On September 24, 2020, U.S. Attorney General (AG) William Barr directed the Board of Immigration Appeals (BIA or Board) to refer the instant case to him for review of its decision per 8 C.F.R. §1003.1(h)(1)(i), vacating the BIA’s decision and remanding the case to the Board for review by a three-member panel. In its original, November 2019 decision, the BIA had dismissed a DHS appeal challenging the Immigration Judge’s (IJ’s) finding that Respondent had established a nexus between her membership in a particular social group (“Salvadoran females”) and past persecution by her parents. That decision had addressed the merits of Respondent’s claim by stating it discerned no clear error in the IJ’s conclusion that Respondent “established persecution on account of her membership in a particular social group.”
As a preface, AG Barr noted that he and former AG Sessions had emphasized that the Board must review de novo both questions of law and the IJ’s application of the law to facts. Similarly, in regards to the necessary elements of a valid asylum claim, victims of private violence, including domestic violence, “will not usually satisfy the requirements for asylum on the basis of those particular circumstances.” Here, the AG concluded, the BIA neither analyzed in any depth whether Respondent’s evidence established the required nexus between her membership in a particular social group (PSG) and the asserted persecution, nor reviewed the IJ’s ultimate determination that Respondent was eligible for humanitarian asylum. On remand, he found, the BIA must consider whether she has proven that her past mistreatment was “on account of” a protected ground, such as a PSG, “rather than on account of individual private circumstances not connected to any statutory basis for asylum relief.”
The AG initially explained that one may qualify for asylum in 2 different ways: 1) by establishing a “well-founded fear” of future persecution by showing that a reasonable person in her circumstances would fear persecution on one of the five protected grounds if she were to return home or 2) by establishing that she has suffered past persecution, creating a presumption that she will face a well-founded fear of persecution upon her return. The decision next stated that, by regulation, the Board functions as an appellate body charged with reviewing those “administrative adjudications under the Act” that the AG assigns to it; although it reviews an IJ’s factual findings for clear error, it reviews de novo questions of law, discretion, and judgement, as well as the application of law to fact.
Recently, AG Barr went on, Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018) had reiterated that an asylum applicant whose claim was based on membership in a PSG must demonstrate: 1) membership in a particular 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; 2) that her membership in that group is a central reason for her persecution; and 3) that the alleged harm is inflicted by the government of her home country or by persons the government is unwilling or unable to control. The Board has a duty to review each element and DHS’s decision not to challenge a particular element did not relieve the BIA from its need to review the IJ’s determination on that point.
The opinion found that Matter of A-B- had not only restated the standard of review for asylum appeals, but also involved a legal claim similar to Respondent’s; the AG emphasized that PSGs must be “defined with particularity.” Here, concluded AG Barr, the BIA had erred: The IJ had held that Respondent had suffered past persecution through abuse by her parents on account of being a Salvadorian female and the Board had affirmed “without meaningfully considering any of the elements” of her asylum claim; this was a misapplication of the appropriate standard of review, which required the BIA to review de novo the IJ’s conclusion “and its underlying legal determinations.” On remand, the AG stated, the Board must consider whether Respondent established the PSG of “Salvadorian female” and a nexus between her membership in that group and the claimed persecution.
The decision next explained that the BIA must carefully consider whether Respondent’s membership in her asserted PSG “was truly ‘one central reason’ for her persecution at the hands of her parents.” Even where a PSG member has suffered persecution, an asylum application will be denied if the harm inflicted or threatened by the persecutor is not ‘on account of’ her membership in that group. AG Barr emphasized that this requirement is “especially important” where, as here, the asserted PSG “encompasses millions of Salvadorans.” One’s PSG membership, the AG stated, cannot be incidental, tangential, or subordinate to the persecutor’s motivation for inflicting harm; Barr reminded the Board that “persecution that results from personal animus or retribution generally does not establish the necessary nexus.” Furthermore, concluded the decision, if the prosecutor has not targeted or shown animus toward a PSG other than the applicant, she “may not satisfy the nexus requirement.”
The AG then referenced his prior decree in Matter of L-E-A- 27 I&N Dec. 581 (A.G. 2019) that the Board has a duty to conclude that a respondent has satisfied all of the statutory requirements to qualify for asylum before affirming an IJ’s grant of this relief. But here, he decided, the BIA had not explored whether there was any evidence that Respondent’s parents “bore animosity” towards other Salvadorian females or if they (including her mother, who was a member of the PSG herself) perceived them as a “distinct social group.”
AG Barr next added that, as in A-B-, he need (and does) not hold here that there are no circumstances where one’s membership in a gender-based PSG may be “one central reason” for a respondent’s persecution, but that the instant record “raises serious questions about whether the applicant may carry that burden;” again, concluded the opinion, the Board did not properly analyze whether Respondent had satisfied the nexus requirement nor had it reviewed the IJ’s legal conclusions de novo. As to the IJ’s grant of humanitarian asylum per C.F.R. §1208.13 (b)(1)(iii), the Immigration Court held that Respondent merited that relief because she had proven that she would be “at risk” of other serious harm if returned to El Salvador. Again, the AG concluded the BIA had not mentioned this issue in its opinion or analyzed whether the IJ’s findings “were consistent with the regulation and Board precedent about this form of humanitarian asylum.”
The BIA’s decision was thus vacated and the case remanded for review by a 3-member panel, with the Board tasked with “meaningfully” assessing whether Respondent qualifies for asylum; if it finds that DHS has rebutted her presumption, based on a showing of past persecution on account of her proferred PSG, that she faces a well-founded fear of persecution on the same basis, the Board must review the IJ’s holding that Respondent is eligible for a humanitarian grant of asylum. Matter Of A-C-A-A-, 28 I&N Dec.84 (A.G. 2020).