A.G./BIA Precedent Devision - Matter of L-E-A-, 27 I&N Dec. 581 (A.G. 2019) full case
Cite as 27 I&N Dec. 581 (A.G. 2019) Interim Decision #3959
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Matter of L-E-A-, Respondent
Decided by Attorney General July 29, 2019
U.S. Department of Justice
Office of the Attorney General
(1) In Matter of L-E-A-, 27 I&N Dec. 40 (BIA 2017), the Board of Immigration
Appeals improperly recognized the respondent’s father’s immediate family as a
“particular social group” for purposes of qualifying for asylum under the
Immigration and Nationality Act.
(2) All asylum applicants seeking to establish membership in a “particular social
group,” 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; and (3) socially distinct within the
society in question.
(3) While the Board has recognized certain clans and subclans as “particular social
groups,” most nuclear families are not inherently socially distinct and therefore
do not qualify as “particular social groups.”
(4) The portion of the Board’s decision recognizing the respondent’s proposed
particular social group is overruled. See Matter of L-E-A-, 27 I&N Dec. at 42–
43 (Part II.A). The rest of the Board’s decision, including its analysis of the
required nexus between alleged persecution and the alleged protected ground, is
affirmed. See id. at 43–47 (Part II.B).
BEFORE THE ATTORNEY GENERAL
The Immigration and Nationality Act (“INA”) authorizes the Attorney
General to grant asylum, in his discretion, if an alien establishes that he is
unable or unwilling to return to his country of origin because he has suffered
past persecution or has a well-founded fear of future persecution on account
of “race, religion, nationality, membership in a particular social group, or
political opinion.” 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(A), (B)(i). This
case once again requires interpretation of what it means to suffer persecution
on account of “membership in a particular social group,” an ambiguous term
that has required repeated construction by the Board of Immigration Appeals
(the “Board”), the Attorney General, and the U.S. Courts of Appeals.
The respondent contends that he was persecuted by a criminal gang on
account of his membership in the “particular social group” defined as the
“immediate family of his father,” who owned a store targeted by a local drug
cartel. Under existing Board precedent, a particular social group must share
“a common immutable characteristic” that is defined with particularity and Cite as 27 I&N Dec. 581 (A.G. 2019) Interim Decision #3959
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“set apart, or distinct, from other persons within the society in some
significant way.” Matter of M-E-V-G-, 26 I&N Dec. 227, 238 (BIA 2014);
see also Matter of W-G-R-, 26 I&N Dec. 208, 217 (BIA 2014). The alien
bears the burden of showing that his proposed group meets these criteria, see
8 U.S.C. § 1158(b)(1)(B)(i), and he will not satisfy that burden solely by
showing that his social group has been the target of private criminal activity.
The fact that a criminal group—such as a drug cartel, gang, or guerrilla
force—targets a group of people does not, standing alone, transform those
people into a particular social group. See, e.g., Matter of S-E-G-, 24 I&N
Dec. 579, 586–87 (BIA 2008) (concluding that respondents who feared harm
from their refusal to join MS-13 were not a “particular social group”; they
were “not in a substantially different situation from anyone [else] who has
crossed the gang, or who is perceived to be a threat to the gang’s interests”);
Matter of Acosta, 19 I&N Dec. 211, 234 (BIA 1985) (working as a taxi driver
and “refusing to participate in guerrilla-sponsored work stoppages” at risk to
personal safety did not create “particular social group” status).
At the same time, the Board has recognized that a clan or similar group
bound together by common ancestry, cultural ties, or language may constitute
a “particular social group.” Matter of H-, 21 I&N Dec. 337, 343 (BIA 1996)
(describing the relevant “distinct and recognizable clans and subclans in
Somalia”); Acosta, 19 I&N Dec. at 233 (calling for a case-by-case
determination of whether innate characteristics like “sex, color, or kinship
ties” qualify as “particular social group” characteristics). But what qualifies
certain clans or kinship groups as particular social groups is not merely the
genetic ties among the members. Rather, it is that those ties or other salient
factors establish the kinship group, on its own terms, as a “recognized
component of the society in question.” W-G-R-, 26 I&N Dec. at 217. In that
respect, the large and prominent kinship and clan groups that have been
recognized by the Board as cognizable particular social groups stand on a
very different footing from an alien’s immediate family, which generally will
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.
Consistent with these prior decisions, I conclude that an alien’s family-
based group will not constitute a particular social group unless it has been
shown to be socially distinct in the eyes of its society, not just those of its
alleged persecutor. See M-E-V-G-, 26 I&N Dec. at 237; W-G-R-, 26 I&N
Dec. at 215–18. Because the record does not support the determination in
this case that the immediate family of the respondent’s father constituted a
particular social group, I reverse the Board’s conclusion to the contrary.
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I.
In 1998, the respondent, a Mexican citizen, illegally entered the United
States. After a criminal conviction for driving under the influence, the
Department of Homeland Security (“DHS”) initiated removal proceedings.
The respondent accepted voluntary departure and returned to Mexico in May
2011. But he did not stay there long. By August 2011, the respondent had
again illegally returned to the United States. DHS apprehended him and
commenced removal proceedings. The respondent conceded removability,
but this time sought asylum based upon a claim of persecution allegedly
suffered during his brief return to Mexico.
