s-S-F-M
BEFORE THE ATTORNEY GENERAL
Pursuant to
Under the Immigration and Nationality Act (“INA“), the Attorney General may grant asylum to individuals who meet several statutory requirements, including an inability to return to their home country because of “persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”
Respondent, a native and citizen of Honduras, applied for asylum claiming she would be persecuted in Honduras on account of her political opinions and membership in several purported particular social groups, including “Honduran women,” “Honduran women unable to leave a relationship,” “Honduran women who have demonstrated resistance to Honduran society‘s acceptance of male domination,” and “Honduran women with views of women‘s autonomy.” Matter of S-S-F-M-, at 1 (BIA Oct. 20, 2023) (unpublished decision). Respondent also claimed that the Honduran government was “unable or unwilling” to control her alleged abuser. Id. at 3. The Immigration Judge (“IJ“) rejected those claims in part relying on A-B- I (which had not yet been vacated) and denied respondent‘s application for asylum and withholding of removal. Id. at 1-2, 2 n.4. The Board affirmed the IJ‘s decision but declined to rely on A-B- I, noting that the decision had been vacated by A-B- III. Id. Respondent filed a petition for review in the United States Court of Appeals for the Fifth Circuit, which granted the parties’ joint motion for remand to allow the Board to reconsider several issues in respondent‘s appeal, many of which may be implicated by the legal standards articulated in A-B- I and A-B- II. S-S-F-M- v. Garland, No. 23-60586 (5th Cir. Mar. 18, 2024) (unpublished order).
Having considered the case following remand from the Fifth Circuit, I conclude A-B- III was incorrect. I hereby reinstitute the legal standards articulated in A-B- I and A-B- II, and overrule A-B- III (and, by extension, Matter of A-R-C-G- and any decision issued in reliance thereupon). Furthermore, I remand this matter to the Board for adjudication in light of the standards articulated in A-B- I and A-B- II.
In my view, A-B- I‘s analysis and articulation of the standards for deciding asylum applications reflect the “best reading” of the statutory text “applying all relevant interpretive tools.” Loper Bright Enters. v. Raimondo, 603 U.S. 369, 400 (2024). A-B- III never stated otherwise. Instead, A-B- III abandoned the rules established in A-B- I and A-B- II in deference to an anticipated executive rulemaking that never occurred. But the reasons A-B- III gave for doing so are unpersuasive.
First, A-B- III noted that A-B- I contains “broad language” that “could be read to create a strong presumption against asylum claims based on private conduct.” 28 I&N Dec. at 309. But A-B- I used that language for good reason: It has long been well-established that “[p]ersecution is something a government does,” Hor v. Gonzales, 400 F.3d 482, 485 (7th Cir. 2005), and
Second, A-B- III insisted that A-B- I “spawned confusion among courts” because one court of appeals found that A-B- I announced a “new, more demanding standard” for determining when private conduct can amount to public persecution than the traditional “unable or unwilling” standard. 28 I&N Dec. at 309 (quoting Grace v. Barr, 965 F.3d 883, 898 (D.C. Cir. 2020)). But as the Third Circuit subsequently explained, the only court of appeals to express such confusion—the D.C. Circuit—failed to “account for” the full relevant test, “isolate[d] the standards from their surrounding words,” and “overlook[ed] the relationships” those words described. Galeas Figueroa v. Att‘y Gen. United States, 998 F.3d 77, 91 (3d Cir. 2021). A-B- II, moreover, explained that A-B- I “reiterated and did not change the legal standard for determining when ‘persecution’ by third parties may be attributed to the government.” See 28 I&N Dec. at 213; see also id. at 202 (“No matter whether Matter of A-B- is viewed as changing the existing standard for persecution, I conclude . . . that Matter of A-B-‘s formulation appropriately clarifies the requisite governmental role in relation to persecution by private actors for purposes of establishing refugee status.“). A-B- II then clarified the application of that standard. See id. at 203-07. If anything, it is Attorney General Garland‘s decision to vacate that clarification without replacing it with anything himself that has contributed to confusion over the applicable standards in this field.
Third, A-B- III was wrong to suggest that the issues addressed in A-B- I and A-B- II are best left to rulemaking. “[W]hether A-B- I had changed the ‘unable or unwilling’ standard, the proper application of that standard, and the meaning of the statutory ‘one central reason’ test,” A-B- III, 28 I&N Dec. at 309, are legal questions appropriately resolved as part of the Attorney General‘s authority to issue “controlling” decisions “with respect to all questions of law” “relating to the immigration and naturalization of aliens,”