Just this past week I was invited to speak to a group of reporters during their staff meeting so that they would be better informed on the asylum laws in the United States of America. Obviously this has been at the forefront of the news on immigration for months now due to the unprecedented number of immigrants arriving at the southern border of the U.S. with the intention of applying for asylum in the U.S. The group of reporters asked me what I thought were the things that were being reported incorrectly by the media. I explained to them that one of the things that is missing from all reports by the media is the fact that the vast majority of immigrants arriving at the border will not qualify for asylum under U.S. law. I asked them to visualize the fact that for at least the past three months there were on average about 120,000 immigrants apprehended at the border. Then I asked them to think about the fact that upwards of ninety-eight percent of these immigrants will have their asylum cases denied because their cases will not qualify under asylum law in the U.S. As if that was not enough, the Attorney General of the U.S. just recently reversed the decision of the Board of Immigration Appeals in a case known as Matter of L-E-A (27 I&N Dec. 581 (A.G. 2019)) that effectively forecloses another possibility of some of those immigrants for obtaining asylum in the U.S.
As I explained to the group of reporters, the vast majority of those immigrants will not qualify for asylum because under U.S. asylum law one must show that one has been persecuted on account of race, religion, nationality, political opinion, or membership in a particular social group. 8 U.S.C.A. § 1158(b)(1)(B)(i). As I told them, one can see that the vast majority of the Central American immigrants arriving at the border will not claim persecution based on race, religion, nationality, or political opinion. That leaves only one of the enumerated options in U.S. asylum law: membership in a particular social group. One can see that the first four of what are known as "protected grounds" are straight forward and will not require definition during the course of a case based on one of these grounds. In these cases, the focus is on showing how the immigrant fits into one of those protected grounds and then showing how that was the main reason the immigrant was persecuted in his or her home country. Of course there are other items that the immigrant must show such as the fact that the government is complicit or powerless to stop the persecution, internal relocation in the home country is not feasible, and sufficient acts that amount to past persecution and a presumption of future persecution if the immigrant returns to the home country.
In most of the cases emanating from immigrants from Central America, however, showing that they are being persecuted on account of membership in a particular social group (PSG) is the objective. How does one define and what are the characteristics of the definition of a PSG that would allow an immigrant to obtain asylum under U.S. law has been one of the most prolific source of litigation and opinions by the Board of Immigration Appeal under U.S. asylum law. In fact the myriad of opinions setting what appears to be arbitrary rules to define this particular social groups have left countless immigration practitioners scratching their collective heads in confusion.
The Board of Immigration Appeals (BIA) continued the evolving definition of how to define a PSG under immigration law is a case known as Matter of M-E-V-G in 2014. 26 I&N Dec. 227 (BIA 2014). In this opinion, the BIA seems to arbitrarily arrive at certain conditions that one must meet in order to define a viable PSG in an asylum case. As explained by the BIA, one must show that the PSG must be defined with particularity, and be "set apart, or distinct, from other persons within the society in question". Of course, each of these requirements themselves require their own definitions and those appear to have been set by the BIA in an equally arbitrary fashion.The PSG definition as it relates to membership in clans or similar groups (a family is apparently regarded as similar to a "clan"), has been the subject of repeated opinions by the BIA including Matter of Acosta, 19 I&N Dec. 211 (BIA 1985), Matter of S-E-G-, 24 I&N Dec. 579 (BIA 2008), and Matter of H-, 21 I&N Dec. 337 (BIA 1996). But also in 2014 in the case Matter of W-G-R-, 26 I&N Dec. 217 (BIA 2014), the BIA arrived at the conclusion that such a kinship group must be a "recognized component in the society in question". Attorney General Barr concludes that clans that meet this requirement are very different than someone's immediate family.
The BIA had conceded that in the case of Matter of L-E-A-, the immediate family constituted a PSG for asylum purposes. But the Attorney General contends that the BIA arrived at this conclusion based on simply a concession by DHS that the group is a PSG rather than a fact-based analysis conducted by the Immigration Judge. In this case, the immigrant claimed that he was persecuted by a criminal gang because he belongs to a PSG defined by the immigrant (or his attorney) as "immediate family of his father". He claimed that the criminal gang targeted this group because he owned a store targeted by a local drug cartel. The BIA, nevertheless, denied the asylum claim of the immigrant because it concluded that even conceding that he belongs to a PSG, he had failed to show membership in this PSG was the central reason he was being targeted by the criminal gang. It concluded that based on the record, the immigrant was being targeted because he had access to the store rather than the fact that he is part of the store owner's family. This assertion by the BIA highlights the difficulty of most asylum cases from Central American immigrants. Even if you clear the difficult hurdle of establishing a viable PSG, the next hurdle of showing that this was the reason of the persecution might doom the case. This hurdle just became even higher by the decision being reversed by Attorney General Barr in the case of Matter of L-E-A-.
With this reversal of this BIA decision, the Attorney General is in effect making what is a very difficult task already even more difficult. This decision also shows the complexity of PSG-based asylum cases. Given that the vast majority of claims of asylum from Central America rely on a PSG, rather than one of the other four protected grounds, this case shows why cases in which the immigrant is represented by an experienced attorney are far more likely to be approved than cases in which the immigrant has no legal representation.