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Matter of A-B-, Respondent

Decided by Acting Attorney General January 14, 2021

U.S. Department of Justice

Office of the Attorney General

(1) Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018), did not alter the existing standard 

for determining whether a government is “unwilling or unable” to prevent persecution 

by non-governmental actors. The “complete helplessness” language used in Matter of 

A-B- is consistent with the longstanding “unable or unwilling” standard, as the two are 

interchangeable formulations. 

(2) The concept of “persecution” under the Immigration and Nationality Act, 8 U.S.C. 

§§ 1101(a)(42)(A), 1158(b)(1)(a), (b)(i), is premised on a breach of a home country’s 

duty to protect its citizens. In cases where an asylum applicant is the victim of violence 

or threats by non-governmental actors, and the applicant’s home government has made 

efforts to prevent such violence or threats, failures in particular cases or high levels of 

crime do not establish a breach of the government’s duty to protect its citizenry.

(3) The two-pronged test articulated by the Board of Immigration Appeals in Matter 

of L-E-A-, 27 I&N Dec. 40, 43–44 (BIA 2017), is the proper approach for determining 

whether a protected ground is “at least one central reason” for an asylum applicant’s 

persecution, 8 U.S.C. § 1158(b)(1)(B)(i). Under this test, the protected ground: (1) must 

be a but-for cause of the wrongdoer’s act; and (2) must play more than a minor 

role—in other words, it cannot be incidental or tangential to another reason for the act. 

BEFORE THE ACTING ATTORNEY GENERAL

Pursuant to 8 C.F.R. § 1003.1(h)(1)(i), I direct the Board of Immigration 

Appeals (the “Board”) to refer to me its decision in this case. With the case 

thus referred, I hereby vacate the Board’s June 30, 2020 decision and remand 

this case for review by a three-member panel consistent with this order. 

In earlier proceedings in this case, Attorney General Jefferson 

B. Sessions, III, clarified important issues concerning the interpretation of 

the phrase “particular social group,” and corrected an erroneous decision of 

the Board issued in 2014. See Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018). 

Several courts of appeals have upheld that interpretation as reasonable and 

within the Attorney General’s discretion. See, e.g., Del Carmen 

Amaya-De Sicaran v. Barr, 979 F.3d 210, 217 (4th Cir. 2020) (“The Attorney 

General’s ruling in Matter of A-B- is not arbitrary and capricious.”); 

Diaz-Reynoso v. Barr, 968 F.3d 1070, 1078–87 (9th Cir. 2020) (rejecting an 

arbitrary-and-capricious challenge to Matter of A-B-); Scarlett v. Barr, 957 

F.3d 316, 332–33 (2d Cir. 2020) (concluding that the Attorney General’s 
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200

interpretation of “persecution” is reasonable and that the “complete 

helplessness to protect” formulation was not new but “is well grounded in 

circuit precedents”); Amezcua-Preciado v. U.S. Att’y Gen., 943 F.3d 1337, 

1344 (11th Cir. 2019) (“[W]e defer to the Attorney General’s interpretation 

of the phrase ‘particular social group’ in A-B- because it is reasonable and 

consistent with both the BIA’s and this Court’s prior precedent.”); 

Gonzales-Veliz v. Barr, 938 F.3d 219, 233 (5th Cir. 2019) (“reject[ing] . . . 

argument” that Matter of A-B- decision is arbitrary and capricious because 

“A-B- did not constitute a change in policy” and “assuming arguendo that 

A-B- can be read to constitute a change in policy, the Attorney General 

adequately acknowledged and explained the reasons for the change”). The 

opinion in Matter of A-B- sets forth the appropriate framework to govern the 

respondent’s claim. 

On remand from Attorney General Sessions’s 2018 opinion and order, 

the immigration judge issued a new decision, which the Board affirmed. 

Although the Board sought to follow the Attorney General’s opinion on 

remand, I am referring and reviewing this matter to provide additional

guidance concerning three recurring issues in asylum cases involving 

applicants who claim persecution by non-governmental actors on account of 

the applicant’s membership in a particular social group: (1) whether 

Attorney General Sessions’s 2018 opinion altered the existing standard for 

determining whether a government is “unwilling or unable” to prevent 

persecution by non-governmental actors; (2) whether a government that 

makes efforts to stop the harm in third-party persecution cases is “unable or 

unwilling” to prevent persecution; and (3) whether a protected ground must 

be more than a but-for cause in order to be at least “one central reason” for 

persecuting an asylum applicant. With this matter referred to me, I issue this 

opinion to provide additional clarity on these three issues, and remand to the 

Board for further proceedings applying the principles outlined herein.

I.

Attorney General Sessions’s decision in Matter of A-B- reiterated the 

legal standard for determining when persecution committed by

non-governmental actors may be attributed to the government. As has long 

been the case, an asylum applicant must establish that the harm she suffered 

was “inflicted either by the government of a country or by persons or an 

organization that the government was unable or unwilling to control.” 