According to the respondent, upon returning to Mexico, he had gone to
live with his parents in Mexico City. His father operated a neighborhood
general store there, but he had run afoul of La Familia Michoacana, a
Mexican drug cartel. Because his father refused to sell the cartel’s drugs out
of his store, the drug dealers evidently decided to retaliate against the
respondent upon his return. About a week after returning to Mexico City,
the respondent was walking a few blocks from his home when he heard
gunshots coming out of a black sport-utility vehicle. He dropped down to
the ground and was unharmed. Although the respondent did not initially
believe that he was the target of the shooting, he later concluded that he was,
based upon the cartel’s subsequent actions.
About a week later, four armed cartel members, driving the same black
sport-utility vehicle, approached the respondent and asked him to agree to
sell the cartel’s drugs at his father’s store. When the respondent declined,
the cartel members threatened him and advised him to reconsider. Shortly
thereafter, four masked men, in the same sport-utility vehicle, attempted to
kidnap the respondent, but he managed to escape. After that incident, the
respondent left Mexico City for Tijuana, where two months later, he illegally
crossed back into the United States and was thereafter apprehended.
In his removal proceeding, the respondent claimed persecution in Mexico
based on his membership in the particular social group comprising his
father’s immediate family. The immigration judge denied relief on the
ground that the respondent had not shown he was the victim of anything more
than criminal activity.
On appeal, the Board found that the respondent’s relationship with his
father established membership in a particular social group, namely “his
father’s immediate family.” Matter of L-E-A-, 27 I&N Dec. 40, 43 (BIA
2017). In reaching that conclusion, the Board relied upon DHS’s concession
“that the immediate family unit of the respondent’s father qualifies as a
cognizable social group.” Id. at 42; see also DHS Supplemental Brief at 20 Cite as 27 I&N Dec. 581 (A.G. 2019) Interim Decision #3959
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(“In this case, the Department stipulates that the immediate family unit of the
respondent’s father qualifies as a cognizable particular social group.”). The
Board recognized that, under the relevant precedents, a family-related group
must satisfy the requirements of particularity and social distinction to qualify
as a “particular social group” under the INA. L-E-A-, 27 I&N Dec. at 42.
And the Board noted that such a determination requires “a fact-based inquiry
made on a case-by-case basis,” and will not be satisfied by “all social groups
that involve family members.” Id. at 42–43. But the Board did not perform
such an inquiry; instead, it summarily concluded that “[i]n consideration of
the facts of this case and the agreement of the parties, we have no difficulty
identifying the respondent, a son residing in his father’s home, as being a
member of the particular social group comprised of his father’s immediate
family.” Id. (emphasis added).
Although it approved the claimed social group, the Board denied the
respondent’s asylum application because of the absence of the necessary
nexus between his membership in the group and the persecution. Id. at 43–
47. The Board explained that “[a] persecution claim cannot be established if
there is no proof that the applicant or other members of the family were
targeted because of the family relationship.” Id. at 43. Here, the Board
concluded, the respondent was approached by the cartel “because he was in
a position to provide access to the store, not because of his family
membership.” Id. at 46. He “was targeted only as a means to achieve the
cartel’s objective to increase its profits by selling drugs in the store owned
by his father,” and “[a]ny motive to harm the respondent because he was a
member of his family was, at most, incidental.” Id. As the Board noted, “the
fact that a persecutor targets a family member simply as a means to an end is
not, by itself, sufficient to establish a claim, especially if the end is not
connected to another protected ground.” Id. at 45.
The Board remanded the matter to the immigration judge for
consideration of the respondent’s additional claim for protection under the
U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (“CAT”). Id. at 47.
On December 3, 2018, Acting Attorney General Whitaker directed the
Board to refer its decision for review, see 8 C.F.R. § 1003.1(h)(1)(i), staying
the proceedings and inviting briefing on whether, and under what
circumstances, an alien may establish persecution on account of membership
in a “particular social group” based on the alien’s membership in a family
unit. Matter of L-E-A-, 27 I&N Dec. 494, 494 (A.G. 2018).
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II.
Before turning to the merits, I address several threshold arguments raised
by the respondent about my authority to review this case. First, the
respondent argues that the Acting Attorney General could not certify this
matter for review because the Board had remanded the case to the
immigration judge for further proceedings. As Matter of A-B- recognized,
“[n]othing in the INA or the implementing regulations precludes the
Attorney General from referring a case for review simply because the Board
has remanded the case for further proceedings before an immigration judge.”
27 I&N Dec. 316, 323–24 (A.G. 2018). I therefore reject this argument for
the reasons stated in that opinion.
