On June 11, 2018, Attorney General Jefferson Sessions, in an exceedingly long opinion, decided a case he had directed the Board of Immigration Appeals (BIA or Board) to refer to him for his review, ultimately vacating the BIA’s previous decision in remanding to the Immigration Judge (IJ) for further proceedings. Initially, the AG noted that asylum applicants seeking to establish persecution on account of membership in a particular social group (PSG) must prove both that a) membership in the 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 and b) membership in that group is a central reason for her persecution. Additionally, when the alleged persecutor is unaffiliated with the government, “the applicant must show that flight from her country is necessary because her home government is unwilling or unable to protect her.” Further, held AG Sessions, PSG asylum seekers “must establish membership in a particular and socially distinct group that exists independently of the alleged underlying harm,” prove that they were persecuted “on account of” their PSG membership and not for “personal reasons,” and establish that government protection in their home country “is so lacking that their persecutors’ actions can be attributed to the government.” Because, stated the AG, a prior Board precedent, Matter of A-R-C-G-, 26 I&N Dec. 338 (BIA 2014), had recognized a new PSG “without correctly applying these standards,” he overruled that case and other decisions inconsistent with the instant opinion.
In his discussion of A-R-C-G-,AG Sessions noted that the decision had recognized “married women in Guatemala who are unable to leave the relationship” as a PSG, “without performing the rigorous analysis required by the Board’s precedents.” Instead, the BIA had accepted concessions by DHS that the respondent had suffered harm “rising to the level of past persecution,” that she was a member of a qualifying PSG, and that her membership therein was a central reason for her persecution. The AG found that A-R-C-G-had not correctly applied the Board’s precedents and thus overruled it. That opinion had caused confusion, he stated, because it “recognized an expansive new category” of PSG based on “private violence.” In the instant matter, citing to A-R-C-G-,the BIA had failed to meaningfully consider whether the respondent was a member of a qualifying PSG or whether her persecution “was on account of her membership in that group,” giving “insufficient deference” to the IJ’s factual findings. Thus, AG Sessions vacated the Board’s decision here and remanded to the IJ for further proceedings “consistent with this opinion.” In setting out his view on the topic, the AG held that, generally, asylum claims “pertaining to domestic violence and gang violence perpetrated by nongovernmental actors will not qualify for asylum.” Further, noted the opinion, while the AG did not decide that violence by nongovernmental actors may neverserve as the basis for an asylum claim based on PSG membership, “such claims are unlikely to satisfy the statutory grounds for proving group persecution that the government is unable or unwilling to address.” That a country may have issues with policing certain criminal acts, e.g., domestic and gang violence, or that certain populations are more likely to be victimized, does not by itself establish an asylum claim.
Emphasizing these central points, towards the end of the opinion, the AG specifically found that A-R-C-G-was “wrongly decided and should not have been issued as a precedential decision,” stating that, to the extent the Board in that decision had examined the pertinent legal questions (as outlined above) its analysis “lacked rigor” and broke with established precedents. Such cases had defined “persecution” as having three elements: 1) an intent to target a belief or characteristic, 2) a “severe” level of harm, and 3) suffering inflicted “either by the government of a country or laypersons or an organization that the government was unable or unwilling to control.” Therefore, one seeking to establish persecution based on the violent conduct of private actors must prove more than “difficulty…controlling private behaviors”; the applicant must show that the government condoned the private actions or at least demonstrated complete helplessness in protecting the victims. In other words, respondents need not merely prove the crime has gone unpunished, but that “the government is unwilling or unable to prevent it.” Similarly, in domestic violence cases like R-A- and A-R-C-G-, found AG Sessions, the BIA had cited to no evidence that respondent’s ex-husband had attacked her because he was aware of, and hostile to, married women in Guatemala who are unable to leave the relationship. Instead, “he attacked her because of his pre-existing personal relationship with the victim.”
After pointing out numerous errors by the Board in disagreeing with the IJ’s legal and factual findings, as well as in finding respondent had established the required nexus between her harm and her group membership, the AG reminded all adjudicators of asylum claims to “consider the following points”: those seeking asylum based on PSG membership “must clearly indicate, on the record before the immigration judge, the exact delineation of any” proposed PSG; consistent with the applicable regulations, “whether internal relocation in the…home country presents a reasonable alternative” before granting an asylum claim; and, that “alternative proper and legal channels” exist for those seeking admission to the U.S. “other than entering the country illegally and applying for asylum” in removal proceedings. As to the second point, AG Sessions specifically noted that when one has suffered “personal harm” by “only a few specific individuals,” internal relocation is the option that “would seem more reasonable than if the applicant were persecuted broadly by her country’s government.” A-R-C-G- was therefore overruled along with all other opinions inconsistent with the analysis in this opinion, the BIA’s decision was vacated, and the case remanded to the IJ. Matter of A-B-, 27 I&N Dec. 316 (BIA 2018).
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