Cite as 27 I&N Dec. 316 (A.G. 2018)

Interim Decision #3929

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.

316

Cite as 27 I&N Dec. 316 (A.G. 2018)

Interim Decision #3929

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 well317

Cite as 27 I&N Dec. 316 (A.G. 2018)

Interim Decision #3929

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
318

Cite as 27 I&N Dec. 316 (A.G. 2018)

Interim Decision #3929

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
319

Cite as 27 I&N Dec. 316 (A.G. 2018)

Interim Decision #3929

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]”).

320

Cite as 27 I&N Dec. 316 (A.G. 2018)

Interim Decision #3929

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

321

Cite as 27 I&N Dec. 316 (A.G. 2018)

Interim Decision #3929

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.

322

Cite as 27 I&N Dec. 316 (A.G. 2018)

Interim Decision #3929

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
323

Cite as 27 I&N Dec. 316 (A.G. 2018)

Interim Decision #3929

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

324

Cite as 27 I&N Dec. 316 (A.G. 2018)

Interim Decision #3929

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.

325

Cite as 27 I&N Dec. 316 (A.G. 2018)

Interim Decision #3929

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.

326

Cite as 27 I&N Dec. 316 (A.G. 2018)

Interim Decision #3929

(“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).

327

Cite as 27 I&N Dec. 316 (A.G. 2018)

Interim Decision #3929

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
328

Cite as 27 I&N Dec. 316 (A.G. 2018)

Interim Decision #3929

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.,
329

Cite as 27 I&N Dec. 316 (A.G. 2018)

Interim Decision #3929

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
330

Cite as 27 I&N Dec. 316 (A.G. 2018)

Interim Decision #3929

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
331

Cite as 27 I&N Dec. 316 (A.G. 2018)

Interim Decision #3929

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);

332

Cite as 27 I&N Dec. 316 (A.G. 2018)

Interim Decision #3929

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.

333

Cite as 27 I&N Dec. 316 (A.G. 2018)

Interim Decision #3929

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.
334

Cite as 27 I&N Dec. 316 (A.G. 2018)

Interim Decision #3929

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.
335

Cite as 27 I&N Dec. 316 (A.G. 2018)

Interim Decision #3929

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.

336

Cite as 27 I&N Dec. 316 (A.G. 2018)

Interim Decision #3929

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
337

Cite as 27 I&N Dec. 316 (A.G. 2018)

Interim Decision #3929

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
338

Cite as 27 I&N Dec. 316 (A.G. 2018)

Interim Decision #3929

“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).

339

Cite as 27 I&N Dec. 316 (A.G. 2018)

Interim Decision #3929

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
340

Cite as 27 I&N Dec. 316 (A.G. 2018)

Interim Decision #3929

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
341

Cite as 27 I&N Dec. 316 (A.G. 2018)

Interim Decision #3929

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.

342

Cite as 27 I&N Dec. 316 (A.G. 2018)

Interim Decision #3929

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
343

Cite as 27 I&N Dec. 316 (A.G. 2018)

Interim Decision #3929

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
344

Cite as 27 I&N Dec. 316 (A.G. 2018)

Interim Decision #3929

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).

345

Cite as 27 I&N Dec. 316 (A.G. 2018)

Interim Decision #3929

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.

346


Inferlin beciskin *1595

MA

zu Or COURPAS

In Section 212(e) Proceedings

A-13975861-2

Deckled .by District Director March 29, 1966
Exchange visitor physicians lhusband and wife), natives of the United Arab
Republic, are granted waivers of the 2-year foreign residence requirement of
section 212(e), Immigration and Nationality Act, as amended, because compliance therewith would result in exceptional hardship to their United States
citizen child-whom they would be unable to properly support and care for if;
they returned to the United Arab Republic since they are persons of Greek
descent and as such could anticipate economic discrimination if they exlearorea to establish-medical practices in that country; if they went to Greece,•
the country of citizenship of the male -applicant. where neither applicant has
ever resided,, they 'would have difficulty in obtaining .licenses to practice
because of their inadequate knowledge of the language and the fact their
entire education was obtained outeide Greece.

The male applicant is 9-30-Year-old :physician a native of the .
was admitted to UnitedArabRpul •citzenofGr.-H
the United States on July 8, 1960, as an exchange visitor for a
rotating internship sponsored by the Franklin Square Hospital, Baltimore, Maryland under Exchange Vicitor Program No. P II 708.
He transferred to the Union Memorial Hospitals -Baltimore, Maryland in July 1961 under Exchange Visitor Program No. P-II-672,
where he completed his training in June 1905. He is employed as
house physician at Bedford County Hospital, Bedford, Virginia at
the present time.
The female applicant is a 31-year--old native and citizen of the
United Arab Republic. She was admitted to the United- States as
an exchange visitor on July 24, 1959,- for a residency sponsored by
the Franklin Square Hospital, Baltimore, Maryland under Exchange
Visitor Program No. P 11 708_ In July 1964 she transferred to
Union Memorial Hospital, Baltimore, Maryland under Exchange
Visitor Program re Pn-II-672., She completed her training at
Johns Hopkins University Hospital, Baltimore, Maryland under
-

-

-

847 •

-

'InterimrDecisien #1595
Exchange Visitor Program No. P-11-247. She has not been employed since June 1965.
The applicants were married at Baltimore, Maryland on July 21,
1963. A daughter, Eleanor, was born on December 21, 1961 in Baltimore, Maryland. They reside at 1240 Oakwood Street, Bedford,
Virginia. If they returned to the United Arab Republic, they would
be unable to find suitable employment in their fields because that
country is predominantly Moslem and persons of Greek descent, such
as they both are, have little or no opportunity to earn .a satisfactory
living. On-the other hand, if they went to Greece, the country of
• his nationality, where neither applicant has ever resided, they would
have difficulty in obtaining licenses to practice bemuse' of their

inadequate knowledge of the Greek language and the fact that their
entire .education has been in schools :outside of Greece. .
The applicants have submitted evidence in suppOrt'of their claim
that racial prejudice against Greeks in. the United Arab Republic
has forced 'Many . thousands of Greeks to resettle . in Greece. This
prejudice extends to persons whoere of Gitek descent -though United
Arab RepubliC nationals. On Deceini3ei' 16, 1965, the Department of
State ,confirmed. that. economic discrimination could be anticipated
if, the applicants endeavored to establish medical practices in the
United Arab Republic. The applicants would be unable. therefore,
tetroperly support and care for their United States citizen child
under these unfriendly and adverse circumstances.
In view of the foregoing, it has been determined that compliance
with the .2-year -foreign residence requirement. of -section 212(e). of
the Inimigration and Nationality Act, as' amended, would impose
exceptional hardship upon Dr. and Mrs. Courpcs' United States
ran child. The Department of State has . recommended that the
.

waivers b© granted.

-.ORDER: It is ordered' that the recommendation of -the Depart
Ment,of State be followed and that the waivers be:granted.
-

648