Family Fleeing: Family Membership as a Basis for Asylum

UNIVERSITY of PENNSYLVANIA

JOURNAL of LAW & PUBLIC AFFAIRS

Vol. 5

April 2020

No. 3

FAMILY FLEEING:

FAMILY MEMBERSHIP AS A BASIS FOR ASYLUM

Christine Natoli

INTRODUCTION ............................................................................................... 2

I. OVERVIEW OF THE LAW ............................................................................... 6

A. Purported Circuit Split ........................................................................ 10

B. Matter of L-E-A- as Decided by the Board ......................................... 14

C. Board Decisions Post–L-E-A- ............................................................. 16

1. Family-based particular social groups, including those involving

extended families, can be cognizable ................................................... 16

2. Cognizability and nexus continue to be conflated ......................... 17

3. Nexus is more likely to be found in Fourth Circuit cases ............. 18

D. Matter of L-E-A- as Decided by the Attorney General ........................ 21

E. International and Comparative Views on Family-Based Particular

Social Groups and Nexus ......................................................................... 28

1. United Kingdom – family is a cognizable particular social group

and “defining family member” need not establish nexus ..................... 30

2. New Zealand – family is a cognizable particular social group and

“defining family member” need not establish nexus ............................ 32

3. Australia – family is a cognizable particular social group but

“defining family member” must demonstrate nexus ............................ 34

4. Canada - family is a cognizable particular social group but

“defining family member” must demonstrate nexus ............................ 36

II. FAMILY-BASED PARTICULAR SOCIAL GROUP MEMBERSHIP IN PRACTICE ... 38

Christine Natoli is Staff Attorney and Clinical Instructor at the University of California

Hastings College of the Law where she co-teaches the Refugee & Human Rights Clinic. My

deepest gratitude to my colleague and mentor Karen Musalo, Founder and Director of both the

Clinic and the Center for Gender & Refugee Studies, for her guidance and input on this piece. I

also thank my wonderful family—Joey, Des, Ellis, and Bsll Chbb—for their love and support.

Journal of Law & Public Affairs [Apr. 2020

A. Arguing Cognizability of a Family-Based Particular Social Group ... 41

1. Acosta – fundamental or immutable ............................................. 43

2. Particularity ................................................................................... 43

3. Social distinction ........................................................................... 45

B. Arguing Nexus in Family-Based Targeting Cases ............................... 48

1. Posit a clear theory or theories of why the family was targeted .... 48

2. Emphasize that mixed motives are permissible ............................ 51

3. Identify temporal patterns in targeting .......................................... 53

4. Connect to another protected ground ............................................ 54

5. Explain why other members of the family were not harmed ........ 55

6. If the persecutor harmed other individuals outside of the family,

explain how the applicant’s persecution is distinguishable .................. 57

CONCLUSION ................................................................................................. 58

INTRODUCTION

Over the last five years, there has been a well-documented increase in

the number of asylum seekers coming from the Northern Triangle of Central

America,

many of whom are fleeing horrific human rights abuses including

gang and intrafamilial violence.

Their claims have met with limited success.

Under U.S. law, applicants for asylum must demonstrate that, upon return to

their home countries, they would experience harms rising to the level of

persecution on account of a protected ground: race, religion, nationality, political

opinion, or membership in a particular social group.

This last category has evolved to offer the most promise for asylum

claims that do not satisfy any of the other four bases of eligibility. As such,

“membership in a particular social group” has become a battleground

between those who would like to see asylum protection in the U.S. expanded

and those more inclined to limit its reach. A follower of the latter camp,

Attorney General Sessions issued Matter of A-B- in June 2018, rejecting the

claim of an asylum seeker who argued that she had been harmed as a member

Guatemala, El Salvador, and Honduras.

See EXEC. OFFICE FOR IMMIGRATION REVIEW, ADJUDICATION STATISTICS, https://www.

justice.gov/eoir/page/file/1106366/download [https://perma.cc/W6DE-RWT2] (last updated

Jan. 23, 2020) (reflecting that 47,581 asylum applications were filed in fiscal year 2014,

63,701 in fiscal year 2015, 82,657 in fiscal year 2016, 144,983 in fiscal year 2017, 163,936

in fiscal year 2018, and 211,794 in fiscal year 2019). Between 2013 and 2015, the United

States received more affirmative asylum applications from the Northern Triangle “than in

the 15 years prior combined.” Maureen Meyer & Elyssa Pachico, Fact Sheet: U.S.

Immigration and Central American Asylum Seekers, WASH. OFF. ON LATIN AM. (Feb. 1,

2018), http://www.wola.org/analysis/fact-sheet-united-states-immigration-central-american

-asylum-seekers/ [https://perma.cc/7A8W-C9L4].

Vol. 5:3] Family Fleeing: Family Membership as a Basis for Asylum

of a particular social group defined by gender, nationality, and relationship

status.

In addition to vacating the order from the Board of Immigration

Appeals (“the Board” or “BIA”) to grant asylum to Ms. A-B-, Sessions also

overruled Matter of A-R-C-G-, a groundbreaking 2014 decision that

recognized that domestic violence can be the basis for an asylum claim.

doing so, Sessions opined that “[g]enerally, claims by aliens pertaining to

domestic violence or gang violence perpetrated by non-governmental actors

will not qualify for asylum.”

Despite this broad statement, a central tenet of asylum law is that each

case must be analyzed on its individual record and there can be no blanket

ruling for or against a certain particular social group or category of cases.

However, the practical effect of decisions issued unilaterally by Attorneys

General cannot be underestimated. Following Matter of A-B-, attorneys

around the country reported heightened scrutiny and a higher rate of denial

of cases involving gender-based violence and gang violence.

It is clear that

Matter of A-B-, 27 I. & N. Dec. 316, 317-21 (Att’y Gen. 2018).

Id. at 319.

An applicant for asylum must show either that the persecution is by the government or by

a private actor that the government is unwilling or unable to control. See 8 U.S.C. §

1158(B)(1) (2018) (citing 8 U.S.C. § 1101(a)(42)(A)) (emphasis added) (linking the eligibility

for asylum to the refugee definition, which only requires that the applicant be “unable or

unwilling to avail himself or herself of the protection of” his or her country rather than have

been persecuted by that country); see, e.g., INS v. Elias-Zacarias, 502 U.S. 478, 481-83 (1992)

(addressing a claim of persecution at the hands of non-governmental guerillas).

Matter of A-B-, 27 I. & N. Dec. at 320. The District Court Judge in Grace v. Whitaker found

that this constituted an impermissible blanket rule for claims involving domestic violence or gang

violence. 344 F. Supp. 3d 96, 126 (D.D.C. 2018). Although this case specifically challenged the

application of Matter of A-B- and the corresponding U.S. Citizenship & Immigration Services

policy memorandum in the context of credible fear determinations, many of the judge’s

conclusions are equally applicable to asylum and withholding of removal.

See, e.g., Matter of M-E-V-G-, 26 I. & N. Dec. 227, 242 (B.I.A. 2014) (“[A] social group

determination must be must be made on a case-by-case basis, because it is possible that under

certain circumstances, the society would make such a distinction and consider [a] shared past

experience to be a basis for distinction within that society.”).

See Kennji Kizuka, Central Americans Were Increasingly Winning Asylum Before

President Trump Took Office, HUM. RIGHTS FIRST (Jan. 30, 2019), https://www.human

rightsfirst.org/resource/central-americans-were-increasingly-winning-asylum-president-

trump-took-office [https://perma.cc/LC4W-STJB] (connecting the drop in asylum grants for

Central Americans with the decision in Matter of A-B-); see also Dree Collopy, Matter of A-

B-: Case Updates, Current Trends, and Suggested Strategies, AM. IMMIGR. LAWYERS ASS’N

(Jan. 31, 2019), https://thinkimmigration.org/blog/2019/01/31/matter-of-a-b-case-updates-

current-trends-and-suggested-strategies/ [https://perma.cc/6UQX-UTS3] (noting that, after

Matter of A-B, “[p]ractitioners across the country have noticed the application of heightened

legal and evidentiary standards, and even the systematic and categorical denial of asylum

claims involving domestic and gang violence”).

Journal of Law & Public Affairs [Apr. 2020

Matter of A-B- has given adjudicators who were already predisposed to deny

asylum substantially more ground to stand on.

The Trump Administration has propagated the message that we are

facing a crisis at the border to justify increasingly draconian immigration

policies.

What this messaging ignores, however, is that this is a crisis of our

own making, borne in large part from these very policies. Not to discount the

very real human rights violations that immigrants are fleeing in their home

countries, the situation has been dramatically exacerbated by the

Administration’s choices, for example to restrict access to the border, to

separate families, and to ramp up detention in conditions that have been

likened to concentration camps.

The attack on the legal framework for

asylum has received less attention but is in many ways more insidious.

There is an incredible amount of discretion involved in asylum

adjudication, as demonstrated by the fact that the single most important

variable in the success of an asylum application is the forum in which it is

heard. In 2018, the San Francisco Immigration Court granted almost 70% of

asylum cases whereas the Atlanta Court’s grant rate was 3.2%.

A decision

See SARAH PIERCE, MIGRATION POL’Y INST., IMMIGRATION-RELATED POLICY CHANGES IN

THE FIRST TWO YEARS OF THE TRUMP ADMINISTRATION 1 (2019), https://www.migrationpol

icy.org/research/immigration-policy-changes-two-years-trump-administration [https://per

ma.cc/J9KD-MUJH] (“After framing immigration as a threat to U.S. economic security and

public safety during his campaign, upon taking office Trump immediately turned his

administration’s focus to immigration enforcement by signing two executive orders . . . .”).

See, e.g., Julia Love, Asylum Seekers Anxiously Cross into U.S. As New Policy Kicks in,

REUTERS (July 17, 2019), https://www.reuters.com/article/us-usa-immigration-mexico-

border/asylum-seekers-anxiously-cross-into-us-as-new-policy-kicks-in-idUSKCN1UC2VH

[https://perma.cc/6YSE-EGYC] (“[New U.S. policy] requires asylum-seekers crossing a

third country on the way to the United States to first pursue safe-haven there, precluding

claims for the thousands who traverse Central American countries and Mexico to reach the

U.S. border.”); U.S.: Family Separation Harming Children, Families, HUM. RIGHTS FIRST

(July 11, 2019), https://www.hrw.org/news/2019/07/11/us-family-separation-harming-chil

dren-families [https://perma.cc/AZF4-6J8D] (“United States officials are separating migrant

children from their families at the border . . . .”); Charles M. Blow, Trump’s ‘Concentration

Camps,’ N.Y. TIMES (June 23, 2019), https://www.nytimes.com/2019/06/23/opinion/trump-

migrants-camps.html [https://perma.cc/XX7T-3FFF] (explaining that migrant children have

been separated from their parents and are being held in conditions more akin to concentration

camps than summer camp).

See Asylum Decisions in San Francisco in 2018, TRAC IMMIGRATION: ASYLUM

DECISIONS, https://trac.syr.edu/phptools/immigration/asylum/ [https://perma.cc/US9Z-LHT

N] (last visited Jan. 28, 2020) (set “Immigration Court” filter to San Francisco, “Fiscal Year

of Decision” filter to 2018, and select “Decision” filter) (showing that the San Francisco

immigration court granted 1,620 applications out of 2,392, or 68%); see also Asylum

Decisions in Atlanta in 2018, TRAC IMMIGRATION: ASYLUM DECISIONS, https:// trac.syr.edu

/phptools/immigration/asylum/ [https://perma.cc/US9Z-LHTN] (last visited Jan. 28, 2020)

Vol. 5:3] Family Fleeing: Family Membership as a Basis for Asylum

like Matter of A-B- that did not actually change the law, but was teeming with

restrictionist dicta, clearly emboldens less-refugee-friendly judges and

suggests to migrants that it may be safer to enter the country without

inspection than try their luck at “refugee roulette.”

In 2018, the Board issued a precedential decision requiring asylum

applicants to clearly delineate in Immigration Court to which particular social

group they are claiming membership in order to preserve them on appeal.

It is

now that much more critical in all cases, but especially those involving domestic

or gang violence, for applicants not to overlook any workable legal theories.

One promising line of argumentation is family-based particular social group

membership. There is ample jurisprudence accepting the family as a cognizable

social group and indicating that there is nexus to a protected ground when the

persecutor was motivated by the applicant’s relationship to a family member.

In May 2018, the Board published Matter of L-E-A-, its first and only

precedential decision on persecution on account of family membership.

Six

months later, Interim Attorney General Whitaker referred Matter of L-E-A-

to himself, staying the decision and requesting amicus briefing on the

circumstances under which an asylum claim based on family membership

should be granted.

On July 29, 2019, Attorney General Barr, who replaced

Whitaker in February 2019, issued his decision, asserting that most families

will not qualify as particular social groups.

Family-based claims have since

(set “Immigration Court” filter to Atlanta, “Fiscal Year of Decision” filter to 2018, and select

“Decision” filter) (showing that the Atlanta immigration court granted only 14 applications

out of 430, or 3%).

The “refugee roulette” phrase was coined in Jaya Ramji-Nogales, Andrew Schoenholtz & Philip

Schrag, Refugee Roulette: Disparities in Asylum Adjudication, 60 STAN. L. REV. 295 (2007).

Matter of W-Y-C- & H-O-B-, 27 I. & N. Dec. 189, 191 (B.I.A. 2018) (holding that an

applicant must delineate all particular social groups on the record before the Immigration

Judge and that the Board will generally not consider new groups not previously advanced

before the Immigration Judge).

See infra Section I, which presents an overview of the law, including analyses of multiple

cases in which family was accepted as a cognizable particular social group and nexus was

found to be satisfied.

Matter of L-E-A- (L-E-A- I), 27 I. & N. Dec. 40, 41 (B.I.A. 2017).

Matter of L-E-A- (L-E-A- II), 27 I. & N. Dec. 494 (Att’y Gen. 2018). The Attorney General

may review decisions de novo under 8 C.F.R. § 3.1(h) and supersede the authority of the

immigration judge and the Board. Deportation Proceedings of Joseph Patrick Thomas

Doherty, 12 Op. O.L.C. 1, 7 (1988). The previous two Attorneys General referred cases to

themselves just four times in eight years whereas Attorney General Sessions certified seven

cases to himself in the course of twenty-one months. Lorelei Laird, Whose Court Is This

Anyway? Immigration Judges Accuse Executive Branch of Politicizing Their Courts, A.B.A.

J. (Apr. 1, 2019), http://www.abajournal.com/magazine/article/immigration-judges-execu

tive-politicizing-courts [https://perma.cc/NPM2-4652].

L-E-A- II, 27 I. & N. Dec. at 581.

Journal of Law & Public Affairs [Apr. 2020

become more difficult to win, though the decision and accompanying

guidance from U.S. Citizenship and Immigration Services (USCIS)

have

recently been challenged in court.

With the Administration aiming to make

family-based particular social groups the latest casualty in its war on asylum

seekers, the goal of this Article is for practitioners and legal scholars alike to

understand the underpinnings of a family-based theory of persecution, the

longstanding case law that supports it, and the dangers as well as the

limitations of the Attorney General’s decision.

Part I analyzes the existing state of the law on particular social groups

involving families, including Matter of L-E-A-, circuit court rulings,

unpublished decisions,

as well as international and comparative

jurisprudence. Part II explores the practical application of family-based

particular social groups, offering lessons from case law about how best to

argue both that a social group defined by family is cognizable and that nexus

has been satisfied.

I. OVERVIEW OF THE LAW

To determine whether a particular social group is cognizable, an

applicant must demonstrate that the group is (1) composed of members

who share a common immutable characteristic; (2) is socially distinct; and

(3) is defined with particularity.

U.S. CITIZENSHIP & IMMIGR. SERVS., GUIDANCE FOR PROCESSING REASONABLE FEAR,

CREDIBLE FEAR, ASYLUM AND REFUGEE CLAIMS IN ACCORDANCE WITH MATTER OF L-E-A-

(2019), https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2019/USCIS_Me

morandum_LEA_FINAL.pdf [https://perma.cc/L3PD-YJ8W] [hereinafter USCIS L-E-A-

GUIDANCE]; Complaint at Exhibit A, S.A.P. v. Barr, No. 1:19-cv-03549 (D.D.C. Nov. 22,

2019) [hereinafter S.A.P. Complaint] (explaining the U.S. Citizenship & Immigration

Services’ September 2019 revisions to “Credible Fear of Persecution and Torture

Determinations” training materials).

See generally id.

The unpublished decisions included in this Article are from the Center for Gender &

Refugee Studies (CGRS) and the Immigrant & Refugee Appellate Center, L.L.C. (IRAC).

CGRS collects decisions through its technical assistance program, which provides

consultation and litigation resources to attorneys. Technical Assistance and Training, CTR.

FOR GENDER & REFUGEE STUDIES, http://cgrs.uchastings.edu/our-work/technical-assistance-

training [https://perma.cc/4HAC-8J77] (last visited June 11, 2019). The IRAC publishes a

monthly Index of Unpublished Decisions of the Board of Immigration Appeals. See Index of

Unpublished Decisions of the Board of Immigration Appeals, IMMIGRANT & REFUGEE APP.

CTR., www.irac.net [https://perma.cc/9QEE-HNK3] (last visited June 11, 2019).

Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (B.I.A. 2014); see also Matter of A-B-, 27

I. & N. Dec. 31, 320 (Att’y Gen. 2018) (articulating the same three-factor test). Although the

Board endeavored to clarify the particularity and social distinction tests in Matter of M-E-V-

Vol. 5:3] Family Fleeing: Family Membership as a Basis for Asylum

First, members of the group must share common characteristics which

are either immutable or so fundamental that they cannot or “should not be

required to change” them.

Second, the group must be defined with sufficient

particularity such that it has “well-defined boundaries” and constitutes a

“discrete class of persons.”

It must be easy to determine who is a member

of the group and who is not. Thus, the terms used to describe the group must

have “commonly accepted definitions in the society of which the group is a

part.”

Third, the social distinction prong requires that members of the group

be “set apart, or distinct, from other persons within the society in some

significant way. In other words . . . those with the characteristic in the society

in question would be meaningfully distinguished from those who do not have

it.”

The Board explained, “The perception of the applicant’s persecutors

may be relevant, because it can be indicative of whether society views the

G- and its companion case, Matter of W-G-R-, 26 I. & N. Dec. 208 (B.I.A. 2014), the more

legally defensible standard for determining cognizability is that asserted in Matter of Acosta,

that a particular social group must be defined by characteristics that are immutable or

fundamental. Acosta was the first articulation by the Board of the legal standard for particular

social group membership. 19 I. & N. Dec. 211, 233 (B.I.A. 1985). It was not until decades

later in Matter of S-E-G and Matter of E-A-G that the Board added the particularity and social

distinction tests. 24 I. & N. Dec. 579, 582-83 (B.I.A. 2008); 24 I. & N. Dec. 591, 593-94

(B.I.A. 2008) To impose additional requirements solely on social group claims and not the

other protected grounds violates the principle of ejusdem generis, meaning “of the same

kind.” See Matter of Acosta, 19 I. & N. at 233 (using the ejusdem generis doctrine to interpret

particular social group as requiring the same type of characteristics inherent in the other

protected grounds in the refugee definition). In fact, not all circuits have applied Chevron

deference to the Board’s imposition of the particularity and social distinction requirements.

See, e.g., Cece v. Holder, 733 F.3d 662, 669 (7th Cir. 2013) (deferring to the Board’s

definition of social group in Acosta while failing to mention S-E-G or E-A-G); W.G.A. v.

