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Matter of A-B-, Respondent

Decided by Attorney General June 11, 2018

U.S. Department of Justice

Office of the Attorney General

(1) Matter of A-R-C-G-, 26 I&N Dec. 338 (BIA 2014) is overruled. That decision was

wrongly decided and should not have been issued as a precedential decision.

(2) An applicant seeking to establish persecution on account of membership in a

“particular social group” must demonstrate: (1) membership in a 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; and (2) that

membership in the group is a central reason for her persecution. When the alleged

persecutor is someone unaffiliated with the government, the applicant must also show

that her home government is unwilling or unable to protect her.

(3) An asylum applicant has the burden of showing her eligibility for asylum. The

applicant must present facts that establish each element of the standard, and the asylum

officer, immigration judge, or the Board has the duty to determine whether those facts

satisfy all of those elements.

(4) If an asylum application is fatally flawed in one respect, an immigration judge or the

Board need not examine the remaining elements of the asylum claim.

(5) The mere fact that a country may have problems effectively policing certain crimes or

that certain populations are more likely to be victims of crime, cannot itself establish an

asylum claim.

(6) To be cognizable, a particular social group must exist independently of the harm

asserted in an application for asylum.

(7) An applicant seeking to establish persecution based on violent conduct of a private

actor must show more than the government’s difficulty controlling private behavior.

The applicant must show that the government condoned the private actions or

demonstrated an inability to protect the victims.

(8) An applicant seeking asylum based on membership in a particular social group must

clearly indicate on the record the exact delineation of any proposed particular social

group.

(9) The Board, immigration judges, and all asylum officers must consider, consistent with

the regulations, whether internal relocation in the alien’s home country presents a

reasonable alternative before granting asylum.

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BEFORE THE ATTORNEY GENERAL

On March 7, 2018, I directed the Board of Immigration Appeals

(“Board”) to refer for my review its decision in this matter, see 8 C.F.R. §

1003.1(h)(1)(i), and I invited the parties and any interested amici to submit

briefs addressing questions relevant to that certification. Matter of A-B-, 27

I&N Dec. 227 (A.G. 2018). Specifically, I sought briefing on whether, and

under what circumstances, being a victim of private criminal activity

constitutes a cognizable “particular social group” for purposes of an

application for asylum or withholding of removal.

For the reasons set forth in the accompanying opinion, I vacate the

Board’s December 6, 2016 decision and remand this case to the immigration

judge for further proceedings. Consistent with the test developed by the

Board over the past several decades, an applicant seeking to establish

persecution on account of membership in a “particular social group” must

satisfy two requirements. First, the applicant must demonstrate membership

in a 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. And second, the applicant’s membership in that group

must be a central reason for her persecution. When, as here, the alleged

persecutor is someone unaffiliated with the government, the applicant must

show that flight from her country is necessary because her home government

is unwilling or unable to protect her.

Although there may be exceptional circumstances when victims of

private criminal activity could meet these requirements, they must satisfy

established standards when seeking asylum. Such applicants must establish

membership in a particular and socially distinct group that exists

independently of the alleged underlying harm, demonstrate that their

persecutors harmed them on account of their membership in that group rather

than for personal reasons, and establish that the government protection from

such harm in their home country is so lacking that their persecutors’ actions

can be attributed to the government. Because Matter of A-R-C-G-, 26 I&N

Dec. 388 (BIA 2014), recognized a new particular social group without

correctly applying these standards, I overrule that case and any other Board

precedent to the extent those other decisions are inconsistent with the legal

conclusions set forth in this opinion.

OPINION

The Immigration and Nationality Act (“INA”) authorizes the Attorney

General to grant asylum if an alien is unable or unwilling to return to her

country of origin because she has suffered past persecution or has a well-

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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). A recurring question in asylum law is

determining whether alleged persecution was based on their membership in

a “particular social group.” Over the past thirty years, this question has

recurred frequently before the Board and the courts of appeals, and the

standard has evolved over time.

The prototypical refugee flees her home country because the government

has persecuted her—either directly through its own actions or indirectly by

being unwilling or unable to prevent the misconduct of non-government

actors—based upon a statutorily protected ground. Where the persecutor is

not part of the government, the immigration judge must consider both the

reason for the harm inflicted on the asylum applicant and the government’s

role in sponsoring or enabling such actions. An 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. It applies when persecution

arises on account of membership in a protected group and the victim may not

find protection except by taking refuge in another country.

The INA does not define “persecution on account of . . . membership in

a particular social group.” The Board first addressed the term in Matter of

Acosta, 19 I&N Dec. 211, 233 (BIA 1985), where it interpreted a “particular

social group” in a manner consistent with the other four grounds of

persecution identified in section 1101(a)(42)(A)—race, religion, nationality,

or political opinion. Id. The Board concluded that a “particular social group”

required a “group of persons all of whom share a common, immutable

characteristic” that “the members of the group either cannot change, or

should not be required to change because it is fundamental to their individual

identities or consciences.” Id. The Board noted that the “shared

characteristic might be an innate one such as sex, color, or kinship ties, or in

some circumstances, it might be a shared past experience such as former

military leadership or land ownership.” Id.

In Matter of R-A-, 22 I&N Dec. 906, 917–23 (BIA 1999) (en banc), the

Board considered whether a victim of domestic violence could establish

refugee status as a member of a particular social group consisting of similarly

situated women. The Board held that the mere existence of shared

circumstances would not turn those possessing such characteristics into a

particular social group. Id. at 919. Rather, the members of a particular social

group must not merely share an immutable characteristic, but must also be

recognized as a distinct group in the alien’s society, id. at 918–19, and the

persecution must be motivated by membership in that social group, id. at

919–22. Attorney General Reno vacated that decision for reconsideration in

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light of a proposed regulation, see 22 I&N Dec. 906, 906 (A.G. 2001), but

no final rule ever issued, and the case was eventually resolved in 2009

without further consideration by the Board. Despite the vacatur of R-A-, both

the Board and the federal courts have continued to treat its analysis as

persuasive.

In the years after Matter of R-A-, the Board refined the legal standard for

particular social groups. By 2014, the Board had clarified that applicants for

asylum seeking relief based on “membership in a particular social group”

must establish that their purported social 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.” Matter of M-E-V-G,

26 I&N Dec. 227, 237 (BIA 2014). Applicants must also show that their

membership in the particular social group was a central reason for their

persecution. See 8 U.S.C. § 1158(b)(1)(B)(i); Matter of W-G-R-, 26 I&N

Dec. 208, 224 (BIA 2014). Where an asylum applicant claims that the

persecution was inflicted by private conduct, she must also establish that the

government was unable or unwilling to protect her. See, e.g., Acosta, 19 I&N

Dec. at 222.

Later that year, the Board decided A-R-C-G-, which recognized “married

women in Guatemala who are unable to leave their relationship” as a

particular social group—without performing the rigorous analysis required

by the Board’s precedents. 26 I&N Dec. at 389; see id. at 390–95. Instead,

the Board accepted the concessions by the Department of Homeland Security

(“DHS”) that the respondent suffered harm rising to the level of past

persecution, that she was a member of a qualifying particular social group,

and that her membership in that group was a central reason for her

persecution. Id. at 395.

I do not believe A-R-C-G- correctly applied the Board’s precedents, and

I now overrule it. The opinion has caused confusion because it recognized

an expansive new category of particular social groups based on private

violence. Since that decision, the Board, immigration judges, and asylum

officers have relied upon it as an affirmative statement of law, even though

the decision assumed its conclusion and did not perform the necessary legal

and factual analysis. When confronted with asylum cases based on purported

membership in a particular social group, the Board, immigration judges, and

asylum officers must analyze the requirements as set forth in this opinion,

which restates and where appropriate, elaborates upon, the requirements set

forth in M-E-V-G and W-G-R-.

In this matter, the immigration judge initially denied the respondent’s

asylum claim, which arises out of allegations of domestic abuse suffered in

El Salvador. In reversing the immigration judge’s decision, the Board did

little more than cite A-R-C-G- in finding that she met her burden of

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establishing that she was a member of a particular social group. In addition

to failing meaningfully to consider that question or whether the respondent’s

persecution was on account of her membership in that group, the Board gave

insufficient deference to the factual findings of the immigration judge.

For these and other reasons, I vacate the Board’s decision and remand for

further proceedings before the immigration judge consistent with this

opinion. In so doing, I reiterate 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 that

the government is unwilling or unable to control. See M-E-V-G-, 26 I&N

Dec. at 234–44; W-G-R-, 26 I&N Dec. at 209–18, 223–24 & n.8.

Furthermore, when the applicant is the victim of private criminal activity, the

analysis must also “consider whether government protection is available,

internal relocation is possible, and persecution exists countrywide.” M-E-V-

G-, 26 I&N Dec. at 243.

