A-C-A-A
Case Information
Matter of A-C-A-A-, Respondent Decided by Attorney General September 24, 2020 U.S. Department of Justice Office of the Attorney General (1) In conducting its review of an alien’s asylum claim, the Board of Immigration Appeals
(“Board”) must examine de novo whether the facts found by the immigration judge satisfy all of the statutory elements of asylum as a matter of law. See Matter of R-A-F- 27 I&N Dec. 778 (A.G. 2020).
(2) When reviewing a grant of asylum, the Board should not accept the parties’ stipulations
to, or failures to address, any of the particular elements of asylum—including, where
necessary, the elements of a particular social group. Instead, unless it affirms without
opinion under
(3) Even if an applicant is a member of a cognizable particular social group and has
suffered persecution, an asylum claim should be denied if the harm inflicted or threatened by the persecutor is not “on account of” the alien’s membership in that group. That requirement is especially important to scrutinize where the asserted particular social group encompasses many millions of persons in a particular society.
(4) 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.” , 27 I&N Dec. 316, 338 (A.G. 2018) (citations omitted). Accordingly, persecution that results from personal animus or retribution generally does not support eligibility for asylum.
BEFORE THE ATTORNEY GENERAL
Pursuant to
In Matter of A-C-A-A- (BIA Nov. 6, 2019) (“BIA Op.”), the Board dismissed an appeal by the Department of Homeland Security (“DHS”) challenging, as relevant here, the immigration judge’s determination that the respondent had established a nexus between her membership in a particular social group (“Salvadoran females”) and past persecution by her parents. The Board devoted a mere sentence to the merits of the respondent’s asylum claim, stating that it could “discern no clear error in the Immigration Judge’s determination that the respondent established persecution on account of her membership in a particular social group.” Id . at 2.
In recent decisions, former Attorney General Sessions and I have emphasized that the Board must review de novo both questions of law and the immigration judge’s application of the law to the facts. These decisions recognize that the respondent must present evidence to establish the existence of a particular social group and a nexus between the respondent’s membership in that group and the asserted persecution. Based on the elements necessary to establish these components of a valid asylum claim, we have explained that victims of private violence, including domestic violence, will not usually satisfy the requirements for asylum on the basis of those particular circumstances. In this case, the Board neither analyzed in any depth whether the evidence presented by the respondent established the nexus requirement, nor reviewed the immigration judge’s ultimate determination that the respondent was eligible for humanitarian asylum. On remand, the Board should consider whether the respondent carried her burden to prove her asylum claim consistent with applicable precedents and the instruction that such questions must be subject to meaningful review. In particular, the Board must consider whether the respondent has established that her past mistreatment was “on account of” a protected ground such as membership in a particular social group, rather than on account of individualized private circumstances not connected to any statutory basis for asylum relief.
I.
The Immigration and Nationality Act (“INA”) establishes that an alien
applying for relief or protection from removal has the burden of proof to
establish that she “(i) satisfies the applicable eligibility requirements; and (ii)
with respect to any form of relief that is granted in the exercise of discretion,
that the alien merits a favorable exercise of discretion.” INA § 240(c)(4)(A),
One form of relief that the INA authorizes the Attorney General to grant
is asylum, which may be granted to an alien who establishes that she is a
refugee, meaning that she is unable or unwilling to return to her country of
origin because of persecution or a well-founded fear of persecution on
account of the five protected grounds of “race, religion, nationality,
membership in a particular social group, or political opinion.” INA
§ 101(a)(42)(A),
An alien may establish eligibility for asylum in two different ways. First,
an alien may establish a “well-founded fear” of future persecution by
showing that a reasonable person in her circumstance would fear persecution
on one of the five protected grounds if she were to return to her home country.
Matter of Mogharrabi
, 19 I&N Dec. 439, 445 (BIA 1987). Alternatively, an
alien may satisfy asylum requirements by establishing that she has suffered
past persecution, creating a presumption that she will face a well-founded
fear of persecution upon her return.
