L-E-A-: How Much Did the AG Change?

In June 2018, the Attorney General issued his precedent decision in Matter of A-B-.  The AG intended his decision to lead to the denial of asylum claims based on domestic violence and gang violence by asylum officers, immigration judges, the BIA, and the circuit courts.  The decision also aimed to compel asylum officers to find those arriving at the southern border to lack the credible fear necessary for entry into the court system, allowing for their immediate deportation.

However, the decision failed to achieve these goals.  A U.S. District Court decision, Grace v. Whitaker, prohibited USCIS from applying A-B- in credible fear determinations. And Immigration Judges have continued to grant significant numbers of domestic violence claims, concluding that A-B- did not prevent them from doing so, but only required their decisions to contain an in-depth analysis of their reasoning.  The case of A-B- herself presently remains pending before the BIA.

More recently, the Attorney General took the same approach to the question of whether family may constitute a particular social group.  While once again, the administration’s goal is to prevent such claims from passing credible fear interviews and from being granted asylum, the effort also seems likely to fail.

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“There can, in fact, be no plainer example of a social group based on common, identifiable and immutable characteristics than that of the nuclear family.  Indeed, quoting the Ninth Circuit, we recently stated that ‘a prototypical example of a “particular social group” would consist of the immediate members of a certain family, the family being a focus of fundamental affiliational concerns and common interests for most people.'"

The above language is from a 1994 decision of the U.S. Court of Appeals for the First Circuit, Gebremichael v. INS, 10 F.3d 28 (1st Cir. 1994).  It pretty much reflects the view of every circuit court over the past 25 years.  Since Gebremichael, the BIA has added additional requirements of particularity and social distinction to the particular social group (“PSG”) requirements in a series of six precedent decisions issued between 2006 and 2014.  But as a recent practice advisory of CLINIC points out, the First, Second, Third, Fourth, Sixth, Seventh, Eighth, and Ninth Circuits have all recognized that family can constitute a PSG, and all have reiterated that opinion in decisions issued in 2014 or later, meaning that those courts have not found the BIA’s subsequent requirements to alter their longstanding view on the matter.

For this reason, when L-E-A- was first decided by the BIA in 2017, the parties were not in disagreement on this point - the issue had acquired a “the sky is blue” certainty.  The issue before the BIA was rather about nexus - i.e. what was required to show that one’s feared persecution was in fact “on account of” such family membership.  The Board settled on a highly restrictive standard for establishing nexus, illustrated by the single example of the Romanov family in 1918 Russia.

Possibly fearing an influx of asylum-seeking Romanovs, Matthew Whitaker, during his very brief tenure as Acting Attorney General, felt the need to certify the decision to himself.  And on July 29, his successor, WIlliam Barr, issued a decision very reminiscent of A-B-.

As in A-B-, Barr justified vacating the Board’s decision because it relied on the parties’ stipulation to the issue in question.   In Barr’s view, this caused the resulting decision to lack the rigorous analysis deserving of a precedent decision. While it remains unclear why rigorous legal analysis is required where everyone agrees to the correctness of the assertion (do we require rigorous mathematical analysis to the proposition that 2+2 = 4?), it should be noted that unlike Matter of A-R-C-G-, which was the single precedent decision holding that victims of domestic violence could be eligible for asylum, there is 25 years worth of circuit court case law on this point, plus the BIA’s own statement in Matter of Acosta that kinship could be a basis for a PSG, which dates to 1985, a point that the BIA reaffirmed over the next three decades, in Matter of C-A- (2006), and then, by reference to that case, in Matter of M-E-V-G- (2014).  Barr’s excuse is that, in his view, multiple circuits “have relied upon outdated dicta from the Board’s early cases.”

As in A-B-, the AG’s decision affects no change in the applicable legal standard.  The holding is quite narrow, simply overruling the part of the BIA’s decision discussing the cognizability of family as a PSG.  The decision doesn’t preclude such findings, but rather requires adjudicators to spend more time on each case, providing a detailed, step-by-step analysis before granting relief.  This is a critical point, as at least one IJ has said that L-E-A- has closed the door on family-based PSGs.  IJs had a similar reaction in the immediate aftermath of A-B-, stating that they can no longer grant domestic violence claims, only to realize otherwise over time.  Barr specifically states that his decision “does not bar all family-based social groups from qualifying for asylum,” adding “[t]o the contrary, in some societies, an applicant may present specific kinship groups or clans that, based on the evidence in the applicant’s case, are particular and socially distinct.”  He also cautions adjudicators to “be skeptical of social groups that appear to be “defined principally, if not exclusively, for the purposes of [litigation] . . . without regard to the question of whether anyone in [a given country] perceives [those] group[s] to exist in any form whatsoever.”  These are restatements of long-existing law. Of course, the concept of family was not artificially created for litigation purposes.