Generally, claims by aliens pertaining to domestic violence or gang

violence perpetrated by non-governmental actors will not qualify for

asylum. 1 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. The mere fact that a

country may have problems effectively policing certain crimes—such as

domestic violence or gang violence—or that certain populations are more

likely to be victims of crime, cannot itself establish an asylum claim.

I.

The respondent, a native and citizen of El Salvador, entered the United

States illegally and was apprehended by U.S. Customs and Border Protection

agents in July 2014. After being placed in removal proceedings, the

respondent filed an application for asylum and withholding of removal under

1

Accordingly, few such claims would satisfy the legal standard to determine whether an

alien has a credible fear of persecution. See 8 U.S.C. § 1225(b)(1)(B)(v) (requiring a

“significant possibility, taking into account the credibility of the statements made by the

alien in support of the alien’s claim and such other facts as are known to the officer, that

the alien could establish eligibility for asylum under section 1158 of this title [8 U.S.C. §

1158]”).

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the INA, 8 U.S.C. §§ 1158, 1231(b)(3), and for withholding of removal under

the regulations implementing the United Nations Convention Against

Torture.

The respondent claimed that she 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.

Matter of A-B-, Decision Denying Asylum Application at *8, (Immig. Ct.

Dec. 1, 2015). The respondent asserted that her ex-husband, with whom she

shares three children, repeatedly abused her physically, emotionally, and

sexually during and after their marriage. Id. at *2–3).

In December 2015, the immigration judge denied all relief and ordered

the respondent removed to El Salvador. The immigration judge denied the

respondent’s asylum claim for four independent reasons: (1) the respondent

was not credible; (2) the group in which she claimed membership did not

qualify as a “particular social group” within the meaning of 8 U.S.C. §

1101(a)(42)(A); (3) even if it did, the respondent failed to establish that her

membership in a social group was a central reason for her persecution; and

(4) she failed to show that the El Salvadoran government was unable or

unwilling to help her. Id. at *4–15. The respondent appealed the

immigration judge’s decision to the Board.

In December 2016, the Board reversed and remanded with an order to

grant the respondent asylum after the completion of background checks.

Matter of A-B-, (BIA Dec. 8, 2016). The Board found the immigration

judge’s adverse credibility determinations clearly erroneous. Id. at *1–2.

The Board further concluded that the respondent’s particular social group

was substantially similar to “married women in Guatemala who are unable

to leave their relationship,” which the Board had recognized in Matter of A-

R-C-G- , 26 I&N Dec. at 390. A-B- at *2. Moreover, the Board held that the

immigration judge clearly erred in finding that the respondent could leave

her ex-husband, and that the respondent established that her ex-husband

persecuted her because of her status as a Salvadoran woman unable to leave

her domestic relationship. Id. at *2–3. Finally, the Board determined that

the El Salvadoran government was unwilling or unable to protect the

respondent. Id. at *3–4.

In August 2017, the immigration judge issued an order purporting to

certify and administratively return the matter to the Board in light of

intervening developments in the law. 2 Matter of A-B-, Decision and Order

2

As explained in my order of March 30, Matter of A-B-, 27 I&N Dec. 247, 248–49 (A.G.

2018), the immigration judge’s sua sponte order purporting to certify the matter back to

the Board was procedurally defective because the immigration judge had not issued any

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of Certification, (Immig. Ct. Aug. 18, 2017). The immigration judge

observed that several courts of appeals had recently held that domestic-

violence victims failed to prove their entitlement to asylum based on

membership in particular social groups. See id. at *2–3 (citing Fuentes-

Erazo v. Sessions, 848 F.3d 847, 853 (8th Cir. 2017); Cardona v. Sessions,

848 F.3d 519, 523 (1st Cir. 2017); Marikasi v. Lynch, 840 F.3d 281, 291 (6th

Cir. 2016); Vega-Ayala v. Lynch, 833 F.3d 34, 40 (1st Cir. 2016)). The

immigration judge thus believed that the precedents relied upon by the Board

in its December 2016 decision were no longer good law. A-B- at *3–4

(Immig. Ct. Aug. 18, 2017).

In particular, the immigration judge cited the Fourth Circuit’s opinion in

Velasquez v. Sessions, 866 F.3d 188 (4th Cir. 2017), which denied the

petition for review on the ground that the alien had not established that her

alleged persecution was on account of her membership in a particular social

group. A-B- at *3–4 (Immig. Ct. Aug. 18, 2017) (citing Velasquez, 866 F.3d

at 197). Distinguishing A-R-C-G- because of DHS’s concessions there, 866

F.3d at 195 n.5, the court in Velasquez reiterated that “‘[e]vidence consistent

with acts of private violence or that merely shows that an individual has been

the victim of criminal activity does not constitute evidence of persecution on

a statutorily protected ground.’” Id. at 194 (quoting Sanchez v. U.S. Att’y

Gen., 392 F.3d 434, 438 (11th Cir. 2004)). The court further noted, “‘the

asylum statute was not intended as a panacea for the numerous personal

altercations that invariably characterize economic and social relationships.’”

Id. at 195 (quoting Saldarriaga v. Gonzales, 402 F.3d 461, 467 (4th Cir.

2005)).

In a concurrence, Judge Wilkinson reiterated that the particular social

groups protected from persecution under the asylum statute must be

understood in the context of the other grounds for protection, which concern

specific segments of the population who are marginalized or subjected to

social stigma and prejudice. Id. at 198 (Wilkinson, J., concurring). Noting

that victims of private violence were “seizing upon the ‘particular social

group’ criterion in asylum applications,” Judge Wilkinson considered the

example of applicants who claim to be the victims of gang violence. Aliens

seeking asylum on that basis “are often not ‘exposed to more violence or

human rights violations than other segments of society,’ and ‘not in a

substantially different situation from anyone who has crossed the gang, or

who is perceived to be a threat to the gang’s interests.’” Id. at 199 (quoting

Matter of S-E-G-, 24 I&N Dec. 579, 587 (BIA 2008)). He recognized that

the Board “has previously explained that ‘victims of gang violence come

from all segments of society, and it is difficult to conclude that any “group,”

decision for the Board to review. Neither the immigration judge nor the Board has taken

any other actions in this matter since the Board issued its December 2016 decision.

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as actually perceived by the criminal gangs, is much narrower than the

general population.’” Id. (quoting M-E-V-G-, 26 I&N Dec. at 250). The

pervasive nature of this violent criminality, in Judge Wilkinson’s view,

suggested that membership in a purported particular social group “is often

not a central reason for the threats received, but rather is secondary to a

grander pattern of criminal extortion that pervades petitioners’ societies.” Id.

On March 7, 2018, pursuant to 8 C.F.R. § 1003.1(h)(1)(i), I directed the

Board to refer this matter to me for my review. I invited the parties and any

interested amici to submit briefs on the following question:

Whether, and under what circumstances, being a victim of private

criminal activity constitutes a cognizable “particular social group” for

purposes of an application for asylum or withholding of removal.

A-B-, 27 I&N Dec. at 227. After certifying this case, I received party

submissions from the respondent and DHS and twelve amicus briefs.

II.

As a threshold matter, I address the respondent’s procedural objections

concerning my authority to review this case and the certification procedure.

A.

The respondent argues that I lack the authority to certify the Board’s

decision because it did not reacquire jurisdiction following its remand to the

immigration judge. In the respondent’s view, the Attorney General’s

authority to certify and review immigration cases is restricted to cases over

which the Board expressly retains jurisdiction, excluding any cases that have

been remanded for further proceedings. This restrictive interpretation of my

jurisdiction finds no support in the law.

Under the INA, “[t]he Attorney General enjoys broad powers with respect

to ‘the administration and enforcement of [the INA itself] and all other laws

relating to the immigration and naturalization of aliens.’” Blanco de

Belbruno v. Ashcroft, 362 F.3d 272, 279 (4th Cir. 2004) (quoting 8 U.S.C. §

1103(a)(1)); see also Henderson v. INS, 157 F.3d 106, 126 (2d Cir. 1998)

(“[T]he extraordinary and pervasive role that the Attorney General plays in

immigration matters is virtually unique.”); Matter of D-J-, 23 I&N Dec. 572,

573–74 & n.3 (A.G. 2003) (describing Attorney General’s review authority

under 8 U.S.C. § 1226(a)). The INA grants the Attorney General the

authority to “review such administrative determinations in immigration

proceedings, delegate such authority, and perform such other acts as the

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Attorney General determines to be necessary for carrying out” his duties

related to the immigration and naturalization of aliens. 8 U.S.C. §

1103(g)(2). This authority includes the power to refer cases for my review,

see 8 C.F.R. § 1003.1(h)(1), which the First Circuit has called an “unfettered

grant of authority,” Xian Tong Dong v. Holder, 696 F.3d 121, 124 (1st Cir.

2012). Nothing 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.

