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Matter of R-A-, Respondent

Decided by Attorney General September 25, 2008

U.S. Department of Justice

Office of the Attorney General

The Attorney General lifted the stay previously imposed on the Board of Immigration

Appeals and remanded the case for reconsideration of the issues presented with respect to

asylum claims based on domestic violence.

FOR RESPONDENT: Karen Musalo, Esquire, San Francisco, California

FOR THE DEPARTMENT OF HOMELAND SECURITY: Gus P. Coldebella, Acting

General Counsel

BEFORE THE ATTORNEY GENERAL

(September 25, 2008)

On January 19, 2001, Attorney General Reno vacated the decision of the

Board of Immigration Appeals in Matter of R-A-, 22 I&N Dec. 906 (BIA

1999), and directed the Board on remand to stay reconsideration of the case

until after the publication in final form of a proposed rule published after the

Board’s decision. On February 21, 2003, Attorney General Ashcroft certified

the Board’s decision for review but remanded the case on January 19, 2005,

again directing the Board to reconsider its decision “in light of the final rule.”

Matter of R-A-, 23 I&N Dec. 694 (A.G. 2005). Pursuant to 8 C.F.R.

§ 1003.1(h)(1)(i) (2008), I direct the Board to refer this case to me for review.

For the reasons set forth in the accompanying opinion, I lift the stay and

remand the case for further proceedings in accordance with this opinion.

OPINION

In Matter of R-A-, 22 I&N Dec. 906 (BIA 1999; A.G. 2001), the Board of

Immigration Appeals denied a claim for asylum filed by an alien who had been

the victim of domestic violence in Guatemala. The respondent in that case

contended that the serious harm inflicted on her by her husband constituted

persecution on account of her membership in a particular social group, defined

as “Guatemalan women who have been involved intimately with Guatemalan

male companions, who believe that women are to live under male

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domination.” Id. at 911. The Acting Commissioner of the Immigration and

Naturalization Service referred the decision to the Attorney General for

review.

On January 19, 2001, Attorney General Reno vacated the Board’s decision

and directed the Board on remand to stay reconsideration of the case pending

the publication in final form of a proposed rule that had been published after

the Board’s decision. Among other things, the proposed rule would have

amended the asylum regulations relating to the meaning of the terms

“persecution,” “on account of,” and “particular social group.” See Asylum and

Withholding Definitions, 65 Fed. Reg. 76,588 (Dec. 7, 2000). Attorney

General Reno’s order directed the Board to reconsider its decision “in light of

the final rule.” The Board has continued to defer its reconsideration of Matter

of R-A- since the issuance of that stay order.1

In the years since the issuance of the stay order, both the Board and courts

of appeals have issued numerous decisions relating to various aspects of

asylum law under the existing statutory and regulatory provisions. Although

these intervening decisions may not have directly resolved the issues presented

in Matter of R-A-, some of them have addressed, for example, the terms

“persecution,” “on account of,” and “particular social group,” and thus may

have relevance to the issues presented with respect to asylum claims based on

domestic violence. See, e.g., Matter of E-A-G-, 24 I&N Dec. 591 (BIA 2008);

Matter of S-E-G-, 24 I&N Dec. 579 (BIA 2008); Matter of A-M-E- & J-G-U-,

24 I&N Dec. 69 (BIA 2007); Matter of C-A-, 23 I&N Dec. 951 (BIA 2006).

In addition, I have been advised that the Board has been holding not only

the case of the particular alien who is the subject of the Matter of R-A-

decision, but also a growing number of similar cases involving aliens who

have alleged that they were victims of domestic violence in their home

countries.2 The stay order has prevented the Board from acting on these cases.