Matter of H-
, 21 I&N Dec. 337, 346–47
(BIA 1996);
The respondent here, a native and citizen of El Salvador, entered the United States illegally in 2012 and was placed in removal proceedings in 2013. After conceding removability in 2018, the respondent sought asylum and other immigration protection on the basis that she had suffered past persecution at the hands of her parents on account of her membership in a particular social group of “Salvadoran females.” The respondent also asserted that she had a well-founded fear of future persecution on account of being a woman in El Salvador, by her former romantic partner, gang members, or the Salvadoran police. The immigration judge concluded that the respondent had established that she had suffered past persecution at the hands of her parents, but because there had been a fundamental change in the respondent’s circumstances—the respondent was now twenty-nine years old and likely would not reside with her parents upon her return—the immigration judge concluded that the respondent no longer had a well-founded fear of persecution by her parents. Nevertheless, the immigration judge found the respondent eligible for a humanitarian grant of asylum, after determining that she had established that she would face “other serious harm” were she to return to El Salvador.
On appeal, DHS challenged the immigration judge’s finding that the respondent was credible and that she had established a nexus between her membership in a particular social group and past persecution. The Board affirmed, deferring to the immigration judge’s credibility finding and concluding, in a one-sentence discussion of the merits of the respondent’s asylum claim, that it could “discern no clear error in the Immigration Judge’s determination that the respondent established persecution on account of her membership in a particular social group.” BIA Op. at 2.
II.
By regulation, the Board “function[s] as an appellate body charged with
the review of those administrative adjudications under the Act that the
Attorney General may by regulation assign to it.”
The elements of an asylum claim are well established. In Matter of M-E-V-G- , 26 I&N Dec. 227 (BIA 2014), the Board explained in detail what applicants who, like the respondent, claim to have suffered past persecution on account of their membership in a particular social group must establish to prove their eligibility for asylum. More recently, in , 27 I&N Dec. 316 (A.G. 2018), Attorney General Sessions “reiterate[d] that an applicant for asylum on account of her membership in a purported particular social group 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 the government is unwilling or unable to control.” Id . at 320.
As Matter of A-B- also explained, the Board must meaningfully review each of these elements when presented with an appeal from a grant of asylum. Id .; see also id . at 340 (“The respondent must present facts that undergird each of these elements [of an asylum claim], and the asylum officer, immigration judge, or the Board has the duty to determine whether those facts satisfy all of the legal requirements for asylum.”). Matter of A-B- criticized the Board for analyzing elements “in a conclusory fashion,” for “citing the standard of review” but “not apply[ing] it,” and for relying on “summary reasoning.” Id . at 343. DHS’s decision not to expressly challenge a particular element of an asylum claim did not relieve the Board from its need to review the immigration judge’s determination as to that element. See id . at 339 (overruling a decision in which “the Board recognized that it had a duty to evaluate any claim regarding the existence of a particular social group in a country in the context of the evidence presented regarding the particular circumstances in the country in question, but it did not adequately observe that duty” and instead “accepted, with little or no analysis, DHS’s concessions to the contrary on nearly every legal issue” (citations and alterations omitted)); Matter of L-E-A- , 27 I&N Dec. 581, 589 (A.G. 2019) (explaining that “a cursory analysis of a question that was either uncontested, or not dispositive to the outcome” does not “undermine the Board requirement” to ensure that asylum applicants establish all the elements of their claim through “the thorough, case-specific analysis . . . that the Board’s precedents generally require”). [2]
In conducting this review, the Board also must examine whether the facts found by the immigration judge satisfy those elements as a matter of law. [3] This requirement is consistent with the INA’s placing the burden upon the alien regarding applications for relief—the alien either carries her burden or she does not.
III.
A. Matter of A-B- not only reiterated the standard by which the Board should review asylum claims but also involved a legal claim similar to the claim at issue in this case. In Matter of A-B- , a victim of domestic violence alleged that she had been abused by her ex-husband in El Salvador and “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.” 27 I&N Dec. at 321. Matter of A-B- vacated the Board’s order to grant the respondent asylum pending the completion of background checks, primarily because the Board’s “cursory analysis of the respondent’s social group” failed to demonstrate that A-B- had established a cognizable particular social group as a matter of law. Id . at 340. The Board had “cited no evidence that [A-B-’s] husband knew any such social group existed, or that he persecuted [his] wife for reasons unrelated to their relationship,” id . at 343, suggesting that the alien had not demonstrated that any such persecution was on account of A-B-’s membership in a particular social group. And it likewise concluded that the Board “erred in finding . . . that El Salvador was unable or unwilling to protect A-B-” by relying only on evidence of “the persistence of domestic violence in El Salvador.” Id . at 344.
