Attorney General Issues Two Decisions Vacating Trump-Era Cases, Directing Immigration Judges And The BIA To No Longer Follow The Holdings Of Matter Of L-E-A-, 27 I&N Dec. 581 (A.G. 2019) (L-E-A-II), Matter Of A-B-, 27 I&N Dec.316 (A.G. 2018)(A-B-I), And Matter Of A-B-, 28 I&N. Dec. 199 (A.G. 2021)(A.G.II). Instead, As To LEAII, The Immigration System Is To Return To The Preexisting State Of Affairs Pending Completion Of Ongoing Rulemaking And The Issuance Of A Final Rule Addressing The Definition Of A “Particular Social Group”. Regarding A-B-I and II, Pending Forthcoming Rulemaking, Judges And The BIA Must Follow Pre-A-B-I Precedent, Including Matter Of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014).
On June 16, 2021, Attorney General (AG) Merrick Garland vacated previous AG decisions issued during the Trump Administration, using 8 C.F.R. §1003.1(h)(1)(i) to direct the Board of Immigration Appeals (BIA or Board) to refer to him for his review Matter Of L-E-A-, 27 I&N Dec. 581 (A.G. 2019) (L-E-A-II); Matter Of A-B-, 27 I&N Dec.316 (A.G. 2018)(A-B-I); and, Matter of A-B-, 28 I&N Dec. 199 (A.G. 2021)(A-B-II).
Regarding Matter of L-E-A-, in 2019, then-AG Barr had ruled on whether a family may constitute a “particular social group” (PSG), holding in L-E-A-II that “in the ordinary case, a nuclear family will not, without more,” qualify, thus effectively overruling L-E-A-I and “all other Board precedents inconsistent with its analysis.”
President Biden recently issued an executive order directing the AG and the DHS Secretary to promulgate joint regulations “addressing the circumstances in which a person should be considered a member of a “particular social group”; AG Garland noted that past AGs had vacated prior AG and BIA decisions in light of pending or future rulemaking. Additionally, even L-E-A-II admitted its analysis is inconsistent with decisions from several federal courts of appeal that have recognized families as PSGs.
As such, the opinion vacated L-E-A-II in its entirety so as to “return the immigration system to the preexisting state of affairs pending completion of the ongoing rulemaking process and the issuance of a final rule addressing the definition of ‘particular social group’.” Immigration Judges (IJs) and the Board were directed to no longer follow L-E-A-II when deciding current and pending cases.
In the instant matter, AG Garland declined to address the BIA’s conclusion that even if Respondent’s father’s immediate family qualified as a PSG, he failed to establish a nexus between his membership in that group and the persecution he alleged and feared, and refused to disturb the BIA’s holding that the IJ had failed to make sufficient factual findings to assess Respondent’s claim under the CAT. The case was therefore remanded to the IJ.
As to A-B-I and II, in 2018, then-AG Sessions had reviewed an unpublished Board decision regarding the asylum eligibility of one claiming persecution based on her membership in the PSG of “El Salvadorean women who are unable to leave their domestic relationships where they have children in common’ with their partners.” The BIA had found this social group to be substantially similar to the almost identical group of unmarried Guatemalan women recognized as a PSG in Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014). AG Sessions thus overruled A-R-C-G-, vacated A-B-, and remanded the case to the IJ; this past year, then-Acting AG Rosen reviewed the subsequent Board decision “to provide additional guidance” on the recurring asylum issue of applicants claiming prosecution by “non-governmental actors” on account of the applicant’s membership in a PSG.
As with the L-B-A- cases, AG Garland noted that the President had recently ordered the promulgation of regulations addressing when one is considered a PSG member. Again, past AGs have vacated BIA and AG decisions pending pertinent rulemaking. The decision thus vacated A-B-I and II “to ensure that the Departments have appropriate flexibility in the forthcoming rulemaking.” The AG also noted that A-B-I’s “broad statement that ‘victims of private criminal activity’ will not qualify for asylum except perhaps in exceptional circumstances’” could be read to “create a strong presumption against asylum claims based on private conduct.” This, he stated, may create confusion and discourage careful case-by-case adjudication of asylum claims. Additionally, A-B-I has caused confusion in the federal courts of appeal over whether that opinion changed the “unable or unwilling” standard the Board had long applied in such cases.
Finally, the opinion found that A-B-II had attempted to clarify “complex and important questions” without additional briefing or public input; that approach had not resulted in a “thorough consideration of the issues involved.” AG Garland concluded that the issues should be left to the forthcoming rulemaking. He thus vacated A-B-I and A-B-II, directing IJs and the BIA not to follow these decisions when adjudicating current or future cases. Instead, pending new regulations, pre-A-B-I precedent, including Matter of A-R-C-G- should be followed.