It is likewise irrelevant that there has not been a final decision from the

Board either granting or denying relief. The relevant federal regulation

states: “The Board shall refer to the Attorney General for review of its

decision all cases that . . . the Attorney General directs the Board to refer to

him.” 8 C.F.R § 1003.1(h)(1). Nothing in section 1003.1(h) requires, or

even suggests, that the only Board “decisions” the Attorney General can

review are final decisions that definitively grant or deny relief to a

respondent. Nor do the applicable regulations or the INA define “decision”

as a “final” decision. See id. § 1001.1 (defining terms in the relevant

chapter); 8 U.S.C. § 1101 (defining terms under the Act).

B.

Both the respondent and certain amici also raise due process concerns

with my certification of this matter. They argue principally that my

certification improperly bypassed the Board and deprived it of the

opportunity to consider the certified question in the first instance. The Board

exercises “only the authority provided by statute or delegated by the Attorney

General,” Matter of Castro-Tum, 27 I&N Dec. 271, 282 (A.G. 2018), and the

regulations allow the Attorney General to certify any case that is before the

Board or where it has rendered a decision, 8 C.F.R § 1003.1(h). In any event,

the respondent has already received full and fair opportunities to present her

asylum claim before both the immigration judge and the Board. After those

proceedings, both the immigration judge and the Board issued written

decisions that analyzed the validity of the respondent’s proposed particular

social group and whether the respondent qualified for asylum on that ground.

The respondent also argues that the certification violated her due process

rights because alleged “irregularities” in the certification “reflect

prejudgment of her claim and lack of impartiality, in contravention of her

right to a full and fair hearing by a neutral adjudicator.” 3 There is no basis

3

The only alleged “irregularity” cited by respondent is the notion that “[g]iven that

Respondent’s case was not under active consideration by Judge Couch or the Board at the

time of the Attorney General’s referral order, it is not clear how the Attorney General

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to this claim. The respondent and some amici complain that I have advanced

policy views on immigration matters as a U.S. Senator or as Attorney

General, but the statements they identify have no bearing upon my ability to

faithfully discharge my legal responsibilities in this case. 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.” Strivers v. Pierce, 71

F.3d 732, 741 (9th Cir. 1995).

Nor is there any requirement that an administrator with significant

policymaking responsibilities withdraw from “interchange and discussion

about important issues.” Ass’n of Nat’l Advertisers, Inc. v. FTC, 627 F.2d

1151, 1168 (D.C. Cir. 1979). As the Supreme Court has held, a decision

maker need not be “disqualified simply because he has taken a position, even

in public, on a policy issue related to the dispute, in the absence of a showing

that he is not ‘capable of judging a particular controversy fairly on the basis

of its own circumstances.’” Hortonville Joint Sch. Dist. No. 1 v. Hortonville

Educ. Ass’n, 426 U.S. 482, 493 (1976) (quoting United States v. Morgan,

313 U.S. 409, 421 (1941)). If policy statements about immigration-related

issues were a basis for disqualification, then no Attorney General could fulfill

his or her statutory obligations to review the decisions of the Board.

III.

I turn now to the question of whether, and under what circumstances,

being a victim of private criminal activity constitutes persecution on account

of membership in a particular social group. 4

A.

An applicant for asylum bears the burden of establishing that she “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). Under that definition, the applicant must

demonstrate that she is an alien outside her country of nationality “who is

became aware of Respondent’s case.” Respondent’s Opening Br. at 18 n.5. The Attorney

General has the express authority under the INA to review “administrative determinations

in immigration proceedings.” 8 U.S.C. § 1103(g)(2). The suggestion that there is

something “irregular” about my exercise of that authority is meritless.

4

The respondent in this case also applied for withholding of removal under 8 U.S.C

§ 1231(b)(3) and for protection under the United Nations Convention Against Torture

(“CAT”), see 8 C.F.R. § 1208.16(c). Because the Board sustained the respondent’s appeal

as to her asylum claim, the Board did not address the immigration judge’s denial of her

applications for withholding of removal or for CAT protection. See A-B- at *4 (BIA). My

opinion addresses only respondent’s asylum claim. On remand, the immigration judge

may consider any other issues remaining in the case.

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unable or unwilling to return to, and is unable or unwilling to avail . . . 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.” Id. § 1101(a)(42)(A). Here,

the respondent claims that she is eligible for asylum because of persecution

she suffered on account of her purported membership in a particular social

group—“El Salvadoran women who are unable to leave their domestic

relationships where they have children in common” with their partners.

As the Board and the federal courts have repeatedly recognized, the

phrase “membership in a particular social group” is ambiguous. Matter of

Acosta, 19 I&N Dec. at 232–33; Matter of M-E-V-G-, 26 I&N Dec. at 230;

Matter of W-G-R-, 26 I&N at 209; see also, e.g., Ngugi v. Lynch, 826 F.3d

1132, 1138 (8th Cir. 2016); Gonzalez v. U.S. Att’y Gen., 820 F.3d 399, 404

(11th Cir. 2016); Henriquez-Rivas v. Holder, 707 F.3d 1081, 1083 (9th Cir.

2013) (en banc); Mayorga-Vidal v. Holder, 675 F.3d 9, 17 (1st Cir. 2012);

Valdiviezo-Galdamez v. U.S. Att’y Gen., 663 F.3d 582, 612 (3d Cir. 2011).

Neither the INA nor the implementing regulations define “particular social

group.” 5 “The concept is even more elusive because there is no clear

evidence of legislative intent.” Valdiviezo-Galdamez, 663 F.3d at 594. As

then-Judge Alito noted for the court, “[r]ead 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.’ Thus, the

statutory language standing alone is not very instructive.” Fatin v. INS, 12

F.3d 1233, 1238 (3d Cir. 1993) (Alito, J.).

The Attorney General has primary responsibility for construing

ambiguous provisions in the immigration laws. M-E-V-G-, 26 I&N Dec. at

230; see also 8 C.F.R. § 1003.1(g). The INA provides that 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). The Attorney

General’s reasonable construction of an ambiguous term in the Act, such as

“membership in a particular social group,” is entitled to deference. See Nat’l

Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 980

(2005); Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S.

837, 844 (1984); see also Negusie v. Holder, 555 U.S. 511, 516 (2009)

5

One of Congress’s primary purposes in passing the Refugee Act of 1980, Pub. L. No.

96-212, 94 Stat. 102, was to implement the principles agreed to in the United Nations

Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S.

267 (entered into force Oct. 4, 1967; for the United States Nov. 1, 1968), as well as the

United Nations Convention Relating to the Status of Refugees, July 28, 1951, 19 U.S.T.

6259, 189 U.N.T.S. 150 (entered into force Apr. 22, 1954)). See INS v. Cardoza-Fonseca,

480 U.S. 421, 436–37 (1987). The Protocol offers little insight into the definition of

“particular social group,” which was added to the Protocol “as an afterthought.” Acosta,

19 I&N Dec. at 232.

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(“Consistent with the rule in Chevron . . . , the BIA is entitled to deference

in interpreting ambiguous provisions of the INA.”); id. at 525 (Scalia, J.,

concurring) (citing Chevron and agreeing that “the agency is entitled to

answer” whether the alien is statutorily barred from receiving asylum);

Aguirre-Aguirre, 526 U.S. at 425 (“judicial deference to the Executive

Branch is especially appropriate in the immigration context where officials

exercise especially sensitive political functions that implicate questions of

foreign relations” (quotations omitted)). Thus, every court of appeals to have

considered the issue has recognized that the INA’s reference to the term

“particular social group” is inherently ambiguous and has deferred to

decisions of the Board interpreting that phrase. 6

The Supreme Court has “also made clear that administrative agencies are

not bound by prior judicial interpretations of ambiguous statutory

interpretations, because there is ‘a presumption that Congress, when it left

ambiguity in a statute meant for implementation by an agency, understood

that the ambiguity would be resolved, first and foremost, by the agency, and

desired the agency (rather than the courts) to possess whatever degree of

discretion the ambiguity allows.’” Matter of R-A-, 24 I&N Dec. 629, 631

(A.G. 2008) (quoting Brand X, 545 U.S. at 982 (internal quotation and

citations omitted)). “A court’s prior judicial construction of a statute trumps

an agency construction otherwise entitled to Chevron deference only if the

prior court decision holds that its construction follows from the unambiguous

terms of the statute and thus leaves no room for agency discretion.” Brand

X, 545 U.S. at 982.

B.