In L-E-A-, Barr specifically referenced the canon of ejusdem generis, which the BIA applied in Matter of Acosta to conclude that a particular social group should not be interpreted more broadly than the other four terms (race, religion, nationality, and political opinion) that surround it in the statute.1  As the canon was applied to counter the argument that the legislative intent of the PSG ground was to serve as a broad, catch-all “safety net” for those deserving of protection but unable to fit within the other four protected categories, the AG is happy to rely on the premise in his decision as well.

However, ejusdem generis is a two-edged sword.  In the same way as it prevents the PSG category from being interpreted more broadly than its fellow protected grounds, it similarly prevents those other categories from being interpreted more broadly than PSG.

And therein lies the flaw in Barr’s argument that “as almost every [noncitizen] is a member of a family of some kind, categorically recognizing families as particular social groups would render virtually every [noncitizen] a member of a particular social group. There is no evidence that Congress intended the term “particular social group” to cast so wide a net.”

Every noncitizen is also a member of a race and a nationality.  And most believe in a religion of some type. But no court has suggested that those categories are therefore too wide to form a protected ground for asylum purposes.  Barr fails to explain that belonging to a protected ground does not make one a refugee; everyone in the world belongs to one or more such categories; many of us belong to all five.  Asylum requires persecution (either suffered in the past, or a sufficient likelihood of suffering in the future), as well as a showing that such persecution was motivated more than tangentially in the persecutor’s view by the victim’s possessing one or more of the protected bases.  When one also considers how extreme the harm must be to be constitute persecution; that such harm must either be by the government, or by a person or group that the government is unable or unwilling to control, and that the asylum seeker must not be able to avoid such harm through reasonable relocation to a safer place within their own country, it is not an easy standard to satisfy.

Barr then further errs in claiming that the test for social distinction is not whether the nuclear family carries societal importance (which in fact is the test), but rather, whether the applicant’s “specific nuclear family would be ‘recognizable by society at large.’”  In that sentence, Barr supported his erroneous claim by misquoting Jeff Sessions in Matter of A-B-, by omitting the word “classes.”  The actual quote, “social groups must be classes recognizable by society at large,” actually supports the argument that nuclear families would enjoy social distinction.  By manipulating the language of case law, Barr attempts to equate “social distinction” with fame. Under his proposed interpretation, an asylum seeker must be a Kardashian to satisfy the PSG standard, and a Romanov to then prove nexus.  (While such interpretation is clearly incorrect, I am nevertheless coining the term “Czardashian” here).

The true test for social distinction is whether the proposed group is consistent with how society divides itself.  And families are the most basic way that society divides itself into groups. We are often identified in society as someone’s child, spouse, parent, or sibling.  When we meet someone with a familiar last name, the first thing we ask is “are you related to so and so?” The reason we care to ask such question is precisely because families are socially distinct.  By comparison, no one has ever asked me if I’m a member of the group of “tall, gray-haired, left-handed immigration lawyers with glasses,” because that is the type of artificially concocted group that in no way reflects how society divides itself.

Barr’s statement that “unless an immediate family carries greater societal import, it is unlikely that a proposed family-based group will be ‘distinct’ in the way required by the INA for purposes of asylum” is nonbinding dicta, expressing the likelihood of success in claims not before him.2  Nevertheless, his statement also overlooks an important aspect of PSG analysis: the impact of persecution on public perception.  Social distinction is measured not in the eyes of the persecutors, but of society. But as UNHCR points out in its 2002 Particular Social Group Guidelines, at para. 14, even though left-handed people are not a particular social group, “if they were persecuted because they were left-handed, they would no doubt quickly become recognizable in their society as a particular social group.”  So even if we were to accept Barr’s flawed premise that a regular, non-celebrity family lacks his misconstrued version of social distinction, as word spread of the targeting of its members, that family would gain social recognition pretty quickly.

And as CLINIC’s practice advisory astutely notes, societies accord social distinction to even non-famous families in its laws determining how property is inherited, or to whom guardianship of surviving children is determined.

Notes:

1. For a highly detailed analysis of the Chevron deference test as applied to Matter of A-B-, including the use of ejusdem generis as a canon of construction in step one of Chevron, see Kelley-Widmer, Jaclyn and Rich, Hillary, A Step Too Far: Matter of A-B-, 'Particular Social Group,' and Chevron (July 15, 2019). Cornell Legal Studies Research Paper No. 19-30. Available at SSRN: https://ssrn.com/abstract=3410556 or http://dx.doi.org/10.2139/ssrn.3410556

2. See CLINIC’s Practice Advisory at 3. Much thanks to CLINIC attorneys Victoria Neilson, Bradley Jenkins, and Rebecca Scholtz for so quickly authoring this excellent guide.

Copyright 2019 Jeffrey S. Chase.  All rights reserved.