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Matter of A-B-, Respondent

Decided by Attorney General June 11, 2018

U.S. Department of Justice

Office of the Attorney General

(1) Matter of A-R-C-G-, 26 I&N Dec. 338 (BIA 2014) is overruled. That decision was 

wrongly decided and should not have been issued as a precedential decision. 

(2) An applicant seeking to establish persecution on account of membership in a 

“particular social group” must demonstrate: (1) membership in a group, which is 

composed of members who share a common immutable characteristic, is defined with 

particularity, and is socially distinct within the society in question; and (2) that 

membership in the group is a central reason for her persecution. When the alleged 

persecutor is someone unaffiliated with the government, the applicant must also show 

that her home government is unwilling or unable to protect her. 

(3) An asylum applicant has the burden of showing her eligibility for asylum. The 

applicant must present facts that establish each element of the standard, and the asylum 

officer, immigration judge, or the Board has the duty to determine whether those facts 

satisfy all of those elements.

(4) If an asylum application is fatally flawed in one respect, an immigration judge or the 

Board need not examine the remaining elements of the asylum claim.

(5) The mere fact that a country may have problems effectively policing certain crimes or 

that certain populations are more likely to be victims of crime, cannot itself establish an 

asylum claim. 

(6) To be cognizable, a particular social group must exist independently of the harm 

asserted in an application for asylum. 

(7) An applicant seeking to establish persecution based on violent conduct of a private 

actor must show more than the government’s difficulty controlling private behavior. 

The applicant must show that the government condoned the private actions or 

demonstrated an inability to protect the victims.

(8) An applicant seeking asylum based on membership in a particular social group must 

clearly indicate on the record the exact delineation of any proposed particular social 

group. 

(9) The Board, immigration judges, and all asylum officers must consider, consistent with 

the regulations, whether internal relocation in the alien’s home country presents a 

reasonable alternative before granting asylum.
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BEFORE THE ATTORNEY GENERAL

On March 7, 2018, I directed the Board of Immigration Appeals 

(“Board”) to refer for my review its decision in this matter, see 8 C.F.R. § 

1003.1(h)(1)(i), and I invited the parties and any interested amici to submit 

briefs addressing questions relevant to that certification. Matter of A-B-, 27 

I&N Dec. 227 (A.G. 2018). Specifically, I sought briefing on 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.

For the reasons set forth in the accompanying opinion, I vacate the 

Board’s December 6, 2016 decision and remand this case to the immigration 

judge for further proceedings. Consistent with the test developed by the 

Board over the past several decades, an applicant seeking to establish 

persecution on account of membership in a “particular social group” must 

satisfy two requirements. First, the applicant must demonstrate membership 

in a group, which is composed of members who share a common immutable 

characteristic, is defined with particularity, and is socially distinct within the 

society in question. And second, the applicant’s membership in that group 

must be a central reason for her persecution. When, as here, the alleged 

persecutor is someone unaffiliated with the government, the applicant must 

show that flight from her country is necessary because her home government 

is unwilling or unable to protect her. 

Although there may be exceptional circumstances when victims of 

private criminal activity could meet these requirements, they must satisfy 

established standards when seeking asylum. Such applicants must establish 

membership in a particular and socially distinct group that exists 

independently of the alleged underlying harm, demonstrate that their 

persecutors harmed them on account of their membership in that group rather 

than for personal reasons, and establish that the government protection from 

such harm in their home country is so lacking that their persecutors’ actions 

can be attributed to the government. Because Matter of A-R-C-G-, 26 I&N 

Dec. 388 (BIA 2014), recognized a new particular social group without 

correctly applying these standards, I overrule that case and any other Board 

precedent to the extent those other decisions are inconsistent with the legal 

conclusions set forth in this opinion. 

OPINION

The Immigration and Nationality Act (“INA”) authorizes the Attorney 

General to grant asylum if an alien is unable or unwilling to return to her 

country of origin because she has suffered past persecution or has a well-
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318

founded fear of future persecution on account of “race, religion, nationality, 

membership in a particular social group, or political opinion.” 8 U.S.C. §§ 

1101(a)(42)(A), 1158(b)(1)(a), (b)(i). A recurring question in asylum law is 

determining whether alleged persecution was based on their membership in 

a “particular social group.” Over the past thirty years, this question has 

recurred frequently before the Board and the courts of appeals, and the 

standard has evolved over time. 

The prototypical refugee flees her home country because the government 

has persecuted her—either directly through its own actions or indirectly by 

being unwilling or unable to prevent the misconduct of non-government 

actors—based upon a statutorily protected ground. Where the persecutor is 

not part of the government, the immigration judge must consider both the 

reason for the harm inflicted on the asylum applicant and the government’s 

role in sponsoring or enabling such actions. An alien may suffer threats and 

violence in a foreign country for any number of reasons relating to her social, 

economic, family, or other personal circumstances. Yet the asylum statute 

does not provide redress for all misfortune. It applies when persecution 

arises on account of membership in a protected group and the victim may not 

find protection except by taking refuge in another country. 

The INA does not define “persecution on account of . . . membership in 

a particular social group.” The Board first addressed the term in Matter of 

Acosta, 19 I&N Dec. 211, 233 (BIA 1985), where it interpreted a “particular 

social group” in a manner consistent with the other four grounds of 

persecution identified in section 1101(a)(42)(A)—race, religion, nationality, 

or political opinion. Id. The Board concluded that a “particular social group” 

required a “group of persons all of whom share a common, immutable 

characteristic” that “the members of the group either cannot change, or 

should not be required to change because it is fundamental to their individual 

identities or consciences.” Id. The Board noted that the “shared 

characteristic might be an innate one such as sex, color, or kinship ties, or in 

some circumstances, it might be a shared past experience such as former 

military leadership or land ownership.” Id. 

In Matter of R-A-, 22 I&N Dec. 906, 917–23 (BIA 1999) (en banc), the 

Board considered whether a victim of domestic violence could establish 

refugee status as a member of a particular social group consisting of similarly 

situated women. The Board held that the mere existence of shared

circumstances would not turn those possessing such characteristics into a 

particular social group. Id. at 919. Rather, the members of a particular social 

group must not merely share an immutable characteristic, but must also be 

recognized as a distinct group in the alien’s society, id. at 918–19, and the 

persecution must be motivated by membership in that social group, id. at 

919–22. Attorney General Reno vacated that decision for reconsideration in 
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319

light of a proposed regulation, see 22 I&N Dec. 906, 906 (A.G. 2001), but 

no final rule ever issued, and the case was eventually resolved in 2009 

without further consideration by the Board. Despite the vacatur of R-A-, both 

the Board and the federal courts have continued to treat its analysis as 

persuasive.

In the years after Matter of R-A-, the Board refined the legal standard for 

particular social groups. By 2014, the Board had clarified that applicants for 

asylum seeking relief based on “membership in a particular social group” 

must establish that their purported social group is “(1) composed of members 

who share a common immutable characteristic, (2) defined with particularity, 

and (3) socially distinct within the society in question.” Matter of M-E-V-G,

26 I&N Dec. 227, 237 (BIA 2014). Applicants must also show that their 

membership in the particular social group was a central reason for their 

persecution. See 8 U.S.C. § 1158(b)(1)(B)(i); Matter of W-G-R-, 26 I&N 

Dec. 208, 224 (BIA 2014). Where an asylum applicant claims that the 

persecution was inflicted by private conduct, she must also establish that the 

government was unable or unwilling to protect her. See, e.g., Acosta, 19 I&N 

Dec. at 222.

Later that year, the Board decided A-R-C-G-, which recognized “married 

women in Guatemala who are unable to leave their relationship” as a 

particular social group—without performing the rigorous analysis required 

by the Board’s precedents. 26 I&N Dec. at 389; see id. at 390–95. Instead, 

the Board accepted the concessions by the Department of Homeland Security 

(“DHS”) that the respondent suffered harm rising to the level of past 

persecution, that she was a member of a qualifying particular social group, 

and that her membership in that group was a central reason for her 

persecution. Id. at 395. 

I do not believe A-R-C-G- correctly applied the Board’s precedents, and 

I now overrule it. The opinion has caused confusion because it recognized 

an expansive new category of particular social groups based on private

violence. Since that decision, the Board, immigration judges, and asylum 

officers have relied upon it as an affirmative statement of law, even though 

the decision assumed its conclusion and did not perform the necessary legal 

and factual analysis. When confronted with asylum cases based on purported 

membership in a particular social group, the Board, immigration judges, and 

asylum officers must analyze the requirements as set forth in this opinion, 

which restates and where appropriate, elaborates upon, the requirements set 

forth in M-E-V-G and W-G-R-. 

In this matter, the immigration judge initially denied the respondent’s 

asylum claim, which arises out of allegations of domestic abuse suffered in 

El Salvador. In reversing the immigration judge’s decision, the Board did 

little more than cite A-R-C-G- in finding that she met her burden of 
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320

establishing that she was a member of a particular social group. In addition 

to failing meaningfully to consider that question or whether the respondent’s 

persecution was on account of her membership in that group, the Board gave 

insufficient deference to the factual findings of the immigration judge. 

For these and other reasons, I vacate the Board’s decision and remand for 

further proceedings before the immigration judge consistent with this 

opinion. In so doing, I reiterate that an applicant for asylum on account of 

her membership in a purported particular social group must demonstrate: (1) 

membership in a particular group, which is composed of members who share 

a common immutable characteristic, is defined with particularity, and is 

socially distinct within the society in question; (2) that her membership in 

that group is a central reason for her persecution; and (3) that the alleged 

harm is inflicted by the government of her home country or by persons that 

the government is unwilling or unable to control. See M-E-V-G-, 26 I&N 

Dec. at 234–44; W-G-R-, 26 I&N Dec. at 209–18, 223–24 & n.8. 

