Acting Attorney General Holds That Matter Of A-B-, 27 I&N Dec. 316 (A.G. 2018), Did Not Alter The Existing Standard For Determining Whether A Government Is “Unwilling Or Unable” To Prevent Persecution By Non-Governmental Actors. The “Complete Helplessness” Language Used in Matter Of A-B- Is Consistent With The Longstanding “Unwilling Or Unable” Standard, As The Two Are Interchangeable Formulations. The Concept Of “Persecution” Under INA §§ 101(a)(42)(A), 208(b)(1)(A), (b)(7)(B)(i) Is Premised On A Breach Of A Home Country’s Duty To Protect Its Citizens. In Cases Where An Asylum Applicant Is The Victim Of Violence Or Threats By Non-Governmental Actors, And The Applicant’s Home Government Has Made Efforts To Prevent Such Violence Or Threats, Failures In Particular Cases Or High Levels Of Crime Do Not Establish A Breach Of The Government’s Duty To Protect Its Citizenry. The Two-Pronged Test, Articulated By The Board Of Immigration Appeals In Matter Of L-E-A-, 27 I&N Dec. 40, 43-4 (BIA 2017), Is The Proper Approach For Determining Whether A Protected Ground Is “At Least One Central Reason” For An Asylum Applicant’s Persecution, INA §208(b)(1)(B)(i). Under This Test, The Protected Ground: 1) Must Be A But-For Cause Of The Wrongdoer’s Act; And 2) Must Play More Than A Minor Role – In Other Words, It Cannot Be Incidental Or Tangential To Another Reason For The Act.
On January 14, 2021, Acting Attorney General (AG) Jeffrey Rosen directed the Board of Immigration Appeals (BIA or Board) to refer the instant case to him for review of its decisions per 8 C.F.R. §1003.1(h)(1)(i), vacating the BIA’s June 30, 2020 decision and remanding the case to the Board for review by a three-member panel consistent with his order. AG Rosen explained that in earlier proceedings in this case, then AG Sessions had “clarified important issues concerning the interpretation of the phrase ‘particular social group’, and corrected an erroneous decision of the Board issued in 2014,” citing Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018); several courts of appeal, he stated, have upheld that interpretation as reasonable and within the AG’s discretion. Given this, Matter of A-B- sets forth the “appropriate framework” to govern Respondent’s claim.
AG Rosen further noted that, on remand from Sessions’ 2018 opinion and order, the Immigration Judge (IJ) – seeking to follow AG Sessions’ directive – had issued a new decision, which the BIA affirmed. Yet, Rosen stated, he was now referring and reviewing this matter “to provide additional guidance” on 3 recurring issues in asylum cases where the respondent claims persecution by non-governmental actors on account of the applicant’s membership in a particular social group (PSG): 1) Whether Sessions’ 2018 opinion altered the existing standard for determining whether a government is “unwilling or unable” to prevent persecution by non-governmental actors; 2) whether a government that makes efforts to stop the harm in third-party persecution cases is “unable or unwilling” to prevent persecution, and 3) whether a protected ground must be more than a but-for cause in order to be at least “one central reason” for persecuting an asylum applicant. The instant opinion, AG Rosen wrote, provides additional clarity on these 3 issues.
As background, Rosen explained that Sessions’ 2018 opinion had “reiterated” the legal standard for determining when persecution committed by non-state actors may be attributed to the government, a calculation that has long been formulated as requiring an applicant to establish “that the harm she suffered was ‘inflicted either by the government of a country or by persons or an organization that the government was unable to unwilling to control.’” In this interpretation of the “unable or willing” standard, Sessions relied on several Federal court decisions, including the Seventh Circuit’s Galina v. INS opinion, which held that a respondent must prove the government either condoned or demonstrated “a complete helplessness to protect the victims.” Unsurprisingly, in the wake of Sessions’ A-B- decision, applicants began to argue that the cases’ reliance on Galina’s “complete helplessness” language reflected “a change in interpretation” because that language was inconsistent with the “unable or unwilling” standard. Different circuit courts had different opinions but AG Rosen held here that the two tests are “interchangeable formulations.”