In addition, Matter of A-B- overruled Matter of A-R-C-G- , which had held that “‘married women in Guatemala who are unable to leave their relationship’” constituted a particular social group within the meaning of the INA. Matter of A-B- , 27 I&N Dec. at 331 (quoting Matter of A-R-C-G- 26 I&N Dec. 388, 392 (BIA 2014)). The Attorney General concluded that the Board in Matter of A-R-C-G- had failed to establish that this group was “defined with particularity,” , 27 I&N Dec. at 335, or that the group “‘exist[ed] independently’ of the harm asserted in an application for asylum,” id . at 334 (quoting Matter of M-E-V-G- , 26 I&N Dec. at 236 n.11, 243). Because “[t]he Board’s scant analysis did not engage with these requirements or show that A-R-C-G-’s proposed group was ‘defined by characteristics that provide a clear benchmark for determining who falls within the group,’” Matter of A-B- overruled Matter of A-R-C-G- . Id . at 335 (quoting Matter of M-E-V-G- , 26 I&N Dec. at 239). While Matter of A-B- did “not decide that violence inflicted by non-governmental actors may never serve as the basis for . . . asylum,” it did state that “in practice such claims are unlikely to satisfy the statutory grounds for proving group persecution that the government is unable or unwilling to address.” Id . at 320; cf. id . at 317 (“[T]here may be exceptional circumstances when victims of private criminal activity could meet these requirements[.]”).
In this case, the Board committed many of the same errors that were at
issue in
Matter of A-R-C-G-
. Here, the immigration judge concluded that the
respondent had suffered past persecution through physical and psychological
abuse by her parents on account of her being a “Salvadoran female[].”
Matter of A-C-A-A-
, at 7–8 (Immig. Ct. S.F. May 20, 2019) (“IJ Op.”). And
the Board erred by affirming the grant of asylum without meaningfully
considering any of the elements of the respondent’s asylum claim. Indeed,
the Board indicated only that it saw no “clear error” in the immigration
judge’s conclusions about whether the respondent had suffered persecution
on account of her membership in a particular social group, misapplying the
appropriate standard of review, which required that the Board review
de novo
that conclusion and its underlying legal determinations.
See
B.
In this case, the nature of the respondent’s asserted particular social group
makes the Board’s failure to meaningfully review the immigration judge’s
nexus analysis especially problematic. The Board should have carefully
considered whether the respondent’s membership in the particular social
group of “Salvadoran females” was truly “‘one central reason’” for her
persecution at the hands of her parents.
Matter of A-B-
, 27 I&N Dec. at 338
(quoting
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.”
Matter of A-B-
, 27 I&N Dec. at 338
(citing
Matter of J-B-N- & S-M-
, 24 I&N Dec. 208, 214 (BIA 2007), and
INS
v. Elias-Zacarias
,
Furthermore, if 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
Matter of R-A-
, for instance, “the record d[id] not reflect that [the applicant’s]
husband bore any particular animosity toward women who were intimate
with abusive partners, women who had previously suffered abuse, or women
who happened to have been born in, or were actually living in,
Guatemala. . . . On the basis of this record, [the Board] perceive[d] that the
husband’s focus was on the respondent because she was
his wife
, not because
she was a member of some broader collection of women, however defined,
whom he believed warranted the infliction of harm.” 22 I&N Dec. 906, 921
(BIA 1999) (emphasis added); , 27 I&N Dec. at 339;
see also e.g.
,
Margarita O-O v. Att’y Gen. U.S.
,
As I explained last year in Matter of L-E-A- , the Board has a duty to conclude that the respondent has satisfied all of the statutory requirements to qualify for asylum before affirming an immigration judge’s grant of asylum. 27 I&N Dec. at 596. Here, even though DHS specifically challenged the immigration judge’s determination that her 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.
A closer examination of the immigration judge’s conclusion, in light of the record, would have raised questions concerning the nexus requirement. For instance, the immigration judge did not cite any evidence that the respondent’s parents themselves 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 respondent, their daughter. See Matter of A-B- , 27 I&N Dec. at 338 (describing the need for evidence that the persecutor is aware of and hostile to the particular social group). The Board did not explore whether there was any evidence that the respondent’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. Compare id . at 339 with IJ Op. at 10 (quoting respondent’s declaration, which averred that her father told her “I am the man of this house and I am in charge. You’re my daughter and you have to do what I say!” (emphasis added)). 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.