Furthermore, when the applicant is the victim of private criminal activity, the 

analysis must also “consider whether government protection is available, 

internal relocation is possible, and persecution exists countrywide.” M-E-VG-, 26 I&N Dec. at 243.

Generally, claims by aliens pertaining to domestic violence or gang 

violence perpetrated by non-governmental actors will not qualify for 

asylum.1

 While I do not decide that violence inflicted by non-governmental 

actors may never serve as the basis for an asylum or withholding application 

based on membership in a particular social group, in practice such claims are 

unlikely to satisfy the statutory grounds for proving group persecution that 

the government is unable or unwilling to address. The mere fact that a 

country may have problems effectively policing certain crimes—such as 

domestic violence or gang violence—or that certain populations are more 

likely to be victims of crime, cannot itself establish an asylum claim. 

I.

The respondent, a native and citizen of El Salvador, entered the United 

States illegally and was apprehended by U.S. Customs and Border Protection 

agents in July 2014. After being placed in removal proceedings, the 

respondent filed an application for asylum and withholding of removal under 

 1 Accordingly, few such claims would satisfy the legal standard to determine whether an 

alien has a credible fear of persecution. See 8 U.S.C. § 1225(b)(1)(B)(v) (requiring a 

“significant possibility, taking into account the credibility of the statements made by the 

alien in support of the alien’s claim and such other facts as are known to the officer, that 

the alien could establish eligibility for asylum under section 1158 of this title [8 U.S.C. § 

1158]”).
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321

the INA, 8 U.S.C. §§ 1158, 1231(b)(3), and for withholding of removal under 

the regulations implementing the United Nations Convention Against 

Torture. 

The respondent claimed that she was eligible for asylum because she was 

persecuted on account of her membership in the purported particular social 

group of “El Salvadoran women who are unable to leave their domestic 

relationships where they have children in common” with their partners. 

Matter of A-B-, Decision Denying Asylum Application at *8, (Immig. Ct. 

Dec. 1, 2015). The respondent asserted that her ex-husband, with whom she 

shares three children, repeatedly abused her physically, emotionally, and 

sexually during and after their marriage. Id. at *2–3).

In December 2015, the immigration judge denied all relief and ordered 

the respondent removed to El Salvador. The immigration judge denied the 

respondent’s asylum claim for four independent reasons: (1) the respondent 

was not credible; (2) the group in which she claimed membership did not 

qualify as a “particular social group” within the meaning of 8 U.S.C. § 

1101(a)(42)(A); (3) even if it did, the respondent failed to establish that her 

membership in a social group was a central reason for her persecution; and 

(4) she failed to show that the El Salvadoran government was unable or 

unwilling to help her. Id. at *4–15. The respondent appealed the 

immigration judge’s decision to the Board.

In December 2016, the Board reversed and remanded with an order to 

grant the respondent asylum after the completion of background checks. 

Matter of A-B-, (BIA Dec. 8, 2016). The Board found the immigration 

judge’s adverse credibility determinations clearly erroneous. Id. at *1–2. 

The Board further concluded that the respondent’s particular social group 

was substantially similar to “married women in Guatemala who are unable 

to leave their relationship,” which the Board had recognized in Matter of AR-C-G- , 26 I&N Dec. at 390. A-B- at *2. Moreover, the Board held that the 

immigration judge clearly erred in finding that the respondent could leave 

her ex-husband, and that the respondent established that her ex-husband 

persecuted her because of her status as a Salvadoran woman unable to leave 

her domestic relationship. Id. at *2–3. Finally, the Board determined that 

the El Salvadoran government was unwilling or unable to protect the 

respondent. Id. at *3–4.

In August 2017, the immigration judge issued an order purporting to 

certify and administratively return the matter to the Board in light of 

intervening developments in the law.2

 Matter of A-B-, Decision and Order 

 2 As explained in my order of March 30, Matter of A-B-, 27 I&N Dec. 247, 248–49 (A.G. 

2018), the immigration judge’s sua sponte order purporting to certify the matter back to 

the Board was procedurally defective because the immigration judge had not issued any 
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322

of Certification, (Immig. Ct. Aug. 18, 2017). The immigration judge 

observed that several courts of appeals had recently held that domesticviolence victims failed to prove their entitlement to asylum based on 

membership in particular social groups. See id. at *2–3 (citing FuentesErazo v. Sessions, 848 F.3d 847, 853 (8th Cir. 2017); Cardona v. Sessions, 

848 F.3d 519, 523 (1st Cir. 2017); Marikasi v. Lynch, 840 F.3d 281, 291 (6th 

Cir. 2016); Vega-Ayala v. Lynch, 833 F.3d 34, 40 (1st Cir. 2016)). The 

immigration judge thus believed that the precedents relied upon by the Board 

in its December 2016 decision were no longer good law. A-B- at *3–4 

(Immig. Ct. Aug. 18, 2017).

In particular, the immigration judge cited the Fourth Circuit’s opinion in 

Velasquez v. Sessions, 866 F.3d 188 (4th Cir. 2017), which denied the 

petition for review on the ground that the alien had not established that her 

alleged persecution was on account of her membership in a particular social 

group. A-B- at *3–4 (Immig. Ct. Aug. 18, 2017) (citing Velasquez, 866 F.3d 

at 197). Distinguishing A-R-C-G- because of DHS’s concessions there, 866 

F.3d at 195 n.5, the court in Velasquez reiterated that “‘[e]vidence consistent 

with acts of private violence or that merely shows that an individual has been 

the victim of criminal activity does not constitute evidence of persecution on 

a statutorily protected ground.’” Id. at 194 (quoting Sanchez v. U.S. Att’y 

Gen., 392 F.3d 434, 438 (11th Cir. 2004)). The court further noted, “‘the 

asylum statute was not intended as a panacea for the numerous personal 

altercations that invariably characterize economic and social relationships.’” 

Id. at 195 (quoting Saldarriaga v. Gonzales, 402 F.3d 461, 467 (4th Cir. 

2005)).

In a concurrence, Judge Wilkinson reiterated that the particular social 

groups protected from persecution under the asylum statute must be 

understood in the context of the other grounds for protection, which concern 

specific segments of the population who are marginalized or subjected to 

social stigma and prejudice. Id. at 198 (Wilkinson, J., concurring). Noting 

that victims of private violence were “seizing upon the ‘particular social 

group’ criterion in asylum applications,” Judge Wilkinson considered the 

example of applicants who claim to be the victims of gang violence. Aliens 

seeking asylum on that basis “are often not ‘exposed to more violence or 

human rights violations than other segments of society,’ and ‘not in a 

substantially different situation from anyone who has crossed the gang, or 

who is perceived to be a threat to the gang’s interests.’” Id. at 199 (quoting 

Matter of S-E-G-, 24 I&N Dec. 579, 587 (BIA 2008)). He recognized that 

the Board “has previously explained that ‘victims of gang violence come 

from all segments of society, and it is difficult to conclude that any “group,” 

 

decision for the Board to review. Neither the immigration judge nor the Board has taken 

any other actions in this matter since the Board issued its December 2016 decision.
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323

as actually perceived by the criminal gangs, is much narrower than the 

general population.’” Id. (quoting M-E-V-G-, 26 I&N Dec. at 250). The 

pervasive nature of this violent criminality, in Judge Wilkinson’s view, 

suggested that membership in a purported particular social group “is often 

not a central reason for the threats received, but rather is secondary to a 

grander pattern of criminal extortion that pervades petitioners’ societies.” Id.

On March 7, 2018, pursuant to 8 C.F.R. § 1003.1(h)(1)(i), I directed the 

Board to refer this matter to me for my review. I invited the parties and any 

interested amici to submit briefs on the following question:

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.

A-B-, 27 I&N Dec. at 227. After certifying this case, I received party 

submissions from the respondent and DHS and twelve amicus briefs.

II.

As a threshold matter, I address the respondent’s procedural objections 

concerning my authority to review this case and the certification procedure.

A.

The respondent argues that I lack the authority to certify the Board’s 

decision because it did not reacquire jurisdiction following its remand to the 

immigration judge. In the respondent’s view, the Attorney General’s 

authority to certify and review immigration cases is restricted to cases over 

which the Board expressly retains jurisdiction, excluding any cases that have 

been remanded for further proceedings. This restrictive interpretation of my 

jurisdiction finds no support in the law.

Under the INA, “[t]he Attorney General enjoys broad powers with respect 

to ‘the administration and enforcement of [the INA itself] and all other laws 

relating to the immigration and naturalization of aliens.’” Blanco de 

Belbruno v. Ashcroft, 362 F.3d 272, 279 (4th Cir. 2004) (quoting 8 U.S.C. § 

1103(a)(1)); see also Henderson v. INS, 157 F.3d 106, 126 (2d Cir. 1998) 

(“[T]he extraordinary and pervasive role that the Attorney General plays in 

immigration matters is virtually unique.”); Matter of D-J-, 23 I&N Dec. 572, 

573–74 & n.3 (A.G. 2003) (describing Attorney General’s review authority 

under 8 U.S.C. § 1226(a)). The INA grants the Attorney General the 

authority to “review such administrative determinations in immigration 

proceedings, delegate such authority, and perform such other acts as the 
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Attorney General determines to be necessary for carrying out” his duties 

related to the immigration and naturalization of aliens. 8 U.S.C. § 

1103(g)(2). This authority includes the power to refer cases for my review, 

see 8 C.F.R. § 1003.1(h)(1), which the First Circuit has called an “unfettered 

grant of authority,” Xian Tong Dong v. Holder, 696 F.3d 121, 124 (1st Cir. 