In a number of opinions spanning several decades, the Board has

articulated and refined the standard for persecution on account of

membership in a “particular social group” so that this category is not

boundless. The Board first interpreted the term in Matter of Acosta, 19 I&N

Dec. at 233. Applying the canon of ejusdem generis, the Board concluded

that the phrase “particular social group” should be construed in a manner

consistent with the other grounds for persecution in the statute’s definition

of refugee: race, religion, nationality, and political opinion. Id. Noting that

each of these terms describes “a characteristic that either is beyond the power

6

See, e.g., Reyes v. Lynch, 842 F.3d 1125, 1135 (9th Cir. 2016); Gonzalez, 820 F.3d at

404; Zaldana Menijar v. Lynch, 812 F.3d 491, 498 (6th Cir. 2015); Cantarero v. Holder,

734 F.3d 82, 85 (1st Cir. 2013); Cece v. Holder, 733 F.3d 662, 668–69 (7th Cir. 2013)

(en banc); Orellana-Monson v. Holder, 685 F.3d 511, 520 (5th Cir. 2012); Lizama v.

Holder, 629 F.3d 440, 446 (4th Cir. 2011); Ngengwe v. Mukasey, 543 F.3d 1029, 1033

(8th Cir. 2008); Niang v. Gonzales, 422 F.3d 1187, 1199 (10th Cir. 2005); Ucelo-Gomez

v. Mukasey, 509 F.3d 70, 72 (2d Cir. 2007); Fatin, 12 F.3d at 1238–39 (3d Cir. 1993).

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of an individual to change or is so fundamental to individual identity or

conscience that it ought not be required to be changed,” the Board concluded

that persecution on account of membership in a particular social group must

similarly mean “persecution that is directed toward an individual who is a

member of a group of persons all of whom share a common, immutable

characteristic.” Id. The Board stated that this definition “preserve[d] the

concept that refuge is restricted to individuals who are either unable by their

own actions, or as a matter of conscience should not be required, to avoid

persecution.” Id. at 234.

In 1999, the Board, sitting en banc, considered for the first time “whether

the repeated spouse abuse inflicted on the respondent makes her eligible for

asylum as an alien who has been persecuted on account of her membership

in a particular social group.” R-A-, 22 I&N Dec. at 907. In a thorough, well-

reasoned opinion, the Board first looked to the plain language of the INA to

determine whether Congress intended the Act to provide asylum to battered

spouses who are leaving marriages to aliens having no ties to the United

States. Id. at 913–14. Finding no definitive answer in the language of the

statute, the Board “look[ed] to the way in which the other grounds in the

statute’s ‘on account of’ clause operate.” Id. at 914. Following that

“significant guidance,” the Board concluded that R-A- was not eligible for

asylum for two reasons. First, her claimed social group—“Guatemalan

women who have been involved intimately with Guatemalan male

companions, who believe that women are to live under male domination”—

did not qualify as a “particular social group” under the INA. Id. at 917–18.

And second, even if it did qualify, she failed to show a sufficient nexus

between her husband’s abuse and her membership in that social group. Id.

at 923.

The Board first observed that the purported social group appeared “to

have been defined principally, if not exclusively, for purposes of this asylum

case, and without regard to the question of whether anyone in Guatemala

perceives this group to exist in any form whatsoever.” Id. at 918. The Board

found “little or no relation [of the purported social group] to the way in which

Guatemalans might identify subdivisions within their own society or

otherwise might perceive individuals either to possess or to lack an important

characteristic or trait.” Id. The Board reasoned that for a social group to be

viable for asylum purposes, there must be some showing of how the

immutable characteristic shared by the group is understood in the alien’s

home country so that the Board can “understand that the potential persecutors

in fact see persons sharing the characteristic as warranting suppression or the

infliction of harm.” Id.

The Board held that a “particular social group” should be recognized and

understood to be a societal faction or a recognized segment of the population

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in the alien’s society. R-A-, 22 I&N Dec. at 918. The Board found that

R-A- had “shown neither that the victims of spouse abuse view themselves

as members of this group, nor, most importantly, that their male oppressors

see their victimized companions as part of this group.” Id. Without such a

showing, the Board concluded that “if 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.” Id. at 919.

In addition to holding that R-A-’s proposed group did not qualify as a

“particular social group,” the Board also held that she had not shown the

persecution was “on account of” her membership in the group. Id. at 920;

see 8 U.S.C. § 1101(a)(42)(A). Even if the Board were to accept the

respondent’s proposed social group, she “has not established that her

husband has targeted and harmed [R-A-] because he perceived her to be a

member of this particular social group.” R-A-, 22 I&N Dec. at 920. R-A-’s

husband targeted her “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.” Id.

On January 19, 2001, Attorney General Reno summarily vacated

R-A- and directed the Board to stay consideration of the case pending final

publication of a proposed rule offering guidance on the definitions of

“persecution” and “membership in a particular social group” and what it

means to be “on account of” a protected characteristic. R-A-, 22 I&N Dec.

at 906; see also 65 Fed. Reg. 76,588, 76,588 (Dec. 7, 2000). No final rule

ever issued, however. In September 2008, Attorney General Mukasey lifted

the stay and directed the Board to reconsider the case in light of intervening

Board and judicial decisions. Matter of R-A-, 24 I&N Dec. 629, 630 (A.G.

2008). In December 2009, before the Board issued an opinion, R-A- and

DHS jointly stipulated that she was eligible for asylum, resolving the case.

See A-R-C-G-, 26 I&N Dec. at 391–92 n.12.

Despite its vacatur, both the Board and federal courts have continued to

rely upon R-A-. In 2014, the Board stated that the 1999 opinion’s “role in

the progression of particular social group claims remains relevant.”

M-E-V-G-, 26 I&N Dec. at 231 n.7. In 2013, the Ninth Circuit recognized

that although “R-A- was later vacated[,] . . . litigants and other courts have

relied heavily upon its analysis.” Henriquez-Rivas, 707 F.3d at 1090 n.11.

And in 2011, the Third Circuit quoted R-A- at length because “R-A- is so

important to the claim before us here.” Valdiviezo-Galdamez, 663 F.3d at

596–97 & n.8.

In the years since R-A-, the Board has refined its interpretation of

“particular social group” on a case-by-case basis. In Matter of C-A-, 23 I&N

Dec. 951, 959 (BIA 2006), aff’d sub nom. Castillo-Arias v. U.S. Att’y Gen.,

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446 F.3d 1190 (11th Cir. 2006), the Board held that a cognizable “particular

social group” should generally be “easily recognizable and understood by

others to constitute social groups.” In S-E-G-, 24 I&N Dec. at 584, the Board

defined the “particularity” requirement as “whether the proposed group can

accurately be described in a manner sufficiently distinct that the group would

be recognized, in the society in question, as a discrete class of persons.” In

Matter of E-A-G-, 24 I&N Dec. 591, 594 (BIA 2008), the Board further

explained that “the extent to which members of a society perceive those with

the characteristic in question as members of a social group—is of particular

importance in determining whether an alien is a member of a claimed

particular social group.”

In 2014, the Board issued a pair of complementary precedential opinions,

M-E-V-G- and W-G-R-, clarifying what is necessary to establish a particular

social group. In those cases, 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 234, 237; see also

W-G-R-, 26 I&N Dec. at 212. The Board explained that those applicants also

bear the burden of showing that their membership was a central reason for

their persecution, and that their home government was “unable or unwilling

to control” the persecutors. W-G-R-, 26 I&N Dec. at 224 & n.8.

Again echoing R-A-, the Board explained that the requirement that a

group be socially distinct “considers whether those with a common

immutable characteristic are set apart, or distinct, from other persons within

the society in some significant way. 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.” M-E-V-G-, 26 I&N Dec. at 238. Members of a particular social

group will generally understand their own affiliation with that group, as will

other people in their country. Id. To be socially distinct, a particular social

group “must be perceived as a group by society.” Id. at 240.

M-E-V-G- also clarified that “a group’s recognition for asylum purposes

is determined by the perception of the society in question, rather than by the

perception of the persecutor.” Id. at 242. The Board explained that to do

otherwise would create two significant problems. First, it would conflate the

inquiry into whether a “particular social group” is cognizable under the INA

with the separate and distinct requirement that the persecution be “on account

of” membership. Id. Second, defining a particular social group from the

perspective of the persecutor would contradict the Board’s prior holding that

a social group may not be defined exclusively by the fact that its members

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have been subjected to harm. Id. (citing Matter of A-M-E- & J-G-U-, 24 I&N

Dec. 69, 74 (BIA 2007)).

Finally, the Board explained that this definition did not abrogate or depart

from Acosta, 19 I&N Dec. 211, or the Board’s other decisions, but rather

clarified how the definition of “particular social group” had developed

through 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.

C.

Although the Board has articulated a consistent understanding of the term

“particular social group,” not all of its opinions have properly applied that

framework. Shortly after M-E-V-G- and W-G-R-, the Board decided

A-R-C-G-, 26 I&N Dec. 388, which held that “married women in Guatemala

who are unable to leave their relationship” could constitute a particular social

group, id. at 392. Importantly, the Board based its decision on DHS’s

concessions that: (1) A-R-C-G- suffered harm rising to the level of past

persecution; (2) A-R-C-G-’s persecution was on account of her membership

in a particular social group; and (3) A-R-C-G-’s particular social group was

cognizable under the INA. Id. at 392–95. In fact, the only legal question not

conceded by DHS was whether, under applicable Eighth Circuit law, the

Guatemalan government was unwilling or unable to control her husband. Id.

at 395; see also Gutierrez-Vidal v. Holder, 709 F.3d 728, 732 (8th Cir. 2013)

(asylum applicant must show that assaults were either condoned by the

government or were committed by private actors that the government was

unwilling or unable to control). The Board declined to answer that question,

electing instead to remand for further proceedings.

