One of the last parting shots at asylum seekers to emanate from the Trump administration was then Acting Attorney General Jeff Rosen’s opinion in Matter of A-B, 28 I&N Dec. 199 (A.G. 2021)(issued on January 14, 2021)[hereinafter “Matter of A-B II”]. To recap, Matter of A-R-C-G was the seminal, precedential domestic violence-based asylum case from the Board of Immigration Appeals (BIA). In 2018, then Attorney General Jeff Sessions referred Matter of A-B to himself and overruled Matter of A-R-C-G on several grounds. (“Matter of A-B I”). One of the erroneous premises of the decision was that domestic violence is presumed to be motivated by nothing more than the private dynamics of a personal relationship. Tornes v. Garland, ___ F.3d ___, 2021 U.S. App. LEXIS 9770 (9th Cir. 2021)(J. Paez concurring)

When the persecution is committed by a “private actor”, the law requires showing the government is either unwilling or unable to control said the actor. Matter of A-B, 27 I&N Dec. 316, 337 (A.G. 2018). In Matter of A-B I, emphasizing the supposed personal nature of domestic violence, then A.G. Sessions decided that “unwilling or unable” meant condone or “demonstrate[] a complete helplessness to protect the victims.” Matter of A-B, 27 I&N Dec. 316, 337 (A.G. 2018)(citing Galina v. INS, 213 F.3d 955 (7th Cir. 2000)).

Judge Emmett Sullivan of the D.C. District Court soundly rejected this formulation of the standard. The latest Sixth Circuit decision to address Matter of A-B I in the domestic violence context found Judge Sullivan’s reasoning persuasive. On May 19, 2020, the U.S. Court of Appeals for the Sixth Circuit decided Juan Antonio v. Barr, 959 F.3d 778 (6th Cir. 2020), stating in footnote 3 that Matter of A-B has been abrogated by Grace v. Whittaker, 344 F.Supp.3d 96 (D.D.C. 2018)(“Grace”). The Sixth Circuit noted that while it was “not bound by Grace,” that it found its reasoning persuasive. The Court explained “[b]ecause Matter of A-B has been abrogated, Matter of A-R-C-G likely retains precedential value.” Juan Antonio, 959 F.3d at 791.

If the Sixth Circuit found Judge Sullivan persuasive, and Judge Sullivan rejected the complete helplessness formulation, it follows the Sixth Circuit also would reject the “complete helplessness” standard if the issue came squarely before it in the context of a domestic violence-based asylum claim. We may not have the opportunity for a while, but it is worth thinking about.

Applying Matter of A-B II in Memphis Immigration Courts

The Memphis Immigration Court has been closed for several months now due to the pandemic. All non-detained hearings are postponed until at least June 2021. Thus, for the time being, it is yet unknown how the Memphis Immigration Court will apply Matter of A-B II if at all, given that Matter of A-B I has been abrogated in the Sixth Circuit. If, however, practitioners find themselves in an individual hearing for a domestic violence-based asylum claim at the Memphis Immigration Court any time soon, the immigration court may be applying the complete helplessness standard pursuant to Matter of A-B II because the opinion purports to only be clarifying the standard that has already existed. If that is all it was doing there would be no need to write another opinion about it.

Since there is no Sixth Circuit precedent addressing Matter of A-B II in the domestic violence-based asylum claim context, one can make (at least) two solid arguments.

First is the above argument, which is the Sixth Circuit finds Judge Sullivan persuasive and Judge Sullivan rejected the complete helplessness standard. Therefore, so should the Memphis Immigration Court. Second, explain where the “helplessness” language came from in Galina and its predecessors to show why police coming out one time to the victim’s house or the persecutor mentioning he does not want to go to jail could still satisfy the “unable or unwilling” to control part of the test, even if the Sixth Circuit would apply Matter of A-B II.

Although AG Sessions and later AG Rosen refer to Galina to support the proposition that “unable” is synonymous with “demonstrates a complete helplessness,” when one takes a closer look, Galina does not support this reading—at least not as narrowly as it seems to have been playing out in post-Matter of A-B Immigration Courts.

The facts in Galina show effective police response to a couple of the asylum-seeker’s complaints about menacing phone calls, but nevertheless the asylum-seeker prevailed in the appeal, as she had been subjected to various other threats. Galina v. INS, 213 F.3d 955, 958 (7th Cir. 2000). In the opinion, Judge Posner merely notes the effective police response in those few instances “might be a reason” to deny the claim because “a finding of persecution ordinarily requires a determination that government authorities, if they did not perpetrate or incite the persecution, condoned it or at least demonstrated a complete helplessness to protect the victims.” Galina v. INS, 213 F.3d 955, 958 (7th Cir. 2000)(citing Bucur v. INS, 109 F.3d 399, 403 (7th Cir. 1997)). This one line appears to be the origin of the “complete helplessness” language cited in Matter of A-B I & II.