2012). Nothing in the INA or the implementing regulations precludes the 

Attorney General from referring a case for review simply because the Board 

has remanded the case for further proceedings before an immigration judge.

It is likewise irrelevant that there has not been a final decision from the 

Board either granting or denying relief. The relevant federal regulation 

states: “The Board shall refer to the Attorney General for review of its 

decision all cases that . . . the Attorney General directs the Board to refer to 

him.” 8 C.F.R § 1003.1(h)(1). Nothing in section 1003.1(h) requires, or 

even suggests, that the only Board “decisions” the Attorney General can 

review are final decisions that definitively grant or deny relief to a 

respondent. Nor do the applicable regulations or the INA define “decision” 

as a “final” decision. See id. § 1001.1 (defining terms in the relevant 

chapter); 8 U.S.C. § 1101 (defining terms under the Act). 

B.

Both the respondent and certain amici also raise due process concerns 

with my certification of this matter. They argue principally that my 

certification improperly bypassed the Board and deprived it of the 

opportunity to consider the certified question in the first instance. The Board 

exercises “only the authority provided by statute or delegated by the Attorney 

General,” Matter of Castro-Tum, 27 I&N Dec. 271, 282 (A.G. 2018), and the 

regulations allow the Attorney General to certify any case that is before the 

Board or where it has rendered a decision, 8 C.F.R § 1003.1(h). In any event, 

the respondent has already received full and fair opportunities to present her 

asylum claim before both the immigration judge and the Board. After those 

proceedings, both the immigration judge and the Board issued written 

decisions that analyzed the validity of the respondent’s proposed particular 

social group and whether the respondent qualified for asylum on that ground. 

The respondent also argues that the certification violated her due process 

rights because alleged “irregularities” in the certification “reflect 

prejudgment of her claim and lack of impartiality, in contravention of her 

right to a full and fair hearing by a neutral adjudicator.”3

 There is no basis 

 3 The only alleged “irregularity” cited by respondent is the notion that “[g]iven that 

Respondent’s case was not under active consideration by Judge Couch or the Board at the 

time of the Attorney General’s referral order, it is not clear how the Attorney General 
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325

to this claim. The respondent and some amici complain that I have advanced 

policy views on immigration matters as a U.S. Senator or as Attorney 

General, but the statements they identify have no bearing upon my ability to 

faithfully discharge my legal responsibilities in this case. I have made no 

public statements regarding the facts of respondent’s case, and I have no 

“personal interest in the outcome of the proceedings.” Strivers v. Pierce, 71 

F.3d 732, 741 (9th Cir. 1995). 

Nor is there any requirement that an administrator with significant 

policymaking responsibilities withdraw from “interchange and discussion 

about important issues.” Ass’n of Nat’l Advertisers, Inc. v. FTC, 627 F.2d 

1151, 1168 (D.C. Cir. 1979). As the Supreme Court has held, a decision 

maker need not be “disqualified simply because he has taken a position, even 

in public, on a policy issue related to the dispute, in the absence of a showing 

that he is not ‘capable of judging a particular controversy fairly on the basis 

of its own circumstances.’” Hortonville Joint Sch. Dist. No. 1 v. Hortonville 

Educ. Ass’n, 426 U.S. 482, 493 (1976) (quoting United States v. Morgan, 

313 U.S. 409, 421 (1941)). If policy statements about immigration-related 

issues were a basis for disqualification, then no Attorney General could fulfill 

his or her statutory obligations to review the decisions of the Board. 

III.

I turn now to the question of whether, and under what circumstances, 

being a victim of private criminal activity constitutes persecution on account 

of membership in a particular social group.4

 

A.

An applicant for asylum bears the burden of establishing that she “is a 

refugee within the meaning of section 1101(a)(42)(A)” of the INA. 8 U.S.C. 

§ 1158(b)(1)(A), (B)(i). Under that definition, the applicant must 

demonstrate that she is an alien outside her country of nationality “who is 

 

became aware of Respondent’s case.” Respondent’s Opening Br. at 18 n.5. The Attorney 

General has the express authority under the INA to review “administrative determinations 

in immigration proceedings.” 8 U.S.C. § 1103(g)(2). The suggestion that there is 

something “irregular” about my exercise of that authority is meritless.

4

 The respondent in this case also applied for withholding of removal under 8 U.S.C 

§ 1231(b)(3) and for protection under the United Nations Convention Against Torture 

(“CAT”), see 8 C.F.R. § 1208.16(c). Because the Board sustained the respondent’s appeal 

as to her asylum claim, the Board did not address the immigration judge’s denial of her 

applications for withholding of removal or for CAT protection. See A-B- at *4 (BIA). My 

opinion addresses only respondent’s asylum claim. On remand, the immigration judge 

may consider any other issues remaining in the case.
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326

unable or unwilling to return to, and is unable or unwilling to avail . . . herself 

of the protection of, that 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.” Id. § 1101(a)(42)(A). Here, 

the respondent claims that she is eligible for asylum because of persecution 

she suffered on account of her purported membership in a particular social 

group—“El Salvadoran women who are unable to leave their domestic 

relationships where they have children in common” with their partners.

As the Board and the federal courts have repeatedly recognized, the 

phrase “membership in a particular social group” is ambiguous. Matter of 

Acosta, 19 I&N Dec. at 232–33; Matter of M-E-V-G-, 26 I&N Dec. at 230; 

Matter of W-G-R-, 26 I&N at 209; see also, e.g., Ngugi v. Lynch, 826 F.3d 

1132, 1138 (8th Cir. 2016); Gonzalez v. U.S. Att’y Gen., 820 F.3d 399, 404 

(11th Cir. 2016); Henriquez-Rivas v. Holder, 707 F.3d 1081, 1083 (9th Cir. 

2013) (en banc); Mayorga-Vidal v. Holder, 675 F.3d 9, 17 (1st Cir. 2012); 

Valdiviezo-Galdamez v. U.S. Att’y Gen., 663 F.3d 582, 612 (3d Cir. 2011). 

Neither the INA nor the implementing regulations define “particular social 

group.” 5 “The concept is even more elusive because there is no clear 

evidence of legislative intent.” Valdiviezo-Galdamez, 663 F.3d at 594. As 

then-Judge Alito noted for the court, “[r]ead in its broadest literal sense, the 

phrase is almost completely open-ended. Virtually any set including more 

than one person could be described as a ‘particular social group.’ Thus, the 

statutory language standing alone is not very instructive.” Fatin v. INS, 12 

F.3d 1233, 1238 (3d Cir. 1993) (Alito, J.).

The Attorney General has primary responsibility for construing 

ambiguous provisions in the immigration laws. M-E-V-G-, 26 I&N Dec. at 

230; see also 8 C.F.R. § 1003.1(g). The INA provides that the 

“determination and ruling by the Attorney General with respect to all 

questions of law shall be controlling.” 8 U.S.C. § 1103(a)(1). The Attorney 

General’s reasonable construction of an ambiguous term in the Act, such as 

“membership in a particular social group,” is entitled to deference. See Nat’l 

Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 980 

(2005); Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 

837, 844 (1984); see also Negusie v. Holder, 555 U.S. 511, 516 (2009) 

 5

 One of Congress’s primary purposes in passing the Refugee Act of 1980, Pub. L. No. 

96-212, 94 Stat. 102, was to implement the principles agreed to in the United Nations 

Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 

267 (entered into force Oct. 4, 1967; for the United States Nov. 1, 1968), as well as the 

United Nations Convention Relating to the Status of Refugees, July 28, 1951, 19 U.S.T. 

6259, 189 U.N.T.S. 150 (entered into force Apr. 22, 1954)). See INS v. Cardoza-Fonseca, 

480 U.S. 421, 436–37 (1987). The Protocol offers little insight into the definition of 

“particular social group,” which was added to the Protocol “as an afterthought.” Acosta, 

19 I&N Dec. at 232.
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327

(“Consistent with the rule in Chevron . . . , the BIA is entitled to deference 

in interpreting ambiguous provisions of the INA.”); id. at 525 (Scalia, J., 

concurring) (citing Chevron and agreeing that “the agency is entitled to 

answer” whether the alien is statutorily barred from receiving asylum); 

Aguirre-Aguirre, 526 U.S. at 425 (“judicial deference to the Executive 

Branch is especially appropriate in the immigration context where officials 

exercise especially sensitive political functions that implicate questions of 

foreign relations” (quotations omitted)). Thus, every court of appeals to have 

considered the issue has recognized that the INA’s reference to the term 

“particular social group” is inherently ambiguous and has deferred to 

decisions of the Board interpreting that phrase.6

The Supreme Court has “also made clear that administrative agencies are 

not bound by prior judicial interpretations of ambiguous statutory 

interpretations, because there is ‘a presumption that Congress, when it left 

ambiguity in a statute meant for implementation by an agency, understood 

that the ambiguity would be resolved, first and foremost, by the agency, and 

desired the agency (rather than the courts) to possess whatever degree of 

discretion the ambiguity allows.’” Matter of R-A-, 24 I&N Dec. 629, 631

(A.G. 2008) (quoting Brand X, 545 U.S. at 982 (internal quotation and 

citations omitted)). “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.” Brand 

X, 545 U.S. at 982. 

B.

