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Cite as 29 I&N Dec. 207 (A.G. 2025)

Interim Decision #4123

Matter of S-S-F-M-, Respondent

Decided by Attorney General September 2, 2025

U.S. Department of Justice

Office of the Attorney General

Matter of A-B-, 28 I&N Dec. 307 (A.G. 2021), is overruled, and immigration judges and

the Board shall adhere to Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018), and Matter of

A-B-, 28 I&N Dec. 199 (A.G. 2021), in all pending or future cases. By extension, Matter

of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014), and any decision issued in reliance thereupon

is also overruled.

BEFORE THE ATTORNEY GENERAL

Pursuant to 8 C.F.R. § 1003.1(h)(1)(i), I direct the Board of Immigration

Appeals (“Board”) to refer this case to me for my review. With the case thus

referred, I hereby remand to the Board for further consideration consistent

with this opinion.

Under the Immigration and Nationality Act (“INA”), the Attorney

General may grant asylum to individuals who meet several statutory

requirements, including an inability to return to their home 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.” INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A); see INA

§ 208(b)(1)(A), 8 U.S.C. § 1158(b)(1)(A). In Matter of A-B-, 27 I&N Dec.

316 (A.G. 2018) (“A-B- I”), Attorney General Sessions clarified the

standards that an asylum applicant must meet to establish persecution on

account of membership in a “particular social group.” Id. at 317. If the

alleged persecutor is unaffiliated with the government of the applicant’s

home country, Attorney General Sessions further ruled, then “the applicant

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

government is unwilling or unable to protect her.” Id. In Matter of A-B-,

28 I&N Dec. 199 (A.G. 2021) (“A-B- II”), Acting Attorney General

Rosen further clarified that standard. In Matter of A-B-, 28 I&N

Dec. 307 (A.G. 2021) (“A-B- III”), however, Attorney General Garland

vacated both A-B- I and A-B- II in anticipation of a rulemaking

directed by President Biden. See Exec. Order No. 14010, § 4(c)(ii),

86 Fed. Reg. 8267, 8271 (Feb. 2, 2021). Attorney General Garland

instructed “immigration judges and the Board [to] follow pre-A-B-I

precedent” until the completion of that anticipated rulemaking, and

particularly Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014), which A-B- I

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had overruled. A-B- III, 28 I&N Dec. at 309. That anticipated rulemaking

never occurred.

Respondent, a native and citizen of Honduras, applied for asylum

claiming she would be persecuted in Honduras on account of her political

opinions and membership in several purported particular social groups,

including “Honduran women,” “Honduran women unable to leave a

relationship,” “Honduran women who have demonstrated resistance to

Honduran society’s acceptance of male domination,” and “Honduran women

with views of women’s autonomy.” Matter of S-S-F-M-, at 1 (BIA Oct. 20,

2023) (unpublished decision). Respondent also claimed that the Honduran

government was “unable or unwilling” to control her alleged abuser. Id. at 3.

The Immigration Judge (“IJ”) rejected those claims in part relying on A-B- I

(which had not yet been vacated) and denied respondent’s application for

asylum and withholding of removal. Id. at 1–2, 2 n.4. The Board affirmed

the IJ’s decision but declined to rely on A-B- I, noting that the decision had

been vacated by A-B- III. Id. Respondent filed a petition for review in the

United States Court of Appeals for the Fifth Circuit, which granted the

parties’ joint motion for remand to allow the Board to reconsider several

issues in respondent’s appeal, many of which may be implicated by the legal

standards articulated in A-B- I and A-B- II. S-S-F-M- v. Garland,

No. 23-60586 (5th Cir. Mar. 18, 2024) (unpublished order).

Having considered the case following remand from the Fifth Circuit, I

conclude A-B- III was incorrect. I hereby reinstitute the legal standards

articulated in A-B- I and A-B- II, and overrule A-B- III (and, by extension,

Matter of A-R-C-G- and any decision issued in reliance thereupon).

Furthermore, I remand this matter to the Board for adjudication in light of

the standards articulated in A-B- I and A-B- II.