Second, the respondent argues that the Acting Attorney General had no
authority to refer this case because he was not properly appointed to his
position. But the President’s designation of Mr. Whitaker as Acting Attorney
General was expressly authorized by the Federal Vacancies Reform Act of
1998, 5 U.S.C. §§ 3345–3349d, and was consistent with the Appointments
Clause of the Constitution, U.S. Const. art. II, § 2, cl. 2. See Designating an
Acting Attorney General, 42 Op. O.L.C. __ (Nov. 14, 2018). In any event,
that question is now moot, because the respondent has not argued, and cannot
argue, that my appointment as Attorney General is subject to such a
challenge. As Attorney General, I have the authority to ratify the initial
certification (which I hereby do), and I have decided this case based upon my
own independent review of the record. See Wilkes-Barre Hosp. v. NLRB,
857 F.3d 364, 371 (D.C. Cir. 2017) (“[R]atification can remedy a defect
arising from the decision of ‘an improperly appointed official . . . when . . .
a properly appointed official has the power to conduct an independent
evaluation of the merits and does so.’” (quoting Intercollegiate Broad. Sys.,
Inc. v Copyright Royalty Bd., 796 F.3d 111, 117 (D.C. Cir. 2015))).
Therefore, the validity of the Acting Attorney General’s appointment is not
relevant to my disposition of this case.
Third, the respondent contends that my prior statements regarding asylum
and immigration issues prevent me from acting as an unbiased adjudicator.
But I “have made no public statements regarding the facts of respondent’s
case, and I have no ‘personal interest in the outcome of the proceedings.’”
A-B-, 27 I&N Dec. at 325 (quoting Strivers v. Pierce, 71 F.3d 732, 741 (9th
Cir. 1995)); see also Ass’n of Nat’l Advertisers, Inc. v. FTC, 627 F.2d 1151,
1168 (D.C. Cir. 1979) (finding that policymakers do not have to retreat from
“interchange and discussion about important issues”).
Finally, the respondent argues that I do not have jurisdiction to render a
decision because the immigration judge never properly acquired jurisdiction. Cite as 27 I&N Dec. 581 (A.G. 2019) Interim Decision #3959
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The respondent contends that jurisdiction never vested because the charging
document lacked all of the information required by the INA and 8 C.F.R.
§ 1003.15—namely, the notice to appear did not include the time and place
of the first hearing in this matter. But the Board has previously ruled that
similar notices are adequate to establish jurisdiction, so long as subsequent
notices provide that information. Matter of Bermudez-Cota, 27 I&N Dec.
441 (BIA 2018); see also Karingithi v. Whitaker, 913 F.3d 1158, 1161 (9th
Cir. 2019) (holding that Bermudez-Cota permissibly interpreted the relevant
regulations). Further, neither the INA nor 8 C.F.R. § 1003.15 specifies that
the notice to appear must contain such details about the first hearing. See id.
§ 1003.15(b). And the relevant jurisdictional regulation, 8 C.F.R.
§ 1003.14(a), “does not specify what information must be contained in a
‘charging document’ at the time it is filed with an Immigration Court, nor
does it mandate that the document specify the time and date of the initial
hearing before jurisdiction will vest.” Bermudez-Cota, 27 I&N Dec. at 445.
Although that information was not contained in the initial notice to appear,
the immigration court subsequently issued a notice of hearing with all the
required information. See Matter of L-E-A-, Notice of Hearing (Immig. Ct.
Aug. 17, 2011). Therefore, this jurisdictional challenge does not block my
review.
III.
Turning now to the merits, I conclude that the Board erred in finding that
the respondent’s purported social group—the members of his father’s
immediate family—qualified as a “particular social group” under the INA.
All particular social groups must satisfy the criteria set forth in Matter of
M-E-V-G- and Matter of W-G-R-, and a proposed family-based group is no
different. An applicant must establish that his specific family group is
defined with sufficient particularity and is socially distinct in his society. In
the ordinary case, a family group will not meet that standard, because it will
not have the kind of identifying characteristics that render the family socially
distinct within the society in question. The Board here did not perform the
required fact-based inquiry to determine whether the respondent had satisfied
his burden of establishing the existence of a particular social group within
the legal requirements of the statute. The Board’s summary conclusions,
based on DHS’s stipulation rather than its own legal analysis, must therefore
be reversed. Cite as 27 I&N Dec. 581 (A.G. 2019) Interim Decision #3959
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A.
An applicant for asylum bears the burden of establishing that he “is a
refugee, within the meaning of section 1101(a)(42)(A)” of the INA. 8 U.S.C.
§§ 1158(b)(1)(A), (B)(i). To meet that definition, the applicant must
demonstrate that he is an alien outside his country of nationality “who is
unable or unwilling to return to, and is unable or unwilling to avail himself
. . . of the protection of, that country because of persecution or a well-founded
fear of persecution on account of race, religion, nationality, membership in a
particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A)
(emphasis added). No statute or regulation defines what constitutes a
“particular social group.”
The Board first interpreted “persecution on account of membership in a
particular social group” in Acosta, 19 I&N Dec. at 232–34. Noting that this
provision “was added as an afterthought” to the CAT and that “Congress
[similarly] did not indicate what it understood this ground of persecution to
mean,” id. at 232, the Board turned to the language itself:
A purely linguistic analysis of this ground of persecution suggests that it
may encompass persecution seeking to punish either people in a certain
relation, or having a certain degree of similarity, to one another or people
of like class or kindred interests, such as shared ethnic, cultural, or
linguistic origins, education, family background, or perhaps economic
activity.