In a number of opinions spanning several decades, the Board has 

articulated and refined the standard for persecution on account of 

membership in a “particular social group” so that this category is not 

boundless. The Board first interpreted the term in Matter of Acosta, 19 I&N 

Dec. at 233. Applying the canon of ejusdem generis, the Board concluded 

that the phrase “particular social group” should be construed in a manner 

consistent with the other grounds for persecution in the statute’s definition 

of refugee: race, religion, nationality, and political opinion. Id. Noting that 

each of these terms describes “a characteristic that either is beyond the power 6

 See, e.g., Reyes v. Lynch, 842 F.3d 1125, 1135 (9th Cir. 2016); Gonzalez, 820 F.3d at 

404; Zaldana Menijar v. Lynch, 812 F.3d 491, 498 (6th Cir. 2015); Cantarero v. Holder, 

734 F.3d 82, 85 (1st Cir. 2013); Cece v. Holder, 733 F.3d 662, 668–69 (7th Cir. 2013) 

(en banc); Orellana-Monson v. Holder, 685 F.3d 511, 520 (5th Cir. 2012); Lizama v. 

Holder, 629 F.3d 440, 446 (4th Cir. 2011); Ngengwe v. Mukasey, 543 F.3d 1029, 1033 

(8th Cir. 2008); Niang v. Gonzales, 422 F.3d 1187, 1199 (10th Cir. 2005); Ucelo-Gomez 

v. Mukasey, 509 F.3d 70, 72 (2d Cir. 2007); Fatin, 12 F.3d at 1238–39 (3d Cir. 1993). 
Cite as 27 I&N Dec. 316 (A.G. 2018) Interim Decision #3929 

328

of an individual to change or is so fundamental to individual identity or 

conscience that it ought not be required to be changed,” the Board concluded 

that persecution on account of membership in a particular social group must 

similarly mean “persecution that is directed toward an individual who is a 

member of a group of persons all of whom share a common, immutable 

characteristic.” Id. The Board stated that this definition “preserve[d] the 

concept that refuge is restricted to individuals who are either unable by their 

own actions, or as a matter of conscience should not be required, to avoid 

persecution.” Id. at 234.

In 1999, the Board, sitting en banc, considered for the first time “whether 

the repeated spouse abuse inflicted on the respondent makes her eligible for 

asylum as an alien who has been persecuted on account of her membership 

in a particular social group.” R-A-, 22 I&N Dec. at 907. In a thorough, wellreasoned opinion, the Board first looked to the plain language of the INA to 

determine whether Congress intended the Act to provide asylum to battered 

spouses who are leaving marriages to aliens having no ties to the United 

States. Id. at 913–14. Finding no definitive answer in the language of the 

statute, the Board “look[ed] to the way in which the other grounds in the 

statute’s ‘on account of’ clause operate.” Id. at 914. Following that 

“significant guidance,” the Board concluded that R-A- was not eligible for 

asylum for two reasons. First, her claimed social group—“Guatemalan 

women who have been involved intimately with Guatemalan male 

companions, who believe that women are to live under male domination”—

did not qualify as a “particular social group” under the INA. Id. at 917–18. 

And second, even if it did qualify, she failed to show a sufficient nexus 

between her husband’s abuse and her membership in that social group. Id. 

at 923.

The Board first observed that the purported social group appeared “to 

have been defined principally, if not exclusively, for purposes of this asylum 

case, and without regard to the question of whether anyone in Guatemala 

perceives this group to exist in any form whatsoever.” Id. at 918. The Board 

found “little or no relation [of the purported social group] to the way in which 

Guatemalans might identify subdivisions within their own society or 

otherwise might perceive individuals either to possess or to lack an important 

characteristic or trait.” Id. The Board reasoned that for a social group to be 

viable for asylum purposes, there must be some showing of how the 

immutable characteristic shared by the group is understood in the alien’s 

home country so that the Board can “understand that the potential persecutors 

in fact see persons sharing the characteristic as warranting suppression or the 

infliction of harm.” Id.

The Board held that a “particular social group” should be recognized and 

understood to be a societal faction or a recognized segment of the population 
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329

in the alien’s society. R-A-, 22 I&N Dec. at 918. The Board found that 

R-A- had “shown neither that the victims of spouse abuse view themselves 

as members of this group, nor, most importantly, that their male oppressors 

see their victimized companions as part of this group.” Id. Without such a 

showing, the Board concluded that “if the alleged persecutor is not even 

aware of the group’s existence, it becomes harder to understand how the 

persecutor may have been motivated by the victim’s ‘membership’ in the 

group to inflict the harm on the victim.” Id. at 919. 

In addition to holding that R-A-’s proposed group did not qualify as a 

“particular social group,” the Board also held that she had not shown the 

persecution was “on account of” her membership in the group. Id. at 920; 

see 8 U.S.C. § 1101(a)(42)(A). Even if the Board were to accept the 

respondent’s proposed social group, she “has not established that her 

husband has targeted and harmed [R-A-] because he perceived her to be a 

member of this particular social group.” R-A-, 22 I&N Dec. at 920. R-A-’s

husband targeted her “because she was his wife, not because she was a 

member of some broader collection of women, however defined, whom he 

believed warranted the infliction of harm.” Id.

On January 19, 2001, Attorney General Reno summarily vacated 

R-A- and directed the Board to stay consideration of the case pending final 

publication of a proposed rule offering guidance on the definitions of 

“persecution” and “membership in a particular social group” and what it 

means to be “on account of” a protected characteristic. R-A-, 22 I&N Dec. 

at 906; see also 65 Fed. Reg. 76,588, 76,588 (Dec. 7, 2000). No final rule 

ever issued, however. In September 2008, Attorney General Mukasey lifted 

the stay and directed the Board to reconsider the case in light of intervening 

Board and judicial decisions. Matter of R-A-, 24 I&N Dec. 629, 630 (A.G. 

2008). In December 2009, before the Board issued an opinion, R-A- and 

DHS jointly stipulated that she was eligible for asylum, resolving the case. 

See A-R-C-G-, 26 I&N Dec. at 391–92 n.12. 

Despite its vacatur, both the Board and federal courts have continued to 

rely upon R-A-. In 2014, the Board stated that the 1999 opinion’s “role in 

the progression of particular social group claims remains relevant.” 

M-E-V-G-, 26 I&N Dec. at 231 n.7. In 2013, the Ninth Circuit recognized 

that although “R-A- was later vacated[,] . . . litigants and other courts have 

relied heavily upon its analysis.” Henriquez-Rivas, 707 F.3d at 1090 n.11. 

And in 2011, the Third Circuit quoted R-A- at length because “R-A- is so 

important to the claim before us here.” Valdiviezo-Galdamez, 663 F.3d at 

596–97 & n.8. 

In the years since R-A-, the Board has refined its interpretation of 

“particular social group” on a case-by-case basis. In Matter of C-A-, 23 I&N 

Dec. 951, 959 (BIA 2006), aff’d sub nom. Castillo-Arias v. U.S. Att’y Gen., 
Cite as 27 I&N Dec. 316 (A.G. 2018) Interim Decision #3929 

330

446 F.3d 1190 (11th Cir. 2006), the Board held that a cognizable “particular 

social group” should generally be “easily recognizable and understood by 

others to constitute social groups.” In S-E-G-, 24 I&N Dec. at 584, the Board 

defined the “particularity” requirement as “whether the proposed group can 

accurately be described in a manner sufficiently distinct that the group would 

be recognized, in the society in question, as a discrete class of persons.” In 

Matter of E-A-G-, 24 I&N Dec. 591, 594 (BIA 2008), the Board further 

explained that “the extent to which members of a society perceive those with 

the characteristic in question as members of a social group—is of particular 

importance in determining whether an alien is a member of a claimed 

particular social group.” 

In 2014, the Board issued a pair of complementary precedential opinions, 

M-E-V-G- and W-G-R-, clarifying what is necessary to establish a particular 

social group. In those cases, the Board held that an asylum applicant 

claiming membership in a particular social group must “establish that the 

group is (1) composed of members who share a common immutable 

characteristic, (2) defined with particularity, and (3) socially distinct within 

the society in question.” M-E-V-G-, 26 I&N Dec. at 234, 237; see also

W-G-R-, 26 I&N Dec. at 212. The Board explained that those applicants also 

bear the burden of showing that their membership was a central reason for 

their persecution, and that their home government was “unable or unwilling 

to control” the persecutors. W-G-R-, 26 I&N Dec. at 224 & n.8.

Again echoing R-A-, the Board explained that the requirement that a 

group be socially distinct “considers whether those with a common 

immutable characteristic are set apart, or distinct, from other persons within 

the society in some significant way. In other words, if the common 

immutable characteristic were known, those with the characteristic in the 

society in question would be meaningfully distinguished from those who do 

not have it.” M-E-V-G-, 26 I&N Dec. at 238. Members of a particular social 

group will generally understand their own affiliation with that group, as will 

other people in their country. Id. To be socially distinct, a particular social 

group “must be perceived as a group by society.” Id. at 240.

M-E-V-G- also clarified that “a group’s recognition for asylum purposes 

is determined by the perception of the society in question, rather than by the 

perception of the persecutor.” Id. at 242. The Board explained that to do 

otherwise would create two significant problems. First, it would conflate the 

inquiry into whether a “particular social group” is cognizable under the INA 

with the separate and distinct requirement that the persecution be “on account 

of” membership. Id. Second, defining a particular social group from the 

perspective of the persecutor would contradict the Board’s prior holding that 

a social group may not be defined exclusively by the fact that its members 
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331

have been subjected to harm. Id. (citing Matter of A-M-E- & J-G-U-, 24 I&N 

Dec. 69, 74 (BIA 2007)).

Finally, the Board explained that this definition did not abrogate or depart 

from Acosta, 19 I&N Dec. 211, or the Board’s other decisions, but rather 

clarified how the definition of “particular social group” had developed 

through case-by-case adjudication. See W-G-R-, 26 I&N Dec. at 212; 

M-E-V-G-, 26 I&N Dec. at 244–47.

C.

