Asylum Eligibility for Applicants Fleeing Gang and Domestic Violence: Recent Developments

Asylum Eligibility for Applicants Fleeing Gang and Domestic Violence: Recent Developments

Legal Sidebari

Asylum Eligibility for Applicants Fleeing
Gang and Domestic Violence:
Recent Developments
Updated August 6, 2021
Non-U.S. nationals (aliens, as the term is used in the Immigration and Nationality Act) from Central
America have increasingly pursued asylum and related protections in the United States because of gang
and domestic violence in their home countries. To qualify for protection, applicants typically must
establish that the gang or domestic violence amounts to persecution because of one of five enumerated
grounds, including membership in a “particular social group.” In Matter of A-B- and Matter of L-E-A-,
former Attorneys General Jeff Sessions and William Barr issued rulings that made it more difficult for
applicants to satisfy this requirement. Those rulings were binding upon immigration authorities within
both the Department of Justice (DOJ) and Department of Homeland Security (DHS). In February 2021,
President Biden directed the Attorney General (AG) and the Secretary of Homeland Security to review
the availability of asylum for applicants fleeing gang or domestic violence, and to issue joint regulations
that clarify the meaning of a “particular social group.” In June 2021, AG Merrick Garland vacated the
prior rulings in Matter of A-B- and Matter of L-E-A- pending issuance of these regulations. This Legal
Sidebar examines the AG decisions addressing the availability of asylum for applicants fearing
nongovernmental persecution based on their membership in a particular social group, President Biden’s
executive order, and legislative options for Congress. (A Legal Sidebar more specifically addressing AG
Sessions’ 2018 decision in Matter of A-B- can be found here.)
Asylum and Related Protections from Removal
An applicant for asylum has the burden of proving past persecution or a well-founded fear of future
persecution because of race, religion, nationality, membership in a “particular social group,” or political
opinion. The applicant must show that one of these protected grounds “was or will be at least one central
reason for persecuting the applicant,” and that the alleged persecution is from the government or groups
that the government is unable or unwilling to control. The scope of the five enumerated grounds for which
an alien may qualify for asylum has been the subject of dispute, and none more so than persecution based
on membership in a “particular social group.” The Board of Immigration Appeals (BIA), the highest
administrative body responsible for interpreting and applying federal immigration laws, has held that a
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particular social group must be (1) composed of members who share a common immutable characteristic;
(2) defined with “particularity” (i.e., with discrete and well-defined boundaries); and (3) perceived or
recognized as a group by society (“socially distinct”).
An alien who is statutorily ineligible for asylum (e.g., because of specified criminal activity) typically can
pursue withholding of removal, which carries a higher burden of proving that it is more likely than not the
alien will be persecuted on account of one of the five protected grounds. The alien may also seek
protection under the Convention Against Torture (CAT), which requires evidence that it is more likely
than not that the alien will be tortured by a public official or other person acting with the consent or
acquiescence of that official (the alleged torture does not have to be predicated on one of the five
enumerated grounds for which asylum or withholding of removal may be granted). Unlike asylum, which
affords the recipient with an opportunity to pursue lawful permanent resident status, a grant of
withholding or CAT protection only prevents removal to the country where the applicant faces
persecution or torture (but not necessarily to a third country).
AG Sessions’ Decision in Matter of A-B-
Under DOJ regulations, the AG may direct the BIA to refer a case to him for review. In Matter of A-B- (A-
B- I) AG Jeff Sessions in 2018 reviewed a BIA decision that had reversed the denial of asylum to an
applicant who alleged harm by her husband because of her membership in a particular social group of “El
Salvadoran women who are unable to leave their domestic relationships where they have children in
common.” The AG exercised this authority to address whether being a victim of private criminal activity
constitutes a particular social group for asylum. AG Sessions ruled that “[g]enerally, claims by aliens
pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify
for asylum,” or meet the “credible fear” standard to warrant consideration of an asylum application. The
AG determined that social groups defined by their vulnerability to private criminal activity lack sufficient
particularity and social distinction to qualify as cognizable social groups. Citing the “one central reason”
standard, the AG also determined that private criminal actors often target people for personal or economic
reasons unrelated to any particular social group. The AG also ruled that, in showing that a government is
“unable or unwilling” to control harm by private actors, an applicant “must show that the government
condoned the private action ‘or at least demonstrated a complete helplessness to protect the victims.’”
DHS’s U.S. Citizenship and Immigration Services (USCIS) issued guidance applying A-B- I to determine
whether a person is eligible for asylum or has shown a credible fear of persecution that warrants further
consideration of the alien’s claim of relief. The USCIS guidance concluded that most particular social
group claims defined by the members’ vulnerability to gang or domestic violence by nongovernment
actors would not warrant asylum or meet the credible fear threshold.
Following a legal challenge, the U.S. District Court for the District of Columbia ruled that several of the
USCIS policies issued after A-B- I were unlawful (e.g., requiring applicants to show that their home
country’s government “condoned” or was “completely helpless” in responding to private acts of
persecution), and enjoined the agency from applying these policies for credible fear determinations. In
2020, the U.S. Court of Appeals for the D.C. Circuit affirmed in part and reversed in part. As a result of
that decision, USCIS remained barred from implementing certain policies adopted after A-B- I, but the
agency’s asylum eligibility policies could still be informed by the conclusion that gang and domestic
violence claims generally fail to show asylum eligibility.
AG Barr’s Decisions in Matter of L-E-A-
In 2019, AG William Barr provided further guidance on the availability of asylum for victims of private
criminal activity. The AG reviewed part of a BIA decision finding that a Mexican national who was