Id. at 232–33. Applying the doctrine of ejusdem generis, the Board read
“particular social group” in a manner consistent with the other statutory
grounds for persecution: race, religion, nationality, and political opinion. Id.
at 233. Because each of these terms describes “a characteristic that either is
beyond the power of an individual to change or is so fundamental to an
individual’s identity or conscience that it ought not be required to be
changed,” the Board concluded that “membership in a particular social
group” must similarly involve the sharing of a “common, immutable
characteristic.” Id. According to the Board, “[t]he shared characteristic
might be an innate one such as sex, color, or kinship ties,” and immigration
judges should engage in a case-by-case analysis to determine whether a
particular innate characteristic would qualify. Id. The Board did not clarify
whether the sharing of a “common, immutable characteristic” was a
sufficient, as opposed to just a necessary, condition for qualifying as a
particular social group under the statutory definition of “refugee.” See id.
In Matter of H-, 21 I&N Dec. 337, 342–43 (BIA 1996), the Board
addressed the kind of kinship ties that might constitute membership in a Cite as 27 I&N Dec. 581 (A.G. 2019) Interim Decision #3959
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particular social group. There, the Board found that the record established
credible evidence that the Somali Marehan subclan constituted a “particular
social group,” because the subclan was “distinct and recognizable” in Somali
society with distinguishing “linguistic commonalities.” Id. at 343. The
Board relied on a legal opinion by the General Counsel of the Immigration
and Naturalization Service, who stated that Somali “[c]lan membership is a
highly recognizable, immutable characteristic;” that Somali clans are
“defined by discrete criteria”; and that “membership in a clan is at the essence
of a Somali’s identity in determining his or her relations to others in and
outside of the clan,” Whether Somali Clan Membership May Meet the
Definition of Membership in a Particular Social Group under the INA,
Genco Op. No. 93–91 (INS), 1993 WL 1504038, at *1–*2 (Dec. 9, 1993).
See H-, 21 I&N Dec. at 342. The Board also recognized that annual reports
issued by the Department of State spoke specifically to the “presence of
distinct and recognizable clans and subclans in Somalia and the once-
preferred position of the applicant’s Marehan subclan,” due to its association
with former Somali President Siad Barre. Id. at 342–43.
Over the decades since, the Board has refined the standard for identifying
social groups that qualify for protection under the asylum statute. See
M-E-V-G-, 26 I&N Dec. at 236–49; W-G-R-, 26 I&N Dec. 209–21; see also
Reyes v. Lynch, 842 F.3d 1125, 1134–35 (9th Cir. 2016) (recognizing the
Board’s refinement of its “particular social group” framework); Orellana-
Monson v. Holder, 685 F.3d 511, 521 (5th Cir. 2012) (“The [Board] may
make adjustments to its definition of ‘particular social group’ and often does
so in response to the changing claims of applicants. Deference to published
[Board] decisions is warranted as [the Board] gives ambiguous statutory
terms concrete meaning through a process of case-by-case adjudication.”
(internal quotation marks and citations omitted)). Specifically, in two
complementary opinions issued in 2014, the Board held that an asylum
applicant claiming membership in a particular social group 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.” M-E-V-G-, 26 I&N Dec. at 237; see W-G-R-, 26
I&N Dec. at 212. The Board explained that this definition was a continuation
of its earlier interpretations of “particular social group,” see, e.g., Acosta, 19
I&N Dec. 211, clarifying how the definition of “particular social group” had
been refined through the process of case-by-case adjudication. See W-G-R-,
26 I&N Dec. at 212; M-E-V-G-, 26 I&N Dec. at 244–47.
In Matter of A-B-, Attorney General Sessions reaffirmed this approach
and emphasized the importance of a rigorous application of that legal Cite as 27 I&N Dec. 581 (A.G. 2019) Interim Decision #3959
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standard. 27 I&N Dec. at 333–36. 1 Respondents must present facts to
establish each of the required elements for asylum status, and the asylum
officer, immigration judge, or Board must determine whether those facts
satisfy the required elements. See id. at 340 (citing 8 C.F.R. § 208.13(a)).
Matter of A-B- reiterated that, “[t]o be cognizable, a particular social group
must ‘exist independently’ of the harm asserted.” Id. at 334 (citing, inter-
alia, M-E-V-G-, 26 I&N Dec. at 237 n.11, 243). Based upon these
immigration decisions, in the ordinary case, a nuclear family will not,
without more, constitute a “particular social group” because most nuclear
families are not inherently socially distinct.
I recognize that a number of courts of appeals have issued opinions that
recognize a family-based social group as a “particular social group” under
the asylum statute. In some of these cases, the courts may have been willing
(as the Board was in this case) to accept, or assume with little analysis, the
existence of a particular social group because the court went on to deny
asylum on other grounds. See, e.g., Cruz-Guzman v. Barr, 920 F.3d 1033,
1037 (6th Cir. 2019); Rivas v. Sessions, 899 F.3d 537, 542 (8th Cir. 2018);
Bernal-Rendon v. Gonzales, 419 F.3d 877, 881 (8th Cir. 2005). In other
cases, the parties stipulated to the validity of the applicant’s particular social
group definition and the applicant’s membership therein. See, e.g., K.H. v.
