By Courtney May and Stephen Yale-Loehr*

Introduction

In June 2018, former Attorney General Sessions issued a precedential opinion in Matter of A-B- that on its face restricts the availability of asylum in the United States for survivors of domestic and gang violence.[1] An asylum seeker must demonstrate a well-founded fear of persecution on account of “race, religion, nationality, membership in a particular social group, or political opinion.”[2] The asylum seeker in Matter of A-B- claimed that she was “persecuted on account of her membership in the particular social group of ‘El Salvadoran women who are unable to leave the domestic relationships where they have children in common’ with their partners.”[3] Attorney General Sessions’ decision cast doubt on whether being a victim of a private criminal activity such as domestic or gang violence can constitute a cognizable “particular social group” for asylum purposes, denying asylum in Matter of A-B-.[4]

However, after Matter of A-B-, victims of domestic and gang violence may still apply for asylum through the traditional channels of affirmative and defensive asylum by alleging that they are persecuted as a result of their membership in a particular social group. Matter of A-B- stated that asylum claims pertaining to domestic violence or gang violence by private actors generally should not succeed, but did not foreclose such claims entirely.[5]

Given that much of the Matter of A-B- decision is dicta, this article considers the practical effect of Matter of A-B-. Section I summarizes our research methods and our national survey of immigration attorneys. Section II addresses Matter of A-B-’s effect on case-by-case decision-making in asylum cases. Section III describes how federal courts have interpreted Matter of A-B-. Section IV characterizes interpretations of the case by immigration judges and the Board of Immigration Appeals. Section V identifies strategies for domestic and gang violence claims after Matter of A-B-. Section VI describes a new proposed rule that may further change the post-Matter of A-B- asylum landscape. The article concludes that Matter of A-B– makes asylum claims based on domestic and gang violence more difficult but not impossible.

 

  1. Methodology

To get a better sense of how immigration judges (IJs) and U.S. Citizenship and Immigration Services (USCIS) asylum officers are deciding asylum cases involving domestic and gang violence claims after Matter of A-B-, we reviewed recent law review articles, scoured case databases, researched relevant agency regulations and immigration law treatises, and emailed immigration attorneys around the United States.

We received thirty-six examples of relevant decisions by IJs, the Board of Immigration Appeals (BIA), and USCIS. Because the identifying information in most of the cases that we received in our survey is redacted, we have numbered the cases and refer to them simply as “Document # (Google Drive)” in the footnotes throughout this article. For more information about each decision, please refer to our spreadsheet. The decisions are summarized in numerical order according to their Document Number in the spreadsheet, which is available online in a Google Drive.[6]

Our survey is not scientific. Immigration attorneys may be more willing to share asylum victories than losses. Because IJ decisions and many unpublished BIA decisions are not regularly published, however, our survey at least provides a glimpse into what is actually happening after Matter of A-B-.

We found many of the BIA decisions referenced in this Memorandum in an index of unpublished decisions released for purchase by the Immigrant and Refugee Appellate Center (IRAC).[7] We also mention cases discussed in a recent law review article that analyzes gender-based asylum claims decided in the year following Matter of A-B-.[8] All sources referenced in this memorandum are available in the Google Drive folder and/or include a footnote with a URL.[9]

 

  1. General Effect of Matter of A-B- Dicta

Our research suggests that Matter of A-B- does not implicate a decision-maker’s ability to evaluate asylum claims on a case-by-case basis. Matter of A-B- merely erases Matter of A-R-C-G-[10] as a precedential decision because the BIA reached its decision in Matter of A-R-C-G- based on Department of Homeland Security stipulations rather than specific facts in the administrative record.