Because of DHS’s multiple concessions, the Board performed only a

cursory analysis of the three factors required to establish a particular social

group. The Board concluded that A-R-C-G-’s purported particular social

group was “composed of members who share the common immutable

characteristic of gender,” and that “marital status can be an immutable

characteristic where the individual is unable to leave the relationship.”

A-R-C-G-, 26 I&N Dec. at 392–93. With respect to particularity, the Board

observed that the terms defining the group—“married,” “women,” and

“unable to leave the relationship”—had commonly accepted definitions

within Guatemalan society. Id. at 393. And finally, with respect to social

distinction, the Board cited evidence that Guatemala has a “culture of

machismo and family violence,” and that although Guatemala’s criminal

laws that prohibit domestic violence, “enforcement can be problematic

because the National Civilian Police often failed to respond to requests for

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assistance related to domestic violence.” Id. at 394 (quotation marks

omitted).

Subsequent Board decisions, including the decision certified here, have

read A-R-C-G- as categorically extending the definition of a “particular

social group” to encompass most Central American domestic violence

victims. Like A-R-C-G-, these ensuing decisions have not performed the

detailed analysis required. For instance, the Board’s decision in this case

offered only the conclusory statement that the respondent’s proposed group

was “substantially similar to that which we addressed in Matter of

A-R-C-G-,” and that the “totality of the evidence, including the 2014 El

Salvador Human Rights Report, establishes that the group is sufficiently

particular and socially distinct in El Salvadoran Society.” A-B- at *2. The

Board’s entire analysis of the respondent’s proposed particular social group

consisted of only two sentences. Id. Other Board opinions have similarly

treated A-R-C-G- as establishing a broad new category of cognizable

particular social groups. See, e.g., Matter of D-M-R- (BIA June 9, 2015);

Matter of E-M- (BIA Feb. 18, 2015).

By contrast, several courts of appeals have expressed skepticism about

A-R-C-G-. In Velasquez v. Sessions, the Fourth Circuit concluded that the

petitioner’s asylum claim concerned personal, private conflict rather than

persecution on a protected ground. 866 F.3d at 197. The court distinguished

A-R-C-G- “because, there, the Government conceded that the mistreatment

suffered by the alien was, at least for one central reason, on account of her

membership in a cognizable particular social group.” 866 F.3d at 195 n.5

(quotation marks and alterations omitted). In Fuentes-Erazo, the Eighth

Circuit declined to approve a particular social group of “Honduran women

in domestic relationships who are unable to leave their relationships” after

distinguishing A-R-C-G- because there “the petitioner’s actual membership

in the proposed particular social group was undisputed.” 848 F.3d at 853.

And in Jeronimo v. U.S. Attorney General, 678 F. App’x 796 (11th Cir.

2017), the Eleventh Circuit denied the asylum application of a woman who

claimed membership in a group of “indigenous women who live with a

domestic partner and who suffer abuse and cannot leave safely from that

domestic partner relationship.” Id. at 802–03. The court recognized that in

A-R-C-G-, “DHS had conceded the petitioner had suffered past persecution

and the persecution was because of membership in a particular social group.”

Id. at 802. 7

7

Other appellate courts have resisted attempts to expand A-R-C-G-’s reach. See, e.g.,

Menjivar-Sibrian v. U.S. Att’y Gen., ___ F. App’x. ___, 2018 WL 1415126, at *1 (11th

Cir. Mar. 22, 2018) (“women abused by her partner she cannot control” is not a cognizable

social group where defining attribute of proposed group is having suffered persecution);

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IV.

A-R-C-G- was wrongly decided and should not have been issued as a

precedential decision. DHS conceded almost all of the legal requirements

necessary for a victim of private crime to qualify for asylum based on

persecution on account of membership in a particular social group. 8 To the

extent that the Board examined the legal questions, its analysis lacked rigor

and broke with the Board’s own precedents.

A.

The Board should not have issued A-R-C-G- as a precedential opinion

because DHS conceded most of the relevant legal questions. Precedential

opinions of the Board are binding on immigration judges and guide the

resolution of future cases. See 8 C.F.R. § 1003.1(d)(1) (“[T]he Board,

through precedent decisions, shall provide clear and uniform guidance to the

Service, the immigration judges, and the general public on the proper

interpretation and administration of the [INA] and its implementing

regulations.”). Yet the parties in A-R-C-G- decided significant legal issues

on consent, and such concessions should not set precedential rules. Many of

the issues that DHS conceded—such as the “existence of [the proposed]

particular social group in Guatemala”—effectively stipulated key legal

questions.

Solorzano-De Maldonado v. Sessions, ___ F. App’x ___, 2018 WL 1192988, at *1 (5th

Cir. Mar. 7, 2018) (“single women living alone targeted by gangs for sexual abuse” does

not constitute a socially distinct group in Salvadoran society); Perez-Rabanales v. Sessions,

881 F.3d 61, 66 (1st Cir. 2018) (finding that purported social group of “Guatemalan women

who try to escape systemic and severe violence but who are unable to receive official

protection” lacked particularity and social distinction”); Vega-Ayala, 833 F.3d at 39

(“Being in an intimate relationship with a partner who views you as property is not an

immutable characteristic.”).

8

In Matter of L-E-A-, 27 I&N Dec. 40 (BIA 2017), the Board similarly used key

concessions by DHS to recognize a particular social group that might not have withstood

the rigorous legal analysis required by Board precedent. The respondent and DHS “agree[d]

that the immediate family unit of the respondent’s father qualifies as a particular social

group” and “that if family membership is a central reason for persecuting an asylum

applicant, nexus may be established.” Id. at 42. There is reason to doubt that a nuclear

family can comprise a particular social group under the statute. See, e.g., Thomas v.

Gonzales, 409 F.3d 1177, 1192 (9th Cir.) (en banc) (Rymer, J., dissenting), rev’d, 547 U.S.

183 (2005). Although the validity of the particular social group analysis in Matter of

L-E-A- is beyond the scope of this opinion, the case reflects another instance where the

Board purported to decide significant legal questions based upon concessions by the parties,

rather than the appropriate legal analysis.

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But “[p]arties may not stipulate to the legal conclusions to be reached by

the court.” TI Fed. Credit Union v. DelBonis, 72 F.3d 921, 928 (1st Cir.

1995) (internal quotation marks and alterations omitted); see also Swift &

Co. v. Hocking Valley Ry. Co., 243 U.S. 281, 289 (1917) (“If the stipulation

is to be treated as an agreement concerning the legal effect of admitted facts,

it is obviously inoperative; since the court cannot be controlled by agreement

of counsel on a subsidiary question of law.”). The same principle has long

applied before the Board. Matter of A-, 4 I&N Dec. 378, 384 (BIA 1951);

see also Sagastume v. Holder, 490 F. App’x 712, 715–16 (6th Cir. 2012)

(holding that immigration judge did not err in denying voluntary departure

even though the parties had stipulated that the petitioner would qualify for

such relief because “[p]arties cannot stipulate around a statutory

requirement”). Given the decision’s significant limitations in guiding future

decisionmakers, the Board should not have designated A-R-C-G- as a

precedential decision.

B.

Had the Board properly analyzed the issues, then it would have been clear

that the particular social group was not cognizable. The Board’s approach in

A-R-C-G- was contrary to the appropriate way that the Board has in the past,

and must in the future, approach such asylum claims. By accepting DHS’s

concessions as conclusive, the Board in A-R-C-G- created a misleading

impression concerning the cognizability of similar social groups, and the

viability of asylum claims premised upon persecution on account of

membership in such groups.

1.

In A-R-C-G-, DHS conceded that A-R-C-G- was a member of a

“cognizable” social group that was both particular and socially distinct. Id.

at 392–95. The Board thus avoided considering whether A-R-C-G- could

establish the existence of a cognizable particular social group without

defining the group by the fact of persecution. M-E-V-G-, 26 I&N Dec. at

232; W-G-R-, 26 I&N Dec. at 215; see also Perez-Rabanales v. Sessions, 881

F.3d 61, 67 (1st Cir. 2018); Rreshpja v. Gonzales, 420 F.3d 551, 556 (6th

Cir. 2005); Jonaitiene v. Holder, 660 F.3d 267, 271 (7th Cir. 2011); Castillo-

Arias v. U.S. Att’y Gen., 446 F.3d 1190, 1198 (11th Cir. 2006); Moreno v.