Sessions, 900 F.3d 957, 964-65 & n.4 (7th Cir. 2018), reh’g denied (Oct. 22, 2018) (refusing

to make a Chevron determination about particularity and social distinction). While this

Article argues that family-based particular social groups satisfy social distinction and

particularity, this is not intended to validate the Board’s current approach to social group

claims.

Matter of Acosta, 19 I. & N. Dec. at 233.

Matter of M-E-V-G-, 26 I. & N. Dec. at 245, 249; see also Arteaga v. Mukasey, 511 F.3d

940, 944 (9th Cir. 2007) (stating that the court will consider “whether the group can be

defined with sufficient particularity to delimit its membership”); Matter of S-E-G-, 24 I. &

N. Dec. at 584 (“The essence of the ‘particularity’ requirement, therefore, is 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.”).

Matter of M-E-V-G-, 26 I. & N. Dec. at 239; see also Matter of A-M-E- & J-G-U-, 24 I.

& N. Dec. 69, 76 (B.I.A. 2007) (rejecting the proposed group as “too amorphous to

provide an adequate benchmark for determining group membership”).

Matter of M-E-V-G-, 26 I. & N. Dec. at 238; see also Matter of W-G-R-, 26 I. & N. Dec.

at 217 (requiring “evidence showing that society in general perceives, considers, or

recognizes persons sharing the particular characteristic to be a group”).

Journal of Law & Public Affairs [Apr. 2020

group as distinct. However, the persecutors’ perception is not itself enough

to make a group socially distinct . . . .”

The key inquiry is therefore whether

the specific society views the group members as distinct and treats members

differently in some way.

The majority of adjudicators agree that family-based particular

social groups meet the requirements for cognizability.

In Matter of Acosta,

the first decision to define particular social group membership, the Board

explicitly mentioned “kinship ties” as a characteristic that can comprise a

cognizable social group.

The Board went on to repeatedly refer to families

as the paradigmatic example of a particular social group.

Most of the

circuit courts have joined the Board in accepting family-based groups as

cognizable.

There is widespread consensus that nuclear families can

constitute a cognizable social group, and many adjudicators have also

Matter of M-E-V-G-, 26 I. & N. Dec. at 242.

Id.

See infra Section II.A for a more detailed discussion of how family-based particular social

groups meet the requirements for cognizability.

See Matter of Acosta, 19 I. & N. Dec. 211, 233 (B.I.A. 1985) (“[W]e interpret the phrase

‘persecution on account of membership in a particular social group’ to 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. The shared characteristic might be an innate one such as

sex, color, or kinship ties . . . .” (emphasis added)).

See, e.g., Matter of C-A-, 23 I. & N. Dec. 951, 959 (B.I.A. 2006) (“Social groups based on

. . . family relationship are generally easily recognizable and understood by others to

constitute social groups.”); Matter of H-, 21 I. & N. Dec. 337, 342 (B.I.A. 1996) (finding

clan membership to constitute a cognizable particular social group because it was

“inextricably linked to family ties”).

See, e.g., Rios v. Lynch, 807 F.3d 1123, 1128 (9th Cir. 2015) (“[T]he family remains the

quintessential particular social group.”); Crespin-Valladares v. Holder, 632 F.3d 117, 125-26

(4th Cir. 2011) (quoting Sanchez-Trujillo v. INS, 801 F.2d 1571, 1576 (9th Cir. 1986) and the

BIA opinion) (agreeing that family is a “prototypical” particular social group and finding the

family members of “those who actively oppose gangs in El Salvador by agreeing to be

prosecutorial witnesses” as sufficiently particular and socially distinct); Al-Ghorbani v. Holder,

585 F.3d 980, 995 (6th Cir. 2009) (“[A]s acknowledged by this court and by other circuits, a

family is a ‘particular social group’ if it is recognizable as a distinctive subgroup of society.”);

Vumi v. Gonzalez, 502 F.3d 150, 154-55 (2d Cir. 2007) (remanding a case to consider the

applicant’s claim of persecution based on membership in her husband’s family and noting

that that “the Board has held unambiguously that membership in a nuclear family may

substantiate a social-group basis of persecution”); Bernal-Rendon v. Gonzalez, 419 F.3d 877, 881

(8th Cir. 2005) (recognizing that “a nuclear family can constitute a social group”); Iliev v. INS,

127 F.3d 638, 642 (7th Cir. 1997) (confirming that that 7th Circuit case law “has suggested, with

some certainty, that a family constitutes a cognizable ‘particular social group’ within the meaning

of the law”); Gebremichael v. INS, 10 F.3d 28, 36 (1st Cir. 1993) (“There can, in fact, be no

plainer example of a social group based on common, identifiable and immutable characteristics

than that of the nuclear family.”); Sanchez-Trujillo v. INS, 801 F.2d 1571, 1576 (9th Cir. 1986)

(stating that the family provides “a prototypical example of ‘a particular social group’”).

Vol. 5:3] Family Fleeing: Family Membership as a Basis for Asylum

recognized groups that encompass more extended family members.

In order to be eligible for asylum, applicants must demonstrate not only

that they are members of a cognizable particular social group, but that there is a

nexus to the persecution: that they were harmed because of this group

membership.

There is a longstanding recognition that persecutors may have

mixed motives when targeting individuals; for that reason, so long as a protected

ground was “one central reason” for the persecution, the nexus is deemed

sufficient.

Furthermore, the applicant does not bear the “unreasonable burden”

of establishing the persecutor’s exact motivation

but can satisfy the nexus

requirement through direct evidence, such as statements made by the persecutor

and circumstantial evidence including country conditions documentation, a

pattern of harm to others similarly-situated, and the timing of the persecution.

See infra Subsection I.C.1 and Section II.A.

See 8 U.S.C. § 1101(a)(42)(A) (2018) (including in the definition of a refugee that

persecution be “on account of” a protected ground). The U.S. puts the burden of proof on the

asylum seeker to provide evidence of the persecutor’s motive. Id. § 1158(b)(1)(B)(i); INS.

v. Elias-Zacarias, 502 U.S. 478, 483 (1992) (holding that the applicant must provide at least

some evidence of motive). “One central reason” for the persecution must be a protected

ground, 8 U.S.C. § 1158(b)(1)(B)(i), as amended by §101(a) of the REAL ID Act, P.L. 109-

13, 119 Stat. 302 (2005). However, adjudicators in the U.S. frequently ignore the doctrine of

mixed motives and seem to require that the sole cause of the persecution be a Convention

ground. See Michelle Foster, Causation in Context: Interpreting the Nexus Clause in the

Refugee Convention, 23 MICH. J. INT’L L. 265, 270-73 (2002) (stating that in practice, courts

frequently apply the effective sole cause test by rejecting the Convention-related

explanations for persecution and hypothesizing about the alternative non-Convention

grounds for the persecution). Though beyond the scope of this Article, it is worth noting that

the UNHCR applies a lower burden of proof for a finding of nexus, for example indicating

that “[o]ften the applicant himself may not be aware of the reasons for the persecution feared.

It is not, however, his duty to analyze his case to such an extent as to identify the reasons in

detail.” U.N. HIGH COMM’R FOR REFUGEES, HANDBOOK ON PROCEDURES AND CRITERIA FOR

DETERMINING REFUGEE STATUS UNDER THE 1951 CONVENTION AND THE 1967 PROTOCOL

RELATING TO THE STATUS OF REFUGEES ¶ 66 (1992). Some foreign jurisdictions, such as

Canada, also apply a less stringent nexus test, requiring that a Convention ground be “a

reason” but not “one central reason” for the persecution. See infra note 209.

Matter of J-B-N- & S-M-, 24 I. & N. Dec. 208, 214 (B.I.A. 2007) (“[T]he protected ground

cannot play a minor role . . . . That is, it cannot be incidental, tangential, superficial, or subordinate

to another reason for harm. Rather, it must be a central reason for persecuting the respondent”);

see also Grace v. Whitaker, 344 F. Supp. 3d 96, 130 (D.D.C. 2018) (“The INA expressly

contemplates mixed motives for persecution when it specifies that a protected ground must be

‘one central reason’ for the persecution.” (citing to 8 U.S.C. § 1158(b)(1)(B)(i))).

Matter of Fuentes, 19 I. & N. Dec. 658, 662 (B.I.A. 1988).

See INS v. Elias-Zacarias, 502 U.S. 478, 483 (1992) (describing how plaintiffs must

provide proof of a persecutors’ motives, but that proof may be direct or circumstantial); see

also RAIO COMBINED TRAINING COURSE: NEXUS AND THE PROTECTED GROUNDS, U.S.

CITIZENSHIP & IMMIGR. SERVS.18-20 (2012), https://www.uscis.gov/sites/default/files/

Journal of Law & Public Affairs [Apr. 2020

In the context of particular social group claims, whether or not the

persecution was on account of the applicant’s membership in the group is a

question that should be entirely separate from inquiries into whether the group

is cognizable and whether the applicant is a member of the group. It is possible

for an applicant to present a cognizable particular social group and to

demonstrate membership in this group, but then for the adjudicator to find that

there is insufficient evidence that one central reason that the persecutor harmed

the applicant was the group membership. Social group cognizability is

usually considered a legal issue with nexus typically categorized as a

finding of fact.

This distinction is significant because findings of fact are

reviewed by the Board under a “clearly erroneous” standard,

whereas questions

of law may be reviewed de novo.

Similarly, the federal courts of appeal limit

their review to questions of law

and treat findings of fact as conclusive “unless

any reasonable adjudicator would be compelled to conclude to the contrary.”

As such, adjudicators predisposed to deny asylum may do so based on a lack of

nexus, interpreting the facts to support the conclusion that the persecutor was not

motivated by the family relationship. Ruling on nexus rather than social group

cognizability increases the likelihood that a decision will survive appeal given

the highly deferential standard of review for findings of fact.

A. Purported Circuit Split

Some circuits considering family-based cases have consistently

questioned whether the persecutor was motivated by reasons unrelated to family

membership, such as general criminal intent, a desire for financial gain, or

files/nativedocuments/Nexus_minus_PSG_RAIO_Lesson_Plan.pdf [https://perma.cc/NYX3-

N8LF] (outlining examples of direct and circumstantial evidence of the persecutor’s motive).

See, e.g., Hincaipe v. Att’y Gen., 494 F.3d 213, 218 (1st Cir. 2007) (“[T]he question of

whether persecution is on account of . . . protected grounds is fact-specific.”); Silva v.

Attorney General, 448 F.3d 1229, 1236 (11th Cir. 2006) (holding that the review of

petitioner’s credible evidence of past persecution or a well-founded fear of persecution is

considered an administrative fact finding); Jahed v. INS, 356 F.3d 991, 1003 (9th Cir. 2004)

(“Whether persecution is ‘on account of’ a petitioner’s political opinion is a question of fact;

it turns on evidence about the persecutor’s motive.”). But see Menghesha v. Gonzales, 450

F.3d 142, 147 (4th Cir. 2006) (“In this instance, however, we are concerned with the IJ’s

legal conclusions, not factual findings. We find that the IJ erred as a matter of law in holding

[petitioner] to an overly stringent legal standard: proving that political persecution was the

government’s sole motive.”); Aguilera-Cota v. INS, 914 F.2d 1375, 1380 (9th Cir. 1990)

(addressing the sufficiency of the petitioner’s testimony about motive as a legal question).

8 C.F.R. § 1003.1(d)(3)(i) (2019).

Id. § 1003.1(d)(3)(ii).

8 U.S.C. § 1252(a)(2)(D) (2018).

Id. § 1252(b)(4)(B).

Vol. 5:3] Family Fleeing: Family Membership as a Basis for Asylum

revenge.

Others, in particular the Fourth Circuit, have been more inclined to

find nexus to the family-based particular social group even when the persecutor

also had other reasons for targeting the victim unrelated to a protected ground.

Another central dispute around family claims among the circuits focuses on the

reason the initial family member was targeted (hereinafter referred to as the

“defining family member”). There is considerable variation among the courts as

to whether the “defining family member” need also have been persecuted on

account of a protected ground in order for the applicant to be eligible for asylum.

For example, in Ramirez-Mejia v. Lynch, the petitioner’s brother, a gang

member, was killed by a rival gang, after which the petitioner, her parents, and

her brother’s wife were threatened.

The facts do not support any obvious claim

for refugee protection by the “defining family” member, the deceased brother in

this case. Given that the brother may not have been himself targeted on account

of a protected ground, it is unclear whether this would disqualify the petitioner’s

family as a cognizable particular social group. However, the Fifth Circuit

essentially circumvented the issue by concluding that the gangs were targeting

the petitioner, not because of her family relationship, but to obtain information

that they believed her brother had given her,

noting, “there is no reason to

suppose that those who persecute to obtain information also do so out of

hatred for a family, or vice versa.”

The Court explicitly declined to address

the issue of whether the petitioner’s proposed particular social group of her

family was cognizable.

Reaching more directly the issue of whether the “defining family

member” need be persecuted on account of a protected ground, the Seventh

Circuit in Yin Guan Lin v. Holder considered the case of a Chinese petitioner

who was threatened and detained by debt collectors from whom his father had

borrowed money.

In denying the petition to review, the Court acknowledged

that “the family unit can constitute a social group” but found that the petitioner’s

See, e.g., Marin-Portillo v. Lynch, 834 F.3d 99, 102 (1st Cir. 2016) (“[T]he record

adequately supports the IJ’s finding . . . that the threats against [petitioner] stemmed not from

. . . kinship ties . . ., but rather . . . retaliation”); Cambara-Cambara v. Lynch, 837 F.3d 822,

824-26 (8th Cir. 2016) (holding that persecution based on wealth is not a cognizable social

group and targeting only wealthy family members fails to provide the required nexus);

Demiraj v. Holder, 631 F.3d 194, 199 (5th Cir. 2011) (finding that the persecution against

petitioner was based on revenge as opposed to family ties); see also infra note 103

(discussing cases in which the persecutors were found to be motivated by financial gain).

For Fourth Circuit case law following Matter of L-E-A-, see infra Subsection I.C.3.

Ramirez-Mejia v. Lynch, 794 F.3d 485, 488 (5th Cir. 2015).

See id. at 492-93 (differentiating between persecuting to obtain information about a relative

and persecuting because of status as a relative).

Id. at 493.

Id. at 492.

Yin Guan Lin v. Holder, 411 F. App’x 901, 903 (7th Cir. 2011).

Journal of Law & Public Affairs [Apr. 2020

persecution was not on account of his family membership.

The Court

concluded, “[a]ny harm that Lin faced arose from a personal dispute between his

father and his father's creditors. Debtors who fear creditors do not qualify for

social-group membership.”

Because the “defining family member” had been

targeted due to what the Court deemed to be a personal dispute around

attempts to collect a debt, his son was also not eligible for protection.

In contrast, the Fourth Circuit in Hernandez-Avalos v. Lynch remanded

a case involving a petitioner who had been threatened by gang members who

wanted her son to join the gang.

The Board denied asylum based on lack of

nexus, finding that the petitioner was threatened because she opposed her son’s

involvement in criminal activity rather than on account of her family

membership.

Even though the petitioner’s son had not been harmed for a

protected reason,

the Fourth Circuit concluded, “Hernandez’s relationship to

her son is why she, and not another person, was threatened with death if she

did not allow him to join Mara 18, and the gang members’ demands leveraged

her maternal authority to control her son’s activities.”

The Ninth Circuit came

to a similar decision in Flores-Rios v. Lynch, in which the petitioner argued that

he had been persecuted because of his family’s opposition to a gang, including

that his cousin had agreed to testify against a gang member.

The Court

remanded the case to address whether the petitioner had been persecuted due to

his family membership, citing to previous precedent in which the Circuit had

“declined to hold . . . ‘that a family can constitute a particular social group

See id. at 905 (qualifying how the family unit may be a social group).

Id. at 905-06. It is not entirely clear from the decision, but the court seemed to imply that

the very cognizability of the petitioner’s particular social group turned on whether his father

had been persecuted on account of a protected ground, a position that conflates the separate

issues of cognizability and nexus.

Id.

Hernandez-Avalos v. Lynch, 784 F.3d 944, 947 (4th Cir. 2015).

Id. at 949.

Cases involving gang recruitment have been largely unsuccessful, finding a lack of nexus

to a protected ground. See, e.g., Matter of S-E-G-, 24 I. & N. Dec. 579, 590 (B.I.A. 2008)

(“We concur with the Immigration Judge’s finding that the respondents failed to demonstrate

that either Salvadoran youth who refused recruitment into the MS-13 criminal gang or their

family members constitute a particular social group.”); Matter of E-A-G-, 24 I. & N. Dec.

591 (B.I.A. 2008) (“[W]e find that the particular social group identified by the Immigration

Judge as ‘persons resistant to gang membership’ lacks the social visibility that would allow

others to identify its members as part of such a group.”).

See Hernandez-Avalos, 784 F.3d at 950 (describing how family ties do not have to be the

central or even the dominant reason for persecution, but that they must only be more than an

incidental or superficial reason).

Rios v. Lynch, 807 F.3d 1123, 1125 (9th Cir. 2015).

Vol. 5:3] Family Fleeing: Family Membership as a Basis for Asylum

only when the alleged persecution on that ground is intertwined with’ another

protected ground.”

In 2016, the Board published an amicus invitation to consider the question:

Where an asylum applicant has demonstrated persecution

because of his or her membership in a particular social group

comprised of the applicant’s family, has he or she satisfied the

nexus requirement without further analysis? Or does the

family constitute a particular social group only if the defining

family member also was targeted on account of another

protected ground?

The Board specifically requested that parties compare the Fourth

Circuit’s Hernandez-Avalos and the Ninth Circuit’s Flores Rios with the Fifth

Circuit’s Ramirez-Mejia and the Seventh Circuit’s Lin v. Holder.

Although

the Board in effect was indicating that there was a circuit split, a closer read of

the named cases––as well as additional case law across jurisdictions––reveals

that the inconsistencies in rulings may not actually rise to the level of a split.

Regardless, it is clear that the issue was ripe for the Board’s consideration given

that adjudicators at all levels in all circuits were, and still are, applying

See id. at 1128 (citing to Thomas v. Gonzales, 409 F.3d 1177, 1188 (9th Cir.

2005), judgment vacated, 547 U.S. 183 (2006)); see also Hernandez-Ramos v. Sessions, 686

F. App’x 385, 387 (9th Cir. 2017) (indicating that the B.I.A. applied the incorrect legal

standard in requiring that the respondent provide evidence that the deaths of his family

members occurred on account of a protected ground); Sanchez-Canizalez v. Holder, 520 F.

App’x 528, 530 (9th Cir. 2013) (holding that the petitioner was not required to show that

another family member was persecuted on account of a protected ground).

U.S. Dep’t of Justice, Amicus Invitation, No. 16-01-11 (Jan. 11, 2016), https://www.

justice.gov/eoir/file/811976/download [perma.cc/A7RL-HKUE].

The amicus invitation also included the Eight Circuit’s Malonga v. Holder in the category

of circuits that require nexus as to the “defining family member.” 621 F.3d 757 (8th Cir.