Dicta in Matter of A-B- provides fodder to adjudicators who wish to deny asylum to individuals targeted by gang or domestic violence. Some IJs and the BIA have invoked Matter of A-B- as a reason to deny asylum claims relating to domestic and gang violence.[11] However, the negative dicta that casts doubt on asylum claims involving non-state actors is not binding. The BIA has recognized in at least one unpublished decision that Matter of A-B- does not preclude all domestic violence asylum claims.[12]

In Matter of Acosta, decided in 1985, the BIA interpreted the ground of “particular social group” to mean “a group of persons who share a common, immutable characteristic.”[13] The BIA went on to name examples of “immutable characteristics,” but noted that evaluation of proposed particular social groups must be done on a case-by-case basis.[14] Matter of Acosta’s instruction that “[t]he particular kind of group characteristic that will qualify under this construction remains to be determined on a case-by-case basis”[15] continues to be cited in decisions issued since Matter of A-B-.[16]

However, Matter of A-B- made it more burdensome for victims of domestic and gang violence succeed in their asylum claims by adding an additional requirement. Before Matter of A-B-, applicants had to show only that their government was “unable or unwilling to prevent” their persecution by a private actor.[17] After Matter of A-B-, asylum applicants must demonstrate “that the[ir] government condoned the private actions [of their persecutor] or at least demonstrated a complete helplessness to protect the victims.”[18]

 

III. Federal Court Interpretations of Matter of A-B-

Federal courts have had mixed reactions to Matter of A-B-. In Grace v. Whitaker, a federal district court in Washington, DC criticized Matter of A-B-.[19] The case involved twelve asylum seekers who testified to asylum officers in expedited removal proceedings that they faced threats of abuse or violence at the hands of romantic partners or gangs but were nonetheless removed to their home countries because of the policies announced in Matter of A-B-and a USCIS Policy Memorandum. Though Grace v. Whitaker technically applies only in the expedited removal context, its “language lends itself to being used at all levels of asylum proceedings more generally.”[20]

Under U.S. administrative law, federal agencies must provide legitimate reasons for changes in policy. The District Court in Grace determined that the Attorney General failed to do so in Matter of A-B-, at least in the expedited removal context. Notably, the District Court challenged the use of Matter of A-B- and a subsequent USCIS Policy Memorandum[21] in expedited removal proceedings, finding four elements of those authorities arbitrary, capricious, and contrary to U.S. immigration law: (1) the general rule against claims relating to domestic and gang violence; (2) the requirement that a noncitizen whose claim involves non-governmental persecutors “show the government condoned the private actions or at least demonstrated a complete helplessness to protect the victim;” (3) the Policy Memorandum’s rule that domestic violence-based particular social group definitions that include “inability to leave” a relationship are impermissibly circular and therefore not cognizable in credible fear proceedings; and (4) the Policy Memorandum’s directive that asylum officers conducting credible fear interviews should apply federal circuit court case law only “to the extent that those cases are not inconsistent with Matter of A-B-.”[22] In our view, Grace v. Whitaker is consistent with Congress’s intention that the screening standard of “significant possibility” of establishing eligibility for asylum be lower than the standard required to prove an asylum claim on the merits, given the extremely limited due process protections in the expedited removal process.

The Executive Office for Immigration Review (EOIR)[23] and the USCIS[24] each issued a guidance memorandum incorporating the District Court’s Grace ruling. However, the case was appealed. The U.S. court of appeals for the D.C. Circuit issued a decision on July 17, 2020 affirming in part, vacating in part, and remanding in part the District Court’s decision.[25] Specifically, the D.C. Circuit upheld the District Court’s finding that elements (2) and (4) listed above were arbitrary and capricious. However, the D.C. Circuit found that USCIS’s Policy Memorandum accurately stated the circularity rule set forth in Matter of A-B-, vacating the District Court’s ruling on element (3). Notably, the D.C. Circuit also found that the record did not show that the Attorney General and USCIS had “erected a rule against asylum claims involving allegations of domestic and/or gang violence”[26] and vacated element (1). The EOIR and USCIS have not yet issued new or updated guidance memoranda to reflect the D.C. Circuit’s decision.

The First and Sixth Circuits have restricted Matter of A-B- in other contexts as well. In De Pena-Paniagua v. Barr, the First Circuit held that Matter of A-B-’s categorical rejection of groups defined by their members’ inability to leave a relationship was arbitrary.[27] It found that the BIA erred in relying on that categorical rejection to deny asylum to a woman claiming membership in a group of “Dominican women who are unable to leave or escape a relationship with the man who abused them.” Earlier this year, the Sixth Circuit upheld a BIA determination that “married women in Guatemala who are unable to leave their relationship” is a cognizable particular social group.[28]

