A-C-A-A , 28 I. & N. Dec. 84 ( 2020 )

Cite as 28 I&N Dec. 84 (A.G. 2020) Interim Decision #3995
Matter of A-C-A-A-, Respondent
Decided by Attorney General September 24, 2020
U.S. Department of Justice
Office of the Attorney General
(1) In conducting its review of an alien’s asylum claim, the Board of Immigration Appeals
(“Board”) must examine de novo whether the facts found by the immigration judge
satisfy all of the statutory elements of asylum as a matter of law. See Matter of R-A-F-,
27 I&N Dec. 778 (A.G. 2020).
(2) When reviewing a grant of asylum, the Board should not accept the parties’ stipulations
to, or failures to address, any of the particular elements of asylum—including, where
necessary, the elements of a particular social group. Instead, unless it affirms without
opinion under 8 C.F.R. § 1003.1(e)(4)(i), the Board should meaningfully review each
element of an asylum claim before affirming such a grant, or before independently
ordering a grant of asylum. See Matter of L-E-A-, 27 I&N Dec. 581, 589 (A.G. 2019).
(3) Even if an applicant is a member of a cognizable particular social group and has
suffered persecution, an asylum claim should be denied if the harm inflicted or
threatened by the persecutor is not “on account of” the alien’s membership in that group.
That requirement is especially important to scrutinize where the asserted particular
social group encompasses many millions of persons in a particular society.
(4) An alien’s membership in a particular social group cannot be “incidental, tangential,
or subordinate to the persecutor’s motivation . . . [for] why the persecutor[] sought to
inflict harm.” Matter of A-B-, 27 I&N Dec. 316, 338 (A.G. 2018) (citations omitted).
Accordingly, persecution that results from personal animus or retribution generally does
not support eligibility for asylum.
BEFORE THE ATTORNEY GENERAL
Pursuant to 8 C.F.R. § 1003.1(h)(1)(i) (2020), I direct the Board of
Immigration Appeals (“Board”) to refer this case to me for review of its
decision. With the case thus referred, I hereby vacate the Board’s decision
and remand this case for review by a three-member panel.
In Matter of A-C-A-A- (BIA Nov. 6, 2019) (“BIA Op.”), the Board
dismissed an appeal by the Department of Homeland Security (“DHS”)
challenging, as relevant here, the immigration judge’s determination that the
respondent had established a nexus between her membership in a particular
social group (“Salvadoran females”) and past persecution by her parents.
The Board devoted a mere sentence to the merits of the respondent’s asylum
claim, stating that it could “discern no clear error in the Immigration Judge’s
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determination that the respondent established persecution on account of her
membership in a particular social group.” Id. at 2.
In recent decisions, former Attorney General Sessions and I have
emphasized that the Board must review de novo both questions of law and
the immigration judge’s application of the law to the facts. These decisions
recognize that the respondent must present evidence to establish the
existence of a particular social group and a nexus between the respondent’s
membership in that group and the asserted persecution. Based on the
elements necessary to establish these components of a valid asylum claim,
we have explained that victims of private violence, including domestic
violence, will not usually satisfy the requirements for asylum on the basis of
those particular circumstances. In this case, the Board neither analyzed in
any depth whether the evidence presented by the respondent established the
nexus requirement, nor reviewed the immigration judge’s ultimate
determination that the respondent was eligible for humanitarian asylum. On
remand, the Board should consider whether the respondent carried her
burden to prove her asylum claim consistent with applicable precedents and
the instruction that such questions must be subject to meaningful review. In
particular, the Board must consider whether the respondent has established
that her past mistreatment was “on account of” a protected ground such as
membership in a particular social group, rather than on account of
individualized private circumstances not connected to any statutory basis for
asylum relief.
I.