In light of these developments and the fact that the proposed rule cited by

Attorney General Reno never has been made final, I have decided to lift the

stay so that the Board can revisit the issues in Matter of R-A- and related cases

and issue new decisions. Accordingly, the Board should now proceed as it

sees fit with its reconsideration of Matter of R-A- and the other cases involving

1

In 2003, Attorney General Ashcroft certified the Board’s decision in Matter of R-A- for

review and provided an opportunity for additional briefing, but ultimately remanded the

case, again directing the Board to reconsider its decision “in light of the final rule.” Matter

of R-A-, 23 I&N Dec. 694 (A.G. 2005).

2

For aliens victimized by domestic violence in the United States, I note that the immigration

laws already provide remedies in particular circumstances, including provisions for

self-petitioning by battered spouses, the availability of special waivers, and the opportunity

to apply for U-1 nonimmigrant status.

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similarly situated aliens. This review necessarily will be based on the current

regulations, because the proposed rule has not been made final. Given the

passage of time, the Board may choose to request additional briefing in the

pending cases or to remand cases to Immigration Judges for further factual

development.

In engaging in this review (as in any review), the Board should of course

consider relevant courts of appeals decisions. Insofar as a question involves

interpretation of ambiguous statutory language, the Board is free to exercise

its own discretion and issue a precedent decision establishing a uniform

standard nationwide. Providing a consistent, authoritative, nationwide

interpretation of ambiguous provisions of the immigration laws is one of the

key duties of the Board. See, e.g., 8 C.F.R. § 1003.1(d)(1)(2008) (“[T]he

Board, through precedent decisions, shall provide clear and uniform guidance

to [DHS], the immigration judges, and the general public on the proper

interpretation and administration of the Act and its implementing

regulations.”); see also INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999)

(“[W]e have recognized that 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.’” (quoting INS v. Abudu, 485 U.S. 94, 110 (1988))); Jian Hui Shao

v. BIA, 465 F.3d 497, 502 (2d Cir. 2006) (noting that “only a precedential

decision by the BIA—or the Supreme Court of the United States—can ensure

the uniformity that seems to us especially desirable in [asylum] cases such as

these”).3 Moreover, the Supreme Court has made clear that administrative

agencies are not bound by prior judicial interpretations of ambiguous statutory

provisions, 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.’” National Cable & Telecomms. Ass’n v.

Brand X Internet Servs., 545 U.S. 967, 982 (2005) (quoting Smiley v. Citibank

(South Dakota), N.A., 517 U.S. 735, 740-41 (1996) (citing Chevron, U.S.A.,

Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984))).4

3

Of course, the Board’s decisions are also subject to review by the Attorney General as

provided in 8 C.F.R. § 1003.1(h) (2008). See, e.g., Matter of J-S-, 24 I&N Dec. 520 (A.G.

2008) (overruling two prior asylum decisions by the Board).

4

Prior to the Supreme Court’s decision in Brand X Internet, the Board had held that it was

generally bound to apply existing circuit precedent in cases arising in that circuit. See, e.g.,

Matter of Anselmo, 20 I&N Dec. 25 (BIA 1989); Matter of K-S-, 20 I&N Dec. 715 (BIA

1993). As the Board itself appears to have recognized, however, those decisions are no

longer good law with respect to cases involving the interpretation of ambiguous statutory

provisions. See Matter of Ramirez-Vargas, 24 I&N Dec. 599 (BIA 2008). See generally

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CONCLUSION

For the reasons set forth above, I remand this matter to the Board for

reconsideration in accordance with this opinion.

Board of Immigration Appeals: Affirmance Without Opinion, Referral for Panel Review,

and Publication of Decisions as Precedents, 73 Fed. Reg. 34,654, 34,659-61 (June 18, 2008)

(noting that “[t]he Supreme Court’s decision in Brand X Internet offers an important

opportunity for the Attorney General and the Board to be able to reclaim Chevron deference

with respect to the interpretation of ambiguous statutory provisions in the immigration laws,

notwithstanding contrary judicial interpretations, as long as the agency interpretation is

within the scope of Chevron step two deference”).

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