Matter of Acosta, 19 I&N Dec. 211, 222 (BIA 1985). In discussing that 

standard, the Attorney General relied on several Federal court decisions that 

have addressed the “unable or unwilling” standard, including the Seventh 

Circuit’s recognition that an applicant must show that the government 
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condoned the private actions “or at least demonstrated a complete 

helplessness to protect the victims.” Galina v. INS, 213 F.3d 955, 958 

(7th Cir. 2000). That discussion did not alter the “unable or unwilling” 

standard set forth in Matter of Acosta. 

In the wake of the Attorney General’s opinion, some applicants have 

argued that the decision’s reliance on the “complete helplessness” language 

in Galina reflected a change in interpretation because that language was 

supposedly inconsistent with the “unable or unwilling” standard. I disagree. 

As the Second Circuit has recognized, that language is “not new,” but “well 

grounded in circuit precedents”—decided before Attorney General Sessions 

issued the opinion in Matter of A-B-. Scarlett, 957 F.3d at 333. The 

“complete helplessness” language does not depart from the “unable or 

unwilling” standard; the two are interchangeable formulations. See id. 

at 332–33; see also Gonzales-Veliz, 938 F.3d at 233. 

Before Matter of A-B-, several courts of appeals had used that language 

as a way of describing when a government was “unable or unwilling” to 

control persecution. See Guillen-Hernandez v. Holder, 592 F.3d 883, 

886–87 (8th Cir. 2010) (quoting, with approval, “condoned it or at least 

demonstrated a complete helplessness to protect the victims” language from 

Galina, 213 F.3d at 958); Kere v. Gonzales, 252 F. App’x 708, 712 (6th Cir. 

2007) (same); Shehu v. Gonzales, 443 F.3d 435, 437 (5th Cir. 2006) (same); 

Hor v. Gonzales, 421 F.3d 497, 501–02 (7th Cir. 2005) (same); 

cf. Ortiz-Araniba v. Keisler, 505 F.3d 39, 42 (1st Cir. 2007) (“An applicant 

must show the government’s acquiescence in the persecutor’s acts or its 

inability or unwillingness to investigate and punish those acts, and not just a 

general difficulty preventing the occurrence of particular future crimes” (first 

emphasis added)). The “two formulations accomplish the same purpose: to 

show that an alien’s home government has more than difficulty . . . 

controlling private behavior.” Gonzales-Veliz, 938 F.3d at 233 (internal 

quotation marks omitted).

Nevertheless, the D.C. Circuit recently interpreted Matter of A-B- as 

departing from the existing “unable or unwilling” standard and establishing 

a new, heightened one. See Grace v. Barr, 965 F.3d 883, 889–900 (D.C. Cir. 

2020). In so doing, the D.C. Circuit did not discuss the several circuit court 

decisions to the contrary, but instead contended that “as a matter of plain 

language, the two formulations are hardly interchangeable” and that the 

Matter of A-B- standard “obviously” requires more culpability. Id.

at 898–99. Along with the Second and Fifth Circuits, I disagree. See supra

at 199 (discussing Gonzales-Veliz, 938 F.3d at 233, and Scarlett, 957 F.3d 

at 333). Matter of A-B- did not alter the longstanding “unable or unwilling” 

standard or implement a new, more stringent test for determining when 

persecution by third parties may be attributed to the government. A 
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government that is unwilling to control or protect against private harm can 

be said to “condone” it, in the ordinary sense of that word. See, e.g., 

Webster’s Third New International Dictionary 473 (1993) (condone means 

“to permit the continuance of”). And the “completely helpless” formulation 

identifies “as persecutors governments that are actually unable to protect 

persons against private violence,” while ensuring “that a government is not 

charged with persecution for failing to provide a particular standard of 

protection, or for lapses in protection.” Scarlett, 957 F.3d at 333. This is 

consistent with existing law, since “able” to protect has always been applied 

as a matter of degree, rather than as a guarantee of absolute protection. See 

Saldana v. Lynch, 820 F.3d 970, 977 (8th Cir. 2016) (“[A] government that 

is ‘unable’ to control criminal activity cannot mean anything and everything 

short of a crime-free society; the standard is more akin to a government that 

has demonstrated ‘complete helplessness’ to protect victims of private 

violence.”); Galina, 213 F.3d at 958 (“since a finding of persecution 

ordinarily requires a determination that government authorities, if they did 

not actually perpetrate or incite the persecution, condoned it or at least 

demonstrates a complete helplessness to protect the victims”). The reference 

in Matter of A-B- to this well-established formulation thus paraphrased 

existing law concerning when, under the Immigration and Nationality Act 

(“INA”), private-party violence may be attributed to a foreign government 

as its own “persecution” because of an unwillingness or inability to control 

it.1

 

II.

No matter whether Matter of A-B- is viewed as changing the existing 

standard for persecution, I conclude, in accordance with my authority to 

interpret the INA, see 8 U.S.C. § 1103(a)(1), that Matter of A-B-’s 

formulation appropriately clarifies the requisite governmental role in relation

to persecution by private actors for purposes of establishing refugee status.2

 

 1 Because the complete-helplessness standard and unwilling-or-unable formulations are 

interchangeable expressions of the same substantive standard, the former is not a change 

in policy that requires a reasoned explanation. But see Grace, 965 F.3d at 899–900

(holding that use of “complete helplessness” language constituted an unexplained change 

in policy).