Barr, 920 F.3d 470, 474 (6th Cir. 2019). Consequently, these cases do not
reflect the thorough, case-specific analysis of the three Matter of
M-E-V-G- factors that the Board’s precedents generally require. And I do
not believe that a cursory analysis of a question that was either uncontested,
or not dispositive to the outcome, should be taken to undermine the Board
requirement that asylum applicants claiming “membership in a particular
social group” must establish that their group shares a common immutable
characteristic, is defined with particularity, and is socially distinct. See
M-E-V-G-, 26 I&N Dec. at 237–38; see W-G-R-, 26 I&N Dec. at 212.
I also recognize that certain courts of appeals have considered the
requisite elements of a “particular social group” and, despite the
requirements set forth in M-E-V-G- and W-G-R-, have nonetheless suggested
that shared family ties alone are sufficient to satisfy the INA’s definition of
“refugee”—regardless of whether the applicant’s specific family is defined
with particularity or is socially distinct in his society. For instance, in Rios
v. Lynch¸ the Ninth Circuit expressly observed that under the “refined
1 The U.S. District Court for the District of Columbia has called into question some aspects
of Matter of A-B- that are not relevant here. See Grace v. Whitaker, 344 F. Supp. 3d 96
(D.D.C. 2018). The Department of Justice has appealed that decision, which is the subject
of ongoing litigation. See Notice of Appeal, Grace v. Whitaker, No. 19-5013 (D.C. Cir.
Jan. 30, 2019). Cite as 27 I&N Dec. 581 (A.G. 2019) Interim Decision #3959
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framework” of Matter of M-E-V-G-, “the family . . . [is] the quintessential
particular social group.” 807 F.3d 1123, 1128 (9th Cir. 2015). In addition,
three other circuits have expressed the same view, but without explicitly
evaluating whether that position is consistent with Matter of M-E-V-G- and
Matter of W-G-R-. See, e.g., Velasquez v. Sessions, 866 F.3d 188, 194 (4th
Cir. 2017) (“We have recognized that an individual’s membership in her
nuclear family is a particular social group.”); Villalta-Martinez v. Sessions,
882 F.3d 20, 26 (1st Cir. 2018) (“[I]t is well established that the nuclear
family constitutes a recognizable social group . . . .”); Torres v. Mukasey,
551 F.3d 616, 629 (7th Cir. 2008) (“Our prior opinions make it clear that we
consider family to be a cognizable social group . . . .”).
These decisions do not purport to contradict the Board’s “particular social
group” framework and, in my view, they have relied upon outdated dicta
from the Board’s early cases. For example, the First Circuit has long relied
on precedent that derives from Matter of Acosta’s vague statement that
kinship ties “might” be the kind of innate characteristic that could form the
basis of a particular social group. See, e.g., Gebremichael v. INS, 10 F.3d
28, 36 (1st Cir. 1993) (citing Acosta to support broad recognition of
particular social groups based on the nuclear family). But the reference to
“kinship ties” in Matter of Acosta provides no justification for a broad
assumption that an applicant’s nuclear family will constitute a valid
particular social group in his society. The Board there did not define what it
meant by “kinship ties,” since the respondent had described his relevant
social group instead as persons “engaged in the transportation industry” in
his country. See 19 I&N Dec. at 232, 233.
Similarly, the Seventh Circuit has declined to apply the particularity and
social distinction requirements, requiring only that members of particular
social groups share a common, immutable characteristic, as recognized in
Matter of Acosta, 19 I&N Dec. at 233. See, e.g., Melnik v. Sessions, 891 F.3d
278, 286 n.22 (7th Cir. 2018) (noting the circuit’s rejection of the Board’s
initial articulations of the particularity and social distinction requirements).
The Seventh Circuit’s refusal to reconsider its position in light of Matter of
M-E-V-G- and Matter of W-G-R- has left in place circuit precedent dating
from the 1990s positing, without analysis, that every family would constitute
a cognizable social group under the INA. See Torres, 551 F.3d at 629 (citing
Iliev v. INS, 127 F.3d 638, 642 & n.4 (7th Cir. 1997) (noting that “[o]ur case
law has suggested, with some certainty, that a family constitutes a cognizable
‘particular social group’ within the meaning of the law,” but citing only cases
in which the court determined that the alien had failed to establish
persecution on account of family ties (emphases added))). Cite as 27 I&N Dec. 581 (A.G. 2019) Interim Decision #3959
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Finally, the Fourth Circuit based its conclusion that nuclear families could
be particular social groups on a passing suggestion by the Board that
“‘[s]ocial groups based on innate characteristics such as . . . family
relationship are generally easily recognizable and understood by others to
constitute social groups.’” Crespin-Valladares v. Holder, 632 F.3d 117,
126–27 (4th Cir. 2011) (quoting Matter of C-A-, 23 I&N Dec. 951, 959 (BIA
2006)). But Matter of C-A- did not concern a family-based social group, and
in fact expressly cautioned against broad recognition of family-based social
groups, noting that a particular social group must be recognizable as a
separate, distinct group within the alien’s home country. 23 I&N Dec. at
959. Therefore, the Board’s passing suggestion that nuclear families always
constitute “particular social group[s]” was subsequently qualified within the
text of the opinion itself.