Lynch, 628 Fed. Appx. 862, 865 (4th Cir. 2015).

To be cognizable, a particular social group must “exist independently” of

the harm asserted in an application for asylum or statutory withholding of

removal. M-E-V-G-, 26 I&N Dec. at 236 n.11, 243; W-G-R-, 26 I&N Dec.

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at 215; Perez-Rabanales, 881 F.3d at 67; Lukwago v. Ashcroft, 329 F.3d 157,

172 (3d Cir. 2003). If a group is defined by the persecution of its members,

then the definition of the group moots the need to establish actual

persecution. For this reason, “[t]he individuals in the group must share a

narrowing characteristic other than their risk of being persecuted.” Rreshpja,

420 F.3d at 556 (“If the group with which Rreshpja is associated is defined

noncircularly—i.e., simply as young attractive Albanian women—then any

young Albanian woman who possesses the subjective criterion of being

‘attractive’ would be eligible for asylum in the United States.”).

A-R-C-G- never considered that “married women in Guatemala who are

unable to leave their relationship” was effectively defined to consist of

women in Guatemala who are victims of domestic abuse because the inability

“to leave” was created by harm or threatened harm.

In accepting DHS’s concession that this proposed particular social group

was defined with particularity, the Board limited its analysis to concluding

that the terms used to describe the group—“married,” “women,” and “unable

to leave the relationship”—have commonly accepted definitions within

Guatemalan society. A-R-C-G-, 26 I&N Dec. at 393. But that misses the

point. To say that each term has a commonly understood definition, standing

alone, does not establish that these terms have the requisite particularity in

identifying a distinct social group as such, or that people who meet all of

those criteria constitute a discrete social group. A particular social group

must not be “amorphous, overbroad, diffuse, or subjective,” and “not every

‘immutable characteristic’ is sufficiently precise to define a particular social

group.” M-E-V-G-, 26 I&N Dec. at 239. The 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.” M-E-V-G-, 26 I&N Dec. at 239.

Social groups defined by their vulnerability to private criminal activity

likely lack the particularity required under M-E-V-G-, given that broad

swaths of society may be susceptible to victimization. For example, groups

comprising persons who are “resistant to gang violence” and susceptible to

violence from gang members on that basis “are too diffuse to be recognized

as a particular social group.” Constanza v. Holder, 647 F.3d 749, 754 (8th

Cir. 2011); see also, e.g., S-E-G-, 24 I&N Dec. at 588; Lizama v. Holder, 629

F.3d 440, 447 (4th Cir. 2011); Larios v. Holder, 608 F.3d 105, 109 (1st Cir.

2010); Lushaj v. Holder, 380 F. App’x 41, 43 (2d Cir. 2010); Barrios v.

Holder, 581 F.3d 849, 855 (9th Cir. 2009). Victims of gang violence often

come from all segments of society, and they possess no distinguishing

characteristic or concrete trait that would readily identify them as members

of such a group.

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Particular social group definitions that seek to avoid particularity issues

by defining a narrow class—such as “Guatemalan women who are unable to

leave their domestic relationships where they have children in common”—

will often lack sufficient social distinction to be cognizable as a distinct

social group, rather than a description of individuals sharing certain traits or

experiences. See R-A-, 22 I&N Dec. at 918 (holding that R-A- failed to show

that her claimed social group “is a group that is recognized and understood

to be a societal faction, or is otherwise a recognized segment of the

population, within Guatemala”). A particular social group must avoid,

consistent with the evidence, being too broad to have definable boundaries

and too narrow to have larger significance in society.

DHS similarly admitted that A-R-C-G-’s proposed particular social group

was socially distinct by conceding that it was cognizable. A-R-C-G-, 26 I&N

Dec. at 392. In support of that concession, the Board cited evidence that

Guatemala has a “culture of machismo and family violence” and that,

although Guatemala has laws in place to prosecute domestic violence crimes,

“enforcement can be problematic because the National Civilian Police often

failed to respond to requests for assistance related to domestic violence.” Id.

at 394 (quotation marks omitted). 9 The Board provided no explanation for

why it believed that that evidence established that Guatemalan society

perceives, considers, or recognizes “married women in Guatemala who are

unable to leave their relationship” to be a distinct social group. But the key

thread running through the particular social group framework is that social

groups must be classes recognizable by society at large. See W-G-R-, 26 I&N

Dec. at 217 (“To have the ‘social 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.”). Membership in a particular tribe or clan

within a society is an instructive example: those distinctions often constitute

a “particular social group” because that is a “highly recognizable, immutable

characteristic” that makes members recognized in society as a group. In re

H-, 21 I&N Dec. 337, 342–43 (BIA 1996). By contrast, there is significant

room for doubt that Guatemalan society views these women, as horrible as

their personal circumstances may be, as members of a distinct group in

society, rather than each as a victim of a particular abuser in highly

individualized circumstances.

9

On this point, I note that conclusory assertions of countrywide negative cultural

stereotypes, such as A-R-C-G-’s broad charge that Guatemala has a “culture of machismo

and family violence” based on an unsourced partial quotation from a news article eight

years earlier, neither contribute to an analysis of the particularity requirement nor constitute

appropriate evidence to support such asylum determinations.

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2.

In A-R-C-G-, DHS also conceded that the respondent established that she

had suffered past persecution. 26 I&N Dec. at 392. It can be especially

difficult, however, for victims of private violence to prove persecution

because “[p]ersecution is something a government does,” either directly or

indirectly by being unwilling or unable to prevent private misconduct. Hor

v. Gonzales, 400 F.3d 482, 485 (7th Cir. 2005) (emphasis in original).

Persecution under the asylum statute “does not encompass all treatment that

our society regards as unfair, unjust, or even unlawful or unconstitutional.”

Fatin, 12 F.3d at 1240.

Board precedents have defined “persecution” as having three specific

elements. First, “persecution” involves an intent to target a belief or

characteristic. See Matter of L-E-A-, 27 I&N Dec. 40, 44 n.2 (BIA 2017)

(citing Acosta, 19 I&N Dec. at 222). Yet private criminals are motivated

more often by greed or vendettas than by an intent to “overcome [the

protected] characteristic of the victim.” Matter of Kasinga, 21 I&N Dec.

357, 365 (BIA 1996). For example, in R-A-, R-A-’s husband targeted her

“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. at 920.

Second, the level of harm must be “severe.” Matter of T-Z-, 24 I&N Dec.

163, 172–73 (BIA 2007). Private violence may well satisfy this standard,

and I do not question that A-R-C-G-’s claims of repugnant abuse by her ex-

husband were sufficiently severe.

Third, the harm or suffering must be “inflicted either by the government

of a country or by persons or an organization that the government was unable

or unwilling to control.” Acosta, 19 I&N Dec. at 222. The Board declined

to address this prong of the analysis, instead remanding to the immigration

judge for further proceedings to determine whether the Guatemalan

government was unwilling or unable to control A-R-C-G-’s ex-husband.

An applicant seeking to establish persecution based on violent conduct of

a private actor “must show more than ‘difficulty . . . controlling’ private

behavior.” Menjivar v. Gonzales, 416 F.3d 918, 921 (8th Cir. 2005) (quoting

Matter of McMullen, 17 I&N Dec. 542, 546 (BIA 1980)). The applicant must

show that the government condoned the private actions “or at least

demonstrated a complete helplessness to protect the victims.” Galina v. INS,

213 F.3d 955, 958 (7th Cir. 2000); see also Hor, 400 F.3d at 485. The fact

that the local police have not acted on a particular report of an individual

crime does not necessarily mean that the government is unwilling or unable

to control crime, any more than it would in the United States. There may be

many reasons why a particular crime is not successfully investigated and

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prosecuted. Applicants must show not just that the crime has gone

unpunished, but that the government is unwilling or unable to prevent it.

3.

Finally, DHS conceded the nexus requirement by agreeing that

persecution suffered by A-R-C-G- “was, for at least one central reason, on

account of her membership in a cognizable particular social group.”

A-R-C-G-, 26 I&N Dec. at 392, 395. This conclusion simply does not follow

from the facts of that case or similar cases. Establishing the required nexus

between past persecution and membership in a particular social group is a

critical step for victims of private crime who seek asylum. See R-A-, 22 I&N

Dec. at 920–23. Yet the Board did not evaluate the conclusion that

A-R-C-G- was persecuted “on account of” her status as a married woman in

Guatemala who was unable to leave her relationship.

