Asylum and withholding of removal based on private actor persecution on account of membership in a particular social group.
In a June 11, 2018 decision, Attorney General Jess Sessions overruled a landmark 2014 decision by the Board of Immigration Appeals (BIA) in Matter of A-R-C-G-, 26 I&N Dec. 338 (BIA 2014), which had set the precedent that women fleeing domestic violence were eligible to apply for asylum. Attorney General Sessions reversed that precedential decision to rule that, except in rare cases, fleeing domestic abuse and gang-related violence should not be considered a basis for being granted asylum in the United States.
Domestic violence – Gang - Private Persecution – Asylum – Withholding of removal – Particular Social Group.
A. The decision
The respondent, a native and citizen of El Salvador, entered the United States illegally and was apprehended by the U.S. Customs and Border Protection agents in July 2014. After being placed in removal proceedings, the respondent filed an application for asylum and withholding of removal under the Immigration and Naturalization Act (INA) and under the regulations implementing the UN Convention Against Torture. The respondent asserted that her ex-husband, with whom she shares three children, repeatedly abused her physically, emotionally, and sexually during and after their marriage. The respondent claimed that she was eligible for asylum because she was persecuted on account of her membership in a particular social group, i.e. the group of “El Salvadoran women who are unable to leave their domestic relationships where they have children in common” with their partners.
In December 2015, the immigration judge denied the respondent’s asylum claim and ordered her removed to El Salvador. More specifically, the judge concluded that 1) the respondent lacked credibility, 2) that the group to which she claimed membership did not quality as a “particular social group” within the meaning of INA, 3) even if such a group existed, she failed to establish that her membership was a central reason for her persecution and, 4) that she failed to show that the El Salvadoran government had been unable or unwilling to protect her.
The respondent appealed her removal decision to the BIA, which reversed the immigration judge’s decision in December 2016. Among the grounds of reversal, the BIA noted that the respondent’s claim of persecution based on membership in a particular social group was similar to another social group it had recognized in its 2014 landmark decision in Matter of A-R-C-G, that of “married women in Guatemala who are unable to leave their relationship.” Unlike the immigration judge, the BIA also determined that the El Salvadoran government was unwilling or unable to protect the respondent. It must however be noted that, since Matter of A-R-C-G, several courts of appeals have offered a narrowed interpretation of private violence and membership in a particular social group as a ground for asylum. As stated in Velasquez v. Sessions, “evidence consistent with acts of private violence or that merely shows that an individual has been the victim of criminal activity does not constitute evidence of persecution on a statutorily protected ground.” With particular reference to membership in a particular social group, it has been noted that those who seek asylum on that ground as victims of gang violence “are often not exposed to more violence or human rights violations than other segments of society (…) and not in a substantially different situation from anyone who has crossed the gang, or who is perceived to be a threat to the gang’s interests.”
In light of these conflicting decisions and what he referred to as the “confusion” caused by the BIA since its opinion in Matter of A-R-C-G, Attorney General Sessions directed the BIA, on March 7, 2018, to refer the Matter of A-B- to him for review, upon completion of which he issued the ruling below .
The central legal question underlying Attorney General Sessions’ review of BIA’s decision in Matter of A-B- was whether, and under what circumstances, being a victim of private criminal activity constitutes persecution on account of membership in a particular social group for purposes of an application of asylum or withholding of removal. This question is the subject of an abundant case law both domestically and internationally. After review of the case, the Attorney General decided to 1) vacate the BIA’s decision of December 6, 2016 in Matter of A-B, and 2) overrule its precedential decision in Matter of A-R-C-G-, upon which the BIA had relied to decide A-B-. In Matter of A-R-C-G-, the BIA had recognized that domestically abused married women in Guatemala who are unable to leave their relationship constituted a particular social group for the purpose of asylum application or withholding of removal. Attorney General Sessions disagreed with that opinion on the ground that the BIA engaged in a cursory legal and factual analysis of the case. He wrote, “A-R-C-G was wrongly decided and should not have been issued as a precedential decision (…) To the extent that the Board examined the legal questions, its analysis lacked rigor and broke with the Board’s own precedents.” He argued that the BIA deviated from its own standards by establishing this new social group. According to the Attorney General, these standards require an applicant seeking to establish persecution on account of membership in a “particular social group” to meet two requirements:
First, the applicant must demonstrate membership in a 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 second, the applicant’s membership in that group must be a central reason for her persecution. When, as here, the alleged persecutor is someone 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.