In my view, A-B- I’s analysis and articulation of the standards for

deciding asylum applications reflect the “best reading” of the statutory text

“applying all relevant interpretive tools.” Loper Bright Enters. v. Raimondo,

603 U.S. 369, 400 (2024). A-B- III never stated otherwise. Instead, A-B- III

abandoned the rules established in A-B- I and A-B- II in deference to an

anticipated executive rulemaking that never occurred. But the reasons

A-B- III gave for doing so are unpersuasive.

First, A-B- III noted that A-B- I contains “broad language” that “could be

read to create a strong presumption against asylum claims based on private

conduct.” 28 I&N Dec. at 309. But A-B- I used that language for good

reason: It has long been well-established that “[p]ersecution is something a

government does,” Hor v. Gonzales, 400 F.3d 482, 485 (7th Cir. 2005), and

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so 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.”

Matter of Acosta, 19 I&N Dec. 211, 222 (BIA 1985); see also Galina v. INS,

213 F.3d 955, 958 (7th Cir. 2000) (explaining that an applicant must show

that the government condoned private actions “or at least demonstrated a

complete helplessness to protect the victims”). Although there may be

circumstances when a government’s failure to control private conduct itself

amounts to persecution, A-B- I was entirely correct to treat those

circumstances as few and far between.

Second, A-B- III insisted that A-B- I “spawned confusion among courts”

because one court of appeals found that A-B- I announced a “new, more

demanding standard” for determining when private conduct can amount to

public persecution than the traditional “unable or unwilling” standard.

28 I&N Dec. at 309 (quoting Grace v. Barr, 965 F.3d 883, 898 (D.C. Cir.

2020)). But as the Third Circuit subsequently explained, the only court of

appeals to express such confusion—the D.C. Circuit—failed to “account for”

the full relevant test, “isolate[d] the standards from their surrounding words,”

and “overlook[ed] the relationships” those words described.

Galeas Figueroa v. Att’y Gen. United States, 998 F.3d 77, 91 (3d Cir. 2021).

A-B- II, moreover, explained that A-B- I “reiterated and did not change the

legal standard for determining when ‘persecution’ by third parties may be

attributed to the government.” See 28 I&N Dec. at 213; see also id. at 202

(“No matter whether Matter of A-B- is viewed as changing the existing

standard for persecution, I conclude . . . that Matter of A-B-’s formulation

appropriately clarifies the requisite governmental role in relation to

persecution by private actors for purposes of establishing refugee status.”).

A-B- II then clarified the application of that standard. See id. at 203–07. If

anything, it is Attorney General Garland’s decision to vacate that

clarification without replacing it with anything himself that has contributed

to confusion over the applicable standards in this field.

Third, A-B- III was wrong to suggest that the issues addressed in A-B- I

and A-B- II are best left to rulemaking. “[W]hether A-B- I had changed the

‘unable or unwilling’ standard, the proper application of that standard, and

the meaning of the statutory ‘one central reason’ test,” A-B- III, 28 I&N Dec.

at 309, are legal questions appropriately resolved as part of the Attorney

General’s authority to issue “controlling” decisions “with respect to all

questions of law” “relating to the immigration and naturalization of aliens,”

8 U.S.C. § 1103(a)(1). And as Attorney General Barr explained in a different

opinion that I am reinstituting as precedent today, what constitutes a

cognizable social group is “defined with sufficient particularity and is

socially distinct in [an applicant’s] society” is inherently a “fact-based

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inquiry.” Matter of L-E-A-, 27 I&N Dec. 581, 586 (A.G. 2019). That such

an inquiry is better resolved through case-by-case adjudication than

broad-based rulemaking is confirmed by the failure of the previous

administration to issue any rule addressing the meaning of “particular social

group” over almost three years—despite a (now rescinded) Executive Order

requiring that the Secretary of Homeland Security and Attorney General do

so “within 270 days.” Exec. Order No. 14010, § 4(c)(ii), 86 Fed. Reg. at

8271; see Exec. Order No. 14148, § 2(u), 90 Fed. Reg. 8237, 8238 (Jan. 20,

2025) (rescinding Executive Order 14010). Accordingly, I hereby instruct

that immigration judges and the Board shall adhere to A-B- I and A-B- II in

all pending or future cases, and disregard A-B- III. I remand this matter to

the Board for further proceedings consistent with this opinion, and with the

opinions in A-B- I and A-B- II.

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