To the extent, however, that any court of appeals decision is best
interpreted as adopting a categorical rule that any nuclear family could
constitute a cognizable “particular social group,” I believe that such a holding
is inconsistent with both the asylum laws and the long-standing precedents
of the Board. Since Matter of Acosta, the Board has emphasized that a
“particular social group” must be particular and socially distinct in the
society at question, which itself requires a fact-specific inquiry based on the
evidence in a particular case. Compare Acosta, 19 I&N Dec. at 233, and
C-A-, 23 I&N Dec. at 955, with M-E-V-G-, 26 I&N Dec. at 231, and W-G-R-,
26 I&N Dec at 210; see also Pirir-Boc v. Holder, 750 F.3d 1077, 1084 (9th
Cir. 2014) (“To determine whether a group is a particular social group for
the purposes of an asylum claim, the agency must make a case-by-case
determination as to whether the group is recognized by the particular society
in question.”); Miranda v. Sessions, 892 F.3d 940, 943 (8th Cir. 2018)
(applicant “did not present evidence that he shared [the defining]
characteristic with others or that the characteristic was commonly recognized
as defining a particular social group”). The application of contradictory rules
by the courts of appeals is inappropriate because whether a specific family
group constitutes a “particular social group” 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. See Gonzales v. Thomas,
547 U.S. 183, 185–87 (2006).
The Attorney General has primary responsibility for construing and
applying provisions in the immigration laws. See M-E-V-G-, 26 I&N Dec.
at 230. The INA provides that, within the Executive Branch, the
“determination and ruling by the Attorney General with respect to all
questions of law shall be controlling.” 8 U.S.C. § 1103(a)(1). Plainly, the
term “particular social group” is ambiguous, and every court of appeals to Cite as 27 I&N Dec. 581 (A.G. 2019) Interim Decision #3959
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address the proper application of the phrase “particular social group” has
deferred to decisions of the Board in the phrase’s application. See A-B-, 27
I&N Dec. at 327 & n.6 (collecting cases). Congress thus delegated to the
Attorney General the discretion to reasonably interpret the meaning of
“membership in a particular social group,” and such reasonable
interpretations are entitled to deference. Chevron, U.S.A., Inc. v. Natural
Res. Def. Council, Inc., 467 U.S. 837, 844 (1984). As the Supreme Court
has recognized, “‘ambiguities in statutes within an agency’s jurisdiction to
administer are delegations of authority to the agency to fill the statutory gap
in reasonable fashion. Filling these gaps . . . involves difficult policy choices
that agencies are better equipped to make than courts.’” Negusie v. Holder,
555 U.S. 511, 523 (2009) (quoting Nat’l Cable & Telecomms. Ass’n v. Brand
X Internet Servs., 545 U.S. 967, 980 (2005)). This principle holds even in
cases where the courts of appeals might have interpreted the phrase
differently in the first instance. See Brand X Internet Servs., 545 U.S. at 980.
I therefore interpret the ambiguous term “particular social group” in the
manner that I believe to be the most faithful to the text, purpose, and policies
underlying the asylum statute.
B.
The Board has recognized that “kinship ties” may be one of the kinds of
common, immutable characteristics that might form the basis for a
“particular social group” under the INA. Acosta, 19 I&N Dec. at 233. But
the Board has never held that every type of family grouping would be
cognizable as a particular social group. Cf. C-A-, 23 I&N Dec. at 959 (“In
considering clan membership in [a prior decision] we did not rule
categorically that membership in any clan would suffice.”). Here, the
respondent argues that the immediate family of his father constitutes a
particular social group because a local drug cartel had a dispute with his
father, and the cartel chose to take that dispute out upon his family members.
But the respondent did not show that anyone, other than perhaps the cartel,
viewed the respondent’s family to be distinct in Mexican society. If cartels
or other criminals created a cognizable family social group every time they
victimized someone, then the social-distinction requirement would be
effectively eliminated.
Under the ejusdem generis canon, the term “particular social group” must
be read in conjunction with the terms preceding it, which cabin its reach, see
Acosta, 19 I&N Dec. at 233, rather than as an “omnibus catch-all” for
everyone who does not qualify under one of the other grounds for asylum,
see Velasquez, 866 F.3d at 198 (Wilkinson, J., concurring). The INA Cite as 27 I&N Dec. 581 (A.G. 2019) Interim Decision #3959
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expressly grants asylum to spouses and children of aliens who receive asylum
if those family members are accompanying or following the original
applicant to the United States. 8 U.S.C. § 1158(b)(3)(A). By contrast, the
INA does not specify family ties alone as an independent basis for qualifying
for asylum relief. Cf. In re A-K-, 24 I&N Dec. 275, 278 (BIA 2007)
(“Automatically treating harm to a family member as being persecution to
others within the family is inconsistent with the derivative asylum provisions,
as it would obviate the need for these provisions in many respects.”).
