Last week, Attorney General Merrick Garland issued two decisions reversing Trump-era cases that limited asylum eligibility. Here, we'll discuss those cases and how the AG's decision will affect asylum seekers.

The first case, Matter of A-B-, 28 I&N 307 (AG 2021), involves asylum for victims of domestic violence. There is a long history here, but the basic story is that victims of domestic violence have traditionally had a hard time qualifying for asylum. Through a series of cases between 2004 and 2014, the government created a (convoluted) path for victims of DV to receive asylum by classifying them as a "particular social group" (to qualify for asylum, an applicant must show that the feared harm is "on account of" race, religion, nationality, political opinion or particular social group). While this was an important step for DV asylum seekers, presenting a successful case was still very difficult, especially for people without a lawyer (probably the majority of applicants). The Trump Administration re-visited DV asylum starting in 2018, and essentially erased the gains made during the prior decade and a half. Now, the pendulum has swung once again, and the Biden Administration has reversed the Trump-era reversal. In other words, we are back to the not-so-great place where we were in 2017. This means that victims of domestic violence can once again obtain asylum, assuming they can satisfy the narrow definition created prior to President Trump.

The 2018 iteration of Matter of A-B- also addressed asylum eligibility for people who fear harm from non-state actors--

An applicant seeking to establish persecution based on violent conduct of a private actor must show more than the government’s difficulty controlling private behavior. The applicant must show that the government condoned the private actions or demonstrated an inability to protect the victims.

In other words, the 2018 version of A-B- attempted to make it more difficult to obtain asylum for all people fleeing harm from non-state actors; not just people fleeing domestic violence. There was debate among practitioners (and federal courts) about whether A-B- actually changed anything in this regard. While A-B- created more work for us, since we had to address it in our legal briefs, I don't know that we actually lost any cases as a result of the more stringent standard. But I imagine that this was not universally true, and I expect that some applicants were denied asylum under Matter of A-B-.

In any event, A-B- has now bit the dust, and good riddance to it. The Attorney General has indicated that the Department of Justice and the Department of Homeland Security will issue regulations addressing who qualifies for asylum based on a "particular social group," and so we will see how the Biden Administration tackles this problem, which has bedeviled rule makers for at least two or three decades.

The second case from last week is Matter of L-E-A-, 28 I&N Dec. 304 (AG 2021). This case vacates a prior version of L-E-A- from 2019, which again addressed the issue of "particular social group" ("PSG") as a basis for asylum. Prior to the Trump Administration, "family" had become a well-recognized PSG, and we lawyers often relied upon that social group to obtain asylum for our clients. For example, in some Central American cases, gang members targeted not only their enemy, but also their enemy's family members. Lawyers (including your humble blogger) have successfully argued that family members of the gang's enemy constitute a PSG, and were thus eligible for asylum. Indeed, in one oft-cited case, the U.S. Court of Appeals for the Fourth Circuit referred to family as the "prototypical" PSG.

The 2019 version of L-E-A- stated that "family" could only qualify as a PSG if that family was "socially distinct in the eyes of its society." In other words, we had to show that the family was not an ordinary family, but rather was somehow well-known in the community. This requirement largely ignored the legal framework established for PSGs, not to mention decades of circuit court precedent, and drew significant push-back from advocates and courts. Nevertheless, I recently lost a gang case where the Immigration Judge found that our PSG, "family members of murdered father/husband" was not a cognizable social group. In our case, the judge cited numerous bases to deny asylum (this particular IJ has a 93% asylum denial rate), and so I think we will not pursue reopening. However, in cases where asylum was denied exclusively (or mostly) based on the failure to present a cognizable family-based PSG, a motion to reopen might be worth a try (for cases in federal court, DOJ has directed its attorneys to affirmatively determine whether a remand is appropriate).

As in A-B-, the Attorney General has indicated that we can expect new regulations related to PSGs. Given the current direction of the Biden Administration, I am optimistic that these new regulations will create an easier path for asylum seekers. "Easier," but not "easy." Domestic violence and family-based cases do not fit neatly into the legal framework of asylum. What we really need is for Congress to re-visit the asylum law and make a decision about who should qualify for protection. That's unlikely to happen any time soon, and for now, we must be content that two awful Trump-era cases have been vacated, and that we have returned to the somewhat less awful situation of the Obama era. We can also look forward to new regulations, which will hopefully improve the prospects for many asylum seekers.

Originally posted on the Asylumist: