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Immigration Law

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Attorney General Barr Holds That In Matter Of L-E-A-, 27 I&N Dec. 40 (BIA 2018), The BIA Improperly Recognized The Respondent’s Father’s Immediate Family As A “Particular Social Group” (PSG) For Purposes Of Qualifying For Asylum Under The INA. All Asylum Applicants Seeking to Establish Membership In A PSG, Including Groups Defined By Family Or Kinship Ties, Must Establish That The Group Is 1) Composed Of Members Who Share A Common Immutable Characteristic; 2) Defined With Particularity; 3) Socially Distinct Within The Society In Question. While The BIA Has Recognized Certain Clans And Subclans as PSGs, Most Nuclear Families Are Not Inherently Socially Distinct And Therefore Do Not Qualify As PSGs. The Portion Of The BIA’s Decision Recognizing The Respondent’s Proposed PSG Is Overruled (Matter Of L-E-A, Part II. A). The Rest Of The BIA’s Decision Including Its Analysis Of The Required Nexus Between Alleged Persecution And The Alleged Protected Ground, Is Affirmed (Part II.B).

September 16, 2019 Philip Levin

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)

Filed Under: Attorney General, BIA, Blog, Particular Social Group (PSG)

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TN

The TN nonimmigrant classification allows qualified Canadian and Mexican citizens to enter the U.S. and engage in professional business activities. PL&A will help you navigate through the TN application process by evaluating your eligibility, preparing supporting documentation for your application, and ultimately filing your application. 

B-1

PL&A will guide you through the consular process to receive a B-1 visa for specific short-term business purposes ranging from contract negotiations to seminars and conferences.

O-1

O-1 visas are for persons of extraordinary ability in the sciences, arts, education, business or sports. 

J-1

Administered by the Department of State, the J-1 visa is for students, trainees, academics, researchers, professionals or experts participating in an approved Exchange Visitor program. PL&A will assist you and your sponsor with preparing the necessary paperwork and the consular process so you can begin your program at ease. 

E-1 & E-2

E-1 visas and E-2 visas are for nationals of countries with which the United States has a treaty of friendship, commerce and navigation (FCN) or bilateral investment treaty (BIT). If you are a nonimmigrant trader or investor seeking to conduct business operations or develop a new enterprise in the U.S., we will help you file for the appropriate visa. As a recognized expert in this area, Mr. Levin will provide experienced and dependable assistance with E-1 or E-2 visa applications. 

  • E-1: If you are a national of a country that conducts a significant volume of trade with the U.S. (or if you intend to develop trade between the U.S. and your home country) you might be eligible for entry under an E-1 visa. 
  • E-2: The E-2 visa allows investors from treaty countries to enter the U.S. for purposes of directing and developing a business, with all the commitments and risks implicit in entrepreneurial activity. 
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The L-1 visa category is for executives, managers or professionals employed by foreign affiliates of U.S companies. The L-1 visa is divided into two classifications:

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Many companies in the United States find themselves increasingly dependent on the talent, experience and energy of foreign national workers in professional, technical or specialized occupational fields. These employees typically enter the U.S. on nonimmigrant H-1B visas for “specialty occupations.” 

With extensive experience in business immigration, you can count on PL&A to guide your company or Human Resources department in preparing and filing an H-1B visa petition.

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Family preservation and reunification is a priority for our firm. Our attorneys have advised and assisted families from all over the world with entry visas, adjustment of status, and other immigration problems. 

  • Immediate Relatives: If you are the spouse, child, or parent of a U.S. citizen, we can help you obtain a green card through an Immediate Relative petition. 
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If you are a U.S. citizen and your fiancé/fiancée or spouse is overseas, our office will assist you to navigate the CIS requirements and regulations to have the case approved and then prepare you and your spouse for the interview at the U.S. Embassy. PL&A will also help you find the best ways to resolve any problems you encounter if a waiver is required in your case.

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Immigration through marriage is a common means of obtaining permanent residence in the U.S.  Since 1991, Philip Levin & Associates has helped hundreds of couples immigrate to the U.S. and build their lives together. 

  • I-130 Petition and Adjustment of Status: If you are married to a U.S. citizen, present in the U.S. and eligible to do so, our attorneys will assist you in preparing and filing the necessary I-130 petition and I-485 adjustment of status application in the U.S.
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