The Immigration and Nationality Act (“INA”) establishes that an alien
applying for relief or protection from removal has the burden of proof to
establish that she “(i) satisfies the applicable eligibility requirements; and (ii)
with respect to any form of relief that is granted in the exercise of discretion,
that the alien merits a favorable exercise of discretion.” INA § 240(c)(4)(A),
8 U.S.C. § 1229a(c)(4)(A). Accordingly, if an alien fails to satisfy the
eligibility requirements or fails to demonstrate that she merits a favorable
exercise of discretion, her application must be denied.
One form of relief that the INA authorizes the Attorney General to grant
is asylum, which may be granted to an alien who establishes that she is a
refugee, meaning that she is unable or unwilling to return to her country of
origin because of persecution or a well-founded fear of persecution on
account of the five protected grounds of “race, religion, nationality,
membership in a particular social group, or political opinion.” INA
§ 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A); INA§ 208(b)(1)(A), (B)(i),
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8 U.S.C. § 1158(b)(1)(A), (B)(i). Consistent with the general burden in
removal proceedings, the INA further specifies that it is the alien’s burden to
demonstrate that she is a refugee within the statutory definition. INA
§ 208(b)(1)(B); see also 8 C.F.R. § 1208.13(a) (stating that the burden of
proof is on the alien to establish that she is a refugee). “To establish that the
applicant is a refugee . . . the applicant must establish that race, religion,
nationality, membership in a particular social group, or political opinion was
or will be at least one central reason for persecuting the applicant.” INA
§ 208(b)(1)(B)(i).
An alien may establish eligibility for asylum in two different ways. First,
an alien may establish a “well-founded fear” of future persecution by
showing that a reasonable person in her circumstance would fear persecution
on one of the five protected grounds if she were to return to her home country.
Matter of Mogharrabi, 19 I&N Dec. 439, 445 (BIA 1987). Alternatively, an
alien may satisfy asylum requirements by establishing that she has suffered
past persecution, creating a presumption that she will face a well-founded
fear of persecution upon her return. Matter of H-, 21 I&N Dec. 337, 346–47
(BIA 1996); 8 C.F.R. § 1208.13(b)(1). But that presumption may be rebutted
where there has been a “fundamental change in circumstances such that the
applicant no longer has a well-founded fear of persecution” from that original
source. 8 C.F.R. § 1208.13(b)(1)(i)(A); see also, e.g., Matter of N-M-A-,
22 I&N Dec. 312, 318 (BIA 1998) (“[I]f the record reflects that country
conditions relating to the past persecution have changed to such an extent
that the applicant no longer has a well-founded fear of harm from his original
source of persecution, the evidentiary presumption is extinguished[.]”).
Even if the Attorney General determines that, as a result of a “fundamental
change in circumstances,” an alien who is otherwise eligible for asylum is
not likely to face future persecution on account of a protected ground, he has
discretion to grant asylum for humanitarian reasons on one of two grounds.
By regulation, the Attorney General may grant humanitarian asylum where
(1) the alien has “demonstrated compelling reasons for being unwilling or
unable to return to the country arising out of the severity of the past
persecution,” or (2) the alien “has established that there is a reasonable
possibility that he or she may suffer other serious harm upon removal to that
country.” 8 C.F.R. § 1208.13(b)(1)(iii)(A)–(B); see also Matter of L-S-,
25 I&N Dec. 705, 710–11 (BIA 2012) (clarifying that “an asylum applicant
. . . bears the burden of proof to show that either form of humanitarian asylum
is warranted”). Humanitarian asylum is nonetheless appropriate only “in rare
instances,” Ben Hamida v. Gonzales, 478 F.3d 734, 740 (6th Cir. 2007)
(citation omitted), and is available only to those asylum applicants who have
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demonstrated that they suffered past persecution on account of a protected
ground, see Mejia-Lopez v. Barr, 944 F.3d 764, 768 (8th Cir. 2019).