Even if A-B- changed the existing standard for persecution, concluded the opinion, that approach appropriately clarifies the requisite governmental role in relation to persecution by private actors for purposes of asylum law. Further, where the applicant’s home county “made efforts to prevent the claimed persecution,” the question becomes how effective a government’s protection from private violence must be to preclude a finding of “persecution”. A-B-’s formulation makes it clear, claimed AG Rosen, that the home government must have some role in or responsibility for the persecution; in a footnote, Rosen explained that some courts of appeal have recognized that a government that is unaware of persecution “generally cannot be said to have some role or responsibility for it.” As a result, those alleging persecution by private actors “may have difficulty establishing persecution on account of a protected ground when he or she has failed to apprise authorities of the persecution.”
The decision next found that a government’s inability to eradicate private crime “does not establish in any measure” that it affirmatively persecutes its own citizens; there must be “far more” for an adjudicator to reasonably conclude that a foreign country is “unable or unwilling” to prevent persecution.
In analyzing the effect of internal relocation within the home country on the “unable or unwilling” determination, Rosen noted that a reasonable possibility of relocation “may show that the failure to prevent private violence is localized and the foreign country is not itself ‘unable or unwilling’ to prevent persecution.” By moving to a place “where the attitudes of local authorities may be different,” a respondent may obtain “effective government protection.” The AG next reiterated that to establish asylum eligibility, one must show a nexus between past or feared future persecution and one of the 5 protected grounds, which requires proof that a persecutor knew or believed that the applicant had one of these protected characteristics “and that knowledge or belief motivated the persecutors’ harmful actions against the applicant.” Further, the REAL ID Act mandated that the protected characteristic must be at least one central reason for persecuting the respondent.
Next, citing to Matter of L-E-A-, 27 I&N Dec. 40, 43-4 (BIA 2017), Rosen held that to establish “nexus”, the protected ground: 1) must be a but-for cause of the wrongdoer’s act; and 2) must play more than a minor role – in other words, it cannot be incidental or tangential to another reason for the act. He found that in mixed motive cases, the Fourth Circuit (where this case originated) applied a “broader standard than the Board or its sister circuits.” As such, this test asks whether the protected characteristic – even if intertwined with another motive – is why the applicant, and not another person, was threatened or harmed. Thus, even if the characteristic “is only used opportunistically,” the Fourth Circuit posits that a mere causal connection is sufficient to establish nexus as a matter of law. This “recent interpretation” of nexus, concluded AG Rosen, “significantly departs from the standard articulated by the Board” and the circuit’s earlier precedents and “would essentially eliminate the second prong of the Board’s test;” under recent Fourth Circuit precedent it is enough for the respondent’s protected status to be a but-for cause of the harm, regardless of whether that status is only incidental or tangential to another reason.
The decision concluded that the referenced Fourth Circuit cases do not represent “the best reading of the statutory language.” Before the REAL ID Act, found Rosen, the INA already required one to establish that she satisfied the definition of a “refugee”, which in turn requires the persecution be “on account of” the applicant’s protected status; the REAL ID Act “layered on the additional requirement” that the respondent show that her protected status is “at least one central reason for persecuting the applicant.” AG Rosen thus held that “the best way to read this new requirement is that it requires more than but-for causation.” To read the statute as does the Fourth Circuit renders the REAL ID Act’s language “mere surplusage”, which explains why the BIA established a two-prong test: the applicant’s protected status must be both a but-for cause of her persecution and must “play more than a minor role that is neither incidental nor tangential to another reason for the harm or a means to a non-protected end.” Rosen lastly reasoned that his conclusion that his interpretation reflects the better understanding of the REAL ID Act’s “one central reason” requirement is because it is supported by the fact that more federal circuits’ precedents generally accord with the Board’s test. He therefore held that the two-prong test articulated by the L-E-A- is the “proper approach for determining whether an asylum applicant has satisfied the nexus requirement in mixed-motive cases.” The matter was remanded to the BIA to issue a new decision consistent with this opinion. Matter of A-B-, 28 I&N Dec. 199 (A.G. 2021).