Other federal courts of appeal have been less critical of Matter of A-B-. The Eleventh Circuit has found thatMatter of A-B- forecloses certain particular social groups defined in part by a person’s “inability to leave.”[29] The Eighth Circuit has observed that an asylum seeker’s proffered social group of “Salvadoran women unable to leave their relationship” may not be cognizable after Matter of A-B-.[30] The Third Circuit found that Matter of A-B-’s overruling of Matter of A-R-C-G- weakened but did not defeat an asylum seeker’s claim that she is a member of the particular social group of “Salvadoran women in domestic relationships who are unable to leave.”[31] The Fifth Circuit has held that Matter of A-B- did not preclude domestic violence claims generally, but concluded that the Attorney General’s reasoning around circularity, particularity, and social distinction was sound.[32]

 

  1. BIA and IJ Interpretations of Matter of A-B-

The BIA seems less willing to grant asylum in domestic and gang violence cases after Matter of A-B- than it was before. Before Matter of A-B-, the BIA granted asylum or denied asylum but found a particular social group defined by domestic or gang violence cognizable in at least five cases.[33] However, the BIA also denied at least two gang violence-based asylum applications before Matter of A-B-.[34] After Matter of A-B-, the BIA has acknowledged in at least one nonprecedent decision that Matter of A-B- “does not preclude all domestic violence claims without exception in the asylum context.”[35] The BIA has also remanded for further consideration asylum claims based on particular social groups defined by victimization by gangs in at least two cases since Matter of A-B-.[36] According to one law review article, the BIA issued fifty unpublished domestic violence and related gender-based asylum decisions between June 12, 2018 and June 11, 2019, thirty-seven of which were denials and thirteen of which were remands.[37]

IJ interpretations of Matter of A-B- have been mixed. We received nineteen examples of IJs granting asylum to domestic violence victims after Matter of A-B-,[38] eight examples of IJs granting asylum claims based on gang violence,[39] and five examples of IJs denying asylum claims based on domestic violence.[40] An IJ in San Francisco rejected an asylum claim in 2019 based on the particular social group of “Guatemalan women in domestic relationships that they are unable to leave” because it was too similar to the particular social groups discussed in Matter of A-B-.[41]However, an IJ in Virginia granted an asylum claim based on the particular social group of “Salvadoran women unable to leave their domestic relationship,” finding that Matter of A-B- did not foreclose this claim.[42]

Our survey of U.S. immigration attorneys revealed no significant national or regional trends. However, it did suggest that attorneys have gotten creative and had some success by arguing that victims of domestic and gang violence are persecuted as a result of their political beliefs or their membership in broad particular social groups such as “Honduran women,” rather than particular social groups defined by victimization by gangs or the inability to leave an intimate relationship.

 

  1. Potential Arguments in Domestic and Gang Violence Claims After Matter of A-B-

As described above, the actual holding of Matter of A-B- is quite narrow. Much of the decision is dicta. Shortly after Matter of A-B- was decided, the USCIS issued a Policy Memorandum describing how it planned to implement the decision.[43] The Policy Memorandum summarizes and restates Matter of A-B-, emphasizing that the required governmental nexus for asylum claims cannot be established if the persecution is based on a “purely personal” dispute. It also urges USCIS asylum officers to consider whether internal relocation within the alien’s home country is a reasonable alternative. Additionally, the Policy Memorandum requires that particular social groups not be defined by the persecution upon which the asylum claim is based and requires USCIS officers to apply the law of the circuit where the applicant is physically located during the credible fear interview rather than the circuit law most favorable to applicants, as officers had typically done before the Memorandum. Though the Memorandum adopts a fairly broad interpretation of Matter of A-B-, it mostly reaffirms asylum law existing before Matter of A-B-. Based on our research, asylum seekers and attorneys seem to have discovered that Matter of A-B- and the Memorandum do not foreclose asylum to victims of domestic and gang violence, but rather require them to argue their cases differently.