2 The Departments of Justice and Homeland Security recently promulgated regulations 

to codify the definition of the term “persecution” consistent with case law:

For purposes of adjudicating an application for asylum under section 208 of the Act 

or an application for withholding of removal under section 241(b)(3) of the Act, 

persecution requires an intent to target a belief or characteristic, a severe level of 
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In cases where the applicant’s home government made efforts to prevent the 

claimed persecution, an increasingly frequent question is how effective a 

government’s protection from private violence must be to preclude a finding 

of persecution. Adjudicators may benefit from guidance on the reasons for 

the unwilling/unable to protect standard and guideposts for how to apply it 

in particular cases. See Urbina-Dore v. Holder, 735 F.3d 952, 954 (7th Cir. 

2013) (“The Board has used the ‘unwilling or unable to control’ formula 

since 1964 yet has never attempted to quantify just how far a nation may 

depart from perfect law enforcement without being deemed complicit in 

private crimes.”). For the reasons explained below, the “complete 

helplessness” formulation reflects an appropriate way to understand the 

unwilling and unable standard—one that is consistent with the text of the 

INA and the Attorney General’s discretion under the Act. Contra Grace, 

965 F.3d at 897–99.

A.

One threshold question is how best to interpret “persecution” in this 

context. The reason for requiring governmental involvement in persecution 

is the longstanding premise that persecution is defined by a breach of the 

home country’s duty to protect its citizens. See Rodas-Mendoza v. INS, 246 

F.3d 1237, 1240 (9th Cir. 2001) (“[V]iolence ‘completely untethered to a 

governmental system does not afford a basis for asylum.’” (internal citation 

 

harm, and the infliction of a severe level of harm by the government of a country or 

by persons or an organization that the government was unable or unwilling to control. 

For purposes of evaluating the severity of the level of harm, persecution is an extreme 

concept involving a severe level of harm that includes actions so severe that they 

constitute an exigent threat. Persecution does not encompass the generalized harm 

that arises out of civil, criminal, or military strife in a country, nor does it encompass 

all treatment that the United States regards as unfair, offensive, unjust, or even 

unlawful or unconstitutional. It does not include intermittent harassment, including 

brief detentions; threats with no actual effort to carry out the threats, except that 

particularized threats of a severe harm of immediate and menacing nature made by 

an identified entity may constitute persecution; or, non-severe economic harm or 

property damage, though this list is nonexhaustive. The existence of government 

laws or policies that are unenforced or infrequently enforced do not, by themselves, 

constitute persecution, unless there is credible evidence that those laws or policies 

have been or would be applied to an applicant personally.

See Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable 

Fear Review, 85 Fed. Reg. 80,274, 80,395 (Dec. 11, 2020) (to be codified at 8 C.F.R. 

§ 1208.1(e)); see also id. at 80,386 (substantially similar language to be codified at 8 C.F.R. 

§ 208.1(e)). Although this definition is not controlling on this particular case, it is 

consistent with the parameters outlined in this case.
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omitted)); see also 8 C.F.R. §§ 1208.13(a), 1208.16(b). As the Board noted 

in one of its foundational decisions: “Traditionally, a refugee has been an 

individual in whose case the bonds of trust, loyalty, protection, and assistance 

existing between a citizen and his country have been broken and have been 

replaced by the relation of an oppressor to a victim.” Matter of Acosta, 

19 I&N Dec. at 235 (citing 1 Atle Grahl-Madsen, The Status of Refugees in 

International Law 97, 100 (1966)); see also Harutyunyan v. Gonzales, 421 

F.3d 64, 68 (1st Cir. 2005) (“[P]ersecution always implies some connection 

to government action or inaction.”). 

While every civilized state seeks to protect its citizens from harm, no 

government can provide “a crime-free society.” Saldana, 820 F.3d at 977. 

The level of inaction or ineffectiveness required to rise to the level of 

persecution should, accordingly, be high. The Refugee Act should not be 

read to guarantee freedom from crime, or even to guarantee the same 

crime-fighting resources that are available in more wealthy countries. See 

Scarlett, 957 F.3d at 333 (“The ‘complete helplessness’ formulation from 

[Matter of A-B-] thus ensures that a government is not charged with 

persecution for failing to provide a particular standard of protection, or for 

lapses in protection. At the same time, it serves to identify as persecutors 

governments that are actually unable to protect persons against private 

violence . . . .”). The word “persecution” therefore should be read to require 

that the government in the home country has fallen so far short of adequate 

protection as to have breached its basic duty to protect its citizens, or else to 

have actively harmed them or condoned such harm. Where the government 

is actively engaged in protecting its citizens, failures in particular cases or 

high levels of crime do not establish a breach of the government’s duty to 

protect its citizenry. See, e.g., Velasquez-Gaspar v. Barr, 976 F.3d 1062, 

1064–65 (9th Cir. 2020) (although Guatemala “has a long way to go in 

addressing domestic violence,” substantial evidence, including Guatemala’s 

efforts to curb violence against women, supported the determination that the 

Guatemalan Government could have protected the alien against her abuser); 

Ritonga v. Holder, 633 F.3d 971, 977–78 (10th Cir. 2011) (despite 

voluminous documentation of violence against Christians in various parts of 

Indonesia and some evidence of government tolerance, concluding that 

record as a whole does not show government unable or unwilling to combat 

such crimes); Burbiene v. Holder, 568 F.3d 251, 255–56 (1st Cir. 2009) 

(Lithuanian Government was not unwilling or unable to combat human 

trafficking, where it was making efforts to fight crime but had not been able 

to eliminate it, because these efforts were like any other government that 

experiences successes and setbacks in fighting crime).

