Immigrants Fleeing Private Violence Face New Hurdle in Asylum Process

By Maximilian Auerbach, CLS ’20

In a recent immigration decision, Matter of A-B-,27 I&N Dec. 316 (A.G. 2018), Attorney General Jeff Sessions significantly limited the ability of victims of private violence to gain asylum in the United States. This decision will pose particular difficulty for those seeking asylum based on domestic or gang violence.

Under the Immigration and Nationality Act (INA), the Attorney General may grant asylum to aliens who have (1) endured persecution or hold a “well-founded fear of future persecution,” (2) “on account of ‘race, religion, nationality, membership in a particular social group, or political opinion.”[1]Proving membership in a particular social group involves meeting three further requirements: (1) that the alleged group contains members “shar[ing] a common immutable characteristic,” (2) that the alleged group is “defined with particularity,” and (3) that the alleged group is “socially distinct within the society in question.”[2]. An asylum seeker must then show that such membership represented the “central reason for their persecution.”[3]

Matter of A-R-C-G-,26 I&N Dec. 338 (BIA 2014) allowed domestic violence victims to premise asylum requests on their membership in a particular social group. By recognizing that “married women in Guatemala who are unable to leave their relationship” constitutes a particular social group,[4], A-R-C-G-set the stage for women in similar circumstances to seek asylum on analogous bases. Indeed, in Matter of A-B- (BIA Dec. 8, 2016),the Board of Immigration initially granted the respondent asylum based on her status as an “El Salvadoran wom[an]… unable to leave [her] domestic relationship where [she has] children in common.”[5]

The Attorney General rejected this decision and, in so doing, overturned A-R-C-G-.[6]Multiple doubts about the legitimacy of the social group identified in A-R-C-G- motivated his decision. First, Sessions argued that, since domestic violence produces the inability to leave partially defining that social group, the group’s only “narrowing characteristic” is the persecution itself.[7]Sessions, citing previous immigration and courts of appeals precedent, found that one must identify a particular social group existing independently of persecution, such that the A-R-C-G- group would not qualify.[8]Second, Sessions claimed that this group lacks the requisite social recognition and immutability to qualify for asylum.[9]Sessions contrasted Guatemalan women with “a particular tribe or clan:” while the latter group possesses a “highly recognizable, immutable characteristic,” there is little evidence, according to Sessions, that the former group shares such characteristics in Guatemala.[10]Lastly, Sessions questioned whether membership in this group would ever serve as the “central reason” for one’s persecution.[11]These concerns with the particular group led Sessions to the broad conclusion that victims of domestic or gang violence would rarely qualify for asylum.[12]

Going forward, this decision will significantly limit the ability of such victims to pursue asylum. This fact results from the significant leeway possessed by the Attorney General to construe the INA. Since it is up to the Attorney General to construe ambiguous portions of the INA, and courts of appeals have unanimously found the language “particular social group” ambiguous,[13]A-B-will control until a subsequent Attorney General changes Sessions’ interpretation. Furthermore, given the well-established ambiguity of the statute, courts will defer to this agency definition.[14]  As such, those fleeing private violence in their home countries will need to develop alternate paths to asylum.


[1]Matter of A-B-, 27 I&N Dec. at 318 (citing 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(a), (b)(i)).



[4]Matter of A-R-C-G-, 26 I&N Dec. 338, 389 (BIA 2014).


[6]SeeA-B-, 27 I&N Dec. at 316.

[7]Id. at 335.


[9]Id. at 336.


[11]See A-B-, 27 I&N Dec. at 337

[12]SeeA-B-, 27 I&N Dec. at 320.

[13]See id. at 325-26, A-B-

[14]SeeNat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005); Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).