The Attorney General noted in Matter of A-B- that the particular social group of “Guatemalan women who are unable to leave their domestic relationships where they have children in common” was likely not cognizable.[44] Yet he did not decide this definitively and remanded for new analysis by the BIA. This was notable because before Matter of A-B-, many asylum seekers who were victims of domestic or gang violence sought asylum by claiming they were persecuted on account of their membership in a particular social group defined by people in similar relationships or positions.[45] The Attorney General’s attempt to foreclose this avenue to asylum in Matter of A-B- does not require judges today to deny such claims. Some judges have used the case as grounds to deny particular social groups defined in part by “inability to leave.”[46] However, other IJs have found that particular social groups defined in part by “inability to leave” remain viable after Matter of A-B-.[47]

Rather than gamble on whether an IJ will find that Matter of A-B- forecloses a particular social group because it is defined by the persecution on which the claim is based, our survey suggests that asylum seekers are increasingly turning to other sorts of particular social groups and political opinion claims in domestic and gang violence persecution cases. In our survey of U.S. immigration attorneys, we received seventeen decisions in which an asylum seeker who had fallen victim to domestic violence or gang violence was granted asylum based on membership in a particular social group defined by their nationality and their gender (e.g., Honduran women).[48] However, as recently reiterated by the Attorney General in Matter of A-C-A-A-, an asylum seeker must demonstrate a nexus between their membership in a particular social group and their persecution, demonstrating that they were persecuted because of their membership rather than for a different personal reason, such as a personal relationship.[49] In A-C-A-A-, the asylum applicantclaimed that she was persecuted by her parents as a result of her membership in the group “Salvadoran females.” The Attorney General expressed doubt that the woman had sufficiently established that membership in this group was “one central reason” for her persecution.[50] The Attorney General remanded the case for further consideration of whether Ms. A-C-A-A- was persecuted “on account of” her membership in her claimed social group, given that the social group “Salvadoran women” encompasses millions of people in her society.[51]

We also received two examples of successful asylum seekers who argued that they were persecuted because of their political belief in the equality of men and women.[52] After Matter of A-B-, some asylum seekers have also tried to argue that they were persecuted as a result of their membership of a particular social group defined as their family, where for instance a mother had refused to let her son join a gang and was subsequently targeted by that gang.[53]However, the Attorney General foreclosed this sort of particular social group in Matter of L-E-A-.[54] In L-E-A-, an asylum seeker claimed that he was persecuted by a criminal gang on account of his membership in the particular social group of the “immediate family of his father,” who owned a store targeted by a local drug cartel. The Attorney General denied this claim, holding that an “alien’s family-based group will not constitute a particular social group unless it is shown to be socially distinct in the eyes of its society, not just those of its alleged persecutor.”[55] This decision gave teeth to dicta in Matter of A-B- that “[t]here is reason to doubt that a nuclear family can comprise a particular social group under the statute.”[56]

 

  1. The Proposed New EOIR and USCIS Rule

The EOIR and USCIS added another wrinkle to post-Matter of A-B- law by proposing a new rule on June 15, 2020 that would restrict asylum eligibility.[57] The proposed rule was open for comment until July 15, 2020 and has not yet been finalized. If finalized without change, the rule would make it more difficult for victims of domestic and gang violence to obtain asylum in four ways.

First, the proposed regulation provides a non-exhaustive list of nine circumstances that, without additional evidence, would be considered “generally insufficient to demonstrate a particular social group that is cognizable.” The relevant circumstances include: past or present criminal activity or association; presence in a country with generalized violence or a high crime rate; the attempted recruitment of the applicant by criminal, terrorist, or persecutory groups; the targeting of the applicant for criminal activity for financial gain based on perceptions of wealth or affluence; interpersonal disputes of which governmental authorities were unaware or uninvolved; and private criminal acts of which governmental authorities were unaware or uninvolved.[58]

Second, the proposed rule would clarify that to receive asylum based on a political opinion, an applicant must be persecuted based on a political opinion “related to political control of a state.”[59] This would eliminate one alternative argument that immigration attorneys have used to get around Matter of A-B- for applicants who claim to be persecuted due to their political belief that, for example, men and women are equal or that women should be allowed to work outside the home.

Third, the proposed rule would establish eight non-exhaustive situations that generally would not provide a nexus to a protected asylum ground.[60] These situations would include removal claims based on persecution involving “personal animus or retribution” and “generalized disapproval of, disagreement, with, or opposition to criminal…or other non-state organizations.”[61] This could bar many asylum claims based on domestic and gang violence.

