The Biden Administration’s Incrementalism is Failing Asylees: The Domestic Violence Decision That Does Not Go Far Enough

President Biden has failed to fulfill his commitment to creating a more humane asylum system.  The administration has continued some of the most egregious Trump-era policies[1] and even where they have reversed Trump-era policies, they have done so only incrementally.  This has prevented any meaningful change to the current state of mass human rights abuses.  Although there has been some media coverage on Biden’s alarming continuations of Trump-era policies[2], there has been considerably less attention given to the insufficiency of his incrementalism where Trump-era policies have actually been reversed.  Understanding the shortcomings even of the seemingly positive actions is necessary to comprehend the full scope of his failure to restore even baseline levels of respect for human rights in the asylum system. 

This incrementalism is best displayed in Attorney General Garland’s recent overruling of Matter of A-B-[3], a highly criticized 2018 decision that severely limited the viability of gendered violence asylum claims.[4]  Although this decision was rightfully celebrated by immigration advocates, a closer look at the troubling body of related caselaw that Garland left intact shows that this action did not go far enough to protect domestic violence survivors.  Matter of A-B-gravely misstated the law in claiming that private-actor violence could only constitute persecution in exceptional circumstances.[5]  Although the decision to overturn this case was necessary, Matter of A-B- was only the most egregious case in a long line of cases that inverted domestic and international refugee law.  Because Garland declined to address other problematic cases, the state of the law for asylees fleeing gendered violence remains ambiguous.

To qualify for asylum, applicants must meet the statutory definition of a refugee.[6]  They must prove membership to an enumerated protected ground and that their persecution was perpetrated “on account of” that protected ground.[7]  Women are disproportionately victims of persecution that are particular to their gender including rape, forced marriage, femicide, and sex trafficking.[8]  Accordingly, most gendered violence claims fall under the protected ground of a particular social group (“PSG”) because they are generally perpetrated on account of gender.

Notwithstanding the legal viability of these claims, many are denied based on a conservative push to address ‘floodgate’ concerns and prevent too many victims from gaining legal status.[9]  This has been effectuated through two 2008 decisions and their progeny that distort early precedent and limit the definition of PSG.[10]  PSG was first defined in Matter of Acosta as a group whose membership is based on a shared immutable characteristic—something the group cannot (or should not be forced to) change.[11]  In Acosta, the BIA specifically lists gender as an example of an immutable characteristic.[12] 

Until 2008, the Acosta test was the sole requirement for PSG.  However, in Matter of S-E-G- and Matter of E-A-G-, the BIA held that in addition to a common immutable characteristic, a PSG must also be socially distinct and particular.[13]  To be socially distinct, the PSG must be recognized as a group by the society in question.[14]  To be particular, the PSG must not be too amorphous and must be a discrete class of persons.[15]  Later cases affirmed this new restrictive PSG definition despite its inconsistency with Acosta.[16]  These 2008 cases and their progeny also prohibited circularity, meaning the PSG must not be defined by its persecution.[17] 

Even before A-B-, this restrictive definition of PSG made it difficult for gender-based claims to succeed.  Common PSGs such as “Guatemalan women” often failed on the particularity requirement because they are too broad.  Conversely, when PSGs were based on narrower segments of society, they often failed on the socially distinct requirement.  For example, in Osorto-Romero v. Sessions, the court held that “Honduran women who are viewed as gang property by virtue of their gender” was not socially distinct.[18]  Although evidence showed this PSG was disproportionately targeted by gangs, this did not necessarily mean that it was viewed as socially distinct by society.[19]

This restrictive PSG definition was left intact by the Attorney General’s overruling of Matter of A-B-.  The decision instructs adjudicators to rely on precedent predating A-B-[20] including Matter of A-R-C-G-, which held that “married women in Guatemala who are unable to leave their relationship” was a cognizable PSG.[21]   Despite this case’s positive outcome, it lacks precedential value because DHS had already conceded that the PSG was cognizable in this case.[22]  As a result, it lacked any meaningful PSG analysis. Although A-R-C-G does not overrule the 2008 cases, this PSG seems to violate the restrictive definition.  Nevertheless, the BIA declines to explain how this PSG is socially distinct or particular and declines to explain how it is not circular despite being defined by its persecution—the inability to leave.  Without explaining whether these definitions or requirements changed, the BIA simply held that this PSG was cognizable.[23]  The BIA emphasized that other cases would require a case-by-case determination specific to the facts.[24] 

Accordingly, even before A-B-, adjudicators routinely rejected domestic violence claims where they differed from A-R-C-G- even in insignificant or minor ways.[25]  For example, some adjudicators refused to extend A-R-C-G to domestic violence claims where applicants were not formally married or in same-sex relationships.[26]  Therefore, Garland’s instructions to rely on A-R-C-G invite the possibility for valid cases to similarly be denied.  Instead of reinstating such a flimsy precedent, Garland should have also overruled the 2008 cases and their progeny.  Further, because the 2008 cases never overruled Acosta, Garland should have clarified that gender alone is a cognizable PSG. 

[1] See e.g., Alex Thompson & Alexander Ward, Top State Adviser Leaves Post, Rips Biden’s Use of Trump-era Title 42, Politico (October 4, 2021), https://www.politico.com/news/2021/10/04/top-state-adviser-leaves-post-title-42-515029.

[2] See e.g., Michael D. Shear, Natalie Kitroeff, Zolan Kanno-Youngs & Eileen Sullivan, Biden Pushes Deterrent Border Policy After Promising ‘Humane’ Approach, NY Times (Sept. 22, 2021), https://www.nytimes.com/2021/09/22/us/politics/biden-immigration-border-haitians.html.

[3] Matter of A-B –, 28 I&N Dec. 307, 309 (A.G. 2021) (overruling Matter of A-B –, 27 I&N Dec. 316 (A.G. 2018)).

[4] Matter of A-B –, 27 I&N Dec. 316 (A.G. 2018).

[5] Id. at 321.

[6] 8 U.S.C. § 1101(a)(42) (2021).

[7] Id.

[8] Practice Advisory: Applying for Asylum After Matter of A-B- I  and A-B- II, Nat’l Immigrant Just. Cntr., https://immigrantjustice.org/for-attorneys/legal-resources/file/practice-advisory-applying-asylum-after-matter-b (last updated Feb 2021).

[9] Id.

[10] Matter of S-E-G-, 24 I&N Dec. 579 (BIA 2008); Matter of E-A-G-, 24 I&N Dec. 591 (BIA 2008); Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014); Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014).

[11] Matter of Acosta, 19 I&N Dec. 211, 222 (BIA 1985).

[12] Id. at 233.

[13] Matter of S-E-G-, 24 I&N Dec. 579 (BIA 2008); Matter of E-A-G-, 24 I&N Dec. 591 (BIA 2008). 

[14] Singh v. Garland, No. 18-3131 NAC, 2021 U.S. App. LEXIS 13464, at *3 (2d Cir. May 6, 2021) (citing Paloka v. Holder, 762 F.3d 191, 196 (2d Cir. 2014).

[15] S-E-G-, 25 I&N Dec. at 584.

[16] Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014).

[17] Id. at 243.

[18] Osorto-Romero v. Sessions, 732 F. App’x 62, 64 (2d Cir. 2018).

[19] Id.

[20] Matter of A-B-, 28 I&N Dec. 307, 307 (A.G. 2021).

[21] Matter of A-R-C-G-, 26 I. & N. Dec. 388, 389 (BIA 2014).

[22] Id.

[23] Id.

[24] Id.

[25] Nat’l Immigrant Just. Cntr., supra note 7.

[26] Id.