Normally, an alien seeking asylum bears the burden of establishing a

nexus between the alleged persecution and one of the five statutory grounds

for asylum. See 8 U.S.C. § 1158(b)(1)(B)(i); Tamara-Gomez v. Gonzales,

447 F.3d 343, 349 (5th Cir. 2006). “If the ill-treatment was motivated by

something other than one of these five circumstances, then the applicant

cannot be considered a refugee for purpose of asylum.” Zoarab v. Mukasey,

524 F.3d 777, 780 (6th Cir. 2008). “In analyzing ‘particular social group’

claims” the Board’s decisions “require that the persecution or well-founded

fear of persecution be on account of, or, in other words, because of, the

alien’s membership in that particular social group.” R-A-, 22 I&N Dec. at

920. The focus in determining whether an alien was persecuted “on account

of” her group membership is on “the persecutors’ motives”—why the

persecutors sought to inflict harm. INS v. Elias-Zacarias, 502 U.S. 478, 483

(1992). Reasons incidental, tangential, or subordinate to the persecutor’s

motivation will not suffice. Matter of J-B-N- & S-M-, 24 I&N Dec. 208, 214

(BIA 2007).

The nexus requirement is critically important in determining whether an

alien established an asylum claim. That requirement is “where the rubber

meets the road” because the “importance of the ‘on account of’ language

must not be overlooked.” Cece, 733 F.3d at 673. “Although the category of

protected persons [within a particular group] may be large, the number of

those who can demonstrate the required nexus likely is not.” Id. Indeed, a

“safeguard against potentially innumerable asylum claims” may be found “in

the stringent statutory requirements for all asylum seekers.” Id. at 675.

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

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“one central reason” for the abuse. 10 See, e.g., Zoarab, 524 F.3d at 781

(“Courts have routinely rejected asylum applications grounded in personal

disputes.”). 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. See, e.g., Constanza, 647 F.3d at

754. 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. See R-A-, 22 I&N Dec. at 921 (“the record does

not reflect that [R-A-’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”). 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.” Id. at 919.

4.

In A-R-C-G-, 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,” 26 I&N Dec. at 392, but it did not adequately

observe that duty. Although the immigration judge had previously denied

A-R-C-G-’s applications, the Board accepted, with little or no analysis,

DHS’s concessions to the contrary on nearly every legal issue. By doing so,

the Board recognized a new category of asylum claims that did not satisfy

the requirements set forth by the Board’s precedent.

10

Even if mistreatment is suffered at the hands of a government official, there is no nexus

between the purported persecution and one of the grounds for asylum if the dispute is a

“purely personal matter.” Matter of Y-G-, 20 I&N Dec. 794, 799 (BIA 1994); see also,

e.g., Marquez v. INS, 105 F.3d 374, 380–81 (7th Cir. 1997) (concluding that a commercial

dispute with a Philippine military officer was “apolitical”); Iliev v. INS, 127 F.3d 638, 642

(7th Cir. 1997) (holding that a dispute with a Bulgarian secret service agent over

employment was “personal, not political”). The Board has recognized this principle for

decades, including in cases involving threats of domestic violence. See Matter of Pierre,

15 I&N Dec. 461, 463 (BIA 1975) (holding that a husband’s threats against his wife were

“strictly personal,” even though he was a Haitian government official, and, thus, she did

not establish persecution).

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Future social group cases must be governed by the analysis set forth in

this opinion.

V.

Having overruled A-R-C-G-, I must vacate the Board’s December 2016

decision in this case as well. The Board’s cursory analysis of the

respondent’s social group consisted of a general citation to A-R-C-G- and

country condition reports. Neither immigration judges nor the Board may

avoid the rigorous analysis required in determining asylum claims, especially

where victims of private violence claim persecution based on membership in

a particular social group. Such claims must be carefully analyzed under the

standards articulated in this opinion and in past Board decisions, such as

M-E-V-G- and W-G-R-.

An asylum applicant has the burden of showing her eligibility for asylum,

8 C.F.R. § 208.13(a), which includes identifying a cognizable social group

and establishing group membership, persecution based on that membership,

and that the government was unwilling or unable to protect the respondent.

The respondent must present facts that undergird each of these elements, 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.

Of course, if an alien’s asylum application is fatally flawed in one

respect—for example, for failure to show membership in a proposed social

group, see Guzman-Alvarez v. Sessions, 701 F. App’x 54, 56–57 (2d Cir.

2017)—an immigration judge or the Board need not examine the remaining

elements of the asylum claim. See, e.g., Perez-Rabanales, 881 F.3d at 67

(“That ends this aspect of the matter. The petitioner’s failure to satisfy both

the particularity and the social distinctiveness requirements defeats her

attempt to qualify as a refugee through membership in a particular social

group.”).

Having subjected the Board’s decision to plenary review, I also address

several additional errors and outline other general requirements relevant to

all asylum applications to provide guidance to the Board and immigration

judge on remand.

A.

First, the Board erred in finding several of the immigration judge’s factual

and credibility determinations to be “clearly erroneous.”

Under Department regulations, the Board may not engage in fact-finding

on appeals (except for taking administrative notice of commonly known

facts). 8 C.F.R. § 1003.1(d)(3)(iv). Furthermore, the Board may “not engage

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in de novo review of findings of fact determined by an immigration judge,”

and the immigration judge’s factual findings, “including findings as to the

credibility of testimony, shall be reviewed only to determine whether the

findings of the immigration judge are clearly erroneous.” Id.

§ 1003.1(d)(3)(i); see also Turkson v. Holder, 667 F.3d 523, 527 (4th Cir.

2012) (noting that “[t]his rule stems from a sensible understanding of the

roles and abilities of the two bodies”). Notably, “where credibility

determinations are at issue, . . . ‘even greater deference’ must be afforded to

the [immigration judge]’s factual findings.” Rodriguez v. Holder, 683 F.3d

1164, 1171 (9th Cir. 2012) (quoting Anderson, v. Bessemer City, 470 U.S.

564, 575 (1985)). The Board may find an immigration judge’s factual

findings to be clearly erroneous only if they are “illogical or implausible,” or

without “support in inferences that may be drawn from the facts in the

record.” Id. at 1170 (quoting Anderson, 470 U.S. at 577).

Furthermore, the Board “cannot, under a clear error standard of review,

override or disregard evidence in the record” or rely “simply on its own

interpretation of the facts.” Ridore v. Holder, 696 F.3d 907, 917 (9th Cir.

2012). If the Board disagrees with an immigration judge’s factual findings,

a “conclusory pronouncement” that the findings were erroneous “does not

constitute clear error review.” Id. While the Board purported to apply the

“clear error” standard in this case, I cannot simply “rely on the Board’s

invocation of the clear error standard.” Rodriguez, 683 F.3d at 1170. My

task is to determine whether the Board “faithfully employed the clear error

standard or engaged in improper de novo review” of the immigration judge’s

factual findings. Id.

1.

Here, the Board admitted that the immigration judge identified

discrepancies and omissions in the respondent’s testimony, but discounted

the adverse credibility determination on various grounds including that the

supportive affidavits were due greater weight, that the respondent

sufficiently explained some discrepancies, and that the discrepancies did not

ultimately undermine the respondent’s account. In so doing, the Board failed

to give adequate deference to the credibility determinations and improperly

substituted its own assessment of the evidence.

When an asylum applicant makes inconsistent statements, the

immigration judge is uniquely advantaged to determine the applicant’s

credibility, and the Board may not substitute its own view of the evidence on

appeal. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 334 (2d Cir.

2006) (“[W]here the [immigration judge]’s adverse credibility finding is

based on specific examples in the record of inconsistent statements by the

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asylum applicant about matters material to his claim of persecution, or on

contradictory or inherently improbable testimony regarding such matters, a

reviewing court will generally not be able to conclude that a reasonable

adjudicator was compelled to find otherwise.” (quotation omitted)). Under

the REAL ID Act, “[t]here is no presumption of credibility” in favor of an

asylum applicant. Pub. L. No. 109-13, div. B, §§ 101(a)(3), 119 Stat. 231,

303 (2005) (codified at 8 U.S.C. § 1158(b)(1)(B)(iii)). Furthermore, the

identified inconsistencies do not have to be related to an applicant’s core

asylum claim to support an adverse credibility determination: “Considering

the totality of circumstances, and all relevant factors, a trier of fact may base

a credibility determination on . . . the consistency between the applicant’s or

witness’s written and oral statements . . . , the internal consistency of each

such statement, [and] the consistency of such statements with other evidence

of record . . . , without regard to whether an inconsistency, inaccuracy, or

falsehood goes to the heart of the applicant’s claim, or any other factor.” Id.

(emphasis added). “[O]missions, inconsistent statements, contradictory

evidence, and inherently improbable testimony are appropriate bases for

making an adverse credibility determination,” and the existence of “only a

few” such issues can be sufficient to make an adverse credibility

determination as to the applicant’s entire testimony regarding past

persecution. Djadjou v. Holder, 662 F.3d 265, 273–74 (4th Cir. 2011).

2.

The Board further erred in concluding that the immigration judge’s

factual findings concerning the respondent’s ability to leave her relationship

and El Salvador’s ability to protect her were clearly erroneous. A-B- at *3.