Although the Board has articulated a consistent understanding of the term 

“particular social group,” not all of its opinions have properly applied that 

framework. Shortly after M-E-V-G- and W-G-R-, the Board decided 

A-R-C-G-, 26 I&N Dec. 388, which held that “married women in Guatemala 

who are unable to leave their relationship” could constitute a particular social 

group, id. at 392. Importantly, the Board based its decision on DHS’s 

concessions that: (1) A-R-C-G- suffered harm rising to the level of past 

persecution; (2) A-R-C-G-’s persecution was on account of her membership 

in a particular social group; and (3) A-R-C-G-’s particular social group was 

cognizable under the INA. Id. at 392–95. In fact, the only legal question not 

conceded by DHS was whether, under applicable Eighth Circuit law, the 

Guatemalan government was unwilling or unable to control her husband. Id. 

at 395; see also Gutierrez-Vidal v. Holder, 709 F.3d 728, 732 (8th Cir. 2013) 

(asylum applicant must show that assaults were either condoned by the 

government or were committed by private actors that the government was 

unwilling or unable to control). The Board declined to answer that question, 

electing instead to remand for further proceedings.

Because of DHS’s multiple concessions, the Board performed only a 

cursory analysis of the three factors required to establish a particular social 

group. The Board concluded that A-R-C-G-’s purported particular social 

group was “composed of members who share the common immutable 

characteristic of gender,” and that “marital status can be an immutable 

characteristic where the individual is unable to leave the relationship.” 

A-R-C-G-, 26 I&N Dec. at 392–93. With respect to particularity, the Board 

observed that the terms defining the group—“married,” “women,” and

“unable to leave the relationship”—had commonly accepted definitions 

within Guatemalan society. Id. at 393. And finally, with respect to social 

distinction, the Board cited evidence that Guatemala has a “culture of 

machismo and family violence,” and that although Guatemala’s criminal 

laws that prohibit domestic violence, “enforcement can be problematic 

because the National Civilian Police often failed to respond to requests for 
Cite as 27 I&N Dec. 316 (A.G. 2018) Interim Decision #3929 

332

assistance related to domestic violence.” Id. at 394 (quotation marks 

omitted). 

Subsequent Board decisions, including the decision certified here, have 

read A-R-C-G- as categorically extending the definition of a “particular 

social group” to encompass most Central American domestic violence 

victims. Like A-R-C-G-, these ensuing decisions have not performed the 

detailed analysis required. For instance, the Board’s decision in this case 

offered only the conclusory statement that the respondent’s proposed group 

was “substantially similar to that which we addressed in Matter of 

A-R-C-G-,” and that the “totality of the evidence, including the 2014 El 

Salvador Human Rights Report, establishes that the group is sufficiently 

particular and socially distinct in El Salvadoran Society.” A-B- at *2. The 

Board’s entire analysis of the respondent’s proposed particular social group 

consisted of only two sentences. Id. Other Board opinions have similarly 

treated A-R-C-G- as establishing a broad new category of cognizable 

particular social groups. See, e.g., Matter of D-M-R- (BIA June 9, 2015); 

Matter of E-M- (BIA Feb. 18, 2015).

By contrast, several courts of appeals have expressed skepticism about 

A-R-C-G-. In Velasquez v. Sessions, the Fourth Circuit concluded that the 

petitioner’s asylum claim concerned personal, private conflict rather than 

persecution on a protected ground. 866 F.3d at 197. The court distinguished 

A-R-C-G- “because, there, the Government conceded that the mistreatment 

suffered by the alien was, at least for one central reason, on account of her 

membership in a cognizable particular social group.” 866 F.3d at 195 n.5 

(quotation marks and alterations omitted). In Fuentes-Erazo, the Eighth 

Circuit declined to approve a particular social group of “Honduran women 

in domestic relationships who are unable to leave their relationships” after 

distinguishing A-R-C-G- because there “the petitioner’s actual membership 

in the proposed particular social group was undisputed.” 848 F.3d at 853. 

And in Jeronimo v. U.S. Attorney General, 678 F. App’x 796 (11th Cir. 

2017), the Eleventh Circuit denied the asylum application of a woman who 

claimed membership in a group of “indigenous women who live with a 

domestic partner and who suffer abuse and cannot leave safely from that 

domestic partner relationship.” Id. at 802–03. The court recognized that in 

A-R-C-G-, “DHS had conceded the petitioner had suffered past persecution 

and the persecution was because of membership in a particular social group.” 

Id. at 802.7

 7

 Other appellate courts have resisted attempts to expand A-R-C-G-’s reach. See, e.g., 

Menjivar-Sibrian v. U.S. Att’y Gen., ___ F. App’x. ___, 2018 WL 1415126, at *1 (11th 

Cir. Mar. 22, 2018) (“women abused by her partner she cannot control” is not a cognizable 

social group where defining attribute of proposed group is having suffered persecution); 
Cite as 27 I&N Dec. 316 (A.G. 2018) Interim Decision #3929 

333

IV.

A-R-C-G- was wrongly decided and should not have been issued as a 

precedential decision. DHS conceded almost all of the legal requirements 

necessary for a victim of private crime to qualify for asylum based on 

persecution on account of membership in a particular social group.8

 To the 

extent that the Board examined the legal questions, its analysis lacked rigor 

and broke with the Board’s own precedents.

A.

The Board should not have issued A-R-C-G- as a precedential opinion 

because DHS conceded most of the relevant legal questions. Precedential 

opinions of the Board are binding on immigration judges and guide the 

resolution of future cases. See 8 C.F.R. § 1003.1(d)(1) (“[T]he Board, 

through precedent decisions, shall provide clear and uniform guidance to the 

Service, the immigration judges, and the general public on the proper 

interpretation and administration of the [INA] and its implementing 

regulations.”). Yet the parties in A-R-C-G- decided significant legal issues 

on consent, and such concessions should not set precedential rules. Many of 

the issues that DHS conceded—such as the “existence of [the proposed] 

particular social group in Guatemala”—effectively stipulated key legal 

questions. 

 

Solorzano-De Maldonado v. Sessions, ___ F. App’x ___, 2018 WL 1192988, at *1 (5th

Cir. Mar. 7, 2018) (“single women living alone targeted by gangs for sexual abuse” does 

not constitute a socially distinct group in Salvadoran society); Perez-Rabanales v. Sessions, 

881 F.3d 61, 66 (1st Cir. 2018) (finding that purported social group of “Guatemalan women 

who try to escape systemic and severe violence but who are unable to receive official 

protection” lacked particularity and social distinction”); Vega-Ayala, 833 F.3d at 39 

(“Being in an intimate relationship with a partner who views you as property is not an 

immutable characteristic.”).

8 In Matter of L-E-A-, 27 I&N Dec. 40 (BIA 2017), the Board similarly used key 

concessions by DHS to recognize a particular social group that might not have withstood 

the rigorous legal analysis required by Board precedent. The respondent and DHS “agree[d] 

that the immediate family unit of the respondent’s father qualifies as a particular social 

group” and “that if family membership is a central reason for persecuting an asylum 

applicant, nexus may be established.” Id. at 42. There is reason to doubt that a nuclear 

family can comprise a particular social group under the statute. See, e.g., Thomas v. 

Gonzales, 409 F.3d 1177, 1192 (9th Cir.) (en banc) (Rymer, J., dissenting), rev’d, 547 U.S. 

183 (2005). Although the validity of the particular social group analysis in Matter of 

L-E-A- is beyond the scope of this opinion, the case reflects another instance where the 

Board purported to decide significant legal questions based upon concessions by the parties, 

rather than the appropriate legal analysis. 
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334

But “[p]arties may not stipulate to the legal conclusions to be reached by 

the court.” TI Fed. Credit Union v. DelBonis, 72 F.3d 921, 928 (1st Cir. 

1995) (internal quotation marks and alterations omitted); see also Swift & 

Co. v. Hocking Valley Ry. Co., 243 U.S. 281, 289 (1917) (“If the stipulation 

is to be treated as an agreement concerning the legal effect of admitted facts, 

it is obviously inoperative; since the court cannot be controlled by agreement 

of counsel on a subsidiary question of law.”). The same principle has long 

applied before the Board. Matter of A-, 4 I&N Dec. 378, 384 (BIA 1951); 

see also Sagastume v. Holder, 490 F. App’x 712, 715–16 (6th Cir. 2012) 

(holding that immigration judge did not err in denying voluntary departure 

even though the parties had stipulated that the petitioner would qualify for 

such relief because “[p]arties cannot stipulate around a statutory 

requirement”). Given the decision’s significant limitations in guiding future 

decisionmakers, the Board should not have designated A-R-C-G- as a 

precedential decision.

B.

Had the Board properly analyzed the issues, then it would have been clear 

that the particular social group was not cognizable. The Board’s approach in 

A-R-C-G- was contrary to the appropriate way that the Board has in the past, 

and must in the future, approach such asylum claims. By accepting DHS’s 

concessions as conclusive, the Board in A-R-C-G- created a misleading 

impression concerning the cognizability of similar social groups, and the 

viability of asylum claims premised upon persecution on account of 

membership in such groups. 

1.

In A-R-C-G-, DHS conceded that A-R-C-G- was a member of a 

“cognizable” social group that was both particular and socially distinct. Id. 

at 392–95. The Board thus avoided considering whether A-R-C-G- could 

establish the existence of a cognizable particular social group without 

defining the group by the fact of persecution. M-E-V-G-, 26 I&N Dec. at 

232; W-G-R-, 26 I&N Dec. at 215; see also Perez-Rabanales v. Sessions, 881 

F.3d 61, 67 (1st Cir. 2018); Rreshpja v. Gonzales, 420 F.3d 551, 556 (6th 

Cir. 2005); Jonaitiene v. Holder, 660 F.3d 267, 271 (7th Cir. 2011); CastilloArias v. U.S. Att’y Gen., 446 F.3d 1190, 1198 (11th Cir. 2006); Moreno v. 