Fourth, the proposed regulation would exclude evidence in support of an asylum claim if the adjudicator thought it promoted a cultural stereotype against a country or a person.[62] This could exclude evidence of machismo cultural stereotypes that many victims of domestic violence try to introduce to demonstrate why their persecutors target women.

 

Conclusion

Asylum in the United States remains an attainable but difficult option for victims of domestic and gang violence. Though Matter of A-B- was mostly dicta, federal courts, immigration judges, and the BIA have had mixed responses to the case, with some embracing the spirit of the decision and others rejecting its non-binding dicta. According to our findings, immigration attorneys around the country have had success with domestic and gang violence asylum claims since Matter of A-B- by arguing the following:

  • Persecution based on membership in the particular social group of “nationality + gender” (e.g., Honduran women) for both domestic and gang violence claims so long as they can establish the proper nexus between persecution and group membership;
  • Persecution based on one’s political belief in the equality of men and women for domestic violence claims; and/or
  • Persecution based on membership in particular social groups defined by one’s “inability to leave” for domestic violence claims, particularly in the 1st Circuit.

 

* Courtney May (cm928@cornell.edu) graduated from Cornell Law School in May 2020 and is now practicing law in Washington, D.C.

Stephen Yale-Loehr (swy1@cornell.edu) is co-author of Immigration Law and Procedure, the leading twenty-one-volume immigration law treatise, published by LexisNexis. He is also Professor of Immigration Practice at Cornell Law School and of counsel at Miller Mayer LLP in Ithaca, New York.

Copyright © 2020 Courtney May and Stephen Yale-Loehr. All rights reserved.

[1] Matter of A-B-, 27 I. & N. Dec. 316 (Att’y Gen. 2018).

[2] INA § 101(a)(42)(A), 8 U.S.C. 1101(a)(42)(A) (2012).

[3] Matter of A-B-, 27 I. & N. Dec. 321 (Att’y Gen. 2018).

[4] Id. at 317.

[5] Id. at 320 (“Generally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum. While I do not decide that violence inflicted by non-governmental actors may never serve as the basis for an asylum or withholding application based on membership in a particular social group, in practice such claims are unlikely to satisfy the statutory grounds for proving group persecution that the government is unable or unwilling to address.”).

[6] The folder is available at

https://drive.google.com/drive/folders/1_PzD-2C8DDzmLDZkhoJ1kXFiKXrRmdam?usp=sharing.

[7] Ben Winograd, Index of Unpublished Decisions of the Board of Immigration Appeals, Immigrant & Refugee Appellate Center, LLC (May 26, 2020) [hereinafter IRAC Index], https://www.irac.net/unpublished/index-2/.

[8] Kate Jastram & Sayoni Maitra, Matter of A-B- One Year Later: Winning Back Gender-Based Asylum Through Litigation and Legislation, 18 Santa Clara J. of Int’l L. 48 (2020), available at https://digitalcommons.law.scu.edu/scujil/vol18/iss1/2.

[9] The Document xx (Google Drive) citations in these footnotes refer to cases received in our survey, summaries of which are available in the spreadsheet located in our Google Drive. In the footnotes below, we included URLs for the cases that we pulled from the IRAC Index that are available at the website Scribd.

[10] Matter of A-R-C-G-, 26 I. & N. Dec. 388 (BIA 2014) (granting asylum to a woman who was a survivor of domestic violence whose social group was defined as “married women in Guatemala who are unable to leave their relationship”).

[11] E.g., Matter of E-R-A-L-, 27 I. & N. Dec. 767, 771 (BIA 2020) (rejecting an asylum claim by a Guatemalan man whose proffered social group was “landowners who resist drug cartels” because of Matter of A-B-’s warning that “[s]ocial groups defined by their vulnerability to private criminal activity likely lack the particularity required…, [where] broad swaths of society may be susceptible to victimization.”).