This understanding of the “unable or unwilling” standard makes clear that 

the government must have some role in or responsibility for the 
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“persecution.” 3 Furthermore, this interpretation provides reasonable and 

appropriate constraints on the definition of “persecution” in this context. 

I find no indication in the text or history of the INA that Congress intended 

the United States to be the insurer of all high-crime jurisdictions, taking in 

large numbers of victims of private criminal activity because their home 

countries failed to provide the level of police protection found elsewhere. 

Cf. Velasquez v. Sessions, 866 F.3d 188, 199 (4th Cir. 2017) (Wilkinson, J., 

concurring) (“The asylum statute is not a general hardship statute.”); 

Barajas-Romero v. Lynch, 846 F.3d 351, 357 (9th Cir. 2017) (“For purposes 

of asylum or withholding of removal, it is not enough that a person comes 

from a wretched place, where life will most probably be far worse than if he 

remains in the United States.”). Asylum law protects persons from severe 

harm inflicted at the hands of their government on the basis of a protected 

characteristic; it does not entitle everyone in the world to the same level of 

safety that we enjoy in the United States. 

I also stress that “unable” must mean more than the failure to prevent or 

solve a particular crime. The phrase “unwilling or unable to protect” has 

long excluded from the definition of “persecution” instances where a 

government has taken efforts to punish wrongdoers who have already 

committed a crime, even though the crime’s existence shows the government 

was not able to prevent the harm in the first place. See, e.g., K.H. v. Barr, 

920 F.3d 470, 475–78 (6th Cir. 2019) (Guatemalan Government was not 

unwilling or unable to control private wrongdoers where after a child was 

raped, the government mobilized to capture criminals and punish them). 

Crime occurs in all societies, and governments discharge their duty to protect 

their citizens by their efforts to detect and punish crime, as well as by their 

efforts to prevent it. One should not focus narrowly on whether government 

efforts to protect the applicant were effective in her specific case, or focus on 

a few cases where perpetrators went unpunished. See Al Khalili v. Holder, 

 3 As courts of appeals have recognized, a government that is unaware of persecution 

generally cannot be said to have some role or responsibility for it. Thus, an alien alleging 

persecution by private actors may have difficulty establishing persecution on account of a 

protected ground when he or she has failed to apprise authorities of the persecution. See,

e.g., Lopez v. U.S. Att’y Gen., 504 F.3d 1341, 1345 (11th Cir. 2007) (“Although the failure

to report persecution to local government authorities generally is fatal to an asylum claim . . . 

it [may] be excused where the [alien] convincingly demonstrates that those authorities 

would have been unable or unwilling to protect her, and for that reason she could not rely 

on them.” (internal citation omitted)). An alien’s failure to apprise authorities of 

private-actor persecution may be excused in narrow circumstances, see id., but it ordinarily 

will be difficult for an alien to establish, counter-factually, that authorities would have been 

unwilling or unable to help him or her individually if they had been aware of the 

persecution. As necessary or appropriate, the Board may address this point further upon 

remand.
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557 F.3d 429, 436 (6th Cir. 2009) (despite fact that some perpetrators got 

light sentences, Jordanian government was not unwilling or unable to protect 

male applicant from honor killings); cf. Juan Antonio v. Barr, 959 F.3d 778, 

799–800 (6th Cir. 2020) (Boggs, J., concurring) (“It is an unfortunate truth 

that even in this country there are many occasions when our local 

governments have done no more than Guatemala did here, with far more 

tragic outcomes . . . . It seems a bit of a stretch to charge Guatemala with 

unwillingness to enforce its laws simply because it is not always successful. 

If that is the standard, the number of countries from which persecution could 

be claimed under this heading would undoubtedly multiply greatly.”). 

Absolute prevention of private criminal acts is a standard that any 

country—including our own—would fail. According to the Department of 

Justice’s Bureau of Justice Statistics, in 2019 there were over 2 million 

serious violent crimes in the United States and over 1 million incidents of 

domestic violence. See Bureau of Justice Statistics, U.S. Dep’t of Justice, 

NCJ 255113, Criminal Victimization, 2019, at 3 tbl.1, 5 tbl.3 (Sept. 2020). 

And according to another report, even when domestic violence incidents are 

reported, a criminal complaint is filed only 48% of the time, and the offender 

was arrested or charged only 39% of the time. See Bureau of Justice 

Statistics, U.S. Dep’t of Justice, NCJ 250231, Police Response to Domestic 

Violence, 2006–2015, at 1 (May 2017).

