Asylum Law in the Wake of Matter of A-B- - Articles

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Posted by: Karla McKanders on Jan 23, 2019

Over the past few months, there have been multiple updates and changes on domestic violence and non-state actor asylum claims. The changes require practitioners to monitor daily federal court litigation as well as Board of Immigration Appeals (“BIA” or “Board”) decisions. This article provides an overview of Matter of A– B–, 27 I&N Dec. 316 (A.G. 2018), the impact of the December 2018 federal court decision in Grace v. Whitaker, 344 F. Supp. 3d 96 (D.D.C. 2018), and pointers for filing domestic violence and non-state actor asylum claims.

In June 2018, the Attorney General Jeff Sessions (A.G.) issued Matter of A–B–. This case involved A.B., a Salvadoran national, who was in an abusive relationship with her husband for 15 years in marriage. Once, during one of her pregnancies, he threatened to hang her with a rope from the roof of their house. Salvadoran authorities provided no protection, despite A.B. obtaining two restraining orders against her husband as they refused to enforce these orders. Despite leaving her husband and moving to another town two hours away from where they lived together, her husband found A.B. and the abuse continued. A.B. sought a divorce, which only escalated the threats on her life.

Ultimately, A.B. traveled to the United States, where she applied for asylum under the Immigration and Nationality Act (INA) which requires her to demonstrate a well-founded fear of persecution on account of “race, religion, nationality, membership in a particular social group, or political opinion.” INA § 101(a)(42)(A).

The Charlotte Immigration Court, through Judge Couch, denied her application for asylum. On appeal, the BIA unanimously reversed the judge’s denial. In its reversal, the BIA relied on the precedent decision, Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014). In Matter of A-R-C-G-, government counsel stipulated to the existence of a social group comprised of “married women from Guatemala who are unable to leave their relationship,” which resulted in a grant of asylum. This decision held domestic violence victims could receive asylum. The BIA found A.B.’s social group to be similar to that of A-R-C-G.

The BIA referred her case back to the Immigration Court in Charlotte to complete her background check and grant asylum. However, instead, on March 7, 2018, A.G. Sessions referred Matter of A–B– to himself for a decision. The A.G. reversed the BIA’s grant of asylum and overruled Matter of A-R-C-G- as a precedent decision. In the decision, the A.G. stated, in dicta that “generally, claims ... pertaining to domestic violence or gang violence will not qualify for asylum.”  The decision also held the Board in Matter of A-R-C-G- did not properly apply Matter of M-E-V-G- 26 I&N Dec. 227, 242 (BIA 2014) and Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014), on social distinction and particularity.

The language of Matter of A-B- proposes that non-state actor asylum claims are not viable. Again, this principle is contrary to the INA, Code of Federal Regulations and BIA precedent. See generally, 8 C.F.R. § 1208.13(b)(1);  In Re Kasinga, 21 I&N Dec. 357 (BIA 1996).  Multiple cases have held that individuals fleeing persecution by non-state actors where the government is unable or unwilling to protect them have actionable asylum claims. The decision cites language in a Seventh Circuit case stating that the government “condones” or is helpless to protect victims. Galina v. INS, 213 F.3d 955, 958 (7th Cir. 2000). Practitioners must be aware of this language, be prepared to address it and rely on Sixth Circuit precedent that specifically on the Board’s long applied principle of government unwillingness or inability to control a non-state actor.

One should note that even though the language of Matter of A-B- intends to foreclose domestic violence and arguably gang related asylum claims, the Refugee Convention, the Immigration and Nationality Act (INA) – which codified the Refugee Convention in 1980, and precedential case law at the Courts of Appeals and BIA continue to support domestic violence and non-state actor asylum claims independently of Matter of A-R-C-G-. The Board, however, has applied Matter of A-B- , and accordingly, attorneys must ensure that they are presenting evidence in a manner that adheres to the Board’s reading of the decision. In vacating A-R-C-G-, attorneys must now ensure they are creating a record and argument in which they are formulating a proper social group while also exploring alternative forms of protected categories under which their client may qualify for asylum. This is a particularly daunting task for cases that have been pending before the courts for multiple years waiting their merits hearing.

