In re A.B.

28 I&N Dec. 199

Matter of A-B-, Respondent

Interim Decision #4006

U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals

January 14, 2021

(1) Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018), did not alter the existing standard for determining whether a government is "unwilling or unable" to prevent persecution by non-governmental actors. The "complete helplessness" language used in Matter of A-B- is consistent with the longstanding "unable or unwilling" standard, as the two are interchangeable formulations.

(2) The concept of "persecution" under the Immigration and Nationality Act, 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(a), (b)(i), is premised on a breach of a home country's duty to protect its citizens. In cases where an asylum applicant is the victim of violence or threats by non-governmental actors, and the applicant's home government has made efforts to prevent such violence or threats, failures in particular cases or high levels of crime do not establish a breach of the government's duty to protect its citizenry.

(3) The two-pronged test articulated by the Board of Immigration Appeals in Matter of L-E-A-, 27 I&N Dec. 40, 43-44 (BIA 2017), is the proper approach for determining whether a protected ground is "at least one central reason" for an asylum applicant's persecution, 8 U.S.C. § 1158(b)(1)(B)(i). Under this test, the protected ground: (1) must be a but-for cause of the wrongdoer's act; and (2) must play more than a minor role—in other words, it cannot be incidental or tangential to another reason for the act.

BEFORE THE ACTING ATTORNEY GENERAL

Pursuant to 8 C.F.R. § 1003.1(h)(1)(i), I direct the Board of Immigration Appeals (the "Board") to refer to me its decision in this case. With the case thus referred, I hereby vacate the Board's June 30, 2020 decision and remand this case for review by a three-member panel consistent with this order.

In earlier proceedings in this case, Attorney General Jefferson B. Sessions, III, clarified important issues concerning the interpretation of the phrase "particular social group," and corrected an erroneous decision of the Board issued in 2014. See Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018). Several courts of appeals have upheld that interpretation as reasonable and within the Attorney General's discretion. See, e.g., Del Carmen Amaya-De Sicaran v. Barr, 979 F.3d 210, 217 (4th Cir. 2020) ("The Attorney General's ruling in Matter of A-B- is not arbitrary and capricious."); Diaz-Reynoso v. Barr, 968 F.3d 1070, 1078-87 (9th Cir. 2020) (rejecting an arbitrary-and-capricious challenge to Matter of A-B-); Scarlett v. Barr, 957 F.3d 316, 332-33 (2d Cir. 2020) (concluding that the Attorney General's interpretation of "persecution" is reasonable and that the "complete helplessness to protect" formulation was not new but "is well grounded in circuit precedents"); Amezcua-Preciado v. U.S. Att'y Gen., 943 F.3d 1337, 1344 (11th Cir. 2019) ("[W]e defer to the Attorney General's interpretation of the phrase 'particular social group' in A-B- because it is reasonable and consistent with both the BIA's and this Court's prior precedent."); Gonzales-Veliz v. Barr, 938 F.3d 219, 233 (5th Cir. 2019) ("reject[ing] . . . argument" that Matter of A-B- decision is arbitrary and capricious because "A-B- did not constitute a change in policy" and "assuming arguendo that A-B- can be read to constitute a change in policy, the Attorney General adequately acknowledged and explained the reasons for the change"). The opinion in Matter of A-B- sets forth the appropriate framework to govern the respondent's claim.

On remand from Attorney General Sessions's 2018 opinion and order, the immigration judge issued a new decision, which the Board affirmed. Although the Board sought to follow the Attorney General's opinion on remand, I am referring and reviewing this matter to provide additional guidance concerning three recurring issues in asylum cases involving applicants who claim persecution by non-governmental actors on account of the applicant's membership in a particular social group: (1) whether Attorney General Sessions's 2018 opinion altered the existing standard for determining whether a government is "unwilling or unable" to prevent persecution by non-governmental actors; (2) whether a government that makes efforts to stop the harm in third-party persecution cases is "unable or unwilling" to prevent persecution; and (3) whether a protected ground must be more than a but-for cause in order to be at least "one central reason" for persecuting an asylum applicant. With this matter referred to me, I issue this opinion to provide additional clarity on these three issues, and remand to the Board for further proceedings applying the principles outlined herein.

I.