In even the most well-functioning, well-funded of criminal justice 

systems, innocent people will be victimized by crime, the police will at times 

prove ineffective, and the guilty may go unpunished. Cf. Cece v. Holder, 

733 F.3d 662, 679 (7th Cir. 2013) (Easterbrook, J. dissenting) (“Crime may 

be rampant in Albania, but it is common in the United States too. People are 

forced into prostitution in Chicago. Must Canada grant asylum to young 

women who fear prostitution in the United States, or who dread the risk of 

violence in or near public-housing projects?” (internal citation omitted)). But 

the inability to eradicate private crime does not establish in any measure that 

a government is affirmatively persecuting its own citizens. See, e.g.,

Urbina-Dore, 735 F.3d at 954 (“Many places in the United States endure 

high levels of violence without any suggestion that the police and judiciary 

have abetted criminals in ‘persecution’ of persons whose property is stolen 

or whose lives are threatened.”); Nahrvani v. Gonzales, 399 F.3d 1148, 1154 

(9th Cir. 2005) (where German police took reports, investigated, and did not 

solve crimes, government was not unwilling or unable to control alleged 

persecutors). There must be far more before a decision maker may 

reasonably conclude that a foreign country is “unable or unwilling” to 

prevent persecution.
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B.

An additional factor to consider in determining whether a country is 

“unable or unwilling” is the possibility of internal relocation. See 8 C.F.R. 

§ 208.13(b)(2)(ii), (b)(3). Persecution requires that “the bonds of trust, 

loyalty, protection, and assistance existing between a citizen and his country 

have been broken,” Matter of Acosta, 19 I&N Dec. at 235, such that asylum 

in a foreign country is warranted. If an alien may reasonably relocate within 

his home country to avoid persecution, then that may show that the failure to 

prevent private violence is localized and the foreign country is not itself 

“unwilling or unable” to prevent persecution.

Although evidence of localized police apathy or incompetence may 

indicate a government’s unwillingness or inability to prevent persecution, in 

many cases the localized apathy is just that—localized. See, e.g., Vahora 

v. Holder, 707 F.3d 904, 908–09 (7th Cir. 2013) (where local police and 

political leaders participated in communal violence, but country reports 

showed national government was pursuing efforts to bring them to justice, 

government was not unwilling or unable to control); Harutyunyan, 421 F.3d 

at 69 (“[A] finding that violence is localized supports a determination that 

the violence does not constitute persecution.”). The applicant may receive 

effective government protection by relocating within their home country, 

where the attitudes of local authorities may be different. 

As Attorney General Sessions noted, 

An immigration judge, “in the exercise of his or her discretion, shall deny the asylum 

application of an alien found to be a refugee on the basis of past persecution” if it is 

“found by a preponderance of the evidence” that “the applicant could avoid future 

persecution by relocating to another part of the applicant’s country of 

nationality, . . . and under all the circumstances, it would be reasonable to expect the 

applicant to do so.”

Matter of A-B-, 27 I&N Dec. at 344–45 (quoting 8 C.F.R. 

§ 1208.13(b)(1)(i)(B)). This requirement reflects the Board’s longstanding 

view that the asylum “analysis must still consider whether government 

protection is available, internal relocation is possible, and persecution 

extends countrywide.” Matter of M-E-V-G-, 26 I&N Dec. 227, 243 (BIA 

2014).

III.

To establish eligibility for asylum, an applicant must show a nexus 

between past or feared future persecution and one of the protected grounds 

(race, religion, nationality, membership in a particular social group, or 
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political opinion). See 8 U.S.C. § 1158(b)(1)(A); see also 8 U.S.C. 

§ 1101(a)(42)(A) (defining a refugee as one who has suffered or has a 

well-founded fear of persecution “on account of” a protected ground). This 

requires proof that the persecutor knew or believed that the applicant had one 

of these protected characteristics, and that knowledge or belief motivated the 

persecutors’ harmful actions against the applicant. INS v. Elias-Zacarias, 

502 U.S. 478, 482 (1992). Concerned with how this standard was being 

applied in cases in which the alleged persecutor had more than one plausible 

motive for harming the victim, Congress enacted the REAL ID Act of 2005,

Pub. L. No. 109–13, 119 Stat. 302, “to create a uniform standard” for 

assessing motivation. Matter of N-M-, 25 I&N Dec. 526, 531 (BIA 2011) 

(citing H.R. Rep. No. 109-72, at 163 (2005) (Conf. Rep.)). An 

accompanying congressional committee report specifically noted that Ninth 

Circuit cases requiring only that the applicant’s persecutor was motivated “at 

least in part” by the protected ground had “‘undermined a proper analysis of 

mixed motive cases.’” Id. (quoting H.R. Rep. No. 109-72, at 163). To 

address these concerns, the REAL ID Act clarified that the alien’s protected 

characteristic must be “at least one central reason for persecuting the 

applicant.” 8 U.S.C. § 1158(b)(1)(B)(i) (emphasis added). 