2010). However, this case is not as instructive in the analysis of social group claims because

the petitioner did not actually assert that he was targeted on account of his family

membership, but rather relied on political opinion and ethnicity claims. Id.at 763. The

petitioner did argue that his father, wife, and child were harmed, but the court did not comment

on the extent to which the facts might support a family-based argument. Id. Although not

referenced in the amicus invitation, it is also worth noting that the First Circuit joined the Fourth

Circuit and Ninth Circuit in clearly stating that the “defining family member” need not

demonstrate nexus to a protected ground. See Aldana-Ramos v. Holder, 757 F.3d 9, 15 (1st

Cir. 2014) (“The law in this circuit and others is clear that a family may be a particular social

group simply by virtue of its kinship ties, without requiring anything more.”).

A deeper dive into this issue is beyond the scope of this Article. For more, see, e.g., Rachel

M. Lee, One Step Forward, Two Steps Back: The Board of Immigration Appeals Must Remind

Courts That Family Is the Quintessential Particular Social Group to Prevent Courts from

Sidestepping Family-Based Asylum Claims, 50 CREIGHTON L. REV. 405, 427 (2017) (arguing

the “purported circuit split does not exist” because “the cases identified as creating a split

merely add ambiguity to the issue and do not directly contradict the well-settled precedent”).

Journal of Law & Public Affairs [Apr. 2020

inconsistent reasoning to cases involving family-based targeting and often

conflating the separate issues of cognizability and nexus. In fact, the Board’s

amicus instruction itself appears to do just this by suggesting that the

cognizability of a social group defined by family might depend on the

motivations of the persecutor.

The Board attempted to clarify the parameters

of permissible family-based claims in its first published decision on the issue,

Matter of L-E-A-, but still left quite a bit of room for confusion.

B. Matter of L-E-A- as Decided by the Board

Despite conflating the issues in its amicus invitation, the Board

analyzed the cognizability of the particular social group in L-E-A-

independently from nexus and explicitly acknowledged this distinction,

citing to Matter of W-G-R-, which emphasized the need to “separate the

assessment [of] whether the applicant has established the existence of one of

the enumerated grounds . . . from the issue of nexus. The structure of the Act

supports preserving this distinction, which should not be blurred . . . .”

L-E-A-, the Mexican respondent faced threats from cartel members after his

father refused to let them sells drugs in his store.

The cartel members also

approached the respondent himself to ask him to sell drugs from his father’s

store, and he refused.

The Board opened by recognizing that the particular

social group consisting of the respondent’s father’s immediate family was

cognizable, citing much of the aforementioned case law as well as the fact that

both parties were in agreement on the issue.

In its supplemental brief

submitted in response to the Board’s amicus invitation, the Department of

Homeland Security (“the Department” or “DHS”) asserted that an immediate

family member will “generally meet the social distinction test” since “virtually

all societies draw significant distinctions” around immediate family

relationships.

The Board accepted this reasoning, stating that the respondent, a

son living at home with his father, was undoubtedly a member of the particular

social group.

The Board did not squarely address the limits of cognizability

See id. (asking whether a family group needs to show that “the defining family member

was also targeted on account of another protected ground” in order to constitute a particular

social group).

Matter of L-E-A- (L-E-A- I), 27 I. & N. Dec. 40, 43 (B.I.A. 2017) (citing to Matter of W-

G-R-, 26 I. & N. Dec. 208, 218 (B.I.A. 2014)).

Id. at 41.

Id.

Id. at 43.

Dep’t of Homeland Sec. Supplemental Brief at 9, In re Alba, No. A200 553 090 (B.I.A.

2016) [hereinafter DHS 2016 Brief].

L-E-A- I, 27 I. & N. Dec. at 43.

Vol. 5:3] Family Fleeing: Family Membership as a Basis for Asylum

when it comes to family-based particular social group membership. However,

leaving room for groups beyond nuclear families, the decision peripherally

mentioned that “the inquiry in a claim based on family membership will depend

on the nature and degree of the relationships involved and how those

relationships are regarded by the society in question.”

This statement aligns

with the Department’s suggestion in its brief that in some societies, “extended

family groupings may have greater social significance, such that they could

meet the requirement of social distinction.”

Having taken no issue with the particular social group, the Board

turned next to nexus. The Board first laid out the “easy” scenarios in which

nexus to a particular social group defined by family would clearly be found––

where a persecutor has an animus against the family itself

or where the family

status is connected to another protected ground, such as political opinion.

The

Board then contended that “nexus is not established simply because a particular

social group of family members exists and the family members experience

harm,”

or because the persecutor targeted the victim as a means to an end,

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

Through this repeated commentary about the relevancy of connecting the

persecution to a non-family-based protected ground, the Board intimated that

a family-based claim should fail where the “defining family member” was

not persecuted for Convention reasons.

However, in the final footnote of

the decision, the Board made the opposite point, saying, “[w]e accept the

parties’ position that a separate, independent inquiry into the motivation of a

persecutor towards the respondent’s father, as the defining or primary family

member, is not part of the nexus calculus.”

The Board ultimately interpreted the facts of the case to find that there

was no nexus to the respondent’s family relationship because the cartel was

motivated only by a desire to increase its profits.

L-E-A- thus mirrored much

of the existing precedent: acknowledging the cognizability of family-based

particular social groups, offering seemingly contradictory statements around

nexus and the requirements as to the “defining family member,” and

Id.

DHS 2016 Brief, supra note 66, at 9.

L-E-A- I, 27 I. & N. Dec. at 44 (giving as an example the Bolshevik assassinations of the

Romanovs).

Id. at 45 (citing to Ayele v. Holder, 564 F.3d 862 (7th Cir. 2009); Vumi v. Gonzales, 502

F.3d 150, 154 (2d Cir. 2007); Gebremichael v. I.N.S., 10 F.3d 28, 31 (1st Cir. 1993)).

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

Id.

Id. at 46 n.5.

Id. at 46-47.

Journal of Law & Public Affairs [Apr. 2020

ultimately circumventing the issue entirely by defaulting to the position that

the respondent was not harmed due to his family membership at all.

C. Board Decisions Post–L-E-A-

In the wake of the Board’s decision in L-E-A-, there remained a lack

of clarity around how to analyze family-based asylum claims. At the

immigration judge level, decisions have been varied, with some judges

challenging the very cognizability of family-based particular social groups

and others easily finding nexus.

The Board has not published any further

decisions implicating family-based particular social group membership since

L-E-A-. Of the eleven unpublished Board decisions subsequent to L-E-A- that

were identified in researching this Article, four of the appeals were dismissed

and seven sustained. Although unpublished decisions have no precedential

value, it is still instructive to delve into the reasoning of such decisions to

identify some patterns in how the Board analyzed family-based claims

subsequent to its decision in L-E-A-.

1. Family-based particular social groups, including those involving

extended families, can be cognizable

Ten out of eleven of the unpublished Board decisions found the

family-based particular social group that the respondents had asserted to be

cognizable. For the most part, the Board did not engage in any kind of robust

rationale for this finding, indicating that the cognizability of a social group

comprised of family members remained uncontroversial following the

Board’s decision. However, this limited analysis is exactly what Attorney

General Barr used to justify his overruling of the Board’s cognizability

finding in Matter of L-E-A-.

The Board also accepted, with virtually no discussion, family-based

particular social groups consisting of non-nuclear family members in three of

the eleven cases. In one, Matter of H-G-N-, the Board found the respondent’s

family unit to be a cognizable group and explicitly noted that it encompassed

Of the eight unpublished immigration judge decisions post–L-E-A- collected for this

Article, three were grants of relief and five were referrals. There were no clear patterns in

decision-making that I could glean, nor is a set of eight decisions from eight different judges

a particularly good data set from which to draw any conclusions. As such, these decisions

are not analyzed as a whole, but are instead described throughout this Article as applicable.

Matter of L-E-A- (L-E-A- II), 27 I. & N. Dec. 494, 596 (Att’y Gen. 2018) (finding that the

Board “summarily concluded” the case involved a valid particular social group “without

explaining how the facts supported this finding or satisfied the particularity and social

visibility requirements”).

Vol. 5:3] Family Fleeing: Family Membership as a Basis for Asylum

his aunt, uncle, cousins, and siblings.

However, in that case the respondent

and his siblings had moved in with his aunt’s family at the age of seven after

his mother relocated to the United States, so it could be argued that his aunt’s

family had effectively become his nuclear family. In one of the other cases,

the Board and the immigration judge took no issue with the social group

defined as the respondent’s family, which included extended family

members.

In a third unpublished decision, the Board accepted the

cognizability of the particular social group “relatives of persons who testified

and are/were prosecution witnesses against transnational criminal groups,”

where the “defining family member” was the respondent’s cousin.

The

Board cited to past precedent “acknowledging the Board’s definition of a

legally cognizable particular social group”

and indicated without further

discussion that the social group in this case was cognizable. Again, this

perfunctory recognition of cognizability will likely not be so widespread in

future decisions involving family-based claims given Barr’s recent critique

of such a “cursory treatment” in Matter of L-E-A-.

2. Cognizability and nexus continue to be conflated

Although the Board stated in L-E-A- that the cognizability of the

particular social group and nexus should not be conflated,

the Board made just

this conflation in a decision less than one month after L-E-A- was issued. The

Board considered the case of a Honduran respondent who had been threatened

and assaulted by his father, a gang member, who wanted him to join the gang as

well as to turn over to the gang a house that had been left to the respondent.

The Board concluded that, “[w]hile an immediate family is typically recognized

as a cognizable particular social group under the Act, the facts in this particular

case do not support a finding that the respondent has met his burden that he is a

member of a cognizable social group” because only he and one other member of

the group, identified as nuclear family members of his father, were targeted.

H-G-N-, A XXX XXX 536, 2 (B.I.A. Mar. 14, 2019) (on file with the IRAC).

Center for Gender & Refugee Studies Database Case No. 19905, (B.I.A. undated but post–

L-E-A-).

Center for Gender & Refugee Studies Database Case No. 25459, 4 (B.I.A. July 26, 2017).

Id.

L-E-A- II, 27 I. & N. Dec. at 596.

Matter of L-E-A- (L-E-A- I), 27 I. & N. Dec. 40, 43 (B.I.A. 2017) (citing Matter of W-G-R-,

26 I.&N. Dec. 208, 218 (B.I.A. 2014)).

Center for Gender & Refugee Studies Database Case No. 16808, 2-3 (B.I.A. June 16,

2017).

Id.

Journal of Law & Public Affairs [Apr. 2020

The Board implied that the lack of evidence that the persecutor was

motivated by the family relationship in and of itself indicated that the group was

not cognizable. The Board noted, “[there is no external threat against the nuclear

family of X, the defining attribute of the respondent’s proposed social group is

his persecution by his own father, and the risk of persecution alone does not

create a particular social group.”

This analysis conflates the question of the

cognizability of a particular social group with whether the persecution suffered

was on account of this group, which should be two separate inquiries. This case

appears to be an outlier since the Board separately analyzed the cognizability of

the particular social group and whether there was a nexus in the other ten

unpublished decisions consulted for this Section. Nevertheless, this decision

reflects the Board’s tendency to ignore that there should be separate inquiries

into whether a particular social group’s construction is permissible and whether

the persecutor was motivated by the applicant’s membership in the group.

3. Nexus is more likely to be found in Fourth Circuit cases

Six of the seven positive unpublished BIA decisions identified for this

Article arose in the Fourth Circuit, where the precedent is much more

favorable.

The Fourth Circuit has warned in family-based cases against an

“excessively narrow interpretation” of the nexus standard that focuses on the

immediate cause of the persecution rather than the bigger picture.

In the Fourth

Circuit, it appears that the “defining family member” need not have been targeted

on account of a protected ground, and the Court is much less likely to find that

the persecutor was motivated by “personal reasons” rather than membership in

the particular social group consisting of the applicant’s family.

For example, in Cruz v. Sessions, the Honduran respondent had

considered going to the police after her common law husband was killed by

a member of an organized crime group. She asserted a well-founded fear of

persecution on account of her membership in the group: “nuclear family

members of Johnny Martinez.”

The immigration judge concluded that the

“main reason” that the respondent had been threatened was to convince her

not to go to the police and the Board adopted this conclusion, adding “[h]arm

meted out by a private actor for personal reasons or solely on general levels

Id. at 2.

In fact, the Board acknowledged in L-E-A- that the case may have been decided differently

in the Fourth Circuit. L-E-A- I, 27 I. & N. Dec. at 46 n.3.

Cruz v. Sessions, 853 F.3d 122, 129 (4th Cir. 2017), as amended (Mar. 14, 2017).

See id. at 130 (criticizing the BIA’s conclusion that the applicant was persecuted for

“personal reasons”).

Id. at 126.

Vol. 5:3] Family Fleeing: Family Membership as a Basis for Asylum

of crime and violence in Honduras” did not qualify for asylum or withholding

of removal.

In contrast, the Fourth Circuit held “that the BIA and IJ applied

an improper and excessively narrow interpretation of the evidence relevant

to the statutory nexus requirement.”

The Court explained that it was a

“shortsighted[]” approach to only consider the persecutor’s stated objective

of preventing the petitioner from reporting him to the police when the very

reason that she had investigated her husband’s disappearance was their family

relationship.

The Court did not even speak to the motivations of the

persecutor in harming the respondent’s husband, demonstrating the

irrelevance of nexus for the “defining family member” in the Fourth Circuit.

Similarly, in Salgado-Sosa v. Sessions, in which the Honduran

petitioner’s family store was targeted for extortion by gang members, the

Fourth Circuit determined that “the IJ and BIA erred by focusing narrowly

on the ‘immediate trigger’ for MS-13’s assaults—greed or revenge—at the

expense of Salgado-Sosa’s relationship to his stepfather and family, which

were the very relationships that prompted the asserted persecution.”

The

Court further criticized the Board for improperly focusing on whether the

“defining family member” was persecuted on account of a protected

ground, reiterating that this is not a requirement for asylum eligibility.

Given the similarities in facts to L-E-A-, also a case involving extortion of

a family business, the Fourth Circuit’s differing conclusion here is

particularly striking.

Since L-E-A-, the Board has cited to these decisions (and others in

the same vein)

to remand cases arising in the Fourth Circuit, where it has

been foreclosed from applying its otherwise largely restrictive

interpretation of the nexus standard. In Matter of C-O-M-, a case involving

a wife who was targeted after her husband resisted extortion by gang

members, the Board wrote, “[t]his case arises within the jurisdiction of the

United States Court of Appeals for the Fourth Circuit, which has cautioned

this Board against applying an excessively narrow interpretation of the

nexus requirement in cases involving particular social groups defined by

Id. at 126-27.

Id. at 129.

Id.

Salgado-Sosa v. Sessions, 882 F.3d 451, 458 (4th Cir. 2018) (citing to Oliva v. Lynch, 807

F.3d 53, 60 (4th Cir. 2015)).

Id. at 458-59.

See generally Zavaleta-Policiano v. Sessions, 873 F.3d 241 (4th Cir. 2017) (reversing the

BIA’s determination that petitioner did not show persecution due to a familial relationship);

cf. Velasquez v. Sessions, 866 F.3d 188, 196 (4th Cir. 2017) (finding that a custody dispute

between relatives did not satisfy nexus).

Journal of Law & Public Affairs [Apr. 2020

family identity.”

In another decision, Matter of H-G-N-, the Board found

nexus where a man was threatened after his aunt did not pay extortion and

concluded, “[t]he critical assessment under Fourth Circuit precedent is

whether the familial reason is why the applicant, rather than another

person, was targeted.”

Per a straightforward reading of the statutory

language around nexus, it seems that this should be the key question for

all cases of family-based persecution regardless of the circuit in which

they arise.

100

The fact that the Board distinguished the Fourth Circuit from

others in this way further indicates the Board’s proclivity for finding no

nexus in family-based claims when not limited by federal court precedent.

Aside from the Fourth Circuit, there has been limited circuit court

jurisprudence on family-based asylum claims since the Board’s decision in

L-E-A-. The circuits appear to have largely proceeded with the same posture

they previously held, with the Seventh Circuit going so far as to explicitly

note that, “L-E-A- did not establish a new rule. As the government agreed at

oral argument, L-E-A- applied the same analysis that the Board has followed

since at least 2007.”

101

The majority of circuits continue to recognize family-

based groups as cognizable, but tend to find on the facts that a non-protected

reason was what motivated the persecution.

102

This appears to be a particularly

C-O-M-, A XXX XXX 428, 2 (B.I.A. June 22, 2018) (on file with the IRAC); see also P-

R-R-, A XXX XXX 272, 2 (B.I.A. Feb. 22, 2019) (on file with the IRAC) (describing the

Fourth Circuit as having found the Board to be “shortsighted” in its analysis of nexus in Cruz

v. Sessions); K-A-A-P-, A XXX XXX 625, 2 (B.I.A. Mar. 7, 2019) (on file with the IRAC)

(“The Fourth Circuit has found nexus to family relationship when the alien was threatened

as a result of or as revenge for the acts of a family member.”).

H-G-N-, A XXX XXX 536, 2 (B.I.A. Mar. 14, 2019) (on file with the IRAC).

100

8 U.S.C. § 1158(b)(1)(B)(i) (2018) (“[T]he applicant must establish that [a protected

ground] was or will be at least one central reason for persecuting the applicant.”).

101

W.G.A. v. Sessions, 900 F.3d 957, 963 (7th Cir. 2018), reh’g denied (Oct. 22, 2018).

102

See, e.g., Lopez v. Barr, 773 Fed. App’x 459, 462 (10th Cir. 2019) (reasoning that the

nexus did not exist where the applicant was threatened for helping her sister escape abuse,

because the persecutor would have threatened anyone who had helped her sister regardless

of whether they were related); Diaz-Rivas v. U.S. Attorney Gen., 769 Fed. App’x 748, 755

(11th Cir. 2019) (deferring to the BIA’s determination that the gang targeted the petitioner

for reporting her brother-in-law’s disappearance rather than because of their family

relationship); Sosa-Perez v. Sessions, 884 F.3d 74, 81 (1st Cir. 2018) (finding insufficient

evidence that the attacks on the applicant’s family were due to family status rather than

widespread criminality); Ruiz-Escobar v. Sessions, 881 F.3d 252, 259 (1st Cir. 2018)

(finding that petitioner failed to establish nexus following a break-in because he did not know

who the persecutors were looking for or why); Revencu v. Sessions, 895 F.3d 396, 405 (5th

Cir. 2018), as revised (Aug. 2, 2018) (holding that the persecution of the applicant’s wife did

not establish asylum eligibility where he was not also targeted); Rivas v. Sessions, 899 F.3d

537, 542 (8th Cir. 2018) (holding the record did not sufficiently show that petitioner’s family

Vol. 5:3] Family Fleeing: Family Membership as a Basis for Asylum

popular viewpoint in cases involving extortion where the alternative perception

of the persecutor’s motivation as purely pecuniary has frequently prevailed.

103

By reaching this conclusion, the circuits have continued to avoid the need to

squarely address the question of whether the “defining family member” need

have been persecuted on account of a protected ground.

D. Matter of L-E-A- as Decided by the Attorney General

In December 2018, Acting Attorney General Whitaker certified

Matter of L-E-A- to himself, staying the Board’s decision and requesting

briefing on the question: “Whether, and under what circumstances, an alien

may establish persecution on account of membership in a ‘particular social

group’ . . . based on the alien’s membership in a family unit.”