Attorney General Sessions's decision in Matter of A-B- reiterated the legal standard for determining when persecution committed by non-governmental actors may be attributed to the government. As has long been the case, an asylum applicant must establish that the harm she suffered was "inflicted either by the government of a country or by persons or an organization that the government was unable or unwilling to control." Matter of Acosta, 19 I&N Dec. 211, 222 (BIA 1985). In discussing that standard, the Attorney General relied on several Federal court decisions that have addressed the "unable or unwilling" standard, including the Seventh Circuit's recognition that an applicant must show that the governmentcondoned the private actions "or at least demonstrated a complete helplessness to protect the victims." Galina v. INS, 213 F.3d 955, 958 (7th Cir. 2000). That discussion did not alter the "unable or unwilling" standard set forth in Matter of Acosta.

In the wake of the Attorney General's opinion, some applicants have argued that the decision's reliance on the "complete helplessness" language in Galina reflected a change in interpretation because that language was supposedly inconsistent with the "unable or unwilling" standard. I disagree. As the Second Circuit has recognized, that language is "not new," but "well grounded in circuit precedents"—decided before Attorney General Sessions issued the opinion in Matter of A-B-. Scarlett, 957 F.3d at 333. The "complete helplessness" language does not depart from the "unable or unwilling" standard; the two are interchangeable formulations. See id. at 332-33; see also Gonzales-Veliz, 938 F.3d at 233.

Before Matter of A-B-, several courts of appeals had used that language as a way of describing when a government was "unable or unwilling" to control persecution. See Guillen-Hernandez v. Holder, 592 F.3d 883, 886-87 (8th Cir. 2010) (quoting, with approval, "condoned it or at least demonstrated a complete helplessness to protect the victims" language from Galina, 213 F.3d at 958); Kere v. Gonzales, 252 F. App'x 708, 712 (6th Cir. 2007) (same); Shehu v. Gonzales, 443 F.3d 435, 437 (5th Cir. 2006) (same); Hor v. Gonzales, 421 F.3d 497, 501-02 (7th Cir. 2005) (same); cf. Ortiz-Araniba v. Keisler, 505 F.3d 39, 42 (1st Cir. 2007) ("An applicant must show the government's acquiescence in the persecutor's acts or its inability or unwillingness to investigate and punish those acts, and not just a general difficulty preventing the occurrence of particular future crimes" (first emphasis added)). The "two formulations accomplish the same purpose: to show that an alien's home government has more than difficulty . . . controlling private behavior." Gonzales-Veliz, 938 F.3d at 233 (internal quotation marks omitted).

Nevertheless, the D.C. Circuit recently interpreted Matter of A-B- as departing from the existing "unable or unwilling" standard and establishing a new, heightened one. See Grace v. Barr, 965 F.3d 883, 889-900 (D.C. Cir. 2020). In so doing, the D.C. Circuit did not discuss the several circuit court decisions to the contrary, but instead contended that "as a matter of plain language, the two formulations are hardly interchangeable" and that the Matter of A-B- standard "obviously" requires more culpability. Id. at 898-99. Along with the Second and Fifth Circuits, I disagree. See supra at 199 (discussing Gonzales-Veliz, 938 F.3d at 233, and Scarlett, 957 F.3d at 333). Matter of A-B- did not alter the longstanding "unable or unwilling" standard or implement a new, more stringent test for determining when persecution by third parties may be attributed to the government. Agovernment that is unwilling to control or protect against private harm can be said to "condone" it, in the ordinary sense of that word. See, e.g., Webster's Third New International Dictionary 473 (1993) (condone means "to permit the continuance of"). And the "completely helpless" formulation identifies "as persecutors governments that are actually unable to protect persons against private violence," while ensuring "that a government is not charged with persecution for failing to provide a particular standard of protection, or for lapses in protection." Scarlett, 957 F.3d at 333. This is consistent with existing law, since "able" to protect has always been applied as a matter of degree, rather than as a guarantee of absolute protection. See Saldana v. Lynch, 820 F.3d 970, 977 (8th Cir. 2016) ("[A] government that is 'unable' to control criminal activity cannot mean anything and everything short of a crime-free society; the standard is more akin to a government that has demonstrated 'complete helplessness' to protect victims of private violence."); Galina, 213 F.3d at 958 ("since a finding of persecution ordinarily requires a determination that government authorities, if they did not actually perpetrate or incite the persecution, condoned it or at least demonstrates a complete helplessness to protect the victims"). The reference in Matter of A-B- to this well-established formulation thus paraphrased existing law concerning when, under the Immigration and Nationality Act ("INA"), private-party violence may be...