The respondent here, a native and citizen of El Salvador, entered the
United States illegally in 2012 and was placed in removal proceedings in
2013. After conceding removability in 2018, the respondent sought asylum
and other immigration protection on the basis that she had suffered past
persecution at the hands of her parents on account of her membership in a
particular social group of “Salvadoran females.” The respondent also
asserted that she had a well-founded fear of future persecution on account of
being a woman in El Salvador, by her former romantic partner, gang
members, or the Salvadoran police. The immigration judge concluded that
the respondent had established that she had suffered past persecution at the
hands of her parents, but because there had been a fundamental change in the
respondent’s circumstances—the respondent was now twenty-nine years old
and likely would not reside with her parents upon her return—the
immigration judge concluded that the respondent no longer had a
well-founded fear of persecution by her parents. Nevertheless, the
immigration judge found the respondent eligible for a humanitarian grant of
asylum, after determining that she had established that she would face “other
serious harm” were she to return to El Salvador.
On appeal, DHS challenged the immigration judge’s finding that the
respondent was credible and that she had established a nexus between her
membership in a particular social group and past persecution. The Board
affirmed, deferring to the immigration judge’s credibility finding and
concluding, in a one-sentence discussion of the merits of the respondent’s
asylum claim, that it could “discern no clear error in the Immigration Judge’s
determination that the respondent established persecution on account of her
membership in a particular social group.” BIA Op. at 2.
II.
By regulation, the Board “function[s] as an appellate body charged with
the review of those administrative adjudications under the Act that the
Attorney General may by regulation assign to it.” 8 C.F.R. § 1003.1(d)(1).
I recently explained that, “[a]lthough the Board reviews an immigration
judge’s factual findings for clear error, it reviews de novo ‘questions of law,
discretion, and judgment and all other issues in appeals,’ including the
application of law to fact.” Matter of R-A-F-, 27 I&N Dec. 778, 779 (A.G.
2020) (citing 8 C.F.R. § 1003.1(d)(3)(i), (ii)); see also Board of Immigration
Appeals: Procedural Reforms to Improve Case Management, 67 Fed. Reg.
54878, 54888–89 (Aug. 26, 2002) (“[T]he Board members will retain their
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‘independent judgment and discretion,’ subject to the applicable governing
standards, regarding the review of pure questions of law and the application
of the standard of law to those facts.”). The Board certainly “has no duty to
write an exegesis on every contention” presented in each case, but it must
“consider the issues” and “announce its decision in terms sufficient to enable
a reviewing court to perceive that it has heard and thought and not merely
reacted.” Scorteanu v. INS, 339 F.3d 407, 412 (6th Cir. 2003). 1
The elements of an asylum claim are well established. In Matter of
M-E-V-G-, 26 I&N Dec. 227 (BIA 2014), the Board explained in detail what
applicants who, like the respondent, claim to have suffered past persecution
on account of their membership in a particular social group must establish to
prove their eligibility for asylum. More recently, in Matter of A-B-, 27 I&N
Dec. 316 (A.G. 2018), Attorney General Sessions “reiterate[d] that an
applicant for asylum on account of her membership in a purported particular
social group 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.” Id. at 320.
As Matter of A-B- also explained, the Board must meaningfully review
each of these elements when presented with an appeal from a grant of asylum.
Id.; see also id. at 340 (“The respondent must present facts that undergird
each of these elements [of an asylum claim], and the asylum officer,
immigration judge, or the Board has the duty to determine whether those
facts satisfy all of the legal requirements for asylum.”). Matter of
A-B- criticized the Board for analyzing elements “in a conclusory fashion,”
for “citing the standard of review” but “not apply[ing] it,” and for relying on
“summary reasoning.” Id. at 343. DHS’s decision not to expressly challenge
a particular element of an asylum claim did not relieve the Board from its
need to review the immigration judge’s determination as to that element. See
id. at 339 (overruling a decision in which “the Board recognized that it had a
duty to evaluate any claim regarding the existence of a particular social group
in a country in the context of the evidence presented regarding the particular
circumstances in the country in question, but it did not adequately observe
1
The Board need not provide such an explanation when it affirms without opinion under
8 C.F.R. § 1003.1(e)(4)(i). In such a case, the reviewing court will look to the immigration
judge’s decision in connection with its review. See Dia v. Ashcroft, 353 F.3d 228, 240 (3d
Cir. 2003).