[12] Matter of A-B-S-P-, AXXX XXX 561 (BIA Dec. 19, 2019) (nonprecedent) (remanding case for consideration consistent with Matter of A-B-, which was decided during the pendency of A-B-S-P-, and noting that Matter of A-B-“does not preclude all domestic violence claims without exception in the domestic violence context”), available at IRAC Index and https://www.scribd.com/document/443776590/A-B-S-P-AXXX-XXX-561-BIA-Dec-19-2019?secret_password=NwWcMR9yLoyzHD1hMPwx; see also Matter of H-A-C-G-, AXXX XXX 420 (BIA May 8, 2019) (nonprecedent) (remanding for further consideration where an immigration judge failed to meaningfully consider an asylum claim based on a particular social group defined by former gang membership), available at IRAC Index and https://www.scribd.com/document/411265520/H-A-C-G-AXXX-XXX-420-BIA-May-8-2019?secret_password=nkA2dznSkpGXdniwiJZk.

[13] Matter of Acosta, 19 I. & N. Dec. 211, 233 (BIA 1985).

[14] Id. at 227.

[15] Id. at 233. For a general discussion of the evolution of the requirements to establish membership in a particular social group in U.S. immigration law, see Charles Gordon, Stanley Mailman, Stephen Yale-Loehr & Ronald Wada, Immigration Law and Procedure § 33.04[4][d].

[16] See, e.g., S.E.R.L. v. Att’y Gen., 894 F.3d 535, 545 (3d Cir. 2018) (“[D]eterminations should be made on a ‘case-by-case basis’”); Matter of L-E-A-, 27 I. & N. Dec. 581, 587 (Att’y Gen. 2019) (reiterating Acosta’s admonition that “immigration judges should engage in a case-by case analysis…”).

[17] Matter of Acosta, 19 I. & N. Dec. 211, 222 (BIA 1985).

[18] Matter of A-B-, 27 I. & N. Dec. 316, 337 (Att’y Gen. 2018).

[19] Grace v. Whitaker, 344 F. Supp. 3d 96 (D.D.C. 2018), aff’d in part, rev’d in part, and vacated in part sub nom. Grace v. Barr, 2020 U.S. App. LEXIS 22299 (D.C. Cir. July 17, 2020).

[20] Richard Boswell & Elisa Vari, Grace v. Whitaker: Advancing Refugee Rights Beyond the Credible Fear Interview, 24 Bender’s Immigr. Bull. 685, 691-92 (June 15, 2019).

[21] USCIS, Guidance for Processing Reasonable Fear, Credible Fear, Asylum, and Refugee Claims in Accordance with Matter of A-B-, Policy Memorandum-602-0162 (July 11, 2018), https://www.uscis.gov/sites/default/files/document/memos/2018-06-18-PM-602-0162-USCIS-Memorandum-Matter-of-A-B.PDF.

[22] Grace v. Whitaker, 344 F. Supp. 3d at 111.

[23] EOIR, Guidance Re Grace Injunction (Dec. 19, 2018), available at https://www.aclu.org/legal-document/grace-v-whitaker-eoir-guidance-re-grace-injunction.

[24] USCIS, Guidance Re Grace Injunction (Dec. 19, 2018), available at https://www.aclu.org/legal-document/grace-v-whitaker-uscis-guidance-re-grace-injunction.

[25] Grace v. Barr, 2020 U.S. App. LEXIS 22299, at *3 (D.C. Cir. July 17, 2020).

[26] Id. at *55.

[27] De Pena-Paniagua v. Barr, 957 F.3d 88, 93 (1st Cir. 2020).

[28] Antonio v. Barr, 959 F.3d 778, 792 (6th Cir. 2020) (remanding because the BIA’s determination that the asylum seeker was no longer a member of her proffered social group was not supported by substantial evidence on the record).

[29] Munguia-Meija v. Att’y Gen., 2019 U.S. App. LEXIS 20714, at *11 (11th Cir. July 12, 2019) (determining that it lacked jurisdiction to review the merits of the petitioner’s social group arguments because she did not raise them before the BIA).

[30] Najera v. Whitaker, 2018 U.S. App. LEXIS 36542, at *3 (8th Cir. Oct. 17, 2018).

[31] Padilla-Maldonado v. Att’y Gen., 2018 U.S. App. LEXIS 28440, at *14 (3d Cir. Oct. 9, 2018).

[32] Gonzales-Veliz v. Barr, 938 F.3d 219 (5th Cir. 2019).