Attorney General Sessions argued that the BIA did not follow its own standards when deciding Matter of A-R-C-G. To be cognizable, wrote the Attorney General, “a particular social group must exist independently of the harm asserted in an application of asylum or statutory withholding of removal.” While admitting, “there may be exceptional circumstances when victims of private criminal activity could meet these requirements,” Attorney General Sessions asserted that being the victim of domestic violence or gang-related persecution does not constitute membership of such group. He wrote, “The mere fact that a country may have problems effectively policing certain crimes—such as domestic violence or gang violence—or that certain populations are more likely to be victims of crime, cannot itself establish an asylum claim.” Had the BIA carefully analyzed A-R-C-G- under its own legal standards, argued the Attorney General, it would not have recognized this new and expansive particular social group of domestically abused married Guatemalan women unable to leave their relationship because such a group was not cognizable and did not exist independently of the harm alleged in the application for asylum. Furthermore, indicated the Attorney General, “when the alleged persecutor is not even aware of the group’s existence, it becomes harder to understand how the persecutor may have been motivated by the victim’s ‘membership’ in the group to inflict the harm on the victim.” In addition, the harm, he wrote, “must be severe (…) The applicant must show that the government condoned the private actions or demonstrated an inability to protect the victims.” Generally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not quality for asylum. Citing Judge Wilkinson in Velasquez v. Sessions, the Attorney General indicated that the “asylum statute is not a general hardship statute”, and that membership in a particular social group was not intended to be “some omnibus catch-all” for solving every “heart-rending situation.”
Having overruled the BIA’s landmark decision in Matter of A-R-C-G-, the Attorney General outlined some general requirements relevant to all asylum applications to provide guidance to the Board, immigrations judges and all asylum officers when evaluating an application for asylum. Two points are worth highlighting. First, “an applicant seeking asylum (…) based on membership in a particular social group must clearly indicate, on record and before the immigration judge, the exact delineation of any proposed social group.” Second, “the Board, immigration judges, and all asylum officers must consider (…) whether internal relocation in the alien’s home country presents a reasonable alternative before granting asylum.” These guidelines could have far-reaching implications in the handling of future cases.
The ruling by Attorney General Sessions is of important legal and political significance. Legally, it has overturned what was overwhelmingly celebrated as an important precedent in the movement toward a greater convergence between refugee law and human rights law. By unambiguously establishing that women fleeing domestic violence could be eligible for a particular social-group based asylum, the BIA was considered to have meaningfully moved the law of asylum toward more consistent and expansive recognition of domestic violence-based asylum claims. The 2014 BIA precedent in Matter of A-R-C-G- was particularly celebrated as an important step forward and a significant victory by women rights advocates. Politically and in the larger American society, the Attorney General’s ruling comes at a critical juncture in the fight for gender equality and seems to feed into the broader narrative that the Trump Administration is not only anti-immigration and immigrant but is also determined to roll back important social progress that has been made in many areas of the American society. As Karen Musalo, one of the leading immigration attorneys and women rights advocate put it, the ruling by the Attorney General “basically throws us back to the Dark Ages, when we didn’t recognize that women’s rights were human rights.” I will quickly offer some comments on both considerations.
Legally, it is worth noting that decision in Matter of A-R-C-G- was the culmination of a fifteen years process through the immigration courts and BIA. Contrary to the Attorney General’s claim that the BIA engaged in a cursory legal and factual analysis of the case, its decision was certified by three attorney generals. The Department of Homeland Security, the American Bar Association, and the American Immigration Lawyers Association all agreed with its final determination. Attorney General Sessions’ ruling runs contrary to a large body of circuit courts and BIA decisions that have 1) consistently determined that private criminal activity can establish persecution for both asylum and with withholding of removal, and 2) repeatedly found that private persecution of an individual on account of membership in a particular social group can warrant asylum and withholding of removal.
The decision ignores a well-established precedent that supports defining “persecution” to include private criminal activity when the government is unable or unwilling to protect the victims thereof. The circuit court cases and BIA precedential decisions are replete with examples of private criminal activity rising to the level of “persecution” under the INA, par example in case of repeated rapes and beatings by a spouse, attempted murder by drug traffickers, female genital mutilation, and sexual abuse and beatings of daughter by father. Circuit courts and BIA decisions have also determined membership in a particular social group in a wide range of situations including, inter alia, women threatened with forced prostitution by private actor, female member of a tribe that subjects its female to female genital mutilation, rape (female member of the Muuse Diriiye clan in Somalia, incest (unmarried women over 25 in Ghana), and young women of a certain tribe who had not been subjected to female genital mutilation and opposed the practice.