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threatened by a drug cartel had established his membership in a particular social group defined as “his
father’s immediate family.” AG Barr held in Matter of L-E-A- that a nuclear family ordinarily does not
fall within the meaning of a “particular social group” because “it will not have the kind of identifying
characteristics that render the family socially distinct within the society in question.” The AG recognized
that some federal appellate courts have identified families as falling within the particular social group
definition, but noted that they reached those conclusions without fully analyzing whether the family at
issue shared a common immutable characteristic, was defined with particularity, and was socially distinct.
In short, the AG declared, “categorically recognizing families as particular social groups would render
virtually every alien a member of a particular social group,” but “[t]here is no evidence that Congress
intended the term ‘particular social group’ to cast so wide a net.” Thus, the AG held, an asylum applicant
must show that a family group satisfies each of the immutability, particularity, and social distinction
components of the particular social group framework.
Acting AG Rosen’s Opinion in Matter of A-B-
On January 14, 2021, then-Acting AG Jeffrey Rosen issued a new opinion in Matter of A-B- (A-B- II) to
provide additional guidance about the availability of asylum for applicants fearing nongovernmental
persecution. First, Acting AG Rosen clarified that AG Sessions’s adoption of the “complete helplessness”
standard to determine whether the government is “unable or unwilling” to control private acts of violence
adhered to existing precedent and appropriately set forth the requisite governmental role. Second, Acting
AG Rosen clarified that, to establish that a protected ground is “one central reason” for persecution, an
applicant must show not only that the protected ground is a “but-for cause” of the persecutor’s act, but
that it also plays “more than a minor role” in the persecution.
In sum, the decisions in A-B- I, L-E-A-, and A-B- II restricted the availability of asylum based on
persecution by nongovernment actors on account of membership in a particular social group, and clarified
that aliens who fear private criminal activity, such as gang and domestic violence, seldom qualify for
asylum or meet the credible fear threshold to warrant formal adjudication of their claims.
President Biden’s Executive Order on Asylum
On February 2, 2021, President Biden issued an executive order addressing migration to the United States
and the availability of asylum for aliens seeking to enter the country. The President declared that “[w]e
cannot solve the humanitarian crisis at our border without addressing the violence, instability, and lack of
opportunity that compel so many people to flee their homes.” The President announced a “multi-pronged
approach” that would address the root causes of migration, work with organizations and governments to
manage migration, expand opportunities for refugee resettlement in the United States, and restore and
enhance asylum processing at the border. Among other initiatives, the President directed the AG and the
Secretary of Homeland Security, within 180 days, to conduct a full review of current rules, regulations,
precedential decisions, and internal guidance governing the adjudication of asylum claims to determine
whether the United States provides adequate protection for those fleeing gang or domestic violence. The
President also ordered the AG and the Secretary of Homeland Security, within 270 days, to issue
regulations specifying when a person is considered a member of a “particular social group” for
establishing asylum eligibility.