[33] Matter of A-R-C-G-, 26 I. & N. Dec. 388 (BIA 2014) (granting asylum in precedent decision to a woman who was a survivor of domestic violence whose social group was defined as “married women in Guatemala who are unable to leave their relationship”); Matter of S-A-, 22 I. & N. Dec. 1328 (B.I.A. 2000) (granting asylum to a woman who suffered and feared persecution from her father on account of her more liberal religious views regarding the role of women in society); Matter of M-A-V-E-, AXXX XXX 957 (BIA Aug. 7, 2017) (nonprecedent) (reversing IJ finding that respondent was unable to leave relationship with husband who regularly beat and raped her and threatened to harm her if she ever left him), available at IRAC Index and https://www.scribd.com/document/357071575/M-S-V-E-AXXX-XXX-957-BIA-Aug-7-2017; Matter of H-R-M-, AXXX XXX 381 (BIA Mar. 14, 2016) (nonprecedent) (finding that “women who cannot leave a relationship” is a cognizable particular social group regardless of whether applicant was married to abuser), available at IRAC Index and https://www.scribd.com/document/311736830/H-R-M-AXXX-XXX-381-BIA-March-14-2016; Matter of I-M-E-G-, AXXX XXX 997 (BIA Aug. 23, 2016) (nonprecedent) (denying asylum but finding that a “Honduran women unable to leave a domestic relationship” is a cognizable particular social group), available at IRAC Index https://www.scribd.com/document/324934077/I-M-E-G-AXXX-XXX-997-BIA-Aug-23-2016.

[34] 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” because 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 C-A-, 23 I. & N. Dec. 951, 960–61 (BIA 2006) (finding that non-criminal informants who provided information to the Columbian government about the Cali drug cartel were not a sufficiently socially distinct group).

[35] Matter of A-B-S-P-, AXXX XXX 561 (BIA Dec. 19, 2019) (nonprecedent), available at IRAC Index andhttps://www.scribd.com/document/443776590/A-B-S-P-AXXX-XXX-561-BIA-Dec-19-2019?secret_password=NwWcMR9yLoyzHD1hMPwx.

[36] Matter of M-G-D-, AXXX XXX 238 (BIA Dec. 18, 2019) (nonprecedent) (ordering further consideration of whether “Salvadorans who are unwilling or unable to pay ‘renta’ to the MS-13 gang” is a cognizable particular social group), available at IRAC Index andhttps://www.scribd.com/document/443776321/M-G-D-AXXX-XXX-238-BIA-Dec-18-2019?secret_password=3bAViwDgXlimsACzugpU; Matter of H-A-C-G-, AXXX XXX 420 (BIA May 8, 2019) (nonprecedent) (remanding for further consideration because IJ did not meaningfully consider claim based on anti-gang political opinion or particular social group based on former gang membership), available at IRAC Index andhttps://www.scribd.com/document/411265520/H-A-C-G-AXXX-XXX-420-BIA-May-8-2019?secret_password=nkA2dznSkpGXdniwiJZk.

[37] Jastram & Maitra, supra note 5, at 68.

[38] Document 4 (Google Drive); Document 5 (Google Drive); Document 10 (Google Drive); Document 11 (Google Drive); Document 12 (Google Drive); Document 13 (Google Drive); Document 14 (Google Drive); Document 15 (Google Drive); Document 17 (Google Drive); Document 18 (Google Drive); Document 20 (Google Drive); Document 24 (Google Drive); Document 25 (Google Drive); Document 26 (Google Drive); Document 27 (Google Drive); Document 29 (Google Drive); Document 30 (Google Drive); Document 32 (Google Drive); Document 33 (Google Drive).

[39] Document 5 (Google Drive); Document 8 (Google Drive); Document 16 (Google Drive); Document 21 (Google Drive); Document 22 (Google Drive); Document 23 (Google Drive); Document 27 (Google Drive); Document 28 (Google Drive).

[40] Document 3 (Google Drive); Document 9 (Google Drive); Document 19 (Google Drive); Document 31(Google Drive); Document 34 (Google Drive).

[41] Document 3 (Google Drive).

[42] Document 18 (Google Drive).

[43] USCIS, Guidance for Processing Reasonable Fear, Credible Fear, Asylum, and Refugee Claims in Accordance with Matter of A-B-, Policy Memorandum-602-0162 (July 11, 2018), https://www.uscis.gov/sites/default/files/document/memos/2018-06-18-PM-602-0162-USCIS-Memorandum-Matter-of-A-B.PDF.

