-B- II simply clarified the existing test; criticisms attributing a new standard were based on misinterpretations |
| Whether these questions should be resolved by rulemaking or adjudication | These are legal and fact-specific questions appropriately resolved in precedential adjudication by the Attorney General and case-by-case factfinding | A-B- III favored awaiting formal rulemaking to resolve underlying standards | Court held adjudicative precedents (A-B- I/A-B- II) are appropriate; the lack of rulemaking counselled against vacatur |
Key Cases Cited
- Loper Bright Enters. v. Raimondo, 603 U.S. 369 (courts may adopt the best reading of statutory text when evaluating agency action)
- Hor v. Gonzales, 400 F.3d 482 (7th Cir.) (persecution generally involves government action)
- Galina v. INS, 213 F.3d 955 (7th Cir.) (government must condone or be helpless to prevent private persecution)
- Grace v. Barr, 965 F.3d 883 (D.C. Cir.) (court viewed A-B- I as introducing a stricter standard)
- Galeas Figueroa v. Attorney General United States, 998 F.3d 77 (3d Cir.) (rejected D.C. Circuit’s interpretation and explained A-B- I did not change the standard)