Lynch, 628 Fed. Appx. 862, 865 (4th Cir. 2015).

To be cognizable, a particular social group must “exist independently” of 

the harm asserted in an application for asylum or statutory withholding of 

removal. M-E-V-G-, 26 I&N Dec. at 236 n.11, 243; W-G-R-, 26 I&N Dec. 
Cite as 27 I&N Dec. 316 (A.G. 2018) Interim Decision #3929 

335

at 215; Perez-Rabanales, 881 F.3d at 67; Lukwago v. Ashcroft, 329 F.3d 157, 

172 (3d Cir. 2003). If a group is defined by the persecution of its members, 

then the definition of the group moots the need to establish actual 

persecution. For this reason, “[t]he individuals in the group must share a 

narrowing characteristic other than their risk of being persecuted.” Rreshpja, 

420 F.3d at 556 (“If the group with which Rreshpja is associated is defined 

noncircularly—i.e., simply as young attractive Albanian women—then any 

young Albanian woman who possesses the subjective criterion of being 

‘attractive’ would be eligible for asylum in the United States.”). 

A-R-C-G- never considered that “married women in Guatemala who are 

unable to leave their relationship” was effectively defined to consist of 

women in Guatemala who are victims of domestic abuse because the inability 

“to leave” was created by harm or threatened harm.

In accepting DHS’s concession that this proposed particular social group 

was defined with particularity, the Board limited its analysis to concluding 

that the terms used to describe the group—“married,” “women,” and “unable 

to leave the relationship”—have commonly accepted definitions within 

Guatemalan society. A-R-C-G-, 26 I&N Dec. at 393. But that misses the 

point. To say that each term has a commonly understood definition, standing 

alone, does not establish that these terms have the requisite particularity in 

identifying a distinct social group as such, or that people who meet all of 

those criteria constitute a discrete social group. A particular social group 

must not be “amorphous, overbroad, diffuse, or subjective,” and “not every 

‘immutable characteristic’ is sufficiently precise to define a particular social 

group.” M-E-V-G-, 26 I&N Dec. at 239. The Board’s scant analysis did not 

engage with these requirements or show that A-R-C-G-’s proposed group 

was “defined by characteristics that provide a clear benchmark for 

determining who falls within the group.” M-E-V-G-, 26 I&N Dec. at 239. 

Social groups defined by their vulnerability to private criminal activity 

likely lack the particularity required under M-E-V-G-, given that broad 

swaths of society may be susceptible to victimization. For example, groups 

comprising persons who are “resistant to gang violence” and susceptible to 

violence from gang members on that basis “are too diffuse to be recognized 

as a particular social group.” Constanza v. Holder, 647 F.3d 749, 754 (8th 

Cir. 2011); see also, e.g., S-E-G-, 24 I&N Dec. at 588; Lizama v. Holder, 629 

F.3d 440, 447 (4th Cir. 2011); Larios v. Holder, 608 F.3d 105, 109 (1st Cir. 

2010); Lushaj v. Holder, 380 F. App’x 41, 43 (2d Cir. 2010); Barrios v. 

Holder, 581 F.3d 849, 855 (9th Cir. 2009). Victims of gang violence often 

come from all segments of society, and they possess no distinguishing 

characteristic or concrete trait that would readily identify them as members 

of such a group.
Cite as 27 I&N Dec. 316 (A.G. 2018) Interim Decision #3929 

336

Particular social group definitions that seek to avoid particularity issues 

by defining a narrow class—such as “Guatemalan women who are unable to 

leave their domestic relationships where they have children in common”—

will often lack sufficient social distinction to be cognizable as a distinct 

social group, rather than a description of individuals sharing certain traits or 

experiences. See R-A-, 22 I&N Dec. at 918 (holding that R-A- failed to show 

that her claimed social group “is a group that is recognized and understood 

to be a societal faction, or is otherwise a recognized segment of the 

population, within Guatemala”). A particular social group must avoid, 

consistent with the evidence, being too broad to have definable boundaries 

and too narrow to have larger significance in society.

DHS similarly admitted that A-R-C-G-’s proposed particular social group 

was socially distinct by conceding that it was cognizable. A-R-C-G-, 26 I&N 

Dec. at 392. In support of that concession, the Board cited evidence that 

Guatemala has a “culture of machismo and family violence” and that, 

although Guatemala has laws in place to prosecute domestic violence crimes, 

“enforcement can be problematic because the National Civilian Police often 

failed to respond to requests for assistance related to domestic violence.” Id. 

at 394 (quotation marks omitted).9

 The Board provided no explanation for 

why it believed that that evidence established that Guatemalan society 

perceives, considers, or recognizes “married women in Guatemala who are 

unable to leave their relationship” to be a distinct social group. But the key 

thread running through the particular social group framework is that social 

groups must be classes recognizable by society at large. See W-G-R-, 26 I&N 

Dec. at 217 (“To have the ‘social distinction’ necessary to establish a 

particular social group, there must be evidence showing that society in 

general perceives, considers, or recognizes persons sharing the particular 

characteristic to be a group.”). Membership in a particular tribe or clan 

within a society is an instructive example: those distinctions often constitute 

a “particular social group” because that is a “highly recognizable, immutable 

characteristic” that makes members recognized in society as a group. In re 

H-, 21 I&N Dec. 337, 342–43 (BIA 1996). By contrast, there is significant 

room for doubt that Guatemalan society views these women, as horrible as 

their personal circumstances may be, as members of a distinct group in 

society, rather than each as a victim of a particular abuser in highly 

individualized circumstances.

 9 On this point, I note that conclusory assertions of countrywide negative cultural 

stereotypes, such as A-R-C-G-’s broad charge that Guatemala has a “culture of machismo 

and family violence” based on an unsourced partial quotation from a news article eight 

years earlier, neither contribute to an analysis of the particularity requirement nor constitute 

appropriate evidence to support such asylum determinations. 
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337

2.

In A-R-C-G-, DHS also conceded that the respondent established that she 

had suffered past persecution. 26 I&N Dec. at 392. It can be especially 

difficult, however, for victims of private violence to prove persecution 

because “[p]ersecution is something a government does,” either directly or 

indirectly by being unwilling or unable to prevent private misconduct. Hor 

v. Gonzales, 400 F.3d 482, 485 (7th Cir. 2005) (emphasis in original). 

Persecution under the asylum statute “does not encompass all treatment that 

our society regards as unfair, unjust, or even unlawful or unconstitutional.” 

Fatin, 12 F.3d at 1240.

Board precedents have defined “persecution” as having three specific 

elements. First, “persecution” involves an intent to target a belief or 

characteristic. See Matter of L-E-A-, 27 I&N Dec. 40, 44 n.2 (BIA 2017) 

(citing Acosta, 19 I&N Dec. at 222). Yet private criminals are motivated 

more often by greed or vendettas than by an intent to “overcome [the 

protected] characteristic of the victim.” Matter of Kasinga, 21 I&N Dec. 

357, 365 (BIA 1996). For example, in R-A-, R-A-’s husband targeted her 

“because she was his wife, not because she was a member of some broader 

collection of women, however defined, whom he believed warranted the 

infliction of harm.” 22 I&N Dec. at 920. 

Second, the level of harm must be “severe.” Matter of T-Z-, 24 I&N Dec. 

163, 172–73 (BIA 2007). Private violence may well satisfy this standard, 

and I do not question that A-R-C-G-’s claims of repugnant abuse by her exhusband were sufficiently severe. 

Third, the harm or suffering must be “inflicted either by the government 

of a country or by persons or an organization that the government was unable 

or unwilling to control.” Acosta, 19 I&N Dec. at 222. The Board declined 

to address this prong of the analysis, instead remanding to the immigration 

judge for further proceedings to determine whether the Guatemalan 

government was unwilling or unable to control A-R-C-G-’s ex-husband.

An applicant seeking to establish persecution based on violent conduct of 

a private actor “must show more than ‘difficulty . . . controlling’ private 

behavior.” Menjivar v. Gonzales, 416 F.3d 918, 921 (8th Cir. 2005) (quoting 

Matter of McMullen, 17 I&N Dec. 542, 546 (BIA 1980)). The applicant must 

show that the government 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); see also Hor, 400 F.3d at 485. The fact 

that the local police have not acted on a particular report of an individual 

crime does not necessarily mean that the government is unwilling or unable 

to control crime, any more than it would in the United States. There may be 

many reasons why a particular crime is not successfully investigated and 
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338

prosecuted. Applicants must show not just that the crime has gone 

unpunished, but that the government is unwilling or unable to prevent it.

3.

Finally, DHS conceded the nexus requirement by agreeing that 

persecution suffered by A-R-C-G- “was, for at least one central reason, on 

account of her membership in a cognizable particular social group.” 

A-R-C-G-, 26 I&N Dec. at 392, 395. This conclusion simply does not follow 

from the facts of that case or similar cases. Establishing the required nexus 

between past persecution and membership in a particular social group is a 

critical step for victims of private crime who seek asylum. See R-A-, 22 I&N 

Dec. at 920–23. Yet the Board did not evaluate the conclusion that 

A-R-C-G- was persecuted “on account of” her status as a married woman in 

Guatemala who was unable to leave her relationship.