Further, as almost every alien is a member of a family of some kind,
categorically recognizing families as particular social groups would render
virtually every alien 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. Moreover, 8 U.S.C. § 1101, within which the definition of
“refugee” appears, uses the term family (or families) ten times in the
definitions of other terms. See, e.g., 8 U.S.C. § 1101(a)(15)(A), (G)
(including members of “immediate famil[ies]” within eight separate classes
of nonimmigrant aliens); id. § 1101(a)(27)(I)(iv) (referencing members of an
immigrant’s “immediate family” within a category of “special immigrant”);
id. § 1101(b)(1)(E)(i) (referencing “family member[s]” within a definition of
the term “child”). If Congress intended for refugee status to turn on one’s
suffering of persecution “on account of” family membership, Congress
would have included family identity as one of the expressly enumerated
covered grounds for persecution.
Thus, by the terms of the statutory definition of “refugee,” as well as
according to long-standing principles set forth in BIA precedent, to qualify
as a “particular social group,” an applicant must demonstrate that his family
group meets each of the immutability, particularity, and social distinction
requirements. While many family relationships will be immutable, some
family-based group definitions may be too vague or amorphous to meet the
particularity requirement—i.e., where an applicant cannot show discernible
boundaries to the group. See, e.g., S-E-G-, 24 I&N Dec. at 585 (noting that
the “proposed group of ‘family members,’ which could include fathers,
mothers, siblings, uncles, aunts, nieces, nephews, grandparents, cousins, and
others, is . . . too amorphous a category” to satisfy the particularity
requirement). Further, many family-based social groups will have trouble
qualifying as “socially distinct,” a requirement that contemplates that the
applicant’s proposed group be “set apart, or distinct, from other persons
within the society in some significant way.” M-E-V-G-, 26 I&N Dec. at 238
(“In other words, if the common immutable characteristic were known, those
with the characteristic in the society in question would be meaningfully
distinguished from those who do not have it.”). “To have the ‘social Cite as 27 I&N Dec. 581 (A.G. 2019) Interim Decision #3959
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distinction’ necessary to establish a particular social group, there must be
evidence showing that society in general perceives, considers, or recognizes
persons sharing the particular characteristic to be a group.” W-G-R-, 26 I&N
Dec. at 217.
Asylum applicants generally seek to establish family-based groups as
“particular social groups” by raising one of two principal arguments. First,
many applicants assert a specific family unit as their “particular social
group.” See, e.g., Hernandez-Avalos v. Lynch, 784 F.3d 944, 949–50 (4th
Cir. 2015) (social group defined as appellant’s nuclear family); Rios, 807
F.3d at 1126 (social group defined as appellant’s “family”); Perecki v. U.S.
Att’y Gen., 446 F. App’x 236, 239 (11th Cir. 2011) (social group defined as
“Perkeci family, as targets of a blood feud”). But to qualify under the statute
and Board precedent, when an applicant proposes a group composed of a
specific family unit, he must show that his proposed group has some greater
meaning in society. It is not enough that the family be set apart in the eye of
the persecutor, because it is the perception of the relevant society—rather
than the perception of the alien’s actual or potential persecutors—that
matters. W-G-R-, 26 I&N Dec. at 217.
In analyzing these claims, adjudicators must be careful to focus on the
particular social group as it is defined by the applicant and ask whether that
group is distinct in the society in question. If an applicant claims persecution
based on membership in his father’s immediate family, then the adjudicator
must ask whether that specific family is “set apart, or distinct, from other
persons within the society in some significant way.” M-E-V-G-, 26 I&N Dec.
at 238. It is not sufficient to observe that the applicant’s society (or societies
in general) place great significance on the concept of the family. If this were
the case, virtually everyone in that society would be a member of a
cognizable particular social group. The fact that “nuclear families” or some
other widely recognized family unit generally carry societal importance says
nothing about whether a specific nuclear family would be “recognizable by
society at large.” A-B-, 27 I&N Dec. at 336; see also Castellano-Chacon v.
INS, 341 F.3d 533, 548 (6th Cir. 2003) (noting that a country or society’s
reaction to a group is a factor in establishing whether it is a cognizable
particular social group). The average family—even if it would otherwise
satisfy the immutability and particularity requirements—is unlikely to be so
recognized.
Second, other applicants define the relevant “particular social group” as
a collection of familial relatives of persons who have certain shared
characteristics. See, e.g., S.E.R.L. v. Att’y Gen. U.S.A., 894 F.3d 535, 541
(3d Cir. 2018) (social group defined as “immediate family members of
Honduran women unable to leave a domestic relationship”); Cordova v. Cite as 27 I&N Dec. 581 (A.G. 2019) Interim Decision #3959
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Holder, 759 F.3d 332, 336 (4th Cir. 2014) (social group defined as “family
members of persons who have been killed by rival gang members”); Vumi v.