Interestingly, the caveat that the complete helplessness standard only applies if the government did not perpetrate or incite the persecution is an interesting one in light of one modern take on origins of domestic violence. Judge Paez writes in his concurring opinion in Tornes v. Garland:

In contrast to the BIA's "personal relationship" view of domestic violence, [the claimant’s expert] draws on more than three decades of research, writing, legal representation, and lawmaking to explain that "the socially or culturally constructed and defined identities, roles and responsibilities that are assigned to women, as distinct from those assigned to men, are the root of domestic violence." ... In describing the legal, social, cultural, and political structures that lay the foundations for intimate partner violence, [she] explains that "domestic violence is not typically caused by behaviors unique to the victim or by inter-personal dynamics unique to the relationship between the abuser and the abused. ... Rather, heterosexual male batterers have certain expectations of intimate relationships with regard to which partner will control the relationship and how control will be exercised. These expectations are premised on a dogmatic adherence to male privilege and rigid, distinct, and unequal roles for women and men.

The record evidence of [her] rigorous expert analysis undermines the BIA's unsubstantiated premise that, unless otherwise shown, domestic violence is a purely private matter. The BIA makes no mention of the record evidence of [her] expert analysis, let alone the decades of publicly available social science research and public policy that all reject the BIA's outdated view of domestic violence as a quirk within a "personal relationship." Thus, the BIA's assertion that domestic violence is presumptively a private matter is not supported by substantial evidence.”

The Galina court cites Bucur and three other cases to support this proposition, but none of the cited cases are used the way AG’s Sessions and Rosen imply they should be used. Bucur uses the term “condone.” None of the four cases cited in Galina use the term “helpless.”

In Bucur, the “condoned” standard comes from a case where the court is struggling to determine the difference between discrimination of minorities and persecution of minorities. “The difference between persecution and discrimination is one of degree, which makes a hard and fast line difficult to draw. But we think it a reasonable generalization that the persecution of minority groups ... differs from discrimination against them in being either official and severe, or nonofficial and condoned.” Bucur v. INS, 109 F.3d 399, 403 (7th Cir. 1997) Using this logic, the court explains a law which would require certain ethnic minorities to wear an armband or to not be permitted to attend college would be considered persecution but establishing that there is general anti-ethnic sentiment which precludes most of a certain ethnicity from attending college would be mere discrimination. Id. Alternatively, individuals not associated with the government engaging in pogroms of an ethnic minority while the government looks the other way, would be in effect condonation and therefore persecution. Id. Seems apt in the domestic violence context where violence against women is endemic and effectively the government looks the other way or even works to solidify the beliefs about inequality among the genders.

In the other three cases cited in Galina, only one sheds light on what Judge Posner may have meant by the phrase “demonstrates a complete helplessness to protect the victims.” It is a First Circuit case wherein the asylum-seeker had been a member of a political party and was claiming to have been persecuted by members of another political party. Aguilar-Solis v. INS, 168 F.3d 565 (1st Cir. 1999) The claimant’s own political party though had won in the election and were in control of the government by the time of the First Circuit’s decision. Aguilar-Solis, 168 F.3d at 573. The court stated, “Although action by non-governmental entities can constitute persecution, the law requires at least some showing that the alleged persecutors are not subject to the government’s control. In this instance, the record is barren of any indication why a presumably friendly government would be unable to protect a returning Aguilar from fringe renegades.” Id. (internal citations omitted)(emphasis added). In contrast, in most domestic violence cases, there is ample evidence as to why the government would not protect women from their violent male partners, and ample evidence that the government will not do so.

Later in Matter of A-B II, AG Rosen cites a string of cases to support his proposition that the complete helplessness standard is the same as the unable prong of the test. In that string of cases, he cites one Sixth Circuit case: Kere v. Gonzales, 252 Fed.Appx. 708 (6th Cir. 2007)(citing Galina for the proposition). The Kere case was about a gentleman specifically being targeted by two members of his own family who were a different religion that him on account of his religious beliefs; however, the government did not systematically support in this type of behavior pattern. The Kere Court cited Galina and the complete helplessness standard in its opinion, which in the Kere case matched the facts. There was not a domestic violence-based asylum claim being made in Kere, and Kere was not describing a systemic problem to which the government looked the other way.

Only time will tell how the Memphis Immigration Courts will view this issue but the above hopefully provides ammunition to attorneys for asylees on this important issue.

Footnotes
1. https://www.jeffreyschase.com/blog/2021/1/19/a-parting-shot-at-women.
2. Matter of A-R-C-G, 26 I&N Dec. 388 (BIA 2014).
3. Matter of A-B, 27 I&N Dec. 316 (A.G. 2018).
4. Another interesting case in that string of cases mentioned in Matter of A-B II is the Hor v. Gonzales case. In that case, the phrasing is “helpless to prevent” harm, rather than helpless to protect.

____________

Rachel Bonano is at the Law Office of Rachel Bonano, PLLC in Knoxville, where she practices in the areas of immigration - removal defense, family-based immigration law, criminal defense, family law, personal injury, and construction law. Rachel received her J.D. from the University of Tennessee College of Law in 2011. She can be reached at rbonano@bonanolaw.com.