104

Previewing the Attorney General’s posture, DHS argued

emphatically in its February 2019 brief not only against finding nexus in

claims involving family-based targeting, but also against the heretofore

largely unchallenged cognizability of particular social groups defined by

membership was the reason for her persecution rather than her status as a witness to her

brother’s murder); Quero-Quero v. Sessions, 740 F. App’x 140, 140 (9th Cir. 2018) (citing

to L-E-A- and denying the petition for review because there was insufficient nexus between

petitioner’s family membership and the persecution); Alvarez v. Sessions, 739 F. App’x

372, 375 (9th Cir. 2018) (concluding without factual discussion that there was insufficient

nexus between petitioner’s familial relationships and his feared harm); Maravilla v. Sessions,

695 F. App’x 179, 180 (8th Cir. 2017) (holding that petitioner failed to prove that her family

membership was “at least one central reason” she was targeted for extortion).

103

See, e.g., Cruz-Guzman v. Barr, 920 F.3d 1033, 1037 (6th Cir. 2019) (“Cruz’s evidence

does not show that 18

Street’s actions were motivated by a particular animus toward the

Cruz-Guzman family itself, as opposed to an ordinary criminal desire for financial gain.”);

Cruz v. Att’y Gen., 746 F. App’x 869, 872 (11th Cir. 2018) (“[S]ubstantial evidence supports

the BIA and IJ’s conclusion that the threat Orozco’s aunt levied against Orozco was

motivated by a personal dispute, namely, money . . . . ”); Betancourt-Aplicano v. Sessions,

747 F. App’x 279, 284 (6th Cir. 2018) (“[W]here threats made against a family member are

simply ‘a means to achieve the [robbers’] objective to increase [their] profits,’ there is no

nexus.” (quoting Matter of L-E-A- (L-E-A- I), 27 I. & N. Dec. 40, 46-47 (B.I.A. 2017)));

Macias-Padilla v. Sessions, 729 F. App’x 541, 543 (9th Cir. 2018) (“[T]he record indicates

the cartel was criminally motivated to obtain money.”); Sanchez v. Sessions, 706 F. App’x

897, 899 (9th Cir. 2017) (“[A]ny persecution or fear of future persecution was not because

of Ramirez’s membership in a particular social group, but rather because of the criminals’

desire to rob the hotel for which her husband worked.”); Center for Gender & Refugee

Studies Database Case No. 28588, (B.I.A. July 16, 2018) (“The respondent left El Salvador

because of a fear of criminal violence and extortion by gang members, conditions which are

widespread in El Salvador. However, individuals who are fleeing general conditions of

violence in a country do not qualify for asylum or withholding of removal under the Act.”).

104

Matter of L-E-A- (L-E-A- II), 27 I. & N. Dec. 494, 584 (Att’y Gen. 2018).

Journal of Law & Public Affairs [Apr. 2020

family.

105

This stance represented a complete about-face from the

Department’s position in its 2016 brief in L-E-A- that “[o]rdinarily, in many,

if not most societies, an ‘immediate family’ unit . . . will qualify as a

cognizable particular social group.”

106

In contrast, in its 2019 brief, the

Department asserted, “excluding such family relationship-based protection

claims would not be inconsistent with U.S. obligations under the 1967

Protocol . . . . ”

107

The Department in its 2019 brief further urged the Attorney

General to find that “protection claims purportedly based on membership in

a family unit will ordinarily fail to satisfy the all-important nexus

requirement.”

108

To justify this position, the Department asserted that most

persecutors harm their victims not because of their family membership but on

account of “personal disputes,” which are not a protected ground.

109

The

Department listed out common scenarios that implicate family-based targeting,

including issues between families; intrafamilial conflicts; domestic violence;

punishment or retaliation; and threats arising from extortion,

110

concluding that

in each of these scenarios, a “personal dispute” rather than family membership

is likely to have motivated the persecution.

111

The Department was silent as to

the question of whether the “defining family member” need demonstrate nexus,

as if this issue were irrelevant given the improbability of finding that the

persecutor targeted the victim due to a family relationship.

On July 29, 2019, Attorney General Barr issued his decision, overruling

the Board’s recognition of the respondent’s particular social group as

cognizable and asserting that most families––including nuclear families––fail

the social distinction test and therefore will not qualify as particular social

groups.

112

Barr did not comment on nexus, except to indicate that he was not

overruling that portion of the Board’s decision.

113

The Board’s finding that the

respondent’s persecutors were motivated by financial gain, rather than a

protected ground,

114

remains undisturbed. Taking a cue from Matter of A-B-,

115

105

See generally Dep’t of Homeland Sec. Supplemental Brief, Matter of L-E-A, Respondent,

27 I. & N. Dec. 40 (B.I.A. 2017) [hereinafter DHS 2019 Brief].

106

DHS 2016 Brief, supra note 66, at 1.

107

DHS 2019 Brief, supra note 105, at 2.

108

Id. at 31.

109

See id. at 27 (labeling one section as “Claims for Protection Are Unsuccessful When

Arising from Personal Disputes and Portrayed as Membership in a Family Unit-Based

Particular Social Group”).

110

Id. at 29-32.

111

Id. at 32.

112

L-E-A- II, 27 I. & N. Dec. at 581.

113

Id. at 597.

114

L-E-A- I, 27 I. & N. Dec. at 46-47.

115

L-E-A- II, 27 I. & N. Dec. at 588-89 (citing to Matter of A-B-, 27 I. & N. Dec. 316, 333-

36 (Att’y Gen. 2018)).

Vol. 5:3] Family Fleeing: Family Membership as a Basis for Asylum

Barr’s decision turned on the critique that the Board improperly relied on the

parties’ agreement on the cognizability of the respondent’s particular social

group rather than engaging in a detailed factual analysis.

116

Alongside this

narrow holding, Barr also took the opportunity to include far-reaching dicta

about family-based particular social groups more generally. He argued that

cases finding families to be a particular social group should not be followed if

they were decided prior to M-E-V-G- and W-G-R- in 2014 when the Board

clarified the particularity and social distinction requirements.

117

He also

maintained that many of the decisions following 2014 that accepted groups

defined by family should be given no weight because they failed to adequately

assess particularity and social distinction

118

or “relied upon outdated dicta from

the Board’s early cases.”

119

Having summarily dismissed the decades of Board and circuit case

law recognizing the cognizability of family-based particular social groups,

Barr devoted a paragraph to underscoring his authority as Attorney General

to interpret immigration law.

120

He then proceeded to assert an interpretation

of family-based particular social group membership that requires applicants

to demonstrate that their specific families are well-known and distinct in

some way in their societies.

121

For over a decade prior to 2019, USCIS

instructed its asylum officers that “[t]he question here is not whether a

specific family is well-known or visible in the society. Rather, the question

is whether that society views the degree of relationship shared by group

members as so significant that the society distinguishes groups of people

based on that type of relationship.”

122

In contrast, under Barr’s interpretation

in Matter of L-E-A-, adjudicators must “focus on the particular social group

as it is defined by the applicant and ask whether that group is distinct in the

society in question . . . . It is not sufficient to observe that the applicant’s

society (or societies in general) place great significance on the concept of

the family.”

123

The Attorney General concluded that most families would

not be able to meet this standard

124

and found that the respondent in L-E-A-

failed to establish a cognizable particular social group because he “did not

116

Id. at 584, 586.

117

Id. at 588-90.

118

Id. At 589.

119

Id. At 590-91.

120

Id. at 591-92.

121

Id. at 594.

122

U.S. CITIZENSHIP & IMMIGR. SERVS., ASYLUM OFFICER BASIC TRAINING COURSE,

ELIGIBILITY PART III: NEXUS 33 (2009) https://www.aila.org/infonet/aobt-lesson-nexus-five

-protected-characteristics [https://perma.cc/DRK7-9U23].

123

L-E-A- II, 27 I. & N. Dec. at 594.

124

Id. at 594.

Journal of Law & Public Affairs [Apr. 2020

show that anyone, other than perhaps the cartel, viewed the respondent’s

family to be distinct in Mexican society.”

125

On September 30, 2019, USCIS published guidance “in accordance

with Matter of L-E-A-” directing USCIS employees to “no longer recognize

family-based particular social groups based only on the general significance of

family relationships in the society in question” but to require that the specific

family be well-known or essentially famous in the society.

126

The guidance also

notes that “[o]fficers should be alert that . . . the Attorney General predicted that

the average or ordinary family typically will not meet the standard, because it

will not have the kind of identifying characteristics that render a specific family

socially distinct within the society in question.”

127

USCIS also amended its

Asylum Division Officer Training Course on credible fear and torture

determinations to quote heavily from L-E-A- with similar instructions.

128

Given the recency of the Attorney General’s decision, there has been

limited jurisprudence since on cases involving family relationships.

However, attorneys around the country have reported receiving negative

determinations in cases of family-based targeting that seemingly would have

been granted prior to L-E-A-. In November 2019, the Catholic Legal

Immigration Network (CLINIC) brought a lawsuit challenging the new

USCIS guidance on behalf of thirteen plaintiffs who were subjected to

expedited removal orders following application of this new guidance.

129

The plaintiffs are all individuals who would most likely have been found

to have a credible or reasonable fear

130

prior to Barr’s 2019 decision,

125

Id. at 592.

126

USCIS L-E-A- GUIDANCE, supra note 18, at 3.

127

Id. at 7.

128

See generally U.S. CITIZENSHIP & IMMIGRATION SERV., ASYLUM DIVISION OFFICER

TRAINING COURSE: CREDIBLE FEAR OF PERSECUTION AND TORTURE DETERMINATIONS

(2019), https://www.aila.org/infonet/uscis-updates-officer-training-credible-fear [https://per

ma.cc/E4RM-MMBJ].

129

S.A.P. Complaint, supra note 18.

130

Individuals subject to Expedited Removal or who enter at a port-of-entry must demonstrate

that they have a credible fear, meaning that they have a “significant possibility” of establishing

eligibility for asylum or protection under the Convention Against Torture. Individuals who

have a prior order of removal against them or who have certain criminal convictions must

demonstrate a “reasonable possibility” they would be persecuted on account of a protected

ground or would be subject to torture. Credible and Reasonable Fear determinations are beyond

the scope of this Article, but more information can be found from U.S. Citizenship and

Immigration Services, e.g. Questions & Answers: Credible Fear Screenings, U.S. CITIZENSHIP

& IMMGR. SERVS., https://www.uscis.gov/humanitarian/refugees-asylum/asylum/questions-

answers-credible-fear-screening [https://perma.cc/9NWD-LSQD] (last visited Mar. 12, 2020);

Questions & Answers: Reasonable Fear Screenings, U.S. CITIZENSHIP & IMMGR. SERVS.,

https://www.uscis.gov/humanitarian/refugees-asylum/asylum/questions-answers-reasonable

-fear-screenings [https://perma.cc/FYY4-3XL7] (last visited Mar. 12, 2020).

Vol. 5:3] Family Fleeing: Family Membership as a Basis for Asylum

including a four-year-old boy who was threatened because his father

refused to join a political campaign.

131

The father was found to have a

reasonable fear on account of his political opinion.

132

Under prior

precedent, the boy would have satisfied even the most stringent of

interpretations of asylum law on family-based targeting: the “defining

family member” was persecuted on account of a protected ground, the family

relationship was nuclear, and, given his very young age, there were no other

reasonable explanations for the threats against the boy besides his family

membership. The case of this plaintiff, and the others included in the suit,

clearly demonstrates the marked shift in the way that some adjudicators

are now analyzing protection claims that involve targeting of family

members. The complaint details how almost all of the plaintiffs were

subject to negative determinations because the officers found that they had

not satisfied the social distinction requirement.

133

In contrast, it appears that at least some immigration judges have

continued to grant cases based on family. For example, an Omaha

immigration judge granted withholding of removal in a September 2019 case,

Center for Gender & Refugee Studies Database Case No. 27115, finding that

the respondent had been persecuted on account of her membership in the

particular social group of female members of her family.

134

Although the

judge liberally referenced the 2019 L-E-A- opinion in other parts of the

decision, it is notably absent in the section discussing social distinction. The

court cited only to Matter of M-E-V-G-, but did seem to be implicitly

incorporating Barr’s more stringent social distinction test, noting that “the

[redacted surname] family as a whole is meaningfully distinguished” within

the society in question because the family was known to be involved in drug

and human trafficking.

135

In another September 2019 case, Center for Gender

& Refugee Studies Database Case No. 34658, a Baltimore immigration judge

relied heavily on the positive Fourth Circuit precedent discussed infra, finding

131

S.A.P. Complaint, supra note 18, ¶¶ 18, 19, 24; Press Release, Crowell Moring LLP,

CLINIC Lawsuit Seeks to Protect Asylum Seekers who Fear Family-Based Harm (Nov. 25,

2019), https://www.crowell.com/NewsEvents/PressReleasesAnnouncements/CLINIC-Law

suit-Seeks-to-Protect-Asylum-Seekers-who-Fear-Family-Based-Harm/pdf [https://perma.cc/

M9JQ-WS2M].

132

S.A.P. Complaint, supra note 18, ¶ 24.

133

Id. at ¶¶ 24–35; In fact, representatives from the San Francisco Asylum Office stated in a

presentation on October 22, 2019 that families effectively have to be “Kennedys” or

“Kardashians” in order to satisfy the social distinction requirement. San Francisco Asylum

Office, Presentation to the U.C. Hastings Refugee & Human Rights Clinic (Oct. 22, 2019).

134

Center for Gender & Refugee Studies Database Case No. 27115, 13 (Immigration J. Dec.

Sept. 27, 2019).

135

Id. at 11.

Journal of Law & Public Affairs [Apr. 2020

the respondent’s proposed particular social groups of “family members of

[respondent’s uncle]” and “family members of [respondent’s sister]” to be

cognizable.

136

The court cited to L-E-A- as standing for the proposition that

while family is “not inherently a cognizable particular social group, family

may still constitute a particular social group . . . .”

137

The court then went on to

accept as sufficient evidence of social distinction the fact that the persecutor

stated on multiple occasions that he knew the respondent’s entire family and

that the respondent was from a small community where all of the neighbors

know each other.

138

Given that similar facts are likely to be present in many

family-based targeting cases, it appears that this judge correctly parsed the

holding and dicta from Barr’s decision to reject as binding the portion opining

that most nuclear families will not meet the social distinction requirement.

At the circuit level, the courts have had mixed reactions to the

Attorney General’s opinion in L-E-A-. For example, in October 2019, the

Fifth Circuit characterized the decision quite differently from the USCIS

guidance, stating that “Matter of L-E-A stands for the proposition that

families may qualify as social groups, but the decision must be reached on a

case-by-case basis.”

139

The court also “recognize[d] that Matter of L-E-A- is

at odds with the precedent of several circuits.”

140

The Eleventh Circuit in an

August 2019 case remanded the petitioner’s asylum and withholding of

removal claims, finding that his relationship to his father-in-law was “one

central reason, if not the central reason” for his persecution by a Mexican

cartel.

141

Because the petition for review only dealt with nexus and not with

the cognizability of the particular social group—“his father-in-law’s

immediate family,” which the Board and the immigration judge had accepted

prior to the Attorney General’s decision—the Court “express[ed] no view on

how, if at all, Matter of L-E-A- impacts Mr. Perez-Sanchez’s proposed PSG

or whether the Attorney General’s decision is entitled to deference.”

142

contrast, the Tenth Circuit in a September 2019 decision framed L-E-A- in

much the same way that USCIS has, emphasizing that nuclear families will

generally not be socially distinct.

143

However, the court declined to reach this

issue directly, upholding the determination of the immigration judge and the

136

Center for Gender & Refugee Studies Database Case No. 34658, 17 (Immigration J. Dec.

Sept. 2019).

137

Id. at 18.

138

Id. at 18.

139

Pena Oseguera v. Barr, 936 F.3d 249, 251 (5th Cir. 2019).

140

Id. at 251.

141

Perez-Sanchez v. Att’y Gen., 935 F.3d 1148, 1158-59 (11th Cir. 2019).

142

Id. at 1158, n.7 (emphasis added).

143

Saucedo-Miranda v. Barr, 758 Fed. App’x 586 (10th Cir. 2019).

Vol. 5:3] Family Fleeing: Family Membership as a Basis for Asylum

Board of Immigration Appeals that the petitioner had failed to demonstrate

nexus because his family was simply the victim of criminal activity.

144

Adjudicators at all levels are still grappling with Barr’s decision in

L-E-A-, although it has already done serious damage to prior decades of legal

precedent recognizing the validity of claims involving family relationships.

However, as was the case with domestic violence and gang cases following

A-B-,

145

Matter of L-E-A- should not be seen as foreclosing family-based

asylum. In fact, Barr acknowledged that his “opinion does not bar all family-

based social groups from qualifying for asylum”

146

and emphasized that the

determination must be made on a case-by-case basis.

147

Despite USCIS’s

guidance to the contrary, the holding of L-E-A- is not that particular social

groups defined by family are categorically impermissible. Instead, it is the

much narrower holding that the Board’s analysis of the cognizability of the

respondent’s proposed social group “did not . . . satisfy the Board’s duty to

ensure that the respondent satisfied the statutory requirements to qualify for

asylum” and thus that the Board’s conclusion that the particular social group

was valid should be reversed.

148

The remainder of the decision, including

Barr’s sweeping statements about previous case law, and his new

interpretation of social distinction, is dicta that need not be followed.

Furthermore, the Attorney General’s more restrictive positions on family-

based asylum represent a significant departure from prior precedent,

144

Id. at 7.

145

See Grace v. Whitaker, 344 F. Supp. 3d 96, 126 (D.D.C. 2018) (finding that the blanket

rule in Matter of A-B- against domestic violence and gang-related particular social groups

was impermissible as both arbitrary and capricious with no legal basis and running contrary

to the individualized analysis required by the INA).

146

Matter of L-E-A- (L-E-A- II), 27 I. & N. Dec. 494, 595 (Att’y Gen. 2018). He was likely

motivated to take this position by a District Court Judge’s rebuke of his predecessor in Grace

v. Whitaker, which challenged Attorney General Sessions’s seemingly categorical rejection

of domestic violence and gang-related particular social groups in Matter of A-B-. See Grace,

344 F. Supp. 3d at 126.

147

L-E-A- II, 27 I. & N. Dec. at 591; see also Pirir-Boc v. Holder, 750 F.3d 1077, 1084 (9th

Cir. 2014) (“[T]he BIA may not reject a group solely because it had previously found a

similar group in a different society to lack social distinction or particularity.”); Matter

of M-E-V-G-, 26 I. & N. Dec. 227, 251 (B.I.A. 2014) (“Social group determinations are

made on a case-by-case basis.”); Matter of Acosta, 19 I. & N. Dec. 211, 233 (B.I.A.

1985) (“The particular kind of group characteristic that will qualify under this

construction remains ‘to be determined on a case-by-case basis.’”); U.S. CITIZENSHIP &

IMMGR. SERVS., PM-02-0162, GUIDANCE FOR PROCESSING REASONABLE FEAR,

CREDIBLE FEAR, ASYLUM AND REFUGEE CLAIMS IN ACCORDANCE WITH MATTER OF A-

B- 3 (2018) (“Officers must analyze each case on its own merits in the context of the

society where the claim arises.”).

148

L-E-A- II, 27 I. & N. Dec. at 596.

Journal of Law & Public Affairs [Apr. 2020

making them even less deserving of judicial consideration.

149

For all of

these reasons, it is clear that the Attorney General lacks the authority to

make a blanket ruling that a specific particular social group is not cognizable,

leaving room for practitioners to present family-based claims while taking

additional care to build the record for their individual clients.

E. International and Comparative Views on Family-Based Particular Social

Groups and Nexus

Having examined the history of particular social groups defined by

family membership in the United States, this Article now turns to consider the

same subject beyond our borders. Per the United States Supreme Court, “[i]f one

thing is clear from the legislative history of the . . . definition of ‘refugee,’ and

indeed the entire 1980 [Refugee] Act, it is that one of Congress’ primary

purposes was to bring United States refugee law into conformance with the 1967

United Nations Protocol . . . .”