Gonzales, 502 F.3d 150, 152 (2d Cir. 2007) (social group defined as
“relatives of assassination suspects”). This is a common approach in asylum
cases concerning gang violence. See, e.g., Orellana-Monson v. Holder, 685
F.3d 511, 517 (5th Cir. 2012) (social group defined to include families of
Salvadoran young adults who were subjected to, and rejected, gang
recruitment); Crespin-Valladares, 632 F.3d at 120–21 (social group defined
as “consisting of family members of those who actively oppose gangs in El
Salvador by agreeing to be prosecutorial witnesses”); Poroj-Mejia v. Holder,
397 F. App’x 234, 236 (7th Cir. 2010) (social group defined as “members of
families who sought police assistance against the Mara 18”). Often, this
category of family classifications fails the social distinction requirement
because there is little evidence to indicate that families sharing these
characteristics are seen in society as cohesive and identifiable groups. See,
e.g., S-E-G-, 24 I&N Dec. at 585–88 (holding that there was little to
distinguish purported social group comprising “family members of
Salvadoran youth . . . who have rejected or resisted membership in [MS-13]”
from members of Salvadoran society at large, who were also threatened by
gang violence). Furthermore, when proposing these kinds of groups,
applicants risk impermissibly defining their purported social group in terms
of the persecution it has suffered or that it fears. See M-E-V-G-, 26 I&N Dec.
at 236 n.11 (particular social groups must exist independently of the harm
asserted); see also, e.g., Poroj-Mejia, 397 F. App’x at 237 (denying asylum
claim of applicant whose proposed social group “has no existence
independent of” the alleged persecutors); Rodriguez v. U.S. Att’y Gen., 735
F.3d 1302, 1310 (11th Cir. 2013) (concluding that the defining attribute of
applicant’s proposed family member group was its persecution by the drug-
trafficking organization, and the risk of persecution alone can never create a
particular social group).
This opinion does not bar all family-based social groups from qualifying
for asylum. To 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. See, e.g., Ali v. Ashcroft, 394 F.3d
780, 785 (9th Cir. 2005) (holding that the “persecution Ali suffered was
clearly on account of . . . her membership in a particular social group, her
clan”); H-, 21 I&N Dec. at 343 (recognizing a Somali subclan as a “particular
social group”). But 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. Moreover, adjudicators
should be skeptical of social groups that appear to be “defined principally, if Cite as 27 I&N Dec. 581 (A.G. 2019) Interim Decision #3959
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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.” In re R-A-, 22 I&N Dec. 906, 918 (BIA
1999; A.G. 2001), remanded for recons. in Matter of R-A-, 24 I&N Dec. 629
(A.G. 2008). 2
Here, the Board’s particular social group analysis merely cited past Board
and federal court precedents recognizing family-based groups and then
agreed with the parties’ stipulations. The Board summarily concluded that
“the facts of this case present a valid particular social group,” without
explaining how the facts supported this finding or satisfied the particularity
and social visibility requirements. L-E-A-, 27 I&N Dec. at 42–43. This
cursory treatment could not, and did not, satisfy the Board’s duty to ensure
that the respondent satisfied the statutory requirements to qualify for asylum.
The Board’s conclusion that the respondent’s proposed group presents a
valid “particular social group” under the INA must be reversed.
IV.
As Attorney General Sessions previously explained, “[a]n alien may
suffer threats and violence in a foreign country for any number of reasons
relating to her social, economic, family, or other personal circumstances.
Yet, the asylum statute does not provide redress for all misfortune.” A-B-,
27 I&N Dec. at 318. The term “particular social group” may not receive such
an elastic and unbound meaning that it includes all immediate-family units,
regardless of whether the applicant’s proposed family is particular and
socially distinct in his society.
For the reasons stated above, I overrule the portion of Matter of
L-E-A- discussing whether the proposed particular social group is
2 Some proposed group definitions appear, on their face, to be convoluted and to lack any
greater importance in society. See, e.g., Franco-Reyes v. Sessions, 740 F. App’x 420, 421
(5th Cir. 2018) (proposed group comprising Salvadoran “nuclear fami[ies] headed by a
woman with a partner who is perceived as being absent and who is perceived as having
expatriated himself”); Solomon-Membreno v. Holder, 578 F. App’x 300, 301 (4th Cir. 2014)
(proposed group comprising “young female students who are related to an individual who
opposes gang practices and values”); Rodriguez, 735 F.3d at 1306–07 (proposed group
comprising “Mexican farmers in the State of Michoacán, owning . . . farmland suitable for
producing high yields of illegal drug crops (cannabis), who are subject to Drug Trafficking
Organizations’ (DTOs’) extortion tactics on account of their ownership of said farmland
and unwillingness to collaborate with the DTOs by refusing to grow and produce illegal
drug crops or participate in illegal drug trafficking” (ellipses in original)); Zavala v. Holder,
353 F. App’x 631, 633 (2d Cir. 2009) (proposed group comprising “all persons who the
Maras have targeted for revenge or recruitment as a form of repayment for that person’s
family’s failure to support the guerrillas during the civil war”). Cite as 27 I&N Dec. 581 (A.G. 2019) Interim Decision #3959
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cognizable. 27 I&N Dec. at 42–43 (Part II.A). Furthermore, I abrogate all
cases inconsistent with this opinion.
Although the Board relied on the parties’ concessions to find the
existence of a particular social group in this case, it ultimately concluded that
the respondent failed to establish a nexus between his purported particular
social group and the persecution that he alleged and feared. I leave the
Board’s analysis of the nexus requirement undisturbed and remand this
matter to the immigration judge for further proceedings consistent with this
opinion and the remaining portions of the Board’s decision below.