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that duty” and instead “accepted, with little or no analysis, DHS’s
concessions to the contrary on nearly every legal issue” (citations and
alterations omitted)); Matter of L-E-A-, 27 I&N Dec. 581, 589 (A.G. 2019)
(explaining that “a cursory analysis of a question that was either uncontested,
or not dispositive to the outcome” does not “undermine the Board
requirement” to ensure that asylum applicants establish all the elements of
their claim through “the thorough, case-specific analysis . . . that the Board’s
precedents generally require”). 2
In conducting this review, the Board also must examine whether the facts
found by the immigration judge satisfy those elements as a matter of law.3
This requirement is consistent with the INA’s placing the burden upon the
alien regarding applications for relief—the alien either carries her burden or
she does not.
2
If the Board finds that “an alien’s asylum application is fatally flawed in one respect, . . .
the Board need not examine the remaining elements of the asylum claim.” Matter of A-B-,
27 I&N Dec. at 340; see also, e.g., De Pena-Paniagua v. Barr, 957 F.3d 88, 92 (1st Cir.
2020). But in such a case, the Board should not affirmatively endorse a particular social
group, or other elements of an asylum claim, if it later finds that the respondent is ineligible
for asylum because she failed to satisfy a different statutory element. See Matter of L-E-A-,
27 I&N Dec. at 42–43.
3
Meaningful review may, in some cases, take the form of “a statement that the Board’s
conclusions upon review of the record coincide with those which the immigration judge
articulated in his or her decision,” so long as, in making such a statement, the Board has
“rel[ied] upon [its] own independent judgment in deciding the ultimate disposition of the
case.” Matter of Burbano, 20 I&N Dec. 872, 873–74 (BIA 1994). In such a case, “the
Board’s final decision may be rendered in a summary fashion; however, such summary
treatment of a case does not mean that [the Board] ha[s] conducted an abbreviated review
of the record or ha[s] failed to exercise [its] own discretion.” Id. at 874. As courts of
appeals have recognized, “where the BIA cites its decision in Burbano and does not express
disagreement with any part of the IJ’s decision, the BIA adopts the IJ’s decision in its
entirety,” and where “the BIA intends to constrict the scope of its opinion to apply to only
one ground upon which the IJ’s decision rested, the BIA can and should specifically state
that it is so limiting its opinion.” Abebe v. Gonzales, 432 F.3d 1037, 1040 (9th Cir. 2005);
see also, e.g., Bondarenko v. Holder, 733 F.3d 899, 906 (9th Cir. 2013); Gishta
v. Gonzales, 404 F.3d 972, 980 (6th Cir. 2005); Paripovic v. Gonzales, 418 F.3d 240, 244
(3d Cir. 2005). Where the Board has cited Matter of Burbano, the summary affirmance
differs from an affirmance without opinion under 8 C.F.R. § 1003.1(e)(4)(i). In the latter
situation, the Board adopts only the results of the immigration judge’s decision, deeming
any error harmless or nonmaterial, whereas a Burbano affirmance reflects the Board’s
adoption of the results and the reasoning of the immigration judge. Abebe, 432 F.3d at
1041.
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III.
A.
Matter of A-B- not only reiterated the standard by which the Board should
review asylum claims but also involved a legal claim similar to the claim at
issue in this case. In Matter of A-B-, a victim of domestic violence alleged
that she had been abused by her ex-husband in El Salvador and “was eligible
for asylum because she was persecuted on account of her membership in the
purported particular social group of ‘El Salvadoran women who are unable
to leave their domestic relationships where they have children in common’
with their partners.” 27 I&N Dec. at 321. Matter of A-B- vacated the Board’s
order to grant the respondent asylum pending the completion of background
checks, primarily because the Board’s “cursory analysis of the respondent’s
social group” failed to demonstrate that A-B- had established a cognizable
particular social group as a matter of law. Id. at 340. The Board had “cited
no evidence that [A-B-’s] husband knew any such social group existed, or
that he persecuted [his] wife for reasons unrelated to their relationship,” id.
at 343, suggesting that the alien had not demonstrated that any such
persecution was on account of A-B-’s membership in a particular social
group. And it likewise concluded that the Board “erred in finding . . . that El
Salvador was unable or unwilling to protect A-B-” by relying only on
evidence of “the persistence of domestic violence in El Salvador.” Id. at 344.
