Asylum Law - Attorney General's Certification Power - Attorney General Holds That Salvadoran Woman Fleeing Domestic Violence Failed to Establish a Cognizable Particular Social Group

Harvard Law Review, December 2018 | Go to article overview

Asylum Law - Attorney General's Certification Power - Attorney General Holds That Salvadoran Woman Fleeing Domestic Violence Failed to Establish a Cognizable Particular Social Group


ASYLUM LAW--ATTORNEY GENERAL'S CERTIFICATION POWER--ATTORNEY GENERAL HOLDS THAT SALVADORAN WOMAN FLEEING DOMESTIC VIOLENCE FAILED TO ESTABLISH A COGNIZABLE PARTICULAR SOCIAL GROUP.--In re A-B-, 27 I. & N. Dec. 316 (Att'y Gen. 2018).

Asylum adjudications in American immigration courts (1) often have life-and-death consequences. (2) As mandated by the Refugee Act of 1980,3 applicants for asylum must demonstrate an inability to return to their home country "because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." (4) Recently, in In re A-B-, (5) the Attorney General certified a Board of Immigration Appeals (BIA) case for his review and held that a Salvadoran woman fleeing domestic violence was not entitled to asylum because she failed to establish membership in a cognizable particular social group. (6) In so doing, the Attorney General explicitly overturned In re A-R-C-G-, (7) a precedential BIA decision from 2014 that had opened a promising legal route for domestic violence-based asylum claims. (8) Compared with the Obama Administration, the Trump Administration's use of the certification power (9) in In re A-B- to overturn a prior administration's BIA precedent evinces a lack of prudence and concern for participatory processes, which is particularly troubling given the high-stakes consequences of asylum adjudications.

In July 2014, a Salvadoran mother of three entered the United States and was apprehended by U.S. Customs and Border Protection. (10) She alleged that she was eligible for asylum because she suffered persecution on account of her membership in a particular social group, which she defined as "'El Salvadoran women who are unable to leave their domestic relationships where they have children in common' with their partners." (11) To support her asylum claim, the claimant adduced factual evidence showing that her ex-husband "repeatedly abused her physically, emotionally, and sexually during and after their marriage." (12) In December 2015, the immigration judge denied the claimant's asylum application. (13) A year later in December 2016, the BIA reversed. (14) Relying on In re A-R-C-G-, which recognized Guatemalan women unable to leave their marriages as a cognizable particular social group, (15) the BIA found that the In re A-B- claimant had similarly satisfied the particular social group requirement. (16) The BIA then remanded the case with an order to grant asylum pending the claimant's completion of background checks. (17) In August 2017, the immigration judge issued an order certifying this case back to the BIA, indicating that the Fourth Circuit's intervening decision in Velasquez v. Sessions (18) rendered the BIA's December 2016 decision invalid. (19) No further action was taken until March 7, 2018, when Attorney General Jeff Sessions invoked his certification power (20) and directed the BIA to refer this case for his review. (21) Specifically, the Attorney General framed the question for decision as follows: "Whether, and under what circumstances, being a victim of private criminal activity constitutes a cognizable 'particular social group' for purposes of an application for asylum or withholding of removal." (22)

On June 11, 2018, the Attorney General issued a thirty-one-page decision that overruled In re A-R-C-G-, vacated the BIA's 2016 decision holding that the respondent met the statutory definition of a refugee, and remanded the respondent's case to the immigration judge for further proceedings. (23) First, the Attorney General disposed of the procedural and due process objections to his use of the certification power. Relying on an expansive conception of the Attorney General's power over immigration matters, he held that he had jurisdiction to certify this case even though the BIA had remanded the case to the immigration judge for further proceedings and no final decision had been issued yet by the BIA. …

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