150

As such, guidance from the United Nations

High Commissioner for Refugees (UNHCR), while not binding, is considered

persuasive and “may be a useful interpretive aid.”

151

The UNHCR has published

149

In National Cable & Telecommunications Association v. Brand X Internet Services,

the Supreme Court held that where Chevron deference was owed to the agency on an

issue, but a federal court published an opinion on the issue before the agency did, the

court must defer to the agency’s subsequent published interpretation. 545 U.S. 967, 980

(2005). However, given the decades of preceding Board case law supporting the

cognizability of family-based particular social groups, this change could potentially be

challenged as representing an unreasoned and arbitrary departure from the agency’s

preceding position that does not merit deference by the courts. See id.. at 1001 (“[T]he

Commission is free within the limits of reasoned interpretation to change course if it

adequately justifies the change.”); Smiley v. Citibank (S. Dakota), 517 U.S. 735, 742

(1996) (indicating that “[s]udden and unexplained change” or “change that does not take

account of legitimate reliance on prior interpretation” may be arbitrary, capricious, or

an abuse of discretion not requiring deference); I.N.S. v. Cardoza-Fonseca, 480 U.S.

421, 446 n.30 (1987) (“An agency interpretation of a relevant provision which conflicts

with the agency’s earlier interpretation is ‘entitled to considerably less deference’ than

a consistently held agency view.”).

150

Cardoza-Fonseca, 480 U.S. at 436-37 & n.19 (1987) (citing H.R. CONF. REP. NO. 96-781,

at 19 (1980)). The United States acceded to the 1967 Protocol Relating to the Status of

Refugees in 1968. The 1967 Protocol is effectively identical to the 1951 Convention Relating

to the Status of Refugees, but expands its scope beyond events that occurred in Europe before

January 1, 1951. Protocol Relating to the Status of Refugees art. 1, Jan. 31, 1967, 606

U.N.T.S. 267. The fundamental concept behind both the Convention and the Protocol is the

principle of non-refoulement, which prohibits countries from returning individuals to return

to a country where they would be subjected to persecution.

151

I.N.S. v. Aguirre-Aguirre, 526 U.S. 415, 427 (1999); see also Negusie v. Holder, 555 U.S.

511, 536-37 (2009) (citing the U.N. handbook as a source “to which the Court has looked for

Vol. 5:3] Family Fleeing: Family Membership as a Basis for Asylum

multiple guidelines and position papers to aid states parties in assessing

protection claims.

The UNHCR has recognized that the family constitutes a cognizable

particular social group since “[m]embers of a family, whether through blood

ties or through marriage and attendant kinship ties, meet the requirements of

the definition by sharing a common characteristic which is innate and

unchangeable, as well as fundamental and protected.”

152

The UNHCR in

another document called the family “[o]ne of the most visible examples of a

particular social group” and further provided that nexus can be established

“for example where family members . . . are targeted for persecution as a

means of punishing the [“defining family member”] or forcing them to

surrender or cease their activities.”

153

The UNHCR has indicated that family

membership could be a viable way of analyzing asylum claims based on

gender-based violence

154

as well as gang violence.

155

The recognition of

families as a social group is further reinforced by other sources of

international law such as the American Convention on Human Rights, to

which the U.S. is a signatory, which describes the family as “the natural and

fundamental group unit of society,”

156

and the Universal Declaration of

guidance in the past”); Matter of M-E-V-G-, 26 I. & N. Dec. 227, 248 (B.I.A. 2014)

(confirming that, while not binding on U.S. authorities, the views of the UNHCR “are a useful

interpretive aid”).

152

U.N. HIGH COMM’R FOR HUMAN RIGHTS, POSITION ON CLAIMS FOR REFUGEE STATUS

UNDER THE 1951 CONVENTION RELATING TO THE STATUS OF REFUGEES BASED ON A FEAR OF

PERSECUTION DUE TO AN INDIVIDUAL’S MEMBERSHIP OF A FAMILY OR CLAN ENGAGED IN A

BLOOD FEUD ¶ 18 (2006), https://www.refworld.org/docid/44201a574.html [https://perma.

cc/6LEH-JWA4].

153

U.N. HIGH COMM’R FOR HUMAN RIGHTS, REFUGEE STATUS DETERMINATION: IDENTIFYING

WHO IS A REFUGEE, SELF-STUDY MODULE 2, at 37 (2005), https://www.unhcr.org/publi

cations/legal/43144dc52/self-study-module-2-refugee-status-determination-identifying-

refugee .html [https://perma.cc/A3WQ-YQGF].

154

See U.N. HIGH COMM’R FOR HUMAN RIGHTS, GUIDELINES ON INTERNATIONAL

PROTECTION: GENDER-RELATED PERSECUTION WITHIN THE CONTEXT OF ARTICLE 1A(2) OF

THE 1951 CONVENTION AND/OR ITS 1967 PROTOCOL RELATING TO THE STATUS OF REFUGEES ¶

33 (2002), https://www.unhcr.org/3d58ddef4.pdf [https://perma.cc/86AM-UV7Z] (explaining

that women are frequently persecuted because of the political opinions and activities of their

male relatives, and these family connections must be taken into account when considering

gender-based claims).

155

See U.N. HIGH COMM’R FOR HUMAN RIGHTS, GUIDANCE NOTE ON REFUGEE CLAIMS

RELATING TO VICTIMS OF ORGANIZED GANGS ¶ 40 (2010), https://www.ref

world.org/pdfid/4bb21fa02.pdf [https://perma.cc/PNT9-XFQV] (explaining that relatives of

individuals targeted by gang members can be persecuted because of their family ties, and in

such a case, family membership would constitute a particular social group).

156

Organization of American States, American Convention on Human Rights art. 17(1), Nov.

22, 1969, O.A.S.T.S. No. 36, 1144 U.N.T.S. 123.

Journal of Law & Public Affairs [Apr. 2020

Human Rights, recognizing that “[t]he family is the natural and fundamental

group unit of society and is entitled to protection by Society and the State.”

157

In addition to considering the viewpoints of international bodies, the

United States Supreme Court has indicated that the interpretations of other

treaty signatories should be given considerable weight.

158

It is thus instructive

to examine the jurisprudence of other common law countries

159

that have

considered the grounds for refugee protection on the basis of family.

1. United Kingdom—family is a cognizable particular social group

and “defining family member” need not establish nexus

The United Kingdom House of Lords

160

issued its seminal decision

around family-based particular social groups in 2006. In Secretary of State

for the Home Department v. K and Fornah v. Secretary of State for the Home

Department,

161

the House of Lords considered two different cases, the first

of which implicated family-based particular social group membership

wherein an Iranian woman and her son faced persecution after her husband

was arrested and detained by the Revolutionary Guards.

157

G.A. Res. 217 (III) A, Universal Declaration of Human Rights art. 16(3) (Dec. 10, 1948); see

also International Covenant on Civil and Political Rights art. 23(1) (Dec. 19, 1966), S. TREATY

DOC. NO. 95-20, 999 UNTS 171 (containing the same language); International Covenant on

Economic, Social and Cultural Rights art. 10(1) (Dec. 16. 1966), S. TREATY DOC. NO. 95-19;

993 UNTS 3 (identifying the family as “the natural and fundamental group unit of society”).

158

See Abbott v. Abbott, 560 U.S. 1, 16 (2010) (“In interpreting any treaty, the opinions of our

sister signatories . . . are entitled to considerable weight” (internal quotation marks omitted)).

159

As noted by the UNHCR, “In civil law jurisdictions, the particular social group ground is

generally less well developed. Most decision-makers place more emphasis on whether or not a risk

of persecution exists than on the standard for defining a particular social group.” U.N. HIGH COMM’R

FOR HUMAN RIGHTS, GUIDELINES ON INTERNATIONAL PROTECTION: “MEMBERSHIP OF A

PARTICULAR SOCIAL GROUP” WITHIN THE CONTEXT OF ARTICLE 1A(2) OF THE 1951 CONVENTION

AND/OR ITS 1967 PROTOCOL RELATING TO THE STATUS OF REFUGEES ¶ 8 (2002), https://www.

unhcr.org/en-us/publications/legal/3d58de2da/guide lines-international-protection-2-membership-

particular-social-group.html [https://perma.cc/V9KS-XXPQ].

160

The House of Lords was the United Kingdom’s highest Court of Appeal until 2009, when

the Supreme Court of the United Kingdom was created. See generally HOUSE OF LORDS,

HOUSE OF LORDS BRIEFING: JUDICIAL WORK (2008), https://www.parliament.uk/documents/

lords-information-office/hoflbpjudicial.pdf [https://perma.cc/C496-TV5T]. The judicial work

was done by twelve Law Lords, who became the first justices of the UK Supreme Court. See

generally id. When the House of Lords retained jurisdiction over judicial matters, the procedure

was for each of the Law Lords on the Appellate Committee (usually five Law Lords) to give

their opinions in the order of seniority. See generally id.

161

Sec’y of State for the Home Dep’t v. K [2006] UKHL 46, [2007] 1 AC 412 (HL) (appeal

taken from Eng.) (UK).

Vol. 5:3] Family Fleeing: Family Membership as a Basis for Asylum

The Law Lords were unequivocal that a family can constitute a particular

social group. Lord Bingham of Cornhill noted that the Secretary of State (the

party opposing the appellant’s claim) accepted that family could be a particular

social group and stated that this “reflects a consensus very clearly established by

earlier domestic authority . . . and also by international authority. The consensus

is clearly reflected in the academic literature.”

162

Both Lord Hope of

Craighead

163

and Lord Rodger of Earlsferry concurred, with the latter stating, “it

is obvious that a family can constitute a ‘particular social group’. Indeed, the

family could well be regarded as the archetypal social group.”

164

Having established that family is a cognizable particular social group,

the Committee focused more on the question of whether the “defining family

member” must have been persecuted on account of a protected ground. The

Lords considered two 1997 Court of Appeal cases that reached opposite

conclusions on the question,

165

and determined that the Refugee Convention

“directs attention to the position of the asylum-seeker, not to that of any other

person with whom he or she may be associated. It is his or her fear of persecution

for a Convention reason, not someone else’s fear, that is in issue.”

166

Lord Hope

emphasized that to require nexus to a protected ground for the “defining family

member” would impermissibly require more of family-based claims than of

others.

167

He wrote that what is critical is the connection between the protected

ground and the persecution but that clearly, “it is not necessary to show that

everyone else of the same race, for example, or every other member of the

162

Id. at [19] (citing to Sec’y of State for the Home Dep’t v. Savchenkov [1996] Imm AR

28, [1995] EWCA Civ 47 (UK); Minister for Immigration and Multicultural Affairs v.

Sarrazola [2001] FCA 263 28–34 (Austl.); Thomas v. Gonzales, 409 F.3d 1177, 1188 (9th

Cir. 2005); JAMES HATHAWAY, THE LAW OF REFUGEE STATUS 164–66 (1st ed. 1991); GUY

GOODWIN-GILL, THE REFUGEE IN INTERNATIONAL LAW 361 (2d ed. 1996)).

163

Id. at [45] (citing to U.N. HIGH COMM’R FOR HUMAN RIGHTS, POSITION ON CLAIMS FOR

REFUGEE STATUS UNDER THE 1951 CONVENTION RELATING TO THE STATUS OF REFUGEES

BASED ON A FEAR OF PERSECUTION DUE TO AN INDIVIDUAL’S MEMBERSHIP OF A FAMILY OR

CLAN ENGAGED IN A BLOOD FEUD 5 (2006), https://www.refworld.org/docid/44201

a574.html [https://perma.cc/6LEH-JWA4]; International Covenant on Civil and Political

Rights, supra note 157, art. 23(1).

164

Id. at [61].

165

Compare Quijano v. Sec’y of State for the Home Department [1996] EWCA Civ 1244 (U.K.)

(“[T]he fact that the stepfather was not entitled to claim asylum demonstrated that the family

was not a social group liable to persecution because it was a particular social group.”), with R v.

Immigration Appeal Tribunal, Ex parte De Melo, [1997] Imm. AR 43, 49 (U.K.) (“The original

evil which gives rise to persecution against an individual is one thing; if it is then transferred so

that a family is persecuted, on the face of it that will come within the Convention.”).

166

Sec’y of State for the Home Dep’t v. K and Fornah v. Sec’y of State for the Home Dep’t,

[2006] UKHL 46 at [48].

167

Id. at [47].

Journal of Law & Public Affairs [Apr. 2020

particular social group, is subject to the same threat.”

168

Lord Rodger pointed

out that to require animus against the family itself would render family-based

claims virtually impossible to win.

169

Lord Bingham reiterated the doctrine of

mixed motives, noting “[t]he ground on which the claimant relies need not be

the only or even the primary reason for the apprehended persecution. It is

enough that the ground relied on is an effective reason.”

170

This unanimous decision by the five Law Lords established binding

precedent in the United Kingdom that the “defining family member” need not

have been persecuted on account of a protected ground, laying the

groundwork for subsequent decisions to this effect in lower courts, as well as

other jurisdictions that have cited approvingly to the case. Furthermore, the

U.K. jurisprudence seems much less focused on whether a persecutor’s

motives in family-based cases can be instead characterized as based on

personal or criminal reasons. For example, a judge from the Upper Tribunal,

Immigration and Asylum Chamber considered a case in 2012 involving an

Albanian blood feud but made no indication that the persecutor’s motivations

may not have been connected to a protected ground,

171

a stark contrast to the

Department of Homeland Security’s 2019 brief in L-E-A- that specifically

identified blood feuds as failing to meet the standard for nexus because they are

“based on personal disputes and involve criminal acts of personal retribution.”

172

2. New Zealand—family is a cognizable particular social group and

“defining family member” need not establish nexus

The New Zealand Refugee Status Appeals Authority

173

has explicitly

cited to and adopted the reasoning in Secretary of State for the Home

168

Id.

169

Id. at [64].

170

Id. at [17].

171

See EH v. Sec’y of State for the Home Dep’t [2012] UKUT 00348 (IAC) [61]-[62] (U.K.)

(citing to Secretary of State for the Home Department v. K and Fornah v. Secretary of State

for the Home Department and noting “[i]t is settled therefore, that members of families or

clans are capable of constituting a particular social group and that the Refugee Convention

would be engaged where there existed a reasonable degree of likelihood that members of a

particular family would be at risk of serious harm on return . . . .”); see also AN and NN v.

Sec’y of State for the Home Dep’t [2007] UKAIT 97 [21] (U.K.) (discussing whether an

actual risk of harm existed while noting that the existence of a blood feud affecting the

petitioners’ family was uncontested).

172

DHS 2019 Brief, supra note 105, at 29.

173

The New Zealand Refugee Status Appeals Authority was established in 1991 to adjudicate

appeals from the Refugee Status Branch of the New Zealand Immigration Service. The

Authority was replaced by the Immigration and Protection Tribunal in 2010. New Zealand:

Vol. 5:3] Family Fleeing: Family Membership as a Basis for Asylum

Department v K and Fornah v Secretary of State for the Home Department.

174

In a 2010 case, the Colombian appellant had been threatened by paramilitary

groups for refusing to alter land records for them and had fled with her husband

and son, who also applied for protection. In defining the term “particular social

group,” the Authority embraced the “fundamental or immutable” test initially set

out by the United States in Acosta but notably made no mention of the

particularity or social distinction requirements added later.

175

The Authority

found “uncontroversial” the proposition that membership of a family can

constitute a particular social group, citing to a number of preceding New

Zealander cases as well as case law from the United Kingdom, Australia, the

United States, and international law secondary sources.

176

On the issue of nexus,

the Authority held, “although it is clear that the primary family member (the

wife) does not face a risk of being persecuted for a Convention reason, the sole

reason for the risk faced by the husband and the child is their membership of the

wife’s family.”

177

The Authority granted Convention protection to the husband

and child and, in contrast to much of the U.S. jurisprudence, did not see fit to

even discuss whether the reason for the persecution was family-based targeting

or a generalized criminal intent on the part of the paramilitary.

The Immigration and Protection Tribunal of New Zealand continues to

apply this same reasoning in cases involving family-based persecution to date.

For example, in 2012, the Tribunal considered the case of a South African man

and his family who had been threatened by a criminal group because of the man’s

successful business.

178

The Tribunal found that the man was not eligible for

protection because he did not face persecution on account of a Convention

ground but “for reasons of crime.”

179

The Tribunal noted “it can also be said of

Immigration and Protection Tribunal, REFWORLD, https://www.refworld.org/publisher/NZ-

IPT.html [https://perma.cc/Y9DH-V4B9] (last updated Mar. 27, 2020, 5:14 PM).

174

Refugee Appeal Nos 76485, 76486, 76487 [2010] NZRSAA 71 at [81]-[83] (N.Z.) New

Zealand is not the only foreign jurisdiction that followed the UK House of Lord’s decision

in Secretary of State for the Home Department v. K and Fornah v. Secretary of State for the

Home Department. The High Court of Ireland has also done the same. See, e.g., AVB v.

Refugee Appeals Tribunal [2015] IEHC 13 [27] (Ir.) (“It seems to me that the tribunal

member fell into error of law in finding that feuds among family members did not have a

convention nexus . . . .”) .

175

Id. at [97].

176

Id. at [79]-[80] (citing Sec’y of State for the Home Dep’t v. Savchenkov [1995] EWCA

Civ 47 (U.K.); Minister for Immigration and Multicultural Affairs v Sarrazola [2001] FCA

263 ¶¶ 28-34 (Austl.); Thomas v. Gonzales, 409 F.3d 1177, 1188 (9th Cir. 2005); JAMES

HATHAWAY, THE LAW OF REFUGEE STATUS 164-66 (1st ed. 1991); GUY GOODWIN-

GILL, THE REFUGEE IN INTERNATIONAL LAW 361 (2d ed. 1996), among other sources).

177

Id. [83].

178

AK (South Africa) [2012] NZIPT 800174-176 (N.Z.).

179

Id. at [66].

Journal of Law & Public Affairs [Apr. 2020

the mother and daughter that they, too, are at risk because of crime” but

ultimately concluded, “[t]hey are also at risk, however, for another reason . . .

because they are members of the father’s family.”

180

As in this case, New

Zealand adjudicators as a whole appear to be more willing than their counterparts

in the U.S. to extend protection to applicants even when the persecutors acted in

part out of non-Convention grounds

181

and give no consideration to whether the

“defining family member” can demonstrate nexus.

182

3. Australia—family is a cognizable particular social group but

“defining family member” must demonstrate nexus

The Federal Court of Australia

183

in 2000 considered the case of a

husband and wife from Colombia in Sarrazola v Minister for Immigration

and Multicultural Affairs (No 3).

184

After the wife’s brother was killed by a

criminal group for failing to pay a debt, members of the same group

demanded that she pay the money or they would kill her children.

185

The

applicant asserted a fear of persecution based on her family membership. The

Federal Court found “no obstacle to viewing the usual family as a ‘particular

social group,’”

186

and held that the “defining family member” need not have

been persecuted on account of a protected ground.

187

180

Id. at [67].