In addition, Matter of A-B- overruled Matter of A-R-C-G-, which had held
that “‘married women in Guatemala who are unable to leave their
relationship’” constituted a particular social group within the meaning of the
INA. Matter of A-B-, 27 I&N Dec. at 331 (quoting Matter of A-R-C-G-,
26 I&N Dec. 388, 392 (BIA 2014)). The Attorney General concluded that
the Board in Matter of A-R-C-G- had failed to establish that this group was
“defined with particularity,” Matter of A-B-, 27 I&N Dec. at 335, or that the
group “‘exist[ed] independently’ of the harm asserted in an application for
asylum,” id. at 334 (quoting Matter of M-E-V-G-, 26 I&N Dec. at 236 n.11,
243). Because “[t]he Board’s scant analysis did not engage with these
requirements or show that A-R-C-G-’s proposed group was ‘defined by
characteristics that provide a clear benchmark for determining who falls
within the group,’” Matter of A-B- overruled Matter of A-R-C-G-. Id. at 335
(quoting Matter of M-E-V-G-, 26 I&N Dec. at 239). While Matter of
A-B- did “not decide that violence inflicted by non-governmental actors may
never serve as the basis for . . . asylum,” it did state that “in practice such
claims are unlikely to satisfy the statutory grounds for proving group
persecution that the government is unable or unwilling to address.” Id. at
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320; cf. id. at 317 (“[T]here may be exceptional circumstances when victims
of private criminal activity could meet these requirements[.]”).
In this case, the Board committed many of the same errors that were at
issue in Matter of A-R-C-G-. Here, the immigration judge concluded that the
respondent had suffered past persecution through physical and psychological
abuse by her parents on account of her being a “Salvadoran female[].”
Matter of A-C-A-A-, at 7–8 (Immig. Ct. S.F. May 20, 2019) (“IJ Op.”). And
the Board erred by affirming the grant of asylum without meaningfully
considering any of the elements of the respondent’s asylum claim. Indeed,
the Board indicated only that it saw no “clear error” in the immigration
judge’s conclusions about whether the respondent had suffered persecution
on account of her membership in a particular social group, misapplying the
appropriate standard of review, which required that the Board review de novo
that conclusion and its underlying legal determinations. See 8 C.F.R.
§ 1003.1(d)(3)(ii); Matter of R-A-F-, 27 I&N Dec. at 779. On remand, the
Board must consider whether the respondent established the existence of the
particular social group of “Salvadoran females,” and a nexus between the
respondent’s membership in that group and the asserted persecution. 4
B.
In this case, the nature of the respondent’s asserted particular social group
makes the Board’s failure to meaningfully review the immigration judge’s
nexus analysis especially problematic. The Board should have carefully
considered whether the respondent’s membership in the particular social
group of “Salvadoran females” was truly “‘one central reason’” for her
persecution at the hands of her parents. Matter of A-B-, 27 I&N Dec. at 338
4
Although I do not decide the matter in this case, I note that there has been disagreement
among the courts of appeals about whether gender-based groups may constitute a particular
social group within the meaning of the INA. Compare, e.g., Amezcua-Preciado v. U.S.
Att’y Gen., 943 F.3d 1337, 1344–45 (11th Cir. 2019) (“[W]hile the members of
Amezcua-Preciado’s proposed social group arguably share the immutable characteristic of
being women, that characteristic alone is insufficient to make them cognizable as a
particular social group under the INA.”), with, e.g., De Pena-Paniagua, 957 F.3d at 93–94,
96 (“[I]t is not clear why a larger group defined as ‘women,’ or ‘women in country X’—
without reference to additional limiting terms—fails either the ‘particularity’ or ‘social
distinction’ requirement.”). Furthermore, the Board should remember on remand that
“conclusory assertions of countrywide negative cultural stereotypes . . . neither contribute
to an analysis of the particularity requirement nor constitute appropriate evidence to
support such asylum determinations.” Matter of A-B-, 27 I&N Dec. at 336 n.9. The
respondent has the burden to prove the existence of a particular social group and all other
relevant factors of an asylum claim.
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(quoting 8 U.S.C. § 1158(b)(1)(B)(i)). Even if an applicant is a member of
a cognizable particular social group and has suffered persecution, an asylum
claim should be denied if the harm inflicted or threatened by the persecutor
is not “on account of” the alien’s membership in that group. That
requirement is especially important to scrutinize where, as here, the asserted
particular social group encompasses millions of Salvadorans. “‘Although
the category of protected persons [within a particular group] may be large,
the number of those who can demonstrate the required nexus is likely not.’”
Id. (quoting Cece v. Holder, 733 F.3d 662, 673 (7th Cir. 2013) (en banc)).
As Attorney General Sessions has explained, the nexus requirement is
“‘where the rubber meets the road’” for many asylum claims. Id. (quoting
Cece, 733 F.3d at 673). And as the Board has observed, in performing an
appropriately thorough analysis of the nexus requirement in an asylum case,
“[t]he question of a persecutor’s motive will involve a particularized
evaluation of the specific facts and evidence in an individual claim. . . .
While some scenarios will present a clear answer, others will require a more
nuanced evaluation.” Matter of L-E-A-, 27 I&N Dec. 40, 44 (BIA 2017).
An alien’s membership in a particular social group cannot be “incidental,
tangential, or subordinate to the persecutor’s motivation . . . [for] why the
persecutor[] sought to inflict harm.” Matter of A-B-, 27 I&N Dec. at 338
(citing Matter of J-B-N- & S-M-, 24 I&N Dec. 208, 214 (BIA 2007), and INS
v. Elias-Zacarias, 502 U.S. 478, 483 (1992)). Accordingly, persecution that
results from personal animus or retribution generally does not establish the
necessary nexus. See Zoarab v. Mukasey, 524 F.3d 777, 781 (6th Cir. 2008)
(“Asylum is not available to an alien who fears retribution solely over
personal matters.”). The reasoning for this is straightforward: “When private
actors inflict violence based on a personal relationship with a victim, then the
victim’s membership in a larger group may well not be ‘one central reason’
for the abuse.” Matter of A-B-, 27 I&N Dec. at 338–39; see, e.g.,
Gonzales-Veliz v. Barr, 938 F.3d 219, 225 (5th Cir. 2019) (holding that
substantial evidence supported the BIA’s conclusion that the nexus
requirement was not satisfied where “the BIA found that [asylum
applicant’s] ex-boyfriend was ‘motivated only by retribution after she sued
him,’” not by her membership in the particular social group of “Honduran
women unable to leave their relationship”). “If the persecutor would have
treated the applicant the same if the protected characteristic . . . did not exist,
then the applicant has not established a claim on this ground.” Matter of
L-E-A-, 27 I&N Dec. at 43–44.
Furthermore, if the persecutor has neither targeted nor manifested any
animus toward any member of the particular social group other than the
applicant, then the applicant may not satisfy the nexus requirement. In
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Matter of R-A-, for instance, “the record d[id] not reflect that [the applicant’s]
husband bore any particular animosity toward women who were intimate
with abusive partners, women who had previously suffered abuse, or women
who happened to have been born in, or were actually living in,
Guatemala. . . . On the basis of this record, [the Board] perceive[d] that the
husband’s focus was on the respondent because she was his wife, not because
she was a member of some broader collection of women, however defined,
whom he believed warranted the infliction of harm.” 22 I&N Dec. 906, 921
(BIA 1999) (emphasis added); Matter of A-B-, 27 I&N Dec. at 339; see also,
e.g., Margarita O-O v. Att’y Gen. U.S., 742 F. App’x 676, 681 & n.7 (3d Cir.