In one of the first major cases to reach a court of appeals after the REAL 

ID Act, the Ninth Circuit held that a central reason is “one that is ‘primary,’ 

‘essential,’ or ‘principal,’” and that “represents more than a mere ‘part’ of a 

persecutor’s motivation,” Parussimova v. Mukasey, 555 F.3d 734, 740 (9th 

Cir. 2009) (considering the ordinary and natural meaning of “central”), and 

observed that “the REAL ID Act places a more onerous burden on the asylum 

applicant” than the one that the Ninth Circuit had previously applied, id.

at 740. Because “[a] ‘central’ reason is a reason of primary importance to 

the persecutors, one that is essential to their decision to act,” id. at 741, the 

Ninth Circuit agreed with the Board that “the protected ground cannot play 

a minor role in the alien’s past mistreatment or fears of future mistreatment,” 

id. (quoting Matter of J-B-N- & S-M-, 24 I&N Dec. 208, 214 (BIA 2007)). 

In Matter of N-M-, the Board adopted this standard, holding that: “In cases 

arising under the REAL ID Act . . . an alien must demonstrate that the 

persecutor would not have harmed the applicant if the protected trait did not 

exist.” 25 I&N Dec. at 531 (citing Parussimova, 555 F.3d at 741).

In subsequent cases, the Board refined these observations into a 

two-pronged test for determining whether a protected ground is “one central 

reason” for an asylum applicant’s persecution. To establish the necessary 

nexus, the protected ground: (1) must be a but-for cause of the wrongdoer’s 

act; and (2) must play more than a minor role—in other words, it cannot be 

incidental or tangential to another reason for the act. See Matter of L-E-A-, 

27 I&N Dec. 40, 43–44 (BIA 2017) (“Matter of L-E-A- I”), aff’d in relevant 
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part, 27 I&N Dec. 581, 584–85 (A.G. 2019) (“Matter of L-E-A- II”). It is 

not sufficient for the applicant to establish simply that a particular social 

group exists, and that the members of that group experienced harm. Matter 

of L-E-A- I, 27 I&N Dec. at 45.

In Matter of L-E-A- I, the Board explained that if the wrongdoer has no 

animus against the protected characteristic, and the only significance of the 

protected characteristic to him is as a means to an end, then the protected 

characteristic is only “incidental” to the wrongdoer’s motivation. 27 I&N 

Dec. at 45–46. In that case, a cartel targeted the applicant because he was a 

member of his family, but only because it wanted to use his father’s store to 

sell drugs. The applicant sought asylum, relying on a particular social group 

of his father’s immediate family. But the evidence did not show that the 

cartel had “any animus against the family or the [applicant] based on their 

biological ties, historical status, or other features unique to that family unit.” 

Id. at 46–47. The Board held that “the fact that a persecutor targets a family 

member simply as a means to an end is not, by itself, sufficient to establish a 

claim, especially if the end is not connected to another protected ground.” 

Id. at 45; see also Gonzalez-Posadas v. Att’y Gen. U.S., 781 F.3d 677, 686 

(3d Cir. 2015) (holding that persecutors’ use of homophobic slurs against an 

applicant who claimed asylum on the basis of his sexual orientation did not 

satisfy the nexus requirement because “the abusive language was a means to 

an end—namely cowing [the applicant] into paying them off or joining their 

gang”). In other words, the applicant’s status as a member of his father’s 

immediate family may have been a but-for cause of the harm he suffered, but 

it was only incidental to the persecutor’s motivation, not a “central” reason 

for it.

In mixed-motive cases, the Fourth Circuit (where this case originated) has 

applied a broader standard than the Board or its sister circuits. See Matter of 

L-E-A- I, 27 I&N Dec. at 46 n.3 (recognizing a potential divergence between 

the Fourth Circuit’s and the Board’s nexus jurisprudence). The Fourth 

Circuit asks whether the protected characteristic, even if intertwined with 

another motive, is “why [the applicant], and not another person, was 

threatened” or harmed. Alvarez Lagos v. Barr, 927 F.3d 236, 250 (4th Cir. 

2019). Even if the protected characteristic is only used opportunistically, the 

Fourth Circuit appears to believe that a causal relation is sufficient to 

establish nexus as a matter of law. Id. at 250–51. As summarized recently 

by the Fourth Circuit:

A sufficient nexus exists where membership in a particular social group is why the 

applicant, rather than some other person, is targeted for persecution. This principle 

applies whether the persecution is motivated by freestanding animus against the 

group, or by some other motive like gang recruitment, extortion, or revenge. Rather 

than focusing on the persecutor’s reasons for targeting the group, we ask whether 
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210

membership in the group explains the decision to target the applicant instead of 

someone else. 

Perez-Morales v. Barr, 781 F. App’x 192, 196 (4th Cir. 2019) (internal 

citations omitted).

