Twin Decisions that Provide ‘Bright-Line’ Rules for Asylum

On September 2, Attorney General (AG) Pam Bondi issued decisions in two pending cases, Matter of S-S-F-M- and Matter of R-E-R-M- & J-D-R-M-, which — individually and in combination—provide “bright-line” rules for administrative adjudicators considering asylum claims based on (respectively) domestic violence and gang violence abroad. Expect immigration judges to use these cases to speed claims to adjudication, but also expect aliens to make more Torture Convention claims, as well.

The AG’s “Certification” Authority

When Congress handed the executive branch its various immigration authorities in section 103 of the Immigration and Nationality Act (INA), most duties went to DHS and the State Department.

That said, a proviso in section 103(a)(1) makes clear that, “determination and ruling by the Attorney General with respect to all questions of law shall be controlling”.

The AG delegates most of that authority to immigration judges and the appellate Board of Immigration Appeals (BIA) — both of which are in DOJ’s Executive Office for Immigration Review (EOIR) — but she has reserved ultimate determinations on “all questions of law” to herself by regulation.

That authority is known as “certification”, and under 8 C.F.R. § 1003.1(h), three classes of cases can be certified to the AG for final judgment: (1) cases the AG directs be referred to her; (2) cases the BIA refers to the AG for consideration; and (3) cases the DHS asks the AG for review.

Notably, when I was an associate general counsel at the former INS, I asked the then-AG (Janet Reno and then John Ashcroft) to review BIA decisions the INS (me) believed had been incorrectly decided.

This was a crucial avenue for review, because neither the then-INS nor DHS can seek Article III federal court review of a BIA decision. If certification didn’t exist, and the BIA botched an important decision (which happens), we all would have to live with the results, regardless of the consequences for the law, the community, or national security.

As importantly, the AG can use certification in lieu of formal rulemaking to change the legal standards governing immigration questions and decisions. That’s what Bondi did on September 2 in both Matter of S-S-F-M- and Matter of R-E-R-M- & J-D-R-M-.

Matters of A-B-, I, II, and III

And that’s how then-AG Jeff Sessions used that certification authority in June 2018 when he issued his decision in Matter of A-B-, better known for reasons that will soon be apparent as Matter of A-B- I (the Roman numeral one, not the letter “i”).

By way of background, section 208(b)(1) of the INA gives both USCIS and the AG authority to grant asylum to any alien who has applied for that protection “if the [AG] determines that such alien is a refugee within the meaning of section 101(a)(42)(A)” of the INA.

Section 101(a)(42)(A) of the INA, in turn, defines the term “refugee” in pertinent part as:

[A]ny person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself 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.

The last clause sets forth what are known as the “protected factors” for asylum protection, and as should be clear, four of those factors (race, religion, nationality, and political opinion) are straightforward.

But with respect to “membership in a particular social group”, as then-Judge (now Justice) Samuel Alito explained in a 1993 opinion: “Read in its broadest literal sense, the phrase is almost completely open ended. Virtually any set including more than one person could be described as a ‘particular social group.’”

To help define the term in Matter of A-B- I, Sessions returned to fundamental issues of asylum law, including what “persecution” is, how a “particular social group” [PSG] is defined, and the requirement that there be a “nexus” between the PSG identified and the persecution purportedly inflicted or feared.

Based upon prior BIA precedent, Sessions held that for an applicant for asylum to establish membership in a PSG, that alien 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 that the government is unwilling or unable to control.

He also specifically reversed a prior BIA decision, Matter of A-R-C-G-, which to that point had governed PSG claims based upon domestic violence.

DHS had made many concessions in Matter of A-R-C-G- that facilitated the BIA’s finding there that “depending on the facts and evidence in an individual case, ‘married women in Guatemala who are unable to leave their relationship’ can constitute a cognizable” PSG.

As a consequence of those concessions, Sessions concluded, the BIA subsequently (including in Matter of A-B-, below), read Matter of A-R-C-G- “to encompass most Central American domestic violence victims” without analyzing those claims pursuant to its own case law governing “PSG” for purposes of asylum.

That was in error, Sessions concluded, and in Matter of A-B- I, he directed immigration adjudicators to consider domestic violence claims and other claims premised on common criminality using the same standards they apply in assessing PSG generally.

Logically, he concluded:

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. … A criminal gang may target people because they have money or property within the area where the gang operates, or simply because the gang inflicts violence on those who are nearby. … That does not make the gang’s victims persons who have been targeted “on account of” their membership in any social group.

Similarly, in domestic violence cases, like A-R-C-G-, the Board cited no evidence that her ex-husband attacked her because he was aware of, and hostile to, “married women in Guatemala who are unable to leave their relationship.” Rather, he attacked her because of his preexisting personal relationship with the victim. … When “the alleged persecutor is not even aware of the group’s existence, it becomes harder to understand how the persecutor may have been motivated by the victim’s ‘membership’ in the group to inflict the harm on the victim.” [Internal citations omitted.]

At the end of the first Trump administration, in January 2021, then-Acting AG Jeff Rosen issued Matter of A-B- II, which made clear for reviewing courts that Sessions’ earlier opinion didn’t alter a pre-existing standard requiring asylum applicants to show that, for asylum, persecution must be inflicted either by the government or an actor the government is “unwilling or unable” to control.

Five months later, however, Biden’s AG, Merrick Garland, issued Matter of A-B- III, which vacated the two earlier AG opinions “in their entirety … pending forthcoming rulemaking”.

Matter of S-S-F-M-

As Bondi noted in Matter of S-S-F-M-, however, that “forthcoming rulemaking” never came forth, which left Matter of A-R-C-G- and other decisions identified in the first two Matters of A-B- in place.

You can almost consider Matter of S-S-F-M- to be Matter of A-B- IV, because Bondi therein resurrected Sessions’ and Rosen’s opinions, and reimplemented the bright-line rules set forth therein.

Most notably, as she concluded, “Although there may be circumstances when a government’s failure to control private conduct itself amounts to persecution, A-B- I was entirely correct to treat those circumstances as few and far between”.

Taking a swipe at the prior administration while also bolstering her power to alter standards through certification, Bondi also noted:

That [fact-based inquiries are] better resolved through case-by-case adjudication than broad-based rulemaking is confirmed by the failure of the previous administration to issue any rule addressing the meaning of “particular social group” over almost three years — despite a (now rescinded) Executive Order requiring that the Secretary of Homeland Security and Attorney General do so “within 270 days.”

To be fair, the last administration did have its hands full with the “fiasco” its other immigration policies had created at the Southwest border.

Matter of R-E-R-M- & J-D-R-M-

Matter of A-B- was not the only case in which an AG under the first Trump administration attempted to provide bright-line rules for PSG determinations.

In his July 2019 opinion in Matter of L-E-A-, then-AG Bill Barr addressed the circumstances under which familial relationships can form a PSG for purposes of asylum eligibility.

As I explained at the time: “Bright-line rules in this area are necessary because the concept of ‘family’ as a PSG had not been subject to the same rigorous analysis as other claimed PSGs: rather, they had simply been assumed as such, a point the AG detailed at some length in his decision.”

That was a salient issue following Matter of A-B- I, as I noted in November 2018, because applicants had begun “converting claims that would otherwise be barred by” Matter of A-B- I “into claims premised on familial relationships to targeted individuals, such as the parents of males targeted for gang recruitment. The minors in question [could] then ‘ride’ on the parents’ asylum applications.”

Barr clarified that in examining PSG claims based on familial relationships, “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”.

He continued:

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.” 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 average family — even if it would otherwise satisfy [other PSG] requirements — is unlikely to be so recognized. [Emphasis added.]

Barr’s opinion was technically Matter of L-E-A- II, as he reversed a May 2017 BIA decision of the same name, but in Matter of L-E-A- III, AG Garland in June 2021 also vacated it “in its entirety so as to return the immigration system to the preexisting state of affairs pending completion of the ongoing rulemaking process and the issuance of a final rule addressing the definition of” PSG (see above).

Matter of R-E-R-M- & J-D-R-M- involved a Salvadoran mother and son, with the mother claiming she’d be persecuted if returned based on “family/kinship ties” and her membership in the PSG of “individuals who oppose gang membership and gang authority”.

At hearing, the mother alleged gang members in El Salvador “demanded an extortion fee from her and threatened to kill her brother if she failed to pay”, prompting her to flee to Guatemala “where she continued to receive threats”.

If that fact pattern sounds familiar, it’s roughly the same claim Kilmar Abrego Garcia made when he was granted “statutory withholding” in October 2019, but in R-E-R-M- and J-D-R-M-‘s case, both the immigration judge and the BIA denied asylum.

They filed a petition for review with the Ninth Circuit on the “kinship ties” question, but following Garland’s opinion in Matter of L-E-A- III, DOJ asked the circuit court to remand R-E-R-M- and J-D-R-M-‘s case to the BIA for reevaluation.

It plainly lingered there for a while, but the circuit remand teed the case up for Bondi to hold that Barr’s opinion in Matter of L-E-A- II “correctly interpreted the text and structure of the INA as well as longstanding” BIA practice, “to find that kinship ties may form the basis for a” PSG “only where they are ‘defined with particularity’ and ‘socially distinct within the society in question’”.

Specifically, she held:

To be sufficiently particular, a group must have “discernible boundaries” and cannot be “too vague or amorphous.” To be socially distinct, “society in general,” rather than just the actual or potential persecutors, must “perceive, consider, or recognize persons sharing the particular characteristic to be a group.” [Citations omitted; cleaned up.]

The Practical Impact

These opinions will limit aliens’ ability to impede removal with weak or bogus asylum claims. Asylum applications are also Convention Against Torture (CAT) applications, however, and aliens don’t need to show that torture would be inflicted due to a protected characteristic (like PSG) for CAT.

Therefore, expect would-be asylum claims to transform into CAT applications, limiting these opinions’ impact on backlog reduction. But as I explained nearly seven years ago, immigration officers—not immigration judges—considered CAT claims prior to regulatory changes in 1999; maybe it’s time to return to the old way of doing things.