In perhaps the most important asylum-related decision in the last 5 to 10 years, the BIA held today that a family unit can amount to a “particular social group” and that if their membership in that nuclear family is at least one central reason they have been or will be persecuted, they will be eligible for asylum in the United States.
The published decision is Matter of L-E-A-, 27 I&N Dec. 40 (BIA 2017). And it resolves a growing division among the circuit courts, with the Fourth Circuit now repeatedly concluding that family membership could be enough to justify asylum and the Eighth Circuit saying repeatedly that it might not.
Effect on Prior BIA Decisions Discussing Family as a Particular Social Group
In the very first case attempting to define the phrase “particular social group,” Matter of Acosta, the BIA concluded that a group might be one defined by “kinship ties.” However, since then the BIA has not explicitly recognized families as social groups in any formal way.
In its decision in Matter of H- in 1996 the BIA recognized that Somali clans may be “particular social groups” and observed that in Somali society, clan membership is a “highly recognizable” characteristic that is “inextricably linked to family ties.” But a “clan” is much larger than a family, and the Board didn’t come all the way out and say a single nuclear family might be a particular social group.
Then in 2006 the BIA acknowledged in Matter of C-A- that “[s]ocial groups based on innate characteristics such as sex or family relationship are generally easily recognizable and understood by others to constitute social groups.” But this was basically just a repeat of what had been said in Acosta, and
The BIA almost got there in 2008 but stopped short. In its decision in Matter of S-E-G- the BIA had addressed a group of children fleeing gang violence and had avoided the question of whether the children’s own family could be the particular social group. In a footnote at Page 585 of that decision the BIA said:
We note that the respondents testified that gang members attempted to recruit all the young males in their neighborhood. They do not claim that the MS-13 targeted only their family. Therefore, we need not address the question whether “family” alone is a social group under the circumstances of this case.
Then in 2014 the BIA re-stated the requirements for social groups in its decision in Matter of M-E-V-G-, recognizing that there are no cookie-cutter particular social groups and that each group must be analyzed by the Immigration Judge in each separate case to determine if the group itself is particular and is socially distinct.
Finally, the BIA recognized in Matter of A-R-C-G- the group of “married women in Guatemala who are unable to leave their relationship” as a particular social group. Although the decision didn’t specifically say family units could be social groups, it recognized that women who can’t leave the family of their abuser were socially distinct in Guatemala and that such a group was cognizable under the law.
What Does Matter of L-E-A- Require
The decision is still new, so I’m sure many people much smarter than me will write their observations of what the Board has done here. But here is my impression of what is now required to prove a person is eligible for asylum as a member of their own family as a particular social group.
The Board opens with its ultimate conclusion: “We agree with the parties that the members of an immediate family may constitute a particular social group.”
The Board then repeats its holding from Matter of M-E-V-G- that the determination of whether a social group is cognizable “is a fact-based inquiry made on a case-by-case basis, depending on whether the group is immutable and is recognized as particular and socially distinct in the relevant society.”
Third, the Board declined to define the outer boundaries of what kind of family ties would be required, because they said this was a clear case: “the respondent, a son residing in his father’s home, as being a member of the particular social group comprised of his father’s immediate family.”
Fourth, the BIA held that just being in a group isn’t enough. The applicant still has to prove they would be “targeted because of the family relationship.” And the membership in the family must be “at least one central reason” for the persecution – it can’t play a “minor role” in the persecutor’s motive.
The Board offered an example that would meet its new standard: “It is clear that nexus would be established based on family membership where a persecutor is seeking to harm the family members because of an animus against the family itself” and gave the example of the Bolshevik assassination of Czar Nicholas II and his wife and children after he abdicated the throne in 1917.
The Board gave a second example that would meet its standard: “where the family status is connected to another protected ground, particularly where there is a political motive, aside from dynastic succession, that is intertwined with or underlies the dispute.” Under that example, the child of a politician might be persecuted not because of the child’s own political opinion but because she simply belongs to that family.
Finally, the Board gave examples where family membership would not be enough – such as where the persecutor targeted not only the applicant’s family but everyone else, not because of animus toward the family as a group. The BIA referenced the Eighth Circuit’s decision last year in Cambara-Cambara v. Lynch, 837 F.3d 822 (8th Cir. 2016), where the court had concluded there was “no proof that the criminal gangs targeted members of the family because of family relationships, as opposed to the fact that, as prosperous businessmen, they were obvious targets for extortionate demands.”
The task in these cases now is going to be the same as it has always been: if we can prove that the family membership was the actual reason for the persecution, under Matter of L-E-A- the person should be found eligible. The DHS will likely seek to prove the persecutor had a different motive (e.g. threats related to extortion or the paying of a “war tax” will be interpreted as a solely-pecuniary motive).
However, the BIA took an absolutely critical step today in publishing this decision and giving Immigration Judges solid, concrete guidance on how to make these determinations.
Unfortunately, although the BIA got the point of law correct, they reached an absurd conclusion denying asylum to the respondent in Matter of L-E-A-. The Board concluded that because all the cartel wanted to do was sell its drugs in the respondent’s father’s store, that the cartel must have targeted the respondent not because he was his father’s son but because he had access to the store. That’s silly. The store was owned and run by his father. They just happened to target the one store employee who was the child of the owner and persecuted him after the father said “no” to selling drugs at the store. And the Board says since the cartel later extorted his father for money, their entire motive must have been pecuniary. Silly silly silly.
For anyone litigating family-based asylum claims, it will be critical to focus testimony and evidence on motive. If the testimony and evidence is only that a persecutor targeted the applicant for payments, solely because they wanted more money, you will lose, no matter whether they did so to every member of the applicant’s family. This is where effectively lawyering and development of the record (and perhaps the use of expert witnesses) will become key.