In light of this well-establish precedent, it is difficult to understand and follow Attorney General Sessions’ legal rationale in reversing Matter of A-R-C-G-. As stated by a group of 15 retired immigration judges and former BIA members in an open letter in response to Attorney General’s decision, “For reasons understood only by himself, the Attorney General today erased an important legal development that was universally agreed to be correct.” They called it “an affront to the rule of law,” while the American Immigration Lawyers Association has referred to it as a “shameful chapter in our country’s history.” What is certain is that this decision has created a direct conflict with Circuit Court precedent on asylum claims and withholding of removal on the ground of private persecution of an individual on account of membership in a particular social group. While the Attorney General has the power to overrule BIA precedent, Circuit Court precedent cannot be overturned by the Justice Department. In addition to conflicting with the Justice department’s own guidelines (The Coven Memorandum), Attorney General Sessions’ ruling clearly departs from the spirit of US international obligations as embodied, inter alia, in the Convention on Torture and Other Cruel, Inhuman or Degradant Treatment, and in the International Covenant on Civil and Political Rights, all of which address the concerns raised in gender persecution asylum claims. In the final analysis, this decision appears to be no more than a political instrumentalization of INA to stem the flow of asylum seekers from Central America.
C. Pour en savoir plus
Deborah Anker, “Refugee Law, Gender, And The Human Rights Paradigm,” Harvard Human Rights Journal, vol. 15 (2002), 133-154.
Ninette Kelley, “The Convention Refugee Definition and Gender-Based Persecution: A Decade’s Progress,” International Journal of Refugee Law, Vol. 13 (2001), 560-568.
Pour citer cette note : J. Mangala, “Asylum and withholding of removal based on private actor persecution on account of membership in a particular social group”, Cahiers de l’EDEM, juin 2018.
 Matter of A-B- (Immig. Ct. Dec. 1, 2015) at *8.
 Matter of A-R-C-G-, 26 I&N Dec. 338 (BIA 2014) at *390; See Matter of A-B- at *2.
 See, inter alia, Fuentes-Erazo v. Sessions, 848 F. 3d 847, 853 (8th Cir. 2017); Cardona v. Sessions, 848 F. 3d 519, 523 (1st Cir. 2017); Marikasi v. Lynch, 849 F. 3d 281, 291 (6th Cir. 2016); Vega-Ayala v. Lynch, 833 F. 3d 34, 40 (1st Cir. 2016).
 Velasquez v. Sessions, 866 f. 3d 188 (4th Cir. 2017) at *194.
 Id. At 199
 The respondent argued that the Attorney General lacks the statutory authority to certify the BIA’s decision in Matter of A-B- because it did not reacquire jurisdiction following its remand to the immigration judge. The respond contended that the authority of the Attorney General is restricted to cases over which the BIA expressly retains jurisdiction. The Attorney General’s authority in this case seems however to be on solid legal ground.
 27 I&N Dec. 316 (A.G. 2018), section IV.
 See Velasquez v. Sessions, op.cit., at *199.
 See Samantha Schmidt, “Back to the Dark Ages: Sessions’ Asylum Ruling Reverses Decades of Women’s rights Progress,” The Washington Post (June 12, 2018).
 See Alonzo-Rivera v. Unite States AG, 649 F (11th Cir. 2016); Matter of [Redacted]. 2015 BIA LEXIS 36 (BIA 2015).
See R.R.D. v. Holder, 746 f. 3d 807, 809 (7th Cir. 2014)
 See Hassan v. Gonzales, 484 F. 3d 515, 517 (8th Cir. 2007); Matter of S-A-K & H-A-K-, 24 I&N 464 (BIA 2008); Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996).
 See Fiadjoe v. AG, 411 F. 3d 135, 138-42, 160-63 (3rd Cir. 2005); Matter of S-A-, 22 I&N Dec. 1328 (BIA 2000).
 See Cece v. Holder, 733 F, 666-77 (3rd Cir.)
 See Uanreroro v. Gonzales, 443 F.1197, 1211 (10th Cir. 2006).
See Ali v. Ashcroft, 785-87 (9th Cir. 2005).
 See Fiadjoe v. AG, 411 F. 137 (3rd Cir.)
 Matter of Kasinga, 21 I&N Dec. 365-66 (BIA 1996).
 Cited in Samantha Schmidt, “Back to the Dark Ages: Sessions’ Asylum Ruling Reverses Decades of Women’s rights Progress,” op.cit.