As in , I need not, and do not, hold here 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.
See
Grace v. Barr
,
IV.
This case involves an additional issue beyond whether the respondent
suffered persecution on account of membership in a particular social group.
Here, the immigration judge determined that, even though the respondent had
suffered such persecution, she had not demonstrated a well-founded fear of
future persecution on that basis, given that she was now twenty-nine years
old and unlikely to live in her parents’ home were she to return to El
Salvador. The regulations, however, provide that even an alien who is unable
to demonstrate that she fears future persecution of the sort she had suffered
in the past may be granted asylum on a “humanitarian” basis.
See
I do not consider here whether the respondent has established that she is
entitled to a discretionary grant of humanitarian asylum under
* * * * *
For the reasons discussed above, I vacate the Board’s decision and remand this case for review by a three-member panel in accordance with this opinion. On remand, the Board should meaningfully assess whether the respondent qualifies for asylum, and not affirm the immigration judge’s decision unless the Board concludes that the respondent has met her burden and has satisfied each of the three Matter of M-E-V-G- elements: her membership in a particular social group, a nexus between such a group and her persecution, and the unwillingness or inability of the government of El Salvador to protect her. The Board should also determine whether DHS has sufficiently rebutted the presumption that, should the respondent successfully establish that she has suffered past persecution on account of her membership in a particular social group, she faces a well-founded fear of persecution on the same basis. If DHS has not rebutted that presumption, the Board should determine whether DHS has established the feasibility of internal relocation. Finally, should the Board find, as the immigration judge did, that DHS has rebutted that presumption, it should review the immigration judge’s subsequent conclusion that the respondent is eligible for a humanitarian grant of asylum.
Notes
[1] The Board need not provide such an explanation when it affirms without opinion under
[2] If the Board finds that “an alien’s asylum application is fatally flawed in one respect, . . .
the Board need not examine the remaining elements of the asylum claim.” ,
27 I&N Dec. at 340;
see also, e.g.
,
De Pena-Paniagua v. Barr
,
[3] Meaningful review may, in some cases, take the form of “a statement that the Board’s
conclusions upon review of the record coincide with those which the immigration judge
articulated in his or her decision,” so long as, in making such a statement, the Board has
“rel[ied] upon [its] own independent judgment in deciding the ultimate disposition of the
case.”
Matter of Burbano
, 20 I&N Dec. 872, 873–74 (BIA 1994). In such a case, “the
Board’s final decision may be rendered in a summary fashion; however, such summary
treatment of a case does not mean that [the Board] ha[s] conducted an abbreviated review
of the record or ha[s] failed to exercise [its] own discretion.”
Id.
at 874. As courts of
appeals have recognized, “where the BIA cites its decision in
Burbano
and does not express
disagreement with any part of the IJ’s decision, the BIA adopts the IJ’s decision in its
entirety,” and where “the BIA intends to constrict the scope of its opinion to apply to only
one ground upon which the IJ’s decision rested, the BIA can and should specifically state
that it is so limiting its opinion.”
Abebe v. Gonzales
,
[4] Although I do not decide the matter in this case, I note that there has been disagreement
among the courts of appeals about whether gender-based groups may constitute a particular
social group within the meaning of the INA.
Compare, e.g.
,
Amezcua-Preciado v. U.S.
Att’y Gen.
, 943 F.3d 1337, 1344–45 (11th Cir. 2019) (“[W]hile the members of
Amezcua-Preciado’s proposed social group arguably share the immutable characteristic of
being women, that characteristic alone is insufficient to make them cognizable as a
particular social group under the INA.”),
with, e.g.
,
De Pena-Paniagua
,
[5] In
Grace v. Barr
, the D.C. Circuit reversed a district court decision calling into question
some aspects of
Matter of A-B-
and a guidance document subsequently issued by U.S.
Citizenship and Immigration Services (USCIS).
See
USCIS,
Guidance for Processing
Reasonable Fear, Credible Fear, Asylum, and Refugee Claims in Accordance with
Matter
of A-B-, PM-602-0162 (July 11, 2018). The court of appeals held that “parts of both
A-B-
and the Guidance make clear that asylum officers must ‘analyze each case on its own merits
in the context of the society where the claim arises.’ In other words, the record in this case
does not support the asylum seekers’ argument that USCIS and the Attorney General have
erected a rule against asylum claims involving allegations of domestic and/or gang
violence.”
Grace
,