On June 11, 2018, Former Attorney General Sessions Issued A Decision, Matter Of A-B-, In Which He Attempted To Limit The Ability Of Survivors Of Gang And Gender Violence To Obtain Asylum.
The decision overrules a prior decision, Matter of A-R-C-G-, which held that in some circumstances, domestic violence survivors could receive asylum protection. Additionally, A-B- attacks asylum claims involving harm by non-state actors. While the decision gives the impression that these claims are foreclosed, nearly all the damaging language is dicta, and the Refugee Convention, the Immigration and Nationality Act (INA), and precedential case law at the Courts of Appeals and Board of Immigration Appeals (BIA) continue to support much of what the BIA previously held in A-R-C-G-. In short, the holding in A-B- is narrow and much of the damage done is a matter of optics, not law. Nonetheless, attorneys must be prepared for adjudicators to view A-B- broadly and present their arguments accordingly.
In July 2019, the Attorney General issued another decision, again attempting to limit the ability of asylum seekers to obtain protection. In this decision, Matter of L-E-A-, 27 I&N Dec. 581 (A.G. 2019), the restrictions are intended for individuals who had been persecuted or fear persecution in connection with their family membership. Like A-B-, this decision has a narrow holding and does not change the law, but attorneys must still be prepared to respond.
NIJC Is At The Forefront Of The Litigation And Advocacy Efforts To Push Back Against The Administration's Attacks On Asylum Seekers And Asylum Protections.
Since the former A.G.'s decision in June 2018, NIJC and our pro bono partners have successfully represented more than 30 men, women, and children in asylum claims related to gender and gang violence and family membership, and are litigating issues related to A-B- and L-E-A- across the country. Below, attorneys representing asylum seekers with claims that are targeted by the Attorney General’s decisions can find additional information and links to materials that may be useful in the preparation of their cases.
Current Timeline of Events
- 2014: the BIA issues Matter of A-R-C-G-, a precedential decision finding that the group of "married women in Guatemala who are unable to leave their relationship" is a particular social group because it is socially distinct, particularly defined, and based on immutable characteristics.
- June 2018: the former Attorney General issues Matter of A-B-, which overrules A-R-C-G- on procedural grounds because the former AG found the decision was a product of DHS concessions and not the application of law by the BIA.
- December 2018: the D.C. District Court issues Grace v. Whitaker, a decision primarily regarding the application of the A-B- decision and the related USCIS Policy Memorandum in the credible fear process, but which also includes useful language for asylum claims. (Please see NIJC's updated Matter of A-B- practice advisory for more information.) USCIS subsequently issues guidance related to the implementation of the decision
- January 2019: the Department of Justice files an appeal in Grace. The Executive Office for Immigration Review issues guidance regarding Grace, asserting that it only applies in the credible fear context and has no affect on removal proceedings.
- July 2019: the Attorney General issues Matter of L-E-A-, 27 I&N Dec. 581 (A.G. 2019), which overrules a portion of the Board of Immigration Appeal’s decision in Matter of L-E-A-, 27 I&N Dec. 40 (BIA 2017) on the narrow question of whether the previous L-E-A decision conducted a proper analysis of the particular social group posited in that case.
- PRACTICE ADVISORY: Applying for Asylum After Matter of A-B- (updated January 2019)
- Supplement to the Practice Advisory: Template for Responding to Matter of L-E-A- at the Asylum Office and in Immigration Court (August 2019)
- Establishing Nexus in Asylum Cases After Matter of A-B- (Advanced Training): November 30, 2018
- Representing Asylum Seekers After Matter of A-B- (Advanced Training): July 12, 2018