2018) (“[W]hile [respondent] presented some evidence that there is targeted
violence against women in El Salvador for reasons including . . . ensuring
gang control, this does not establish a nexus between the harm [the
respondent] suffered and her status as a ‘Salvadoran single female head of
household responsible for the household’s support.’ . . . [the respondent]’s
belief is undermined by the fact that the gang members targeted both men
and women.”); Jacobo-Melendres v. Sessions, 706 F. App’x 724, 725–26 (2d
Cir. 2017) (holding that, even assuming “unmarried women who refuse the
advances of gang members” in Guatemala could constitute a particular social
group, respondent had not satisfied the nexus requirement where she
“testified that she was harassed, stalked, and attacked because a gang
member was interested in having a relationship with her, but she did not
assert that he or anyone else targeted her based on her membership in a group
of similarly situated individuals who had refused the advances of gang
members” (emphasis added)).
As I explained last year in Matter of L-E-A-, the Board has a duty to
conclude that the respondent has satisfied all of the statutory requirements to
qualify for asylum before affirming an immigration judge’s grant of asylum.
27 I&N Dec. at 596. Here, even though DHS specifically challenged the
immigration judge’s determination that her membership in the particular
social group of “Salvadoran females” was at least one central reason for her
persecution at the hands of her parents, the Board’s decision gave no
indication that it gave this question more than fleeting consideration.
A closer examination of the immigration judge’s conclusion, in light of
the record, would have raised questions concerning the nexus requirement.
For instance, the immigration judge did not cite any evidence that the
respondent’s parents themselves had ever said or done anything to express
hostility to “Salvadoran females” in general, as opposed to having made
statements and taken actions based upon their personal feelings about the
respondent, their daughter. See Matter of A-B-, 27 I&N Dec. at 338
(describing the need for evidence that the persecutor is aware of and hostile
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to the particular social group). The Board did not explore whether there was
any evidence that the respondent’s parents bore animosity toward other
“Salvadoran females” or that her parents—including her mother, who would
have been a member of the group as well—perceived all “Salvadoran
females” as a distinct social group. Compare id. at 339 with IJ Op. at
10 (quoting respondent’s declaration, which averred that her father told her
“I am the man of this house and I am in charge. You’re my daughter and you
have to do what I say!” (emphasis added)). Indeed, it seems unlikely that the
respondent will be able to demonstrate that she suffered persecution based
on membership in a social group as broad as all “Salvadoran females,”
because of the need to establish that the private violence reflected a general
animus against a broad social group rather than the personal animus arising
from the relationship between the purported persecutors and the asylum
applicant.
As in Matter of A-B-, I need not, and do not, hold here that there are no
circumstances where an applicant’s membership in a gender-based particular
social group may be “one central reason” for an applicant’s persecution. See
Grace v. Barr, 965 F.3d 883, 906 (D.C. Cir. 2020) (“The only general rule
that Matter of A-B- articulates . . . is that asylum officers have to go through
the steps for analyzing particular-social-group claims,” which is “perfectly
consistent with” the instruction that “claims be analyzed on a case-by-case
basis.” (internal quotation marks and alterations omitted)). 5 But the record
here raises serious questions about whether the applicant may carry that
burden, and the Board did not satisfy its duty to analyze whether the
respondent could establish that the nexus requirement had been satisfied or
to review the immigration judge’s legal conclusions de novo.
IV.
5
In Grace v. Barr, the D.C. Circuit reversed a district court decision calling into question
some aspects of Matter of A-B- and a guidance document subsequently issued by U.S.
