On July 29, 2019, Attorney General (AG) William Barr issued a decision in a case decided in 2018 by the Board of Immigration Appeals (BIA or Board) where most recently, on December 3, 2018, Acting AG Matthew Whitaker has directed the BIA to refer its decision to him for review. Respondent who was threatened with violence by cartel members unless he sold illegal drugs at his father’s store, had entered the U.S. and filed for political asylum and, after denial by the Immigration Judge (IJ), had appealed to the Board, which held that his relationship with his father established membership in a particular social group (PSG), specifically “his father’s immediate family”. This finding relied upon DHS’s concession “that the immediate family unit of the respondent’s father qualifies as a cognizable social group.” In its precedent decision, Matter of L-E-A, 27 I & N Dec. 40 (BIA 2018), the BIA found that PSG determinations require a fact-based inquiry made on a case-by-case basis but, according to AG Barr, “did not perform such an inquiry,” instead merely summarily concluding – based on the facts of the case and the agreement of the parties (the latter a sticking point) – that respondent was a member of a PSG comprised of his father’s immediate family.
AG Barr thus found that the case once again required “interpretation of what it means to suffer persecution on account of ‘membership in a particular social group’”. Citing to case law that holds that a PSG must share “a common immutable characteristic” defined with particularity, set apart or distinct from others in the society in some significant way, and that a respondent bears the burden of showing that his or her proposed PSG meets these criteria, AG Barr noted that the Board has recognized “large and prominent kinship and clan groups” as cognizable PSGs. However, he held, one’s immediate family will generally “not be distinct on a societal scale, whether or not it attracts the attention of criminals who seek to exploit that family relationship in the service of their crimes.”
Turning to the merits, the AG concluded that the BIA had erred in finding that respondent’s proposed PSG qualified as such under the INA. Repeating the criteria that a “specific family group” must be defined with sufficient particularity and be social distinct in society, AG Barr concluded that in “the ordinary case, a family group will not meet that standard” because it will lack the “identifying characteristics” that would render a family socially distinct within society.
Noting that he was deferring to published Board decisions, the AG also pointed out that one claiming membership in a PSG must establish that the group is 1) composed of members who share a common immutable characteristic; 2) defined with particularity; and 3) socially distinct within the society in question. The BIA, he found, had previously explained that this definition is a continuation of its earlier interpretations of a “PSG” clarifying how the definition had “been refined through the process of case-by-case adjudication.” Reiterating the regulations and case law that hold that for a PSG to be cognizable, it must “exist independently” of the harm asserted, the AG held that in the ordinary case, a nuclear family will not, without more, constitute a “PSG” because “most nuclear families are not inherently socially distinct.” He went on to add that, to the extent any circuit court of appeals has adopted a “categorical rule” that any nuclear family could constitute as PSG, “such a holding is inconsistent with both the asylum laws and the long-standing precedents of the Board.” AG Barr also held that whether a specific family group is a cognizable PSG “should be determined by the immigration courts in the first instance, as an exercise of the Attorney General’s delegated authority to interpret the INA.”
The AG further clarified his holding, finding that as almost every respondent is a member of a family of some kind, categorically recognizing families as PSGs would render virtually every applicant a member of a PSG. There is no evidence, he stated, that Congress intended the term “to cast so wide a net.” Thus, concluded AG Barr, to qualify when one proposes a PSG composed of a specific family unit, an applicant must show that his proposed group has “some greater meaning in society.” It is insufficient if the family is merely set apart in the eye of the persecutor because it is society’s perception that matters. The opinion, therefore, overruled the portion of Matter of L-E-A- discussing whether the proposed PSG is cognizable (Part IIA) and abrogated “all cases inconsistent with this opinion,” leaving the Board’s nexus requirement analysis undisturbed, and remanded the matter to the IJ. Matter of L-E-A-, 27 I & N Dec. 581 (A.G. 2019)