Normally, an alien seeking asylum bears the burden of establishing a 

nexus between the alleged persecution and one of the five statutory grounds 

for asylum. See 8 U.S.C. § 1158(b)(1)(B)(i); Tamara-Gomez v. Gonzales, 

447 F.3d 343, 349 (5th Cir. 2006). “If the ill-treatment was motivated by 

something other than one of these five circumstances, then the applicant 

cannot be considered a refugee for purpose of asylum.” Zoarab v. Mukasey, 

524 F.3d 777, 780 (6th Cir. 2008). “In analyzing ‘particular social group’ 

claims” the Board’s decisions “require that the persecution or well-founded 

fear of persecution be on account of, or, in other words, because of, the 

alien’s membership in that particular social group.” R-A-, 22 I&N Dec. at 

920. The focus in determining whether an alien was persecuted “on account 

of” her group membership is on “the persecutors’ motives”—why the 

persecutors sought to inflict harm. INS v. Elias-Zacarias, 502 U.S. 478, 483 

(1992). Reasons incidental, tangential, or subordinate to the persecutor’s 

motivation will not suffice. Matter of J-B-N- & S-M-, 24 I&N Dec. 208, 214 

(BIA 2007).

The nexus requirement is critically important in determining whether an 

alien established an asylum claim. That requirement is “where the rubber 

meets the road” because the “importance of the ‘on account of’ language 

must not be overlooked.” Cece, 733 F.3d at 673. “Although the category of 

protected persons [within a particular group] may be large, the number of 

those who can demonstrate the required nexus likely is not.” Id. Indeed, a 

“safeguard against potentially innumerable asylum claims” may be found “in 

the stringent statutory requirements for all asylum seekers.” Id. at 675. 

When private actors inflict violence based on a personal relationship with 

a victim, then the victim’s membership in a larger group may well not be 
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339

“one central reason” for the abuse. 10 See, e.g., Zoarab, 524 F.3d at 781 

(“Courts have routinely rejected asylum applications grounded in personal 

disputes.”). A criminal gang may target people because they have money or 

property within the area where the gang operates, or simply because the gang 

inflicts violence on those who are nearby. See, e.g., Constanza, 647 F.3d at 

754. That does not make the gang’s victims persons who have been targeted 

“on account of” their membership in any social group. 

Similarly, in domestic violence cases, like A-R-C-G-, the Board cited no 

evidence that her ex-husband attacked her because he was aware of, and 

hostile to, “married women in Guatemala who are unable to leave their 

relationship.” Rather, he attacked her because of his preexisting personal 

relationship with the victim. See R-A-, 22 I&N Dec. at 921 (“the record does 

not reflect that [R-A-’s] husband bore any particular animosity toward 

women who were intimate with abusive partners, women who had previously 

suffered abuse, or women who happened to have been born in, or were 

actually living in, Guatemala”). When “the alleged persecutor is not even 

aware of the group’s existence, it becomes harder to understand how the 

persecutor may have been motivated by the victim’s ‘membership’ in the 

group to inflict the harm on the victim.” Id. at 919.

4.

In A-R-C-G-, the Board recognized that it had a duty to evaluate “any 

claim regarding the existence of a particular social group in a country . . . in 

the context of the evidence presented regarding the particular circumstances 

in the country in question,” 26 I&N Dec. at 392, but it did not adequately 

observe that duty. Although the immigration judge had previously denied 

A-R-C-G-’s applications, the Board accepted, with little or no analysis, 

DHS’s concessions to the contrary on nearly every legal issue. By doing so, 

the Board recognized a new category of asylum claims that did not satisfy 

the requirements set forth by the Board’s precedent. 

 10 Even if mistreatment is suffered at the hands of a government official, there is no nexus 

between the purported persecution and one of the grounds for asylum if the dispute is a 

“purely personal matter.” Matter of Y-G-, 20 I&N Dec. 794, 799 (BIA 1994); see also, 

e.g., Marquez v. INS, 105 F.3d 374, 380–81 (7th Cir. 1997) (concluding that a commercial 

dispute with a Philippine military officer was “apolitical”); Iliev v. INS, 127 F.3d 638, 642 

(7th Cir. 1997) (holding that a dispute with a Bulgarian secret service agent over 

employment was “personal, not political”). The Board has recognized this principle for 

decades, including in cases involving threats of domestic violence. See Matter of Pierre, 

15 I&N Dec. 461, 463 (BIA 1975) (holding that a husband’s threats against his wife were 

“strictly personal,” even though he was a Haitian government official, and, thus, she did 

not establish persecution). 
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Future social group cases must be governed by the analysis set forth in 

this opinion. 

V.

Having overruled A-R-C-G-, I must vacate the Board’s December 2016 

decision in this case as well. The Board’s cursory analysis of the 

respondent’s social group consisted of a general citation to A-R-C-G- and 

country condition reports. Neither immigration judges nor the Board may 

avoid the rigorous analysis required in determining asylum claims, especially 

where victims of private violence claim persecution based on membership in 

a particular social group. Such claims must be carefully analyzed under the 

standards articulated in this opinion and in past Board decisions, such as 

M-E-V-G- and W-G-R-.

An asylum applicant has the burden of showing her eligibility for asylum, 

8 C.F.R. § 208.13(a), which includes identifying a cognizable social group 

and establishing group membership, persecution based on that membership,

and that the government was unwilling or unable to protect the respondent. 

The respondent must present facts that undergird each of these elements, and 

the asylum officer, immigration judge, or the Board has the duty to determine 

whether those facts satisfy all of the legal requirements for asylum.

Of course, if an alien’s asylum application is fatally flawed in one 

respect—for example, for failure to show membership in a proposed social 

group, see Guzman-Alvarez v. Sessions, 701 F. App’x 54, 56–57 (2d Cir. 

2017)—an immigration judge or the Board need not examine the remaining 

elements of the asylum claim. See, e.g., Perez-Rabanales, 881 F.3d at 67 

(“That ends this aspect of the matter. The petitioner’s failure to satisfy both 

the particularity and the social distinctiveness requirements defeats her 

attempt to qualify as a refugee through membership in a particular social 

group.”). 

Having subjected the Board’s decision to plenary review, I also address 

several additional errors and outline other general requirements relevant to 

all asylum applications to provide guidance to the Board and immigration 

judge on remand. 

A.

First, the Board erred in finding several of the immigration judge’s factual 

and credibility determinations to be “clearly erroneous.”

Under Department regulations, the Board may not engage in fact-finding 

on appeals (except for taking administrative notice of commonly known 

facts). 8 C.F.R. § 1003.1(d)(3)(iv). Furthermore, the Board may “not engage 
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in de novo review of findings of fact determined by an immigration judge,” 

and the immigration judge’s factual findings, “including findings as to the 

credibility of testimony, shall be reviewed only to determine whether the 

findings of the immigration judge are clearly erroneous.” Id. 

§ 1003.1(d)(3)(i); see also Turkson v. Holder, 667 F.3d 523, 527 (4th Cir. 

2012) (noting that “[t]his rule stems from a sensible understanding of the 

roles and abilities of the two bodies”). Notably, “where credibility 

determinations are at issue, . . . ‘even greater deference’ must be afforded to 

the [immigration judge]’s factual findings.” Rodriguez v. Holder, 683 F.3d 

1164, 1171 (9th Cir. 2012) (quoting Anderson, v. Bessemer City, 470 U.S. 

564, 575 (1985)). The Board may find an immigration judge’s factual 

findings to be clearly erroneous only if they are “illogical or implausible,” or 

without “support in inferences that may be drawn from the facts in the 

record.” Id. at 1170 (quoting Anderson, 470 U.S. at 577).

Furthermore, the Board “cannot, under a clear error standard of review, 

override or disregard evidence in the record” or rely “simply on its own 

interpretation of the facts.” Ridore v. Holder, 696 F.3d 907, 917 (9th Cir. 

2012). If the Board disagrees with an immigration judge’s factual findings, 

a “conclusory pronouncement” that the findings were erroneous “does not 

constitute clear error review.” Id. While the Board purported to apply the 

“clear error” standard in this case, I cannot simply “rely on the Board’s 

invocation of the clear error standard.” Rodriguez, 683 F.3d at 1170. My 

task is to determine whether the Board “faithfully employed the clear error 

standard or engaged in improper de novo review” of the immigration judge’s 

factual findings. Id. 

1.

Here, the Board admitted that the immigration judge identified 

discrepancies and omissions in the respondent’s testimony, but discounted 

the adverse credibility determination on various grounds including that the 

supportive affidavits were due greater weight, that the respondent 

sufficiently explained some discrepancies, and that the discrepancies did not 

ultimately undermine the respondent’s account. In so doing, the Board failed 

to give adequate deference to the credibility determinations and improperly 

substituted its own assessment of the evidence.

When an asylum applicant makes inconsistent statements, the 

immigration judge is uniquely advantaged to determine the applicant’s 

credibility, and the Board may not substitute its own view of the evidence on 

appeal. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 334 (2d Cir. 

2006) (“[W]here the [immigration judge]’s adverse credibility finding is 

based on specific examples in the record of inconsistent statements by the 
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342

asylum applicant about matters material to his claim of persecution, or on 

contradictory or inherently improbable testimony regarding such matters, a 

reviewing court will generally not be able to conclude that a reasonable 

adjudicator was compelled to find otherwise.” (quotation omitted)). Under 

the REAL ID Act, “[t]here is no presumption of credibility” in favor of an 

asylum applicant. Pub. L. No. 109-13, div. B, §§ 101(a)(3), 119 Stat. 231, 

303 (2005) (codified at 8 U.S.C. § 1158(b)(1)(B)(iii)). Furthermore, the 

identified inconsistencies do not have to be related to an applicant’s core 

asylum claim to support an adverse credibility determination: “Considering 

the totality of circumstances, and all relevant factors, a trier of fact may base 

a credibility determination on . . . the consistency between the applicant’s or 

witness’s written and oral statements . . . , the internal consistency of each 

such statement, [and] the consistency of such statements with other evidence 

of record . . . , without regard to whether an inconsistency, inaccuracy, or 

falsehood goes to the heart of the applicant’s claim, or any other factor.” Id. 