The Fourth Circuit’s recent interpretation of the INA’s nexus requirement 

significantly departs from the standard articulated by the Board, and earlier 

precedent of the Fourth Circuit, and it would essentially eliminate the second 

prong of the Board’s test. Under the Fourth Circuit’s recent precedents, it 

appears to be sufficient for the applicant’s protected status to be a but-for 

cause of the harm she suffers, regardless of whether that status is only 

incidental or tangential to another reason. For instance, in 

Zavaleta-Policiano v. Sessions, 873 F.3d 241, 244 (4th Cir. 2017), the Fourth 

Circuit reviewed a Board decision ordering an asylum applicant removed to 

El Salvador because she failed to show persecution on account of her family 

membership. Although the applicant testified that a Salvadoran gang had 

threatened and harassed her because of her membership in the Policiano 

family, the Board held that she failed to establish that the gang’s threats were 

motivated, as one central reason, by her family ties. Id. at 246. Relying on 

the extortion notes that the gang sent to the applicant which indicated no 

evidence of animus against the applicant’s family, the Board affirmed the 

immigration judge’s finding that the gang was motivated by its general desire 

to terrorize society as a means of obtaining greater influence and power in 

the region. Id. at 248.

The Fourth Circuit reversed, beginning its nexus analysis with the 

mistaken premise that the Board had required that the applicant prove that 

“the gang’s threats were ‘exclusively’ motivated by her family ties.” Id.

at 250. But this misconstrues the Board’s nexus analysis. In its first major 

case considering the new asylum provisions in the REAL ID Act, the Board 

expressly concluded that “aliens whose persecutors were motivated by more 

than one reason continue to be protected under section 208 of the [INA] if 

they can show a nexus to a protected ground.” Matter of J-B-N- & S-M-, 24 

I&N Dec. at 213 (emphasis added). Nevertheless, the Fourth Circuit 

concluded that the Board erred because the applicant’s membership in the 

Policiano family was a but-for cause of the harm she suffered; her 

“relationship to her father is why she, rather than some other person, was 

targeted for extortion.” Zavaleta-Policiano, 873 F.3d at 250. The Fourth 

Circuit opinion thus appears to read the “at least one central reason” 

requirement to allow any but-for cause of harm to qualify as a central reason, 

regardless of whether that cause is only incidental or tangential to the 

wrongdoer’s actual motivation. But see Quinteros-Mendoza v. Holder, 556 

F.3d 159, 164 (4th Cir. 2009) (citing with approval Board precedent that “the 

REAL ID Act requires a protected ground to be the central reason or even a 
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211

dominant central reason for persecution, only that it cannot be an ‘incidental, 

tangential, superficial, or subordinate’ reason” (quoting Matter of J-B-N- & 

S-M-, 24 I&N at 214)).

I believe that the Fourth Circuit’s recent interpretation of “one central 

reason” is not the best reading of the statutory language. Before the REAL

ID Act, the INA already required that an alien establish that she satisfies the 

definition of a refugee, which requires persecution to be “on account of” the 

alien’s protected status, 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(A) (2005). 

As the Supreme Court recognized, statutory phrases such as “on account of,” 

“because of,” or “results from” all require but-for causation. See Univ. of 

Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 351–57 (2013) (“because” in 

Title VII of Civil Rights Act of 1964 requires plaintiffs to establish retaliation 

claims according to traditional principles of but-for causation); Gross v. FBL 

Fin. Servs., Inc., 557 U.S. 167, 176 (2009) (treating “because of” and “on 

account of” as equivalents, which entail but-for causation); see also Burrage 

v. United States, 571 U.S. 204, 212 (2014) (“Where there is no textual or 

contextual indication to the contrary, courts regularly read phrases like 

‘results from’ to require but-for causality.”). But-for causation is “the 

minimum requirement for a finding of causation.” Burrage, 571 U.S. at 211. 

Thus, in the asylum context, the phrase “on account of” in the INA’s 

definition of refugee may require that an applicant’s protected status be a 

but-for cause of the applicant’s persecution.

In the REAL ID Act, however, Congress layered on the additional 

requirement that an alien show that her protected status is “at least one central 

reason for persecuting the applicant.” See 8 U.S.C. § 1158(b)(1)(B)(i). 

I believe that the best way to read this new requirement is that it requires 

more than but-for causation. To conclude otherwise, as the Fourth Circuit 

appears to do, would render the REAL ID Act’s additional language mere 

surplusage. This is why the Board established a two-pronged test for proving 

nexus: the applicant’s protected status must be both a but-for cause of her 

persecution and it must play more than a minor role that is neither incidental 

nor tangential to another reason for the harm or a means to a non-protected 

end. See Matter of L-E-A- I, 27 I&N Dec. at 43–44.

My conclusion that this reflects the better interpretation of the REAL ID’s 

Act’s “one central reason” requirement is further supported by the fact that 

the Board’s test generally accords with a much greater swath of Federal court 

of appeals precedent than does the Fourth Circuit’s approach. Other circuits 

have taken an approach similar to that of the Board, declining to find the 

necessary nexus when the alien’s protected status—despite being a but-for 
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cause of the harm she suffered or fears—is only incidental to the wrongdoer’s 

primary motivation.4

 

For these reasons, I conclude that the two-pronged test articulated by the 

Board in Matter of L-E-A- I is the proper approach for determining whether 

an asylum applicant has satisfied the nexus requirement in mixed-motive 

cases.