[44] Matter of A-B-, 27 I. & N. Dec. 316, 336 (Att’y Gen. 2018).

[45] See, e.g., I-M-E-G-, AXXX XXX 997 (BIA Aug. 23, 2016) (nonprecedent) (“Honduran women unable to leave a domestic relationship” is a cognizable particular social group), available at IRAC Index and https://www.scribd.com/document/324934077/I-M-E-G-AXXX-XXX-997-BIA-Aug-23-2016; Matter of Marroquin-Dimas, A098 793 008 (BIA Dec. 10, 2014) (nonprecedent) (remanding record where IJ ordered respondent removed without letting him file an asylum application after he expressed fear of harm by gangs in El Salvador), available at IRAC Index andhttps://www.scribd.com/document/252074316/Godofredo-Marroquin-Dimas-A098-793-008-BIA-Dec-10-2014.

[46] Munguia-Meija v. U.S. Att’y Gen., 2019 U.S. App. LEXIS 20714, at *11 (11th Cir. July 12, 2019) (observing that Matter of A-B- foreclosed social groups defined in part by “inability to leave” and casting doubt on the asylum seekers proffered particular social group of “women in Honduras in a de facto union who are unable to leave the relationship with their male partner,” but ultimately deciding that it lacked jurisdiction to decide this issue because this particular social group argument was not raised before the BIA).

[47] De Pena-Paniagua v. Barr, 957 F.3d 88 (1st Cir. 2020) (finding that Matter of A-B-’s categorical rejection of groups defined by their members’ inability to leave a relationship was arbitrary); Jastram & Maitra, supra note 5, at 74 (“Social groups defined in part by “inability to leave” remain viable post-Matter of A-B-, particularly in light of the D.C. District Court’s persuasive determination in Grace v. Whitaker that such groups are not inherently circular. An immigration judge in San Francisco granted asylum based on the social group “Honduran women unable to leave a domestic relationship.”).

[48] Document 4 (Google Drive); Document 5 (Google Drive); Document 7 (Google Drive); Document 8 (Google Drive); Document 11 (Google Drive); Document 12 (Google Drive); Document 13 (Google Drive); Document 15 (Google Drive); Document 16 (Google Drive); Document 21 (Google Drive); Document 22 (Google Drive); Document 23 (Google Drive); Document 26 (Google Drive); Document 29 (Google Drive); Document 30 (Google Drive); Document 32 (Google Drive); Document 33 (Google Drive).

[49] Matter of A-C-A-A-, 28 I&N Dec. 84, 85 (Att’y Gen. 2020).

[50] Id. at 91.

[51] Id. at 84.

[52] Document 10 (Google Drive); Document 27 (Google Drive).

[53] Matter of M-I-A-R-, AXXX XXX 985 (BIA May 24, 2019) (nonprecedent), available at IRAC Index andhttps://www.scribd.com/document/414382702/M-I-A-R-AXXX-XXX-985-BIA-May-24-2019?secret_password=nN1BWmQn0t53QfPNPGEr; see also Matter of N-F-H-G-, AXXX XXX 536 (BIA Mar. 14, 2019) (nonprecedent) (respondent established nexus to family membership where gang members threatened him if his aunt did not pay extortion demand), available at IRAC Index and https://www.scribd.com/document/406498551/N-F-H-G-AXXX-XXX-536-BIA-March-14-2019?secret_password=8AdGYrUo0qp5O2QjlL5U.

[54] Matter of L-E-A-, 27 I. & N. Dec. 581 (Att’y Gen. 2019).

[55] Id.

[56] Matter of A-B-, 27 I. & N. Dec. 316, 346 n.8 (Att’y Gen. 2018).

[57] EOIR and USCIS, Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review, 85 Fed. Reg. 36,264 (proposed June 15, 2020) (to be codified at 8 CFR Parts 1003, 1208, 1235), available at https://www.govinfo.gov/content/pkg/FR-2020-06-15/pdf/2020-12575.pdf.

[58] Id. at 36,278–79.

[59] Id. at 36,280.

[60] Id. at 36,281.

[61] Id.

[62] Id. at 36,282.