Citizenship and Immigration Services (USCIS). See USCIS, Guidance for Processing
Reasonable Fear, Credible Fear, Asylum, and Refugee Claims in Accordance with Matter
of A-B-, PM-602-0162 (July 11, 2018). The court of appeals held that “parts of both A-B-
and the Guidance make clear that asylum officers must ‘analyze each case on its own merits
in the context of the society where the claim arises.’ In other words, the record in this case
does not support the asylum seekers’ argument that USCIS and the Attorney General have
erected a rule against asylum claims involving allegations of domestic and/or gang
violence.” Grace, 965 F.3d at 906 (citation omitted); see also Gonzales-Veliz, 938 F.3d at
233 (“[T]he Attorney General’s A-B- decision did not create a blanket preclusion for groups
based on domestic violence,” but rather explained that “the applicants ‘must satisfy
established standards when seeking asylum’” (quoting Matter of A-B-, 27 I&N Dec.
at 317)).
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This case involves an additional issue beyond whether the respondent
suffered persecution on account of membership in a particular social group.
Here, the immigration judge determined that, even though the respondent had
suffered such persecution, she had not demonstrated a well-founded fear of
future persecution on that basis, given that she was now twenty-nine years
old and unlikely to live in her parents’ home were she to return to El
Salvador. The regulations, however, provide that even an alien who is unable
to demonstrate that she fears future persecution of the sort she had suffered
in the past may be granted asylum on a “humanitarian” basis. See 8 C.F.R.
§ 1208.13(b)(1)(iii). The immigration judge determined that the respondent
was entitled to asylum on that basis because she had demonstrated that she
would be at risk of “other serious harm” if she were to return to El Salvador.
IJ Op. at 12–13.
I do not consider here whether the respondent has established that she is
entitled to a discretionary grant of humanitarian asylum under 8 C.F.R.
§ 1208.13(b)(1)(iii)(B). See Asylum Procedures, 65 Fed. Reg. 76,121,
76,127 (Dec. 6, 2000) (defining “other serious harm” as harm that is “is so
serious that it equals the severity of persecution,” but that is not inflicted on
account of the protected grounds of race, religion, nationality, membership
in a particular social group, or political opinion). The Board here neglected
to mention this issue or analyze whether the immigration judge’s conclusions
were consistent with the regulation and Board precedent about this form of
humanitarian asylum. See Matter of L-S-, 25 I&N Dec. at 714 (discussing
the appropriate “other serious harm” inquiry). The question of humanitarian
asylum arises only when an alien has established past persecution on account
of a statutorily protected ground but is unable to demonstrate a well-founded
fear of future persecution. Here, the Board’s antecedent analysis of the
respondent’s alleged past persecution was critically flawed. Thus, on
remand, not only must the Board meaningfully analyze the respondent’s
alleged past persecution on account of her membership in a particular social
group, but, if necessary, the Board must also consider whether the respondent
merits humanitarian asylum—including by reviewing the determination of
“other serious harm.”
* * * * *
For the reasons discussed above, I vacate the Board’s decision and
remand this case for review by a three-member panel in accordance with this
opinion. On remand, the Board should meaningfully assess whether the
respondent qualifies for asylum, and not affirm the immigration judge’s
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decision unless the Board concludes that the respondent has met her burden
and has satisfied each of the three Matter of M-E-V-G- elements: her
membership in a particular social group, a nexus between such a group and
her persecution, and the unwillingness or inability of the government of El
Salvador to protect her. The Board should also determine whether DHS has
sufficiently rebutted the presumption that, should the respondent
successfully establish that she has suffered past persecution on account of
her membership in a particular social group, she faces a well-founded fear of
persecution on the same basis. If DHS has not rebutted that presumption, the
Board should determine whether DHS has established the feasibility of
internal relocation. Finally, should the Board find, as the immigration judge
did, that DHS has rebutted that presumption, it should review the
immigration judge’s subsequent conclusion that the respondent is eligible for
a humanitarian grant of asylum.
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