In addition, in July 2018, the Department of Homeland Security, U.S. Citizenship and Immigration Services (USCIS) and Immigration and Customs Enforcement (ICE) issued clarifying guidance on the impact of A- B- on their agencies – mainly credible fear interviews. In the memo, USCIS stated “few gang-based or domestic violence claims involving particular social groups defined by the members’ vulnerability to harm may...pass the ‘significant probability’ test in credible fear screenings.”

On Dec. 14, 2018, the federal district court for the District of Columbia issued a decision in Grace v. Whitaker, 344 F. Supp. 3d 96 (D.D.C. 2018) citing 8 U.S.C. § 1252(e)(3)(A) as legal authority to review ‘[c]hallenges [to the] validity of the [expedited removal] system.” BIA and immigration judges are generally not bound by the decisions of district courts. Id. In Grace v. Whittaker, the Court prohibited USCIS from applying its July 2018 policy memo on Matter of A-B-.  The court’s decision was based upon the premise that “it is the will of Congress - and not the whims of the Executive - that determines the standard for expedited removal.” Grace, 344 F. Supp. 3d at 96.

On December 19, 2018 (but not released to general public until January 14, 2019 through a FOIA request), the same day of the Grace v. Whitaker decision, the USCIS issued a memorandum setting forth the following guidelines with regard to credible fear processing:

1) There is no general rule against claims involving domestic violence and gang-related violence as a basis for membership in a particular social group;

2) Asylum officers must determine whether the government in the country of feared persecution is “unable or unwilling to control a persecutor,” and cannot use the “condoned” or “complete helplessness” formulation as suggested in Matter of A-B-;

3) There is no general rule that proposed particular social groups whose definitions involve an inability to leave a domestic relationship are circular and therefore not cognizable. While a particular social group cannot be defined exclusively by the claimed persecution, each particular social group should be evaluated on its own merits. See Matter of M-E-V-G-, 26 I. & N. Dec. 227, 242 (BIA 2014). If the proposed social group definition contains characteristics independent from the feared persecution, the group may be valid. Analysis as to whether a proposed particular social group is cognizable should take into account the independent  characteristics presented in each case;

4) In evaluating whether the applicant has established a credible fear of persecution, asylum officers cannot require an applicant to formulate or delineate particular social groups. Asylum officers must consider and evaluate possible formulations of particular social groups; and

5) Asylum officers may not disregard contrary circuit law and may not limit their analysis to the law of the circuit where the alien is located during the credible fear process.

On the same date, EOIR issued a memorandum to all Immigration Judges, who are responsible for conducting credible fear review hearings, stating they may not rely on these aspects of Matter of A-B- as a basis for affirming a negative credible fear determination: (a) general rule against credible fear claims relating to domestic and gang violence, and (b) requirement that an alien whose credible fear claim involves non-governmental persecutors “show the government condoned the private actions or at least demonstrated a complete helplessness to protect the victim.”

Thus, practitioners may want to argue Grace v. Whitaker should apply to immigration judges holding Master Calendar hearings and to Asylum Officers holding offensive asylum claim interviews because the same issues are present in all of these hearings and interviews. However, immigration judges and asylum officers may narrowly read Grace v. Whittaker to only apply to credible fear interviews and hearings. In litigating social group asylum claims, attorneys must pay close attention to Board and Sixth Circuit precedent at every stage from challenges to credible fear determinations, asylum interviews, and individual hearings before the Memphis Immigration Courts.

The co-authors of this article are Alvaro Manrique Barrenechea, a 2019 LLM Candidate at Vanderbilt University School of Law and Karla McKanders, Clinical Professor of Law and Director of Vanderbilt Immigration Clinic. Alvaro is a 2013 graduate of Universidad de Lima (Peru) Law School. He may be reached at Karla joined the Vanderbilt faculty in 2017 after serving in a similar position at University of Tennessee Law School. Karla is a graduate of Duke University School of Law. She may be reached at or (615) 322-3092.