181

See, e.g., AC (Colombia) [2012] NZIPT 800279 at [50] (N.Z.) (finding the appellant

eligible for protection because a “contributing reason” he was at risk was his relationship to

his older brother who had been killed by gangs even though he was “substantially” targeted

for recruitment); see also FK (Sri Lanka) [2019] NZIPT 801383 at [69] (N.Z.) (citing to a

Refugee Status Appeals Authority decision holding that protection was warranted since, as long

as family membership is a contributing cause, “It is not necessary for that cause to be the sole

cause, main cause, direct cause, indirect cause or ‘but for’ cause. It is enough that a Convention

ground can be identified as being relevant to the cause of the risk of being persecuted”).

182

See, e.g., CM (Bangladesh) [2019] NZIPT 801411 at [91, 93] (N.Z.) (finding that the

appellant, a successful businessman in a dispute with former colleagues, had not

demonstrated nexus but that his wife was entitled to protection on account of her membership

in the particular social group consisting of her husband’s family members).

183

The Federal Court of Australia has appellate jurisdiction from the Federal Circuit Court

of Australia, which in turn reviews decisions made by the Minister for Immigration and

Border Protection and the Administrative Appeals Tribunal. The Court’s Jurisdiction, FED.

CT. OF AUSTL. https://www.fedcourt.gov.au/about/jurisdiction [https://perma.cc/9GP2-67

22] (last visited Mar. 18, 2020).

184

Sarrazola v Minister for Immigration and Multicultural Affairs [No. 3] [2000] FCA 919

(Austl.).

185

Id. ¶¶ 5–8.

186

Id. ¶ 33.

187

Id. ¶ 36.

Vol. 5:3] Family Fleeing: Family Membership as a Basis for Asylum

However, reacting to this decision,

188

the Australian Parliament in

2001 passed the Migration Legislation Amendment Bill (No. 6), adding

subsection 91S, which states that persecution must be disregarded if the

“defining family member” was not persecuted on account of a Convention

reason.

189

The Minister for Immigration and Multicultural Affairs explained,

“[t]he convention was not designed to protect people who fear persecution

for personal reasons that have little or nothing to do with the convention - for

example, because they have failed to pay their family’s debts.”

190

This

legislation was introduced and first read on August 28, 2001 in the midst of the

so-called Tampa crisis, during which the Australian government refused to

grant permission to a boat carrying 433 rescued refugees to enter its waters.

191

In applying Section 91S, the Australian Courts have since denied

family-based asylum cases where the “defining family member” was not

persecuted on account of a protected ground. Given this requirement,

Australian adjudicators often need not even reach the issue of whether the

applicant’s persecution was motivated by the family relationship versus

personal reasons or generalized criminal intent. Illustrating how 91S operates

in practice, in 2006, the High Court of Australia

192

considered the case of an

Albanian appellant who feared persecution due to a blood feud deriving from

when his grandfather killed a member of another family. The Court dismissed

the appeal, holding that, “it is clear that the grandfather had a fear of persecution

188

The Explanatory Memorandum to the Migration Legislation Amendment Bill (No 6) 2001

indicated that the amendment was aimed at addressing the Sarrazola holding to prevent its

future application. STCB v Minister for Immigration and Multicultural and Indigenous

Affairs [2006] HCA 61, ¶ 17 (Austl.).

189

Migration Act 1958 (Cth) 91S (Austl.).

190

STCB, [2006] HCA ¶ 18 (quoting the Second Reading Speech of the Minister for

Immigration and Cultural Affairs).

191

The Migration Legislation Amendment Bill (No. 6) was first introduced and read in the

House of Representatives on August 28, 2001 and was assented to on September 27, 2001.

Migration Legislation Amendment Bill (No. 6) 2001 (Cth) (Austl.). https://parlinfo.aph.

gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fbillhome%2F

r1391%22 [https://perma.cc/H6KW-MLQK]. The bill was passed on September 26, along

with a number of other of bills significantly curtailing the rights of migrants seeking asylum,

collectively known as the “Pacific Solution.” Parliament of Australia, Border Protection: A New

Regime, https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Former_Commit

tees/maritimeincident/report/c01 [https://perma.cc/RVW2-GK9Y]. Among other things, the

Pacific Solution allowed for asylum-seekers to be processed offshore in places like Nauru and

Papua New Guinea. See, e.g., Refugee Council of Australia, OFFSHORE PROCESSING,

https://www.refugeecouncil.org.au/offshore-processing/ [https://perma.cc/JPT4-R8RJ] (last

visited July 17, 2019).

192

The High Court of Australia is the final court of appeal and has broad authority to exercise both

original and appellate jurisdiction. About the AAT, AUSTL: ADMIN. APPEALS TRIBUNAL,

https://www.aat.gov.au/about-the-aat [https://perma.cc/4YC5-A4N6] (last visited Mar. 18, 2020).

Journal of Law & Public Affairs [Apr. 2020

for a reason other than those mentioned in . . . the Convention––revenge for

murder. Section 91S(a) requires that fear of persecution [as to the appellant] to

be disregarded.”

193

The Refugee Review Tribunal of Australia

194

adjudicated a

similar case in 2013, finding the family-based particular social group to be

cognizable and stating that “the essential and significant reason for the well-

founded fear of persecution is the applicant’s membership of this particular

social group.”

195

However, in light of section 91S, since the “defining family

member” was targeted for “revenge . . . purely criminal in motive, not for any

Convention reason,”

196

the applicant was not eligible for protection.

4. Canada—family is a cognizable particular social group but

“defining family member” must demonstrate nexus

Canadian law has also settled in the same place as Australia, albeit

without legislative action. It is well-accepted in Canada that family, not

limited to just nuclear families, can constitute a particular social group.

197

However, despite an earlier line of cases indicating that the “defining family

member” need not have been persecuted on account of a protected ground,

198

more recent jurisprudence in Canada has fallen squarely into the opposite camp.

193

TCB v Minister for Immigration and Multicultural and Indigenous Affairs [2006]

HCA 61, ¶ 24 (Austl.).

194

The Refugee Review Tribunal of Australia provided final review of decisions by officers

of the Department of Immigration and Citizenship denying protection visas to non-citizens.

In 2015, the Tribunal was amalgamated into the Administrative Appeals Tribunal, which

provides merits review of a wide range of administrative decisions. Its decisions are subject

to review by the Federal Court of Australia and the Federal Circuit Court of Australia.

195

1217750 [2013] RTTA ¶ 82, ¶ 78 (Austl.).

196

Id. ¶ 80.

197

See, e.g., Estrada v. Canada (Ministry of Citizenship & Immigration), [2015] F.C. 1019,

para. 8 (Can.) (“[M]embership in a family may take the place of membership in

a particular social group for the purposes of a refugee claim.”); Hercules Santos v. Canada

(Minister of Citizenship & Immigration), [2011] F.C. 644, para. 23 (Can.) (accepting the

applicant’s extended family as a particular social group); Ndegwa v. Canada (Minister of

Citizenship & Immigration), [2006] F.C. 847, para. 9 (Can.) (“That the family is a valid

social group for the purposes of seeking refugee protection is well established.”); Serrano v.

Canada (Minister of Citizenship & Immigration), [1999] F.C.J. 570, para. 30 (Can.) (“It is

common ground that a family may be a ‘particular social group.’”).

198

See, e.g., Rojas v. Canada (Minister of Employment & Immigration), [1995] F.C.J. 296,

para. 2 (Can.) (stating that family membership is “a ground of persecution which stands on

its own and need not be related to another of the grounds recognized by the Convention”);

see also Hristova v. Canada (Minister of Employment & Immigration), [1994] F.C.J. No.

132, para. 31 (Can.) (“It would seem that immediate family can be seen to fit within the

definition of ‘particular social group.’”); Al-Busaidy v. Canada (Minister of Employment &

Vol. 5:3] Family Fleeing: Family Membership as a Basis for Asylum

In 2000, the Federal Court of Canada – Appeal Division

199

heard the

case of a Ukrainian businessman who reported government corruption. After

the entire family received threats and suffered retaliation, his son applied for

protection based on membership in the particular social group of their

family.

200

The court of first instance, the Immigration and Refugee Board,

found that because the businessman had not been persecuted on account of a

protected ground, his son did not meet the requirements for refugee

status.

201

On appeal, the Trial Division upheld the Board’s decision “in

concluding that when the primary victim of persecution does not come

within the Convention refugee definition, any derivative Convention

refugee claim based on family group cannot be sustained. Otherwise, the

anomaly of derivative claims being allowed but primary claims being

denied could result.”

202

The Federal Court declined to rule on this issue

since it decided the case on other grounds.

203

There is a growing consensus among Canadian adjudicators

204

around

the principle that it would be an impermissible anomaly for the “defining

Immigration), [1992] F.C.J. 26, para. 3 (Can.) (“Accordingly the [Refugee] Board has

committed reviewable error in not giving due effect to the applicant’s uncontradicted

evidence with respect to his membership in a particular social group, namely, his own

immediate family.” (internal footnote omitted)); cf. Velasquez v. Canada (Minister of

Employment & Immigration), [1994] F.C.J. 4777, para. 5 (Can.) (declining to return an

applicant who had not suffered persecution to her home country because her husband

undisputedly had suffered persecution).

199

From 1971 to 2003, the Federal Court of Canada consisted of the Trial division and the Appeal

Division. In 2003, the Trial Division continued on as the Federal Court and the Appeal Division

became the Federal Court of Appeals. History, FED. CT.| COUR FÉDÉRALE, https://www.fct-cf.

gc.ca/en/pages/about-the-court/history [ttps://perma.cc/8MWG-GHH6] (last visited Mar. 18, 2020).

200

Klinko v. Canada (Minister of Citizenship & Immigration), [2000] 3 F.C. 327, paras. 6–7 (Can.).

201

Id. at para. 12.

202

Id at para. 16.

203

Id. at para. 38.

204

See, e.g., X, Re, [2018] R.A.D.D. No. 293, ¶ 23 (Can.) (“[W]hen the primary victim

does not come within the definition of ‘Convention refugee,’ any derivative claims based

on family group cannot be sustained.”); Acevedo Beza v. Canada (Minister of Citizenship

& Immigration), [2006] F.C. 478, para. 32 (Can.) (“Because [the applicants] did not prove

that . . . the principal claimant before the Board . . . met the definition of Convention

refugee, their related application cannot be granted, since there is no nexus with the

persecution grounds.”); Serrano v. Canada (Minister of Citizenship & Immigration), [1999]

F.C.J. 570, para. 42 166 (Can.) (“I do not accept that family connection is an attribute

requiring Convention protection, in the absence of an underlying Convention ground for the

claimed persecution.”). Canadian applicants have met with much more success when they

can demonstrate that the “defining family member” was persecuted on account of a protected

ground. See, e.g., Hercules Santos v. Canada (Minister of Citizenship & Immigration),

[2011] F.C. 644, para. 33 (Can.) (finding reviewable error where the defining family member

had been persecuted on account of her political opinion).

Journal of Law & Public Affairs [Apr. 2020

family member” not to be eligible while his family members are afforded

protection.

205

For example, in 2002, the Trial Division ruled that a

Guatemalan applicant who had been kidnapped to extort a ransom from her

parents, who were successful restaurant owners, had not been persecuted on

account of a Convention ground and was thus not eligible for protection.

206

The Judge concluded,

This . . . also avoids the anomaly that Ms. Gonzalez’s parents,

as the victims of crime, cannot claim the protection of the

Convention, but Ms. Gonzalez could, solely because of the

relationship with her parents. It avoids the further anomaly

that Ms. Gonzalez cannot claim status as a Convention refugee

on the basis of her ordeal as a kidnap victim, but could do so

as the daughter of the recipient of the ransom demand.

207

As one Federal Court Judge observed in a 2015 decision, “The family,

as a group, must therefore be subjected to retaliation and revenge to hope to

be granted the protection of Canada.”

208

However, this position may be

somewhat mitigated by the fact that the Canadian courts apply a less

restrictive standard for nexus in requiring that the Convention ground be a

reason, but not necessarily the central or sole reason, for the persecution.

209

II. FAMILY-BASED PARTICULAR SOCIAL GROUP

MEMBERSHIP IN PRACTICE

The second half of this Article transitions from describing the existing

state of the law to surfacing the lessons it yields for practitioners handling family-

based cases going forward. Given Barr’s recent ruling in Matter of L-E-A-

challenging social group cognizability and the Board’s previous denial of the

205

It is not clear from the case law why the “defining family member” not being eligible for

protection should justify barring their family members from protection. If so troubled by this

“anomaly,” it would be equally defensible for the Court to consider whether there are

grounds for extending protection to the “defining family member,” rather than taking it away

from applicants who otherwise meet the Refugee definition.

206

Gonzalez v. Canada (Minister of Citizenship & Immigration), [2002] F.C.J. 456,

paras. 3, 15 (Can.).

207

Id. at para. 17.

208

Estrada v. Canada (Minister of Citizenship & Immigration), [2015] F.C. 1019, para. 10 (Can.).

209

See, e.g., Canada (Minister of Citizenship and Immigration) v. B344, [2013] F.C. 447,

para. 40 (Can.) (“[I]f at least one of the motives can be related to a Convention ground, nexus

may be established.”); Shahiraj v. Canada (Minister of Citizenship and Immigration), [2001]

F.C.J. No. 734, para. 20 (Can.) (finding nexus where the applicant was targeted “based at

least partially on his own association with his brother”); Zhu v. Canada (Minister of

Employment & Immigration), [1994] F.C.J. 80, para. 2 (Can.) (“[I]t is enough for the

existence of political motivation that one of the motives was political.”).

Vol. 5:3] Family Fleeing: Family Membership as a Basis for Asylum

case based on nexus, it is all the more important that asylum applicants submit

detailed evidence as well as explicit arguments as to how they meet both of these

requirements.

210

Furthermore, as noted in the Introduction, in light of the Board’s

2018 ruling that applicants must delineate all particular social group formulations

before the Immigration Judge or lose them on appeal,

211

practitioners should

consider and assert all possible viable legal theories for their clients.

A family-based particular social group may be possible under a diverse

set of circumstances. One category particularly germane in the present day is

cases involving gang violence. Many of the recent asylum seekers fleeing

Central America and Mexico report that they left their countries to escape gangs

and other organized criminal groups.

212

While a family-based theory of

targeting will of course not apply to all cases, it may be feasible in many given

that members of armed groups frequently target family members of individuals

who oppose them.

213

This opposition may take many forms including resisting

extortion,

214

testifying as a witness to crimes committed by gangs,

215

threatening to report or in fact reporting criminal activity,

216

turning down

attempts at recruitment,

217

rejecting sexual advances,

218

being a member of a

rival gang,

219

or defecting from a gang.

220

Although the person who engages in

210

This Article focuses on cognizability and nexus for particular social group claims. The

other statutory requirements for a grant of asylum are outside the scope of this article, but

of course should also be carefully analyzed and supported by evidence.

211

Matter of W-Y-C- & H-O-B-, 27 I. & N. Dec. 189, 191 (B.I.A. 2018).

212

See, e.g., Robbie Whelan, Why Are People Fleeing Central America? A New Breed of

Gangs is Taking Over, WALL ST. J. (Nov. 2, 2018), https://www.wsj.com/articles/pay-or-

die-extortion-economy-drives-latin-americas-murder-crisis-1541167619

[https://perma.cc/Z9HZ-7EUK] (discussing how gang violence is driving migration away

from Central America).

213

U.N. HIGH COMM’R FOR HUMAN RIGHTS, GUIDANCE NOTE ON REFUGEE CLAIMS

RELATING TO VICTIMS OF ORGANIZED GANGS, supra note 155, at ¶¶ 17, 40.

214

See generally Salgado-Sosa v. Sessions, 882 F.3d 451 (4th Cir. 2018); Zavaleta-

Policiano v. Sessions, 873 F.3d 241 (4th Cir. 2017); Aldana-Ramos v. Holder, 757 F.3d 9

(1st Cir. 2014), as amended (Aug. 8, 2014); Matter of L-E-A- (L-E-A- I), 27 I. & N. Dec.

40, 41 (B.I.A. 2017).

215

See, e.g., Rivas v. Sessions, 899 F.3d 537 (8th Cir. 2018); Crespin-Valladares v. Holder,

632 F.3d 117 (4th Cir. 2011).

216

See, e.g., Cruz v. Sessions, 853 F.3d 122 (4th Cir. 2017), as amended (Mar. 14, 2017);

Rios v. Lynch, 807 F.3d 1123 (9th Cir. 2015); Hernandez-Avalos v. Lynch, 784 F.3d 944

(4th Cir. 2015).

217

See, e.g., Hernandez-Avalos, 784 F.3d 944; Cordova v. Holder, 759 F.3d 332 (4th Cir.

2014); Orellana-Monson v. Holder, 685 F.3d 511 (5th Cir. 2012); Bonilla-Morales v. Holder,

607 F.3d 1132 (6th Cir. 2010).

218

See, e.g., Gonzalez Ruano v. Barr, 922 F.3d 346, 349-50, 357 (7th Cir. 2019).

219

See, e.g., Ramirez-Mejia v. Lynch, 794 F.3d 485 (5th Cir. 2015); Cordova, 759 F.3d 332.

220

See, e.g., W.G.A. v. Sessions, 900 F.3d 957 (7th Cir. 2018), reh’g denied (Oct. 22, 2018).

Journal of Law & Public Affairs [Apr. 2020

these activities may be found not to satisfy nexus to a protected ground,

221

their

family members may have winning claims, especially with the submission of

strong evidence and a clearly-articulated legal theory.

Family-based particular social groups could also be workable in cases

involving intrafamilial violence. In 2001, the Ninth Circuit in Aguirre-

Cervantes v. INS considered the case of a young Mexican woman who had

suffered extreme abuse by her father, who also beat her siblings and her

mother.

222

The Court held the petitioner had been persecuted on account of

her membership in the particular social group consisting of her immediate

family because, “Mr. Aguirre’s goal was to dominate and persecute members

of his immediate family . . . . There is no evidence that he ever acted violently

toward any non-family member . . . . It was established by abundant

evidence––and undisputed––that it was the petitioner’s status as a member of

that family that prompted her beatings.”

223

Similarly, a Philadelphia immigration judge issued a grant of asylum

in 2018 to a Mexican woman and her children who had experienced years of

abuse from the woman’s husband. The judge found the particular social group

of “immediate family members of [name of husband]” to be cognizable

224

and concluded that although the persecutor may have held mixed motives,

221

See, e.g., Matter of S-E-G, 24 I. & N. Dec. 579, 589-90 (B.I.A. 2008) (holding that gang

recruitment resisters do not constitute a particular social group); Matter of E-A-G-, 24 I. &

N. Dec. 91, 593-94 (B.I.A. 2008) (same); Matter of W-G-R-, 26 I. & N. Dec. 208, 221-23

(B.I.A. 2014) (finding that former gang members do not constitute a particular social group).

However, some of these characteristics have been found by certain courts to be cognizable

particular social groups. For example, claims involving witnesses, persons who testify

against gang members, and persons who assist law enforcement have met with some success.

See, e.g., Henriquez-Rivas v. Holder, 707 F.3d 1081, 1083 (9th Cir. 2013); Madrigal v.

Holder, 716 F.3d 499, 502 (9th Cir. 2013) (finding that a former military official who

participated in anti-drug enforcement might have a meritorious particular social group

claim); Garcia v. Att’y Gen., 665 F.3d 496, 504 (3d Cir. 2011), as amended (2012) (finding

“a ‘common, immutable characteristic’ with other civilian witnesses who have the ‘shared

past experience’ of assisting law enforcement against violent gangs”). But see In re C-A-, 23

I. & N. Dec. 951, 961 (B.I.A. 2006) (finding that government informants, unlike public

witnesses, do not constitute a particular social group for purposes of designation as refugees).