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AG Garland’s Opinions in Matter of A-B- and Matter of
L-E-A-
On June 16, 2021, AG Garland vacated the prior AG decisions in Matter of A-B- and Matter of L-E-A-.
First, AG Garland determined that vacating A-B- I and A-B- II was warranted given President Biden’s
executive order directing issuance of regulations addressing the “particular social group” definition.
According to the AG, vacating the prior decisions serves “to leave open the questions that those opinions
sought to resolve and to ensure that the Departments have appropriate flexibility in the forthcoming
rulemaking.” Further, the AG opined that A-B- I’s “broad statement” that victims of private criminal
activity generally will not qualify for asylum “could be read to create a strong presumption against
asylum claims based on private conduct,” and “threatens to create confusion and discourage careful case-
by-case adjudication of asylum claims.” The AG also determined that certain portions of A-B- I “have
spawned confusion among courts” about the application of the “unable or unwilling” and “one central
reason” standards for asylum. While recognizing that A-B- II sought to clarify these issues, the AG
declared that any guidance on these standards “should instead be left to the forthcoming rulemaking,
where they can be resolved with the benefit of a full record and public comment.”
AG Garland determined that the President’s executive order requiring new regulations on the meaning of
“particular social group” similarly warranted vacating the AG’s Matter of L-E-A- decision. The AG
explained that L-E-A-’s conclusion that families generally do not constitute particular social groups
conflicted with several federal appellate court decisions, and that the pending rulemaking over the
“particular social group” definition “is the preferable administrative process for considering these issues.”
Apart from these actions, AG Garland also vacated a prior AG Barr decision involving an asylum claim
based on domestic violence that had required the BIA to consider all the elements of an applicant’s
asylum claim, including the existence of a particular social group, even if DHS decides not to dispute a
particular element on appeal. AG Garland stated that AG Barr’s ruling departed from the BIA’s
“longstanding practice” of relying on the parties’ stipulations or DHS’s failure to contest an issue in order
to narrow the scope of issues to be decided on appeal.
Considerations for Congress
The prior rulings in Matter of A-B- and Matter of L-E-A- had made it more difficult for aliens who feared
private criminal activity in their home countries, including gang and domestic violence, to qualify for
asylum or meet the credible fear threshold to warrant further consideration of their claims. Vacating those
opinions, AG Garland declared, will “return the immigration system to the preexisting state of affairs
pending completion of the ongoing rulemaking process.” Thus, asylum adjudications are no longer
informed by the conclusion that gang and domestic violence claims generally fail to show asylum
eligibility. However, applicants raising such claims must still show their membership in a cognizable
particular social group (including previously recognized social groups, such as married women unable to
leave a domestic relationship, or potentially members of an immediate family), and that any claimed
persecution is linked to that social group. AG Garland’s opinions also make it more likely that aliens
encountered at the border who claim persecution by private criminals can have their claims reviewed
administratively rather than being removed from the United States via the expedited removal process.
Whether the immediate consequences of vacating the earlier AG rulings in Matter of A-B- and Matter of
L-E-A- have lasting effect is uncertain. The forthcoming regulations on the meaning of a “particular social
group” may provide more guidance on the availability of asylum for applicants seeking protection from
private criminal activity, though it remains to be seen whether these regulations will effectively codify
prior practice or adopt a different approach.

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Meanwhile, Congress has the power to clarify the scope of asylum protections for aliens fleeing gang and
domestic violence. Congress could clarify the meaning of a “particular social group,” or expand or narrow
the enumerated grounds for asylum to plainly cover or exclude victims of gang or domestic violence.
Furthermore, some bills introduced in the 116th and 117th Congresses, such as the U.S. Citizenship Act (S.
348, H.R. 1177) and the Northern Triangle and Border Stabilization Act (H.R. 3524), would require the
State Department to implement strategies to counter gang and domestic violence in Central American
countries (e.g., assisting and training law enforcement), and strengthen the capacity of countries in the
Western Hemisphere to adjudicate asylum claims or to process and accept refugees for resettlement.

Author Information

Hillel R. Smith

Legislative Attorney

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