On June 16, 2021, Attorney General Garland issued decisions vacating Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018) (A-B- I), Matter of A-B-, 28 I&N Dec. 199 (A.G. 2021) (A-B- II), and Matter of L-E-A-, 27 I&N Dec. 581 (A.G. 2019) (L-E-A- II).  These decisions by AG Garland recognize the errors of the A-B- and L-E-A- line of cases and should strengthen the ability of adjudicators to grant asylum to individuals fleeing gender and family-based persecution in particular, and more broadly, to individual fleeing harm by non-state actors.  In these decisions, AG Garland specifically asserts that adjudicators should now follow pre-L-E-A- II and pre-A-B- precedent, including Matter of A-R-C-G-, the precedential decision that provides a framework for determining the asylum eligibility of certain survivors of gender violence.

The Seventh Circuit has long rejected much of the case law underlying the decisions in A-B- and L-E-A-.  As a result, while AG Garland’s decisions should make it simpler for adjudicators at the Chicago Asylum Office and Chicago Immigration Court to grant asylum to individuals fleeing gender and family-based persecution, they do not dramatically change the way attorneys in the Seventh Circuit should be presenting gender and family-based asylum claims before these agencies. 

NIJC’s particular social group practice advisory, linked below, provides an overview of the current state of particular social group-based asylum claims after AG Garland’s decision, especially in the Seventh Circuit.  A quick reference guide outlining the BIA and AG case law regarding gender violence and family-based particular social group claims is available below. NIJC encourages pro bono attorneys to review these materials and utilize the best practices and boilerplate language as they prepare their own cases.

NIJC pro bono attorneys representing clients with these claims who have upcoming merits hearings or have cases pending at the Board of Immigration Appeals should reach out to their NIJC point-of-contact for further guidance.

NIJC has been at the forefront of the litigation and advocacy efforts to push back against attacks on asylum seekers and asylum protections. The prior administration took numerous steps to limit the ability of asylum seekers to obtain protection in the United States, but frequently, asylum seekers from Central America bore the brunt of the prior administration’s attacks.  Notwithstanding this anti-asylum environment, NIJC, our pro bono network, and the Central American asylum seekers with whom we work were able to maintain a greater than 90% success rate for Central American asylum seekers during the past four years.  Although significant work remains, we remain hopeful that under the current administration, the number of individuals obtaining protection will increase.

Timeline of Matter of A-B- and Matter of L-E-A-

• 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 effect 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 Appeals' 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.
   
• July 2020: The U.S. Court of Appeals for the District of Columbia issued a decision in Grace v. Barr, affirming the District Court's decision in part and vacating in part.  As with Grace v. Whitaker, the decision includes useful language for asylum claims even though the case is primarily about credible fear interviews.  (Please see NIJC's updated Matter of A-B- practice advisory for more information.)
   
• January 2021: The Acting Attorney General issued a second Matter of A-B- decision, Matter of A-B-, 28 I&N Dec. 199 (A.G. 2021) (A-B- II), purporting to provide “additional guidance” regarding three issues that arise in asylum case involving persecution by non-state actors.  Although NIJC believes this decision does not generally impact case law in the Seventh Circuit, it seems likely to create additional confusion.  
   
• June 2021: Attorney General Garland vacates both Matter of A-B- decisions and Matter of L-E-A- II.