On June 16, 2021, Attorney General Merrick Garland issued two precedential decisions, vacating attorney general decisions issued during the Trump administration that had severely restricted asylum eligibility especially for those fleeing violence in the Northern Triangle of Central America. The two new decisions, Matter of A-B- III, 28 I&N Dec. 307 (AG 2021) and Matter of L-E-A- III, 28 I&N Dec. 304 (AG 2021), both cite to President Biden’s Executive Order requiring the Department of Homeland Security, or DHS, and Department of Justice, or DOJ, to engage in rulemaking on the definition of particular social group.

Attorneys general under the Trump administration wielded their case adjudication power to issue broad decisions rewriting much of the substance and procedure of immigration law, especially asylum law. In Matter of A-B- I, 27 I&N Dec. 316 (AG 2018), the attorney general overruled prior precedent which had found that “married women in Guatemala who are unable to leave their relationship” was a cognizable particular social group. Matter of A-B- I further included sweeping statements such as “Generally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum,” which have led adjudicators to broadly deny such claims especially for asylum seekers from the Northern Triangle of Central America. In Matter of A-B- II, 28 I&N Dec. 199 (AG 2021), days before the end of the Trump administration, the attorney general issued a second decision elevating the nexus standard by stating that the protected characteristic must be more than a “but for” cause for the harm.

The Trump administration also targeted asylum based on family-group membership in Matter of L-E-A- II, 27 I&N Dec. 581 (AG 2019). L-E-A- II departed from longstanding precedent, finding that in “the ordinary case, a nuclear family will not, without more, constitute a ‘particular social group’ because most nuclear families are not inherently socially distinct.” Matter of L-E-A- II left undisturbed the nexus analysis in Matter of L-E-A- I, 27 I&N Dec. 40 (BIA 2017), which found that Mr. L-E-A-’s relationship to his father was not one central reason for the harm he suffered, because the actual motiviation of the gang that threatened him was economic—to use the family store to sell drugs.

With the vacatur of these damaging attorney general precedents, Attorney General Garland has directed adjudicators to follow the law that was in effect prior to A-B- I, A-B- II, and L-E-A- II. As a result of this significant change in the law, representatives should consider this non-exhaustive list of practical tips:

• Attorney General Garland’s decisions direct adjudicator to follow Matter of A-R-C-G, 26 I&N Dec. 388 (BIA 2014) and Matter of L-E-A- I. Practitioners should (re)familiarize themselves with these decisions.
• Even if a proposed particular social group is similar to the one accepted by the BIA in A-R-C-G or L-E-A- I, practitioners should always put in evidence and make a legal argument that each proposed particular social group meets the current test for cognizability under Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014). That is, the group must: (1) share a common immutable characteristic, (2) defined with particularity, and (3) be socially distinct within the society in question. Do not simply analogize the particular social group to that of A-R-C-G- or L-E-A- I without performing a full, three-prong analysis of each proposed group.
• The law governing particular social group has been in flux for years and will likely change again once the particular social group regulations go into effect. Thus, representatives should fully explore and put forth protected characteristics in addition to particular social group, where warranted by the facts, such as feminist political opinion, anti-gang political opinion, and, in indigenous and Garifuna cases, race.
• Remember that proving a cognizable particular social group means that the asylum seeker has demonstrated the existence of a protected characteristic. The asylum seeker must still demonstrate all of the other elements of the asylum claim, including that there is a nexus between the protected characteristic and the harm.
• Another harmful attorney general decision, Matter of A-C-A-A-, 28 I&N Dec. 84 (AG 2020), is still in effect, and under this decision the Board of Immigration Appeals, or BIA, must analyze every element of every asylum grant before upholding the grant, even if neither party has challenged that element. Thus practitioners must ensure that there is evidence in the record on every asylum element.
• If a case was denied because the adjudicator found that there was not a cognizable particular social group under Matter of A-B- I or Matter of L-E-A- II, explore the possibility of filing a motion to reopen or motion to reconsider. Remember there are strict time limits for filing these motions and it is likely that the motion will need to include an equitable tolling argument. CLINIC offers numerous resources on motions to reopen and reconsider.
• If a case is currently on appeal before the BIA or a federal court of appeals, and Matter of A-B- I, II, or Matter of L-E-A- II was dispositive to the outcome, consider reaching out to opposing counsel to see whether they will agree to remand the case, or, in cases where Immigration and Customs Enforcement, or ICE, appealed a grant by the immigration judge, ask that they withdraw their BIA appeal. DOJ issued a memo instructing attorneys to review cases on appeal before the federal courts and determine whether they should be remanded in light of the attorney general’s vacatur decisions. While ICE has not issued a similar memo regarding these decisions, ICE has issued a memo encouraging the exercise of prosecutorial discretion generally, including whether or not to pursue appeals.

Attorney General Garland’s decisions to vacate some of the most harmful Trump-era attorney general decisions on asylum is a very welcome development for asylum representatives. It remains to be seen exactly how the new regulations will define particular social group and, potentially, other elements of asylum law. Meanwhile, representatives should continue to build the records in their cases, understanding that particular social group continues to be a developing area of the law.