Matter of A-B- III - What Is Old Is New Again?
To qualify for asylum, a person must have a “well-founded fear” of persecution based on past persecution or risk of persecution in the future “on account of race, religion, nationality, membership in a particular social group, or political opinion.” While gender is not one of the protected grounds, survivors of domestic assault, for example, would sometimes qualify under the “particular social group” rubric.
In Matter or A-R-C-G-, which was decided in 2014, the Board of Immigration Appeals (Board) found that “married women in Guatemala who are unable to leave their relationship” is a cognizable social group and might form the basis of an asylum claim. Asylum seekers with gender-based claims still faced an uphill battle as they had to prove that the abuse they suffered rose to the level of persecution; that they suffered “on account” of their membership in their particular social group, and that the country was either unwilling or unable to protect them. But importantly, gender-based claims by survivors of domestic violence were not doomed from the onset. Immigration judges and the Board would go on to recognize similar groups to that in A-R-C-G-.
This situation was thrown into disarray when then-Attorney General Jeff Sessions directed the BIA to refer a case to him with a similar PSG to that in A-R-C-G-. In his decision, known as A-B- I, Sessions vacated the Board’s decision, found that A-R-C-G- was wrongly decided, and held that “[g]enerally” asylum claims “pertaining to domestic violence … by non-governmental actors” generally would not qualify for asylum. While Sessions did not say outright that gender-based claims based on private conduct were automatically precluded, the word “generally” did the heavy lifting. After A-B- I, Immigration Judges would often categorically deny claims from survivors of domestic violence committed by partners and other non-governmental actors, and they would do so without engaging in any analysis of the asylum seekers specific situation or of the conditions in the country they were fleeing from. The blanket language from A-B- I, which was not supported by legal precedent, became a rubber stamp of denial.
This changed with the new administration. President Biden issued an executive order for the Attorney General and the Secretary of Homeland Security to promulgate new regulations “addressing the circumstances in which a person should be considered a member of a ‘particular social group.’” And pending this process, the Attorney General issued a decision that vacated Matter of A-B- I. He objected to the same “broad language” that immigration judges and Board members have used as a crutch to deny asylum applications from domestic violence survivors without any real analysis. The problem, as Garland saw it, was that A-B- I, created “a strong presumption against asylum claims based on private conduct” and discouraged “careful case-by-case analysis of asylum claims.” Instead, Garland directed immigration judges and the Board to follow “pre-A-B- I precedent, including Matter of A-R-C-G-” until the new rules are adopted.
What does Garland’s decision mean for asylum claims based on domestic violence? It is good news, but how good exactly? It is too early to say. The Board has yet to issue any published opinions based on the new lay of the land, but Circuit Courts of Appeal throughout the country have started to remand cases back to the Board for reconsideration if the denials were based—if only in part—on Matter of A-B- I. This means that we—and immigration judges—will soon get more guidance. It also means that many domestic abuse survivors who were denied asylum based on their PSG but filed a timely appeal that is pending before the Board will get a second chance.
Of course, once the situation stabilizes, the new rules might throw everything into disarray again. But rulemaking allows for public comments. The Department of Homeland Security must at least address concerns and suggestions from various stakeholders—including immigration advocates and activists—before promulgating the final rule. It is a more transparent process than throwing legal precedent to the wind and changing the law with the stroke of a pen.