In support of his findings, the immigration judge cited evidence that the

respondent was able to divorce and move away from her ex-husband, and

that she was able to obtain from the El Salvadoran government multiple

protective orders against him. 11 Although the Board questioned the

significance of these facts in light of other evidence, it did not establish that

the immigration judge’s conclusions were “illogical or implausible,” or

without support from the record. See Rodriguez, 683 F.3d at 1170.

Instead, the Board substituted its view of the evidence for that of the

immigration judge, again violating the standard of review applicable to the

factual determinations of immigration judges.

11

The immigration judge’s findings that the respondent was able to leave her relationship

on the basis of her divorce and her ability to move from the home she shared with her ex-

husband, and that she was able to obtain some measure of government protection, are

supported by case law considering other particular social group claims. See, e.g., Menjivar-

Sibrian, 2018 WL 1415126, at *1; Vega-Ayala, 833 F.3d at 39.

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B.

The Board also erred when it found that the respondent established the

required nexus between the harm she suffered and her group membership.

Whether a purported persecutor was motivated by an alien’s group affiliation

“is a classic factual question,” Zavaleta-Policiano v. Sessions, 873 F.3d 241,

247–48 (4th Cir. 2017) (internal quotation marks omitted), which the Board

may overturn only if “clearly erroneous.”

The Board stated that “the record indicates that the ex-husband abused

[the respondent] from his position of perceived authority, as her ex-husband

and the father of her children.” A-B- at *3. From this, the Board held, in a

conclusory fashion, that the “record as a whole supports a finding that the

respondent’s membership in the particular social group of ‘El Salvadoran

women who are unable to leave their domestic relationship where they have

children in common’ is at least one central reason that he ex-husband abused

her.” Id. While citing the standard of review, the Board did not apply it in

summarily dismissing the immigration judge’s findings. Moreover, the

Board’s legal analysis was deficient. The Board, required to find “clear

error” of a factual finding, pointed to no record evidence that respondent’s

husband mistreated her in any part “on account of” her membership in the

particular social group of “El Salvadoran women who are unable to leave

their domestic relationship where they have children in common.” The

Board cited no evidence that her husband knew any such social group

existed, or that he persecuted wife for reasons unrelated to their relationship.

There was simply no basis in the Board’s summary reasoning for overturning

the immigration judge’s factual findings, much less finding them clearly

erroneous.

C.

The Board also erred when it overruled the immigration judge’s finding

that the respondent failed to demonstrate that the government of El Salvador

was unable or unwilling to protect her from her ex-husband. This inquiry too

involved factual findings to which the Board did not give proper deference.

No country provides its citizens with complete security from private criminal

activity, and perfect protection is not required. In this case, the respondent

not only reached out to police, but received various restraining orders and

had him arrested on at least one occasion. See A-B- at *14–15 (Immig. Ct.

Dec. 1, 2015).

For many reasons, domestic violence is a particularly difficult crime to

prevent and prosecute, even in the United States, which dedicates significant

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resources to combating domestic violence. See, e.g., Office of Justice

Programs, U.S. Dep’t of Justice, Extent, Nature, and Consequences of

Intimate Partner Violence (2000). The persistence of domestic violence in

El Salvador, however, does not establish that El Salvador was unable or

unwilling to protect A-B- from her husband, any more than the persistence

of domestic violence in the United States means that our government is

unwilling or unable to protect victims of domestic violence. In short, the

Board erred in finding, contrary to the record and the immigration judge’s

findings, that El Salvador was unable or unwilling to protect A-B- and that

she thus had no choice but to flee the country.

D.

The Board, immigration judges, and all asylum officers should consider

the following points when evaluating an application for asylum. First, an

applicant seeking asylum or withholding of removal based on membership

in a particular social group must clearly indicate, on the record and before

the immigration judge, the exact delineation of any proposed particular social

group. See Matter of W-Y-C- & H-O-B-, 27 I&N Dec. 189, 190–91 (BIA

2018); Matter of A-T-, 25 I&N Dec. 4, 10 (BIA 2009). The immigration

judge has a responsibility to “ensure that the specific social group being

analyzed is included in his or her decision,” as it critical to the Board’s

“appellate review that the proposed social group is clear and that the record

is fully developed.” Matter of W-Y-C- & H-O-B-, 27 I&N Dec. at 191. The

Board must also remember that it cannot sustain an asylum applicant’s appeal

based on a newly articulated social group not presented before or analyzed

by the immigration judge. Id. at 192; see also, e.g., Baltti v. Sessions, 878

F.3d 240, 244–45 (8th Cir. 2017) (finding no jurisdiction to review a newly

defined social group because the claim based on “membership in that

narrowed social group” had not been raised below); Duarte-Salagosa v.

Holder, 775 F.3d 841, 845 (7th Cir. 2014) (declining to address a particular

social group raised for the first time on appeal).

Furthermore, the Board, immigration judges, and all asylum officers must

consider, consistent with the regulations, whether internal relocation in the

alien’s home country presents a reasonable alternative before granting

asylum. Asylum applicants who have “not established past persecution . . .

bear the burden of establishing that it would not be reasonable for him or her

to relocate, unless the persecution is by a government or government-

sponsored.” 8 C.F.R. § 1208.13(b)(3)(i). An immigration judge, “in the

exercise of his or her discretion, shall deny the asylum application of an alien

found to be a refugee on the basis of past persecution” if it is “found by a

preponderance of the evidence” that “the applicant could avoid future

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persecution by relocating to another part of the applicant’s country of

nationality, . . . and under all the circumstances, it would be reasonable to

expect the applicant to do so.” Id. § 1208.13(b)(1)(i). Beyond the standards

that victims of private violence must meet in proving refugee status in the

first instance, they face the additional challenge of showing that internal

relocation is not an option (or in answering DHS’s evidence that relocation

is possible). When the applicant has suffered personal harm at the hands of

only a few specific individuals, internal relocation would seem more

reasonable than if the applicant were persecuted, broadly, by her country’s

government.

Finally, there are alternative proper and legal channels for seeking

admission to the United States other than entering the country illegally and

applying for asylum in a removal proceeding. The asylum statute “is but one

provision in a larger web of immigration laws designed to address individuals

in many different circumstances,” and “[t]o expand that statute beyond its

obviously intended focus is to distort the entire immigration framework.”

Velasquez, 866 F.3d at 199 (Wilkinson, J., concurring). Aliens seeking a

better life in America are welcome to take advantage of existing channels to

obtain legal status before entering the country. In this case, A-B- entered the

country illegally, and when initially apprehended by Border Patrol agents,

she stated that her reason for entering the country was “to find work and

reside” in the United States. Aliens seeking an improved quality of life

should seek legal work authorization and residency status, instead of illegally

entering the United States and claiming asylum. 12

VI.

12

Asylum is a discretionary form of relief from removal, and an applicant bears the burden

of proving not only statutory eligibility for asylum but that she also merits asylum as a

matter of discretion. 8 U.S.C. §§ 1158(b)(1), 1229a(c)(4)(A)(ii); see also Romilus v.

Ashcroft, 385 F.3d 1, 8 (1st Cir. 2004). Neither the immigration judge nor the Board

addressed the issue of discretion regarding the respondent’s asylum application, and I

decline to do so in the first instance. Nevertheless, I remind all asylum adjudicators that a

favorable exercise of discretion is a discrete requirement for the granting of asylum and

should not be presumed or glossed over solely because an applicant otherwise meets the

burden of proof for asylum eligibility under the INA. Relevant discretionary factors

include, inter alia, the circumvention of orderly refugee procedures; whether the alien

passed through any other countries or arrived in the United States directly from her country;

whether orderly refugee procedures were in fact available to help her in any country she

passed through; whether she made any attempts to seek asylum before coming to the United

States; the length of time the alien remained in a third country; and her living conditions,

safety, and potential for long-term residency there. See Matter of Pula, 19 I&N Dec. 467,

473–74 (BIA 1987).

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In reaching these conclusions, I do not minimize the vile abuse that the

respondent reported she suffered at the hands of her ex-husband or the

harrowing experiences of many other victims of domestic violence around

the world. I understand that many victims of domestic violence may seek to

flee from their home countries to extricate themselves from a dire situation

or to give themselves the opportunity for a better life. But the “asylum statute

is not a general hardship statute.” Velasquez, 866 F.3d at 199 (Wilkinson, J.,

concurring). As Judge Wilkinson correctly recognized, the Board’s recent

treatment of the term “particular social group” is “at risk of lacking rigor.”

Id. at 198. Nothing in the text of the INA supports the suggestion that

Congress intended “membership in a particular social group” to be “some

omnibus catch-all” for solving every “heart-rending situation.” Id.

I therefore overrule Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014)

and all other opinions inconsistent with the analysis in this opinion, vacate

the Board’s decision, and remand to the immigration judge for further

proceedings consistent with this opinion.

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