17 Jun 2021

United States

U.S. Department of Justice Reverses Asylum Restrictions for Domestic Abuse and Gang Violence

On June 16, 2021, U.S. Attorney General (AG) Merrick Garland vacated several controversial rulings issued by his predecessors that made asylum nearly impossible for victims of domestic abuse or gang violence. In doing so, he restored the possibility of asylum protections for women fleeing unrestrained domestic violence and families fleeing gang persecution.

In 2018, former AG Jeff Sessions published a decision known as Matter of A-B-. In that case, the Board of Immigration Appeals (BIA) had originally found A-B- eligible for asylum in 2016 on the basis of her membership in the “particular social group” of El Salvadoran women unable to leave abusive domestic relationships involving shared children. Then-AG Sessions ordered the case referred to him in 2018 so that he could reverse the finding. He issued a decision that not only found A-B- ineligible for asylum but also vacated the precedent case, Matter of A-R-C-G-, upon which the BIA had based its previous finding. Sessions’ Matter of A-B- decision also explicitly stated that “domestic violence or gang violence perpetrated by nongovernmental actors will not qualify for asylum.” Later, in the final week of the previous administration, former Acting AG Jeffrey Rosen published a follow-up decision, Matter of A-B- II, which sought to justify the holdings in Matter of A-B- in light of federal court decisions criticizing or limiting the decision. Matter of A-B- II also created a new standard for asylum—that applicants prove they are “completely helpless” in the face of governmental inaction in their home country.

In 2019, former AG William Barr published Matter of L-E-A- (“L-E-A- II”), which overturned the BIA’s precedential 2017 decision also known as Matter of L-E-A-. In that case, L-E-A- sought asylum on the grounds that he was persecuted due to his membership in his immediate family, which had been targeted by gangs and drug cartels in Mexico. Although BIA did not find that L-E-A- was eligible for asylum, it acknowledged that he was a member of the particular social group of his father’s family. The case was subsequently referred to the AG in order to overturn the 2017 decision. Then-AG Barr’s 2019 ruling held that “a nuclear family will not, without more, constitute a ‘particular social group’ because most nuclear families are not inherently socially distinct.” 

In a June 16, 2021 Memorandum to the DOJ’s Office of Immigration Litigation (OIL), Associate AG Vanita Gupta announced that these three controversial decisions had been vacated by AG Garland. She stated that BIA and Immigration Judges should revert to the prior precedent regarding particular social groups, which includes Matter of A-R-C-G and the Matter of L-E-A- precedential decision from 2017. She also instructed OIL to review pending cases that could be affected by the policy reversal. Finally, the Memorandum also noted that DOJ and the Department of Homeland Security are engaged in a joint rulemaking to resolve complex questions surrounding who should be considered a member of a particular social group when deciding asylum claims. 

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