Though beyond the scope of this Article, it is worth noting that applications in these

categories have been granted, especially with the submission of a robust record. The Center

for Gender & Refugee Studies, for example, has tracked outcomes and does have grants in

many of these areas. See Technical Assistance and Training, supra note 20.

222

Aguirre-Cervantes v. I.N.S., 242 F.3d 1169, 1172 (9th Cir. 2001), reh’g en banc granted,

opinion vacated, 270 F.3d 794 (9th Cir. 2001), withdrawn from bound volume, and opinion

vacated on reh’g en banc, 273 F.3d 1220 (9th Cir. 2001). The decision was vacated and

superseded because the persecutor in the case, the petitioner’s father, died.

223

Id. at 1178.

224

Center for Gender & Refugee Studies Database Case No. 17509, 12 (Immigration J.

Dec. Oct. 11, 2018).

Vol. 5:3] Family Fleeing: Family Membership as a Basis for Asylum

one central reason for his actions was to dominate and control the immediate

family members whom he saw as property.

225

The court went on to point out

that the persecutor would not have harmed his wife and children “were one

to remove the characteristic of ‘kinship tie’ from the equation,” and that this

was clear evidence that family membership was central to the persecution.

226

These cases notwithstanding, fact patterns involving intrafamilial

violence may be especially prone to the conclusion that the persecutor was

not motivated by the victim’s social group membership. In fact, the

Department of Homeland Security commented on this very matter in its 2016

brief, indicating that intrafamilial harm will often be for “purely personal

reasons,” but acknowledging as well that all cases must be assessed on their

individual record.

227

By 2019, the Department had taken a harder line,

dismissing domestic violence cases as unlikely to satisfy the requirements for

persecution on account of family membership.

228

A. Arguing Cognizability of a Family-Based Particular Social Group

As presented in the first half of this Article, the majority of

adjudicators––with Attorney General Barr in the distinct minority

229

––have

accepted the cognizability of family-based particular social groups when they

involve nuclear family members.

230

As such, when possible, respondents

should articulate their social groups as “immediate/nuclear members of the

[surname] family” or “immediate/nuclear family members of [name of

defining family member].”

As an illustration of the importance of how social groups are

formulated: the Board considered a case in June 2017 in which the

respondent defined his particular social group as “nuclear family members

of X, his father and a leader of a local MS-13 clique.”

231

The Board found

this formulation lacked social distinction, focusing on the additional terms

appended to the core “nuclear family members of X.”

232

The Board stated

that the group was not socially distinct because there was insufficient

225

Id.

226

Id.

227

DHS 2016 Brief, supra note 66, at 17 n.10.

228

See DHS 2019 Brief, supra note 105, at 1 (“[A]n abusive spouse inflicts harm on his or

her spouse because of their personal relationship, but that fact alone does not suffice to

demonstrate nexus between the harm and membership in their family unit.”).

229

See Matter of L-E-A- (L-E-A- II), 27 I. & N. Dec. 494, 494 (Att’y Gen. 2018) (noting that

some nuclear families are socially distinct and can be considered “particular social groups”).

230

See supra Section I.

231

Center for Gender & Refugee Studies Database Case No. 16808 1 (B.I.A. June 16, 2017).

232

Id. at 2.

Journal of Law & Public Affairs [Apr. 2020

evidence to show that children or family members of gang leaders are

viewed or treated distinctly in Honduran society.

233

The Board failed to

appreciate that the phrase “the leader of a local MS-13 clique,”

234

is merely

a descriptor of individual X and thus does not substantively alter the

formulation of the group. Had the respondent described his social group

simply as “nuclear family members of X,” it seems like there may have

been a different outcome––or at least a substantially different analysis.

Further elucidating the importance of carefully delineating the particular

social group, the Department of Homeland Security, in its 2019 brief in L-

E-A-, argued the particular social group of the respondent’s family should

be rejected because it lacked particularity.

235

It seems evident that the

respondent meant “nuclear family” given that the “defining family

member” was his father, but the Department appeared to be willfully ignoring

this and considered only the more general group of “his family” because the

respondent did not explicitly say otherwise.

236

In light of these cases and

others, practitioners should avoid overcomplicating their social groups by

including additional terms and characteristics, but also should take care to

specify “nuclear family” or “immediate family” where appropriate.

Attorney General Barr has asserted that the family should generally not

be recognized as a cognizable social group, but it is well-established that social

groups must be assessed on a case-by-case basis.

237

Rather than assuming that

any given formulation will automatically succeed (or fail) on cognizability,

practitioners should make explicit arguments and submit evidence

238

to this

effect.

239

It will be even more important to do this when presenting a social group

that extends beyond the bounds of immediate family membership in light of the

significant disagreement among adjudicators as to the cognizability of extended

family-defined groups. In these cases, practitioners should consider asserting

multiple alternative formulations of social groups, forcing the immigration judge

to separately analyze their merits and to preserve them on appeal. The following

Subsections present arguments that can be made along with types of evidence to

support them to demonstrate that family-based particular social groups meet the

requirements for cognizability.

233

Id.

234

Id. at 1.

235

DHS 2019 Brief, supra note 105, at 38.

236

Id.

237

Compare L-E-A- II, 27 I. & N. Dec. 494, with supra notes 112, 147 and accompanying text.

238

Matter of M-E-V-G-, 26 I. & N. Dec. 227, 244 (B.I.A. 2014) (listing “country conditions

reports, expert witness testimony, and press accounts of discriminatory laws and policies,

historical animosities and the like” as relevant to establishing a social group).

239

But see supra note 21 (arguing that the Board should return to solely using the Acosta standard).

Vol. 5:3] Family Fleeing: Family Membership as a Basis for Asylum

1. Acosta – fundamental or immutable

The first requirement for particular social groups to be found cognizable

is that characteristics of the group be either fundamental or immutable, as set out

in Matter of Acosta.

240

This test is relatively easy for family-based groups to

satisfy, and even Attorney General Barr conceded that “many family

relationships will be immutable” in L-E-A-.

241

Family membership is an

immutable characteristic because people generally cannot change the family

to which they belong. Children will always have their same parents. Brothers

and sisters will always be siblings. Eccentric aunts, uncles, and cousins can

be avoided at family gatherings but not entirely denied. Family also falls into

the “fundamental” category envisioned by Acosta. Even in cases where

family membership could arguably be changed, such as joining another

family by marriage, as described in the Department’s 2016 brief in L-E-A-,

[E]ven where it may be possible to leave an immediate family

group in such a way that one can no longer be considered to

have the trait, this type of family relationship is generally

fundamental to an individual’s identity, and is not a change

that one should be required to make.

242

Family bonds, whether immediate or extended, are so intrinsic to an

individual’s identity that they should not have to be severed or hidden.

2. Particularity

In order to be found cognizable, particular social groups must also

be defined with particularity. Nuclear families satisfy this requirement

because they have clear, definable boundaries comprised of a person’s

parents, spouse, siblings, and children.

243

Oftentimes, it is clear who is a

member of a nuclear family because they share a surname and may

cohabitate. Even when individuals in a family have different surnames––

for example, when a wife and husband do not share a surname or where a

daughter has taken on a new surname and moved into another home after

marriage––persecutors and members of a given community may still

identify them as part of the same family. Most adjudicators, including the

240

Matter of Acosta, 19 I. & N. Dec. 211, 233 (B.I.A. 1985).

241

L-E-A- II, 27 I. & N. Dec. at 593.

242

DHS 2016 Brief, supra note 66, at 7-8; see also Matter of Acosta, 19 I. & N. Dec. at 233

(identifying kinship as an innate characteristic that satisfies the immutable requirement).

243

In fact, this position was taken by the Department of Homeland Security in its 2016 brief.

The Department cited to the Merriam-Webster definition of “immediate family” as support.

DHS 2016 Brief, supra note 66, at 1 n.1.

Journal of Law & Public Affairs [Apr. 2020

Attorney General in L-E-A-,

244

accept that nuclear families can satisfy the

particularity requirement.

Some adjudicators, however, have rejected family-based social

groups as lacking sufficient particularity where the family relationship was

more attenuated. In Matter of S-E-G-, the Board found that “[t]he proposed

group of ‘family members,’ which could include fathers, mothers, siblings,

uncles, aunts, nieces, nephews, grandparents, cousins, and others, is also too

amorphous a category.”

245

This is not to say, however, that no social group

that includes extended families can be particular.

246

The Fourth Circuit in

Crespin-Valladares v. Holder found cognizable the social group “family

members of those who actively oppose gangs in El Salvador by agreeing to

be prosecutorial witnesses” where the petitioner’s uncle was the “defining

family member.”

247

The court stated, “[t]he family unit—centered here

around the relationship between an uncle and his nephew—possesses

boundaries that are at least as ‘particular and well-defined’ as other groups

whose members have qualified for asylum.”

248

In a 2018 decision, the

Seventh Circuit seemed to accept that the petitioner was part of a cognizable

social group consisting of his family where the “defining family member”

was his cousin.

249

The Ninth Circuit has also indicated that it might find

particular social groups involving extended family members cognizable.

250

In order to satisfy the particularity requirement, practitioners may cite

to positive case law but should also create an individual record clearly

demonstrating that the proposed social group has definable boundaries. A

social group such as family of X person or members of the X family could

encompass extended family members so long as the evidence supports that,

within the given community or society, this group is sufficiently particular.

244

See L-E-A- II, 27 I. & N. Dec. at 593-94 (citing other cases to point out that an extended

family definition might be “too vague” to be particular before continuing to argue that even

clearly defined family groups must also be socially distinct).

245

In re S-E-G-, 24 I. & N. Dec. 579, 585 (B.I.A. 2008); see also Center for Gender &

Refugee Studies Database Case No. 20641, 17 (Immigration J. Dec. May 2018) (finding that

that the particular social group of “[name] family” lacked particularity because “there are a

large number of individuals who may qualify as a member of this family”);

246

See supra Subsection I.C.1 (describing how the BIA has found particular social groups

that include extended family members cognizable following L-E-A-).

247

Crespin-Valladares v. Holder, 632 F.3d 117, 120-21 (4th Cir. 2011).

248

Id. at 125; see also Cordova v. Holder, 759 F.3d 332, 338, 340 (4th Cir. 2014) (remanding

a case to the BIA to consider whether the petitioner’s kinship ties to his uncle and cousin

constituted a cognizable social group).

249

See Plaza-Ramirez v. Sessions, 908 F.3d 282, 286 (7th Cir. 2018) (denying petition for

review on other grounds, nonetheless).

250

Rios v. Lynch, 807 F.3d 1123, 1128 (9th Cir. 2015) (remanding for consideration of a

particular social group that included the petitioner’s cousin).

Vol. 5:3] Family Fleeing: Family Membership as a Basis for Asylum

As an illustration, the Refugee & Human Rights Clinic had a client who was

from a small village in El Salvador. Multiple members of his family had been

killed or threatened by gangs, including uncles, aunts, and cousins.

251

argued that, in the context of the community in question, the extended family

constituted a discrete family unit with definable boundaries that could satisfy

the particularity requirement. We included as evidence statements from the

applicant and his family members such as, “[f]amilies in our village and

nearby villages know one another. Because there are only about 200 houses

in village, we mostly know who everybody is,”

252

and “[m]y family and I are

well-known within our village and the neighboring village. Because our village

is small, and because my family has lived there for a long time, most people

know and can easily recognize my family.”

253

Alongside these types of

statements, we also submitted country conditions documentation demonstrating

that the concept of family is broader than just nuclear family in El Salvador. For

example, the Family Code obligates grandparents, siblings, uncles and aunts,

and first cousins to provide for minors in their families.

254

3. Social distinction

The final requirement for cognizability is social distinction. There is

ample evidence demonstrating that families are viewed as distinct in most

societies. Many countries have laws, policies, and customs that recognize

family units.

255

In fact, the very existence of family-based immigration in the

251

Declaration of X, represented by the UC Hastings Refugee & Human Rights Clinic,

granted asylum Apr. 14, 2017.

252

Id.

253

Id.

254

See Código de Familia, Decreto No. 677, Book 4, Title II, Ch. 2, § 1, art. 287 (Oct. 11,

1993), http://www.oas.org/dil/esp/Codigo_de_Familia_El_Salvador.pdf [https://perma.cc/

6LHU-SK9D] (allowing a judge to name as a child’s guardian the child’s grandparents,

siblings, uncles and aunts, or first cousins).

255

For example, in Matter of L-E-A-, the Department argued against the cognizability of the

respondent’s particular social group because he had not submitted evidence that “this

paternal relationship between two male individuals is perceived” to be distinct. DHS 2019

Brief, supra note 105, at 39. It would have been relatively easy to submit evidence that the

father-son relationship is viewed distinctly in Mexican society. See generally ALFONSO

SEPÚLVEDA GARCÍA & HABIB DÍAZ NORIEGA, FAMILY LAW IN MEXICO: OVERVIEW (2014)

(discussing the laws that set out parental rights and obligations in Mexico); Kimberly

Updegraff et al., Exploring Mothers’ and Fathers’ Relationships with Sons Versus

Daughters: Links to Adolescent Adjustment in Mexican Immigrant Families, 60 SEX ROLES

559 (2009) (exploring the differences in how Mexican mothers and fathers treat their sons

versus daughters). The respondent could also have submitted an expert affidavit on how

Mexican society views the relationship between a father and son or simply testified to this

on the record regarding his own experiences.

Journal of Law & Public Affairs [Apr. 2020

U.S. reflects that this country views the family as significant in some way.

The Supreme Court has stated, “the Constitution protects the sanctity of the

family precisely because the institution of the family is deeply rooted in this

Nation’s history and tradition. It is through the family that we inculcate

and pass down many of our most cherished values, moral and cultural.”

256

course, the relevant inquiry is whether the society in question, not the United

States, views the group distinctly. Nevertheless, the fact that the United States

has a longstanding history of recognizing the family as the fundamental unit

of society should give immigration adjudicators some foundation to

understand how the same might be true in other countries.

As discussed previously, Attorney General Barr, in L-E-A-, sought

to establish a new standard for social distinction in cases involving a

family-based particular social group that would require the applicants to

demonstrate that their specific families are widely-recognized or well-

known in their societies.

257

This position runs counter to the well-

established rule that the proper question is whether nuclear or extended

families, as a general matter, are socially distinct in the relevant society.

258

However, given the recent decision in L-E-A-, it is quite likely that this

erroneous line of reasoning may become increasingly common among

adjudicators. Practitioners may thus want to consider arguing that the

applicant’s family is in fact well-known or “famous” in some way in the

society in question, while at the same time pushing back on the position

that this is a requirement for social distinction.

For example, the Refugee & Human Rights Clinic regularly submits

evidence demonstrating that our clients’ families are known as being

particularly religious, affluent, influential, or some other characteristic and

are therefore treated differently than others in the community. A recent client

testified that his was only one of four black families in his town, so they stood

out and faced widespread derision.

259

Another client stated that his family

was well-known as being one of only a few that were Mormon amidst the

256

Moore v. City of E. Cleveland, Ohio, 431 U.S. 494, 503-04 (1977); see also Obergefell

v. Hodges, 135 S. Ct. 2584, 2594 (2015) (“Cicero . . . wrote, ‘The first bond of society is

marriage; next, children; and then the family.’”). The Court has also indicated that one of the

primary concerns of our immigration laws is to protect family unity. See, e.g., I.N.S. v.

Errico, 385 U.S. 214, 224 (1996) (“The fundamental purpose of [the 1957 amendment to the

INA] was to unite families.”).

257

See supra Section I.D.

258

See, e.g., U.S. CITIZENSHIP & IMMIGR. SERVS., supra note 122, at 33 (instructing asylum

officers to assess how the relevant society views the degree of relationship).

259

Declaration of X, represented by the UC Hastings Refugee & Human Rights Clinic,

granted asylum May 6, 2019.

Vol. 5:3] Family Fleeing: Family Membership as a Basis for Asylum

predominantly Catholic community.

260

Oftentimes the same evidence that

supports particularity may also be relevant to social distinction. The client

referenced in the preceding section was able to argue that the fact that he was

from a small village where everyone knew his family was evidence of both

particularity and social distinction. Practitioners should emphasize in these

cases that the relevant “society” for the social distinction analysis is the

smaller community or town rather than the country as a whole. Matter of M-

E-V-G- acknowledges that social distinction can be analyzed as “an inquiry

into a more limited subset of the country’s society.”

261

As with the particularity requirement, adjudicators may be more

hesitant to find social distinction for particular social groups that include

extended family members. However, the Department of Homeland Security

in 2016 acknowledged that, in some societies, “extended family groupings

may have greater social significance, such that they could meet the

requirement of social distinction.”

262

USCIS stated the same in its 2009

training materials and instructed that “[a]sylum officers should carefully

analyze [social distinction] in light of the nature and degree of the family

group asserted and should pay close attention to country conditions evidence

about the relevant social attitudes toward family relationships.”

263

Though

the 2009 materials have been superseded, the 2019 USCIS guidance on

family-based claims still acknowledges the standing requirement that country

conditions documentation and societal context be considered in each

individual case, stating that “[o]fficers must analyze each case on its

merits…each case requires a fact-specific analysis based on the evidence

presented by the applicant.”

264

Regardless of whether the social group is

limited to nuclear family members or a more extended grouping, practitioners

should submit clear evidence of social distinction, such as laws and policies

in the country in question that recognize the family relationship in some

way,

265

secondary sources speaking to the significance of family,

266

affidavits

260

Declaration of X, represented by the UC Hastings Refugee & Human Rights Clinic,

granted asylum Apr. 14, 2017.

261

Matter of M-E-V-G-, 26 I. & N. Dec. 227, 243 (B.I.A. 2014).

262

DHS 2016 Brief, supra note 66, at 9.

263

U.S. Citizenship & Immigration Services, supra note 122, at 33.

264

USCIS L-E-A- GUIDANCE, supra note 18, at 6.

265

See supra note 254 and accompanying text (noting that the Salvadoran Family Code

creates obligations for not just parents, but also grandparents, siblings, uncles and aunts, and

first cousins to provide for minors in their families).

266

For example, a 1995 country study on Honduras states:

The family is the fundamental social unit in Honduras . . . People

emphasize the trust, the assistance, and the solidarity that kin owe to one

Journal of Law & Public Affairs [Apr. 2020

from experts to this same effect, and testimony from the applicant about how

families operate as distinct units with the society in question.

267

B. Arguing Nexus in Family-Based Targeting Cases

Once the cognizability of a particular social group has been

established, as well as the fact that the applicant is indeed a member of the

group, practitioners must next turn to the issue of nexus. Although each case

must be examined on its individual record, respondents can maximize their

chances of success by demonstrating how their claims mirror existing case

law. The following subsections present pointers drawn from the Board’s

ruling in L-E-A-

268

and other cases.

1. Posit a clear theory or theories of why the family was targeted

Applicants should try to explain why the family was targeted rather

than relying solely on the pattern of harm against family members. Of course,

as the Fourth Circuit has acknowledged, “[i]t is unrealistic to expect that a

gang would neatly explain in a note all the legally significant

reasons it is targeting someone.”

269

An asylum applicant is not expected to

testify as to the exact motivations of her persecutors, but may rely on direct

another. Family loyalty is an ingrained and unquestioned virtue; from early

childhood, individuals learn that relatives are to be trusted and relied on,

whereas those outside the family are, implicitly at least, suspect. In all

areas of life and at every level of society, a person looks to family and kin

for both social identity and assistance.