(emphasis added). “[O]missions, inconsistent statements, contradictory 

evidence, and inherently improbable testimony are appropriate bases for 

making an adverse credibility determination,” and the existence of “only a 

few” such issues can be sufficient to make an adverse credibility 

determination as to the applicant’s entire testimony regarding past 

persecution. Djadjou v. Holder, 662 F.3d 265, 273–74 (4th Cir. 2011).

2.

The Board further erred in concluding that the immigration judge’s 

factual findings concerning the respondent’s ability to leave her relationship 

and El Salvador’s ability to protect her were clearly erroneous. A-B- at *3. 

In support of his findings, the immigration judge cited evidence that the 

respondent was able to divorce and move away from her ex-husband, and 

that she was able to obtain from the El Salvadoran government multiple 

protective orders against him. 11 Although the Board questioned the 

significance of these facts in light of other evidence, it did not establish that 

the immigration judge’s conclusions were “illogical or implausible,” or 

without support from the record. See Rodriguez, 683 F.3d at 1170. 

Instead, the Board substituted its view of the evidence for that of the 

immigration judge, again violating the standard of review applicable to the 

factual determinations of immigration judges.

 11 The immigration judge’s findings that the respondent was able to leave her relationship 

on the basis of her divorce and her ability to move from the home she shared with her exhusband, and that she was able to obtain some measure of government protection, are 

supported by case law considering other particular social group claims. See, e.g., MenjivarSibrian, 2018 WL 1415126, at *1; Vega-Ayala, 833 F.3d at 39.
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B.

The Board also erred when it found that the respondent established the 

required nexus between the harm she suffered and her group membership. 

Whether a purported persecutor was motivated by an alien’s group affiliation 

“is a classic factual question,” Zavaleta-Policiano v. Sessions, 873 F.3d 241, 

247–48 (4th Cir. 2017) (internal quotation marks omitted), which the Board 

may overturn only if “clearly erroneous.”

The Board stated that “the record indicates that the ex-husband abused 

[the respondent] from his position of perceived authority, as her ex-husband 

and the father of her children.” A-B- at *3. From this, the Board held, in a 

conclusory fashion, that the “record as a whole supports a finding that the 

respondent’s membership in the particular social group of ‘El Salvadoran 

women who are unable to leave their domestic relationship where they have 

children in common’ is at least one central reason that he ex-husband abused 

her.” Id. While citing the standard of review, the Board did not apply it in 

summarily dismissing the immigration judge’s findings. Moreover, the 

Board’s legal analysis was deficient. The Board, required to find “clear 

error” of a factual finding, pointed to no record evidence that respondent’s 

husband mistreated her in any part “on account of” her membership in the 

particular social group of “El Salvadoran women who are unable to leave 

their domestic relationship where they have children in common.” The 

Board cited no evidence that her husband knew any such social group 

existed, or that he persecuted wife for reasons unrelated to their relationship. 

There was simply no basis in the Board’s summary reasoning for overturning 

the immigration judge’s factual findings, much less finding them clearly 

erroneous.

C.

The Board also erred when it overruled the immigration judge’s finding 

that the respondent failed to demonstrate that the government of El Salvador 

was unable or unwilling to protect her from her ex-husband. This inquiry too 

involved factual findings to which the Board did not give proper deference. 

No country provides its citizens with complete security from private criminal 

activity, and perfect protection is not required. In this case, the respondent 

not only reached out to police, but received various restraining orders and 

had him arrested on at least one occasion. See A-B- at *14–15 (Immig. Ct. 

Dec. 1, 2015).

For many reasons, domestic violence is a particularly difficult crime to 

prevent and prosecute, even in the United States, which dedicates significant 
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resources to combating domestic violence. See, e.g., Office of Justice 

Programs, U.S. Dep’t of Justice, Extent, Nature, and Consequences of 

Intimate Partner Violence (2000). The persistence of domestic violence in 

El Salvador, however, does not establish that El Salvador was unable or 

unwilling to protect A-B- from her husband, any more than the persistence 

of domestic violence in the United States means that our government is 

unwilling or unable to protect victims of domestic violence. In short, the 

Board erred in finding, contrary to the record and the immigration judge’s 

findings, that El Salvador was unable or unwilling to protect A-B- and that 

she thus had no choice but to flee the country. 

D.

The Board, immigration judges, and all asylum officers should consider 

the following points when evaluating an application for asylum. First, an 

applicant seeking asylum or withholding of removal based on membership 

in a particular social group must clearly indicate, on the record and before 

the immigration judge, the exact delineation of any proposed particular social 

group. See Matter of W-Y-C- & H-O-B-, 27 I&N Dec. 189, 190–91 (BIA 

2018); Matter of A-T-, 25 I&N Dec. 4, 10 (BIA 2009). The immigration 

judge has a responsibility to “ensure that the specific social group being 

analyzed is included in his or her decision,” as it critical to the Board’s 

“appellate review that the proposed social group is clear and that the record 

is fully developed.” Matter of W-Y-C- & H-O-B-, 27 I&N Dec. at 191. The 

Board must also remember that it cannot sustain an asylum applicant’s appeal 

based on a newly articulated social group not presented before or analyzed 

by the immigration judge. Id. at 192; see also, e.g., Baltti v. Sessions, 878 

F.3d 240, 244–45 (8th Cir. 2017) (finding no jurisdiction to review a newly 

defined social group because the claim based on “membership in that 

narrowed social group” had not been raised below); Duarte-Salagosa v. 

Holder, 775 F.3d 841, 845 (7th Cir. 2014) (declining to address a particular 

social group raised for the first time on appeal).

Furthermore, the Board, immigration judges, and all asylum officers must 

consider, consistent with the regulations, whether internal relocation in the 

alien’s home country presents a reasonable alternative before granting 

asylum. Asylum applicants who have “not established past persecution . . . 

bear the burden of establishing that it would not be reasonable for him or her 

to relocate, unless the persecution is by a government or governmentsponsored.” 8 C.F.R. § 1208.13(b)(3)(i). 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 
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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.” Id. § 1208.13(b)(1)(i). Beyond the standards 

that victims of private violence must meet in proving refugee status in the 

first instance, they face the additional challenge of showing that internal 

relocation is not an option (or in answering DHS’s evidence that relocation 

is possible). When the applicant has suffered personal harm at the hands of 

only a few specific individuals, internal relocation would seem more 

reasonable than if the applicant were persecuted, broadly, by her country’s 

government.

Finally, there are alternative proper and legal channels for seeking 

admission to the United States other than entering the country illegally and 

applying for asylum in a removal proceeding. The asylum statute “is but one 

provision in a larger web of immigration laws designed to address individuals 

in many different circumstances,” and “[t]o expand that statute beyond its 

obviously intended focus is to distort the entire immigration framework.” 

Velasquez, 866 F.3d at 199 (Wilkinson, J., concurring). Aliens seeking a 

better life in America are welcome to take advantage of existing channels to 

obtain legal status before entering the country. In this case, A-B- entered the 

country illegally, and when initially apprehended by Border Patrol agents, 

she stated that her reason for entering the country was “to find work and 

reside” in the United States. Aliens seeking an improved quality of life 

should seek legal work authorization and residency status, instead of illegally 

entering the United States and claiming asylum.12

VI.

 12 Asylum is a discretionary form of relief from removal, and an applicant bears the burden 

of proving not only statutory eligibility for asylum but that she also merits asylum as a 

matter of discretion. 8 U.S.C. §§ 1158(b)(1), 1229a(c)(4)(A)(ii); see also Romilus v. 

Ashcroft, 385 F.3d 1, 8 (1st Cir. 2004). Neither the immigration judge nor the Board 

addressed the issue of discretion regarding the respondent’s asylum application, and I 

decline to do so in the first instance. Nevertheless, I remind all asylum adjudicators that a 

favorable exercise of discretion is a discrete requirement for the granting of asylum and 

should not be presumed or glossed over solely because an applicant otherwise meets the 

burden of proof for asylum eligibility under the INA. Relevant discretionary factors 

include, inter alia, the circumvention of orderly refugee procedures; whether the alien 

passed through any other countries or arrived in the United States directly from her country; 

whether orderly refugee procedures were in fact available to help her in any country she 

passed through; whether she made any attempts to seek asylum before coming to the United 

States; the length of time the alien remained in a third country; and her living conditions, 

safety, and potential for long-term residency there. See Matter of Pula, 19 I&N Dec. 467, 

473–74 (BIA 1987).
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In reaching these conclusions, I do not minimize the vile abuse that the 

respondent reported she suffered at the hands of her ex-husband or the 

harrowing experiences of many other victims of domestic violence around 

the world. I understand that many victims of domestic violence may seek to 

flee from their home countries to extricate themselves from a dire situation 

or to give themselves the opportunity for a better life. But the “asylum statute 

is not a general hardship statute.” Velasquez, 866 F.3d at 199 (Wilkinson, J., 

concurring). As Judge Wilkinson correctly recognized, the Board’s recent 

treatment of the term “particular social group” is “at risk of lacking rigor.” 

Id. at 198. Nothing in the text of the INA supports the suggestion that 

Congress intended “membership in a particular social group” to be “some 

omnibus catch-all” for solving every “heart-rending situation.” Id. 

I therefore overrule Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014) 

and all other opinions inconsistent with the analysis in this opinion, vacate 

the Board’s decision, and remand to the immigration judge for further 

proceedings consistent with this opinion.