 4 See, e.g., Reyes Almendarez v. Barr, 817 F. App’x 35, 40 (6th Cir. 2020) (“Petitioners 

fail to show that the familial connection was at least one central reason for persecuting 

them, as opposed to, for instance, the gang’s actions being a result of its general, criminal 

goal of enacting revenge on one who reports gang activities to the police. Put differently, 

harming Lidia’s family was a means to achieve some other goal, not an end in itself.” 

(internal quotation marks and citation omitted)); Zapata Suquilanda v. Att’y Gen. U.S., 816 

F. App’x 723, 725 (3d Cir. 2020) (citing Matter of L-E-A- II and reasoning that family 

membership was not a central reason, where it was just a means to an end of gaining land); 

Contreras-Mejia v. Barr, 815 F. App’x 694, 699 (4th Cir. 2020) (per curiam) (“[T]he 

record illustrates that Contreras’s past persecution was linked only to his refusal to join the 

MS-13 gang, and not to his family membership.”); Ferreyra v. Barr, 962 F.3d 331, 338 

(7th Cir. 2020) (“The evidence must show that family membership was the motivation for 

the persecution . . . . The fact that [Ferreyra’s] membership in the family may have made 

him more accessible is not sufficient.”); Gonzales-Veliz, 938 F.3d at 225, 234 (substantial 

evidence supported finding that applicant’s ex-partner harmed her as retribution for suing 

him for child support, not because of her status as a Honduran women who was unable to 

leave a relationship); Rivas v. Sessions, 899 F.3d 537, 542 (8th Cir. 2018) (“The evidence 

established only that gang members persecuted Rivas because she was a witness to her 

brother’s shooting, was one of the last people to see him before he went into hiding, and 

had information concerning his whereabouts. The record does not compel a conclusion 

that family relationship—independent of these other factors—was a central reason for 

persecution.”); Ruiz-Escobar v. Sessions, 881 F.3d 252, 260 (1st Cir. 2018) (affirming 

holding of no nexus between family and persecution where the evidence showed that “Los 

Cachiros sought to obtain the Ruiz family’s land, not that the narcotraffickers had a 

continuing interest in harming the Ruiz family once they gained possession of that land.”); 

Reyes v. Sessions, 750 F. App’x 656, 660–61 (10th Cir. 2018) (even assuming particular 

social group of “females in El Salvador” was cognizable, gender was “tangential and even 

subordinate” to the more important reason for the abuse—the applicant’s vulnerability); 

Cruz v. U.S. Att’y Gen., 746 F. App’x 869, 872 (11th Cir. 2018) (per curiam) (“The fact 

that a persecutor targets a family member as a means to an end is not, by itself, sufficient 

to establish a claim, especially if the end is not connected to another protected ground.”).

But see Gonzalez Ruano v. Barr, 922 F.3d 346, 356 (7th Cir. 2019) (husband’s family 

relationship to his wife was “the reason he, and not someone else, was targeted” (citing

Hernandez-Avalos v. Lynch, 784 F.3d 944, 950 (4th Cir. 2015))); Ayala v. Sessions, 855 

F.3d 1012, 1020 (9th Cir. 2017) (extortion could constitute persecution on account of a 

family, where criminals selected the applicant for extortion because her family owned 

hotels); Paloka v. Holder, 762 F.3d 191, 198 (2d Cir. 2014) (“[B]eing a victim of a crime 

or even being a likely target for criminal opportunistic behavior does not necessarily 

preclude the existence of a valid asylum claim if the claimant would likely be targeted 

because of her membership in a sufficiently defined social group.”).
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IV.

As explained above, I understand that existing case law in certain circuits 

may conflict with my conclusions that (1) Matter of A-B- reiterated and did 

not change the legal standard for determining when “persecution” by third 

parties may be attributed to the government; and (2) more than but-for 

causation is required to show that the alien’s protected characteristic is “at 

least one central reason” for the persecution. In my view, however, those 

decisions were made without the benefit of clear and controlling 

interpretations of the statutory “unable or unwilling,” “persecution,” and 

“one central reason” requirements. See Nat’l Cable & Telecomms. Ass’n 

v. Brand X Internet Servs., 545 U.S. 967, 982 (2005) (“A court’s prior 

judicial construction of a statute trumps an agency construction otherwise 

entitled to Chevron deference only if the prior court decision holds that its 

construction follows from the unambiguous terms of the statute and thus 

leaves no room for agency discretion.”). The statutory language of the INA 

and the REAL ID Act do not unambiguously resolve these issues. See, e.g., 

Grace, 965 F.3d at 897 (“persecution” is ambiguous); Sanchez v. U.S. Att’y 

Gen., 523 F. App’x 682, 684 (11th Cir. 2013) (per curiam) (phrase “one 

central reason” is ambiguous). The Attorney General “has primary 

responsibility for construing ambiguous provisions in immigration laws” and 

his “reasonable construction” of such ambiguous terms “is entitled to 

deference” under Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 

U.S. 837, 844 (1984). Matter of A-B-, 27 I&N Dec. at 326. With this in 

mind, I have exercised my discretion in choosing what I view as the best 

interpretation of the statute.

I remand this matter to the Board to issue a new opinion consistent with 

this opinion.