HONDURAS: A COUNTRY STUDY, LIBRARY OF CONGRESS, FEDERAL RESEARCH DIVISION 88-

90 (Tim Merrill, ed., 1995).

267

For example, an applicant might comment on how everyone refers to children as “[name

of parent’s] son/daughter” and to women as “[name of husband’s] wife,” demonstrating how

people are defined by their families.

268

As previously noted, the Attorney General in L-E-A- left undisturbed the nexus-related

portion of the Board’s decision. Matter of L-E-A- (L-E-A- II), 27 I. & N. Dec. 494, 597 (Att’y

Gen. 2018). Focusing instead on cognizability, the Attorney General’s decision includes

virtually no commentary about nexus.

269

Zavaleta-Policiano v. Sessions, 873 F.3d 241, 248 (4th Cir. 2017); see also Espinosa-

Cortez v. Att’y Gen., 607 F.3d 101, 109 (3d Cir. 2010) (“[I]t would be patently absurd to

expect an applicant . . . to produce . . . documentary evidence of a persecutor’s motives . . .

since persecutors are hardly likely to submit declarations explaining exactly what motivated

them to act.” (internal quotation marks and citations omitted)); Garcia-Martinez v. Ashcroft,

371 F.3d 1066, 1073 (9th Cir. 2004) (recognizing that, “because it is difficult to prove

motive” for persecution, asylum applicants “need only provide some evidence of motive,

direct or circumstantial” (emphasis added)).

Vol. 5:3] Family Fleeing: Family Membership as a Basis for Asylum

or circumstantial evidence.

270

However, in practice, where there is no theory

presented of why the family would have been targeted, it gives adjudicators

more leeway to instead conclude that the persecutor was motivated by

“personal reasons” or a generalized criminal intent.

For example, in Sosa-Perez v. Sessions, the First Circuit upheld the

Board’s denial of a Honduran woman whose family had suffered repeated

harm by gangs.

271

The petitioner stated that she did not know why the gangs

targeted her family,

272

and both the immigration judge and the Board made

particular note of this in concluding that she had not experienced harm on

account of a protected ground but had been the victim of “rampant crime”

and “pervasive societal violence.”

273

The First Circuit noted that although the

petitioner argued that the pattern of harm against her family was sufficient

evidence of nexus, the record did not compel that conclusion.

274

The court

distinguished the petitioner’s case from a number of Fourth Circuit decisions

where the petitioners gave clear explanations of why their families had been

targeted.

275

Similarly, in an unpublished Board decision that followed L-E-A-,

270

See, e.g., Ndayshimiye v. Att’y Gen., 557 F.3d 124, 131 (3d Cir 2009) (stating that

“[a]pplicants for asylum bear the burden of providing some evidence of [a motive based on

a statutorily protected ground], direct or circumstantial” (emphasis added) (internal

quotations omitted)); Bolanos-Hernandes v. INS, 767 F.2d 1277, 1285 (9th Cir. 1984)

(stating that because refugees are rarely able to offer direct corroboration of specific

threats, the applicant’s own credible testimony is sufficient); Matter of J-B-N- S-M-, 24

I. & N. Dec. 208, 214 (B.I.A. 2007) (holding that the burden of proof for the persecutor’s

motive may be met by testimonial evidence).

271

Sosa-Perez v. Sessions, 884 F.3d 74, 78 (1st Cir. 2018); see also Ruiz-

Escobar v. Sessions, 881 F.3d 252, 259-260 (1st Cir. 2018) (finding no nexus to family

where the petitioner acknowledged he did not know who his attackers were and had no

personal knowledge of the circumstances surrounding harm to other family members);

Marin-Portillo v. Lynch, 834 F.3d 99, 102 (1st Cir. 2016) (finding no nexus where the

petitioner testified that he did not know why the persecutor wanted to kill him, and rejecting

the argument that the pattern of targeting the petitioner’s family meant that “the only logical

inference” was that family membership was the reason for the death threats).

272

Sosa-Perez v. Sessions, 884 F.3d at 78.

273

Id. at 80-81.

274

The court implied that the record could have permitted a different conclusion than

that reached by the Board, it but noted that it is required to sustain the findings of the

Board unless the record “compels” a reasonable factfinder to find otherwise. Id. at 80

(citing Palma-Mazariegos v. Gonzales, 428 F.3d 30, 34 (1st Cir. 2005)).

275

See Sosa-Perez v. Sessions, 884 F.3d at 82 n.3 (citing Zavaleta-Policiano v. Sessions, 873

F.3d 241, 248-50 (4th Cir. 2017), in which the petitioner argued she was threatened because

her father had fled the country after refusing to pay extortion to gang members;

Cruz v. Sessions, 853 F.3d 122, 129 (4th Cir. 2017), in which the petitioner was targeted by

organized criminals after she began investigating the disappearance of the father of her

children; and Hernandez-Avalos v. Lynch, 784 F.3d 944, 950 (4th Cir. 2015), in which the

petitioner was threatened by gang members after refusing to allow her son to join the gang).

Journal of Law & Public Affairs [Apr. 2020

the Board dismissed the appeal where “[t]he respondent testified to many

deaths within her extended family, but was unable to provide any reasons or

even speculate as to the reasons for several of the deaths.”

276

The Board

agreed with the Immigration Judge that the respondent had been targeted

“based on general criminality or attempts at extortion.”

277

In order to minimize the likelihood that the adjudicator will conclude

that the applicant was not actually harmed due to the family relationship,

practitioners should present evidence of the persecutor’s motivation and

assert a reasonable theory––or theories––as to why the family might have

been targeted. This can be achieved through careful fact investigation

involving interviews with the client and other family members where

appropriate, as well as country conditions documentation and expert

affidavits on patterns of family-based targeting by specific persecutors in a

given country. As an illustration, the Refugee & Human Rights Clinic

represented a young woman who received gang threats, but initially came to us

not knowing why.

278

She told us that her father had been beaten and her mother

raped by members of the same gang.

279

There was a clear pattern of family-

based targeting, but the client had no explanation of why her family had been

singled out. Clients may not be privy to all of the information that supports

their family-based claims.

280

Interviewing and documenting facts from other

family members, including obtaining police reports and death certificates, may

make the difference between a grant or a denial. In this case, after interviewing

the client’s parents, we learned that they were being extorted, but our client

was unaware of this fact, because her parents did not want to worry her.

281

The

276

Center for Gender & Refugee Studies Database Case No. 19905, 1 (B.I.A. undated but

post–L-E-A-).

277

Id. at 2.

278

Declaration of X, represented by the UC Hastings Refugee & Human Rights Clinic,

decision pending (on file with author).

279

Id.

280

This may be particularly true of children and young persons. In fact, the Asylum Officer

Basic Training Course Guidelines (AOBTC) recognize the importance of relying on

objective evidence to determine nexus in cases involving children, since minors often do not

fully grasp why they have been targeted:

A child’s inability to understand all of the circumstances surrounding his

or her flight creates difficulty in analyzing the nexus of the harm or fear of

harm to a protected ground. Officers must pay close attention to the

objective facts surrounding the child’s claim to determine if there is a

nexus regardless of the child’s ability to articulate one.

U.S. CITIZENSHIP & IMMIGRATION SERVICES, ASYLUM DIVISION, AOBTC GUIDELINES FOR

CHILDREN’S ASYLUM CLAIMS 53 (2009).

281

Declarations of X and Y, parents of the client represented by the UC Hastings Refugee &

Human Rights Clinic, decision pending (on file with author).

Vol. 5:3] Family Fleeing: Family Membership as a Basis for Asylum

affidavits that this client’s parents submitted in her case were critical to

demonstrating that her persecution was tied to her family membership. We also

submitted country conditions documentation and obtained an affidavit from an

expert on the client’s home country speaking to the reasons that certain families

there may be singled out for persecution by gangs.

2. Emphasize that mixed motives are permissible

Claims become more complicated when applicants were also

persecuted for reasons that may not fall into a protected category, as well as

on account of their family membership. Despite the clear recognition in the

law that “mixed motives” are permissible,

282

adjudicators appear to be less

likely to grant such cases. As noted previously, in L-E-A-, the Board found

that the respondent was targeted by the gangs because they wanted him to

sell drugs rather than on account of his family membership.

283

Similarly, in

Crespin-Valladares v. Holder, the Board found that the respondent had not

been threatened because of his uncle’s cooperation with the investigation of

the death of his cousin, but so that he would not testify himself.

284

In order to guard against these types of conclusions, practitioners

should consider affirmatively identifying nonprotected reasons for the

persecution that occur alongside the family-based targeting and emphasize

that the presence of these nonprotected reasons does not constitute

evidence of the absence of a protected reason.

285

The First Circuit accepted

this proposition in Aldana-Ramos v. Holder, stating “we are aware of no

legal authority supporting the proposition that, if wealth is one reason for

the alleged persecution of a family member, a protected ground—such as

family membership—cannot be as well.”

286

In the same case, the First

Circuit acknowledged that motivations can change over time, giving the

282

See supra note 34 and accompanying text.

283

Matter of L-E-A- (L-E-A- I), 27 I. & N. Dec. 40, 46-47 (B.I.A. 2017).

284

Crespin-Valladares v. Holder, 632 F.3d 117, 127 (4th Cir. 2011). The Fourth Circuit found

the Board had applied the incorrect standard in reviewing the Immigration Judge’s finding

on nexus and remanded, but did not weigh in on the substantive issue of whether the

petitioner had satisfied nexus.

285

See, e.g., Qu v. Holder, 618 F.3d 602, 608 (6th Cir. 2010) (“[I]f there is a nexus between

the persecution and the membership in a particular social group, the simultaneous existence

of a personal dispute does not eliminate that nexus.”); Menghesha v. Gonzales, 450 F.3d 142,

148 (4th Cir. 2006) (“[A]n IJ may not treat the presence of a nonpolitical motive as evidence

of the absence of a political motive.” (internal quotation marks omitted)); Grace v. Whitaker,

344 F. Supp. 3d 96, 131 (D.D.C. 2018) (citing Aldana-Ramos and Qu to conclude that the

simultaneous existence of a personal dispute “does not preclude a positive credible fear

determination . . . so long as the one central reason for the persecution is a protected ground”).

286

757 F.3d 9, 18 (1st Cir. 2014), as amended (Aug. 8, 2014).

Journal of Law & Public Affairs [Apr. 2020

example of a local militia that initially targets a family because of their

wealth but then “pursue[s] them throughout the country in order to show

the local community that even its most prominent families are not immune

and that the militia’s rule must be respected.”

287

There is ample

documentation that the gangs and cartels that operate in Mexico and

Central America do not countenance challenges to their authority.

288

Practitioners could explore the theory that a family was initially targeted

for one reason, but that the motives of the persecutor changed over time

to a desire to augment their power in the community by making an

example of the family in question.

On the other hand, although mixed motives are permissible, it can

nevertheless be helpful to explicitly rule out other motivations the persecutors

might have held in order to leave the family-based theory as the most viable

contender. Again, since a persecutor will rarely state why he is harming

someone, it can be effective to engage in a “process of elimination” type of

analysis. For example, in cases where the applicants are children or spouses

with no access to money, it is harder to argue that they were persecuted for

their own wealth or as a direct target of extortion. Along these lines, in the

aforementioned Refugee & Human Rights Clinic case of a young person

whose parents were being extorted, the client had been threatened by the

gangs starting from the age of ten.

289

The gang members never asked her

directly for money and it would not have been reasonable to think that she

would have been able to pay extortion herself since she was just a child.

290

Because of the client’s youth, we were able to rule out pecuniary motives as

to the persecutors and underscore that she was targeted because of her family

relationship to her father, as a means to control or punish him, rather than for

any other reason. Indeed, the gang members only ever threatened to harm the

client immediately after asking her father for money.

291

287

Id. at 19.

288

According to the UNHCR Guidance Note on Refugee Claims Relating to Victims of

Organized Gang,

Because respect and reputation play such an important role in gang culture,

members and entire gangs go to great lengths to establish and defend both.

Refusals to succumb to a gang’s demands and/or any actions that challenge

or thwart the gang are perceived as acts of disrespect, and thus often trigger

a violent and/or punitive response.

U.N. HIGH COMM’R FOR HUMAN RIGHTS, supra note 155, at ¶ 2.

289

Declaration of X, represented by the UC Hastings Refugee & Human Rights Clinic,

decision pending.

290

Id.

291

Id.

Vol. 5:3] Family Fleeing: Family Membership as a Basis for Asylum

3. Identify temporal patterns in targeting

One piece of evidence that can be critical for family-based

persecution claims is the timing of targeting of the applicant as well as other

family members. The Seventh Circuit, in particular, has focused on this issue

in recent cases. In the August 2018 case W.G.A. v. Sessions, the Seventh

Circuit found substantial evidence did not support the Board’s conclusion that

there was no nexus,

292

noting that the threats against the petitioner began just

two days after his brother left the gang, demonstrating that the family

relationship was what caused him to be targeted.

293

In April 2019, the Seventh

Circuit found nexus in a case where a husband was targeted by a cartel

member who wanted to “possess” his wife, analogizing it to W.G.A. in that

“the timing of the persecution and statements made by the persecutors leave

no doubt that he was and remains a target because of his relationship with his

wife.”

294

The Seventh Circuit is not alone in its interest in looking at temporal

patterns. In Zavaleta-Policiano v. Sessions, the Fourth Circuit pointed out

that the petitioner had not been harmed prior to when her father—who was

the initial target for extortion—fled the country, but that the gangs began

threatening her immediately after he left.

295

Reviewing the converse set of

facts, the Sixth Circuit, in Bonilla-Morales v. Holder, found no nexus where

the majority of the harms that the petitioner suffered from gang members

actually happened prior to their attempts to recruit her son.

296

The timing of harms may be especially relevant as evidence of nexus

in cases where the persecutor demanded something of the applicant, and the

applicant complied, but the targeting continued. Illustrating this principle, in an

unpublished 2019 decision, the Board remanded a case in which the respondent

acquiesced to paying extortion to gang members, but continued to receive

threats from them, indicating that the underlying reason for the persecution

could not have been solely financially-motivated.

297

The First Circuit, in

Aldana-Ramos v. Holder, similarly remanded to consider the petitioners’

argument that they could not have been targeted on account of their wealth

292

W.G.A. v. Sessions, 900 F.3d 957, 966 (7th Cir. 2018), reh’g denied (Oct. 22, 2018).

293

Id.; see also Center for Gender & Refugee Studies Database Case No. 20037, 6

(Immigration J. Dec. July 14, 2017) (discussing a case arising in the Seventh Circuit granting

asylum while noting the fact that the respondent was only harmed by the gang members after

her son refused their requests to join).

294

Gonzalez Ruano v. Barr, 922 F.3d 346, 355-56 (7th Cir. 2019).

295

Zavaleta-Policiano v. Sessions, 873 F.3d 241, 249 (4th Cir. 2017) (“The timing of the

threats against Zavaleta-Policiano is key, as it indicates that MS–13 was following up on its

prior threat to target Barrientos’s family if he did not accede to the gang’s demands.”).

296

Bonilla-Morales v. Holder, 607 F.3d 1132, 1137 (6th Cir. 2010).

297

P-R-R-, A XXX XXX 272, 2-3 (B.I.A. Feb. 22, 2019) (on file with IRAC).

Journal of Law & Public Affairs [Apr. 2020

because they had paid their father’s kidnappers, exhausted all of their financial

resources, and still received threats.

298

This logic is not restricted to extortion

cases. In Cruz v. Sessions, the Fourth Circuit pointed out that the persecutor

had continued to target the respondent and her children even after she promised

not to report his criminal activity.

299

This pattern of harm evidenced that the

central underlying reason for the persecution was not the demands––in this case,

that the respondent stay silent about her husband’s murder––but the familial

relationship.

300

These cases provide a meaningful distinction from L-E-A-, in

which the respondent refused to give in to the cartel’s request that he sell drugs

from his father’s store.

301

Had he consented and had the threats continued, this

would clearly have rebutted the Board’s conclusion that the respondent was

targeted solely to increase the cartel’s profits.

302

4. Connect to another protected ground

While adjudicators continue to disagree over whether the “defining

family member” must also establish nexus to a protected ground, it is

indisputable that it certainly strengthens an applicant’s claim. The Board

stated in L-E-A- that nexus is “often” established “in cases where the family

status is connected to another protected ground, particularly where there is a

political motive . . . that is intertwined with or underlies the dispute.”

303

Similarly, in Rios v. Lynch, the Ninth Circuit indicated its belief that

“persecutors are more likely to identify individual family members as part of

a particular social group when familial ties are ‘linked to race, religion, or

political affiliation,’” though the court also acknowledged that this is not a

requirement for nexus.

304

In Ayele v. Holder, the Seventh Circuit found that

the Immigration Judge and Board had erred in not considering whether she

faced persecution on account of her family membership, given her family’s

involvement in the opposition political party.

305

And in Vumi v. Gonzales, the

Second Circuit remanded the case of a Congolese petitioner who had been

persecuted by members of the military, who suspected that her husband had

298

Aldana-Ramos v. Holder, 757 F.3d 9, 18-19 (1st Cir. 2014), as amended (Aug. 8, 2014).

299

Cruz v. Sessions, 853 F.3d 122, 129 (4th Cir. 2017), as amended (Mar. 14, 2017).

300

Id.

301

Matter of L-E-A- (L-E-A- I), 27 I. & N. Dec. 40, 46 (B.I.A. 2017).

302

Id. at 46-47.

303

Id. at 45 (citing to Ayele v. Holder, 564 F.3d 862 (7th Cir. 2009); Vumi v. Gonzales, 502

F.3d 150 (2d Cir. 2007); Gebremichael v. I.N.S., 10 F.3d 28, 36 (1st Cir. 1993)).

304

Rios v. Lynch, 807 F.3d 1123, 1128 (9th Cir. 2015) (citing to Thomas v. Gonzales, 409

F.3d 1177, 1188 (9th Cir. 2005), judgment vacated, 547 U.S. 183 (2006)).

305

Ayele, 564 F.3d at 869.

Vol. 5:3] Family Fleeing: Family Membership as a Basis for Asylum

been involved in the assassination of then-president Kabila.

306

The court held

that the Board had not adequately considered the petitioner’s claims based on

both her membership in the particular social group of her husband’s family

members, as well as an imputed anti-Kabila political opinion.

307

In order to maximize an applicant’s likelihood of success,

practitioners should ascertain if there is any possible way to argue that the

“defining family member” was targeted on account of protected ground.

308

Under these circumstances, it may also be effective to argue this same

protected ground as imputed to the applicant,

309

in addition to the family-

based particular social group. It seems logical that someone whose family

member is exceptionally religious or known to be involved in a political party

may also be assumed by persecutors to fall into the same category.

5. Explain why other members of the family were not harmed

Where the persecutor harmed multiple members of the same family,

this lends support to the proposition that the persecution was on account of

the family relationship.

310

On the flip side, adjudicators have consistently

considered the ability of other family members to continue living in their

country of origin unharmed as evidence that there was no connection between

the persecution the applicant suffered and family membership.

311

The case law

306

Vumi, 502 F.3d at 154.

307

Id. at 159.

308

In doing so, it may be useful to apply some of the other tips in this section as to the

“defining family member” as well, e.g. emphasizing the permissibility of mixed motives,

ruling out non-protected grounds, and examining the timing of persecution.

309

See, e.g., Parada v. Sessions, 902 F.3d 901, 910 (9th Cir. 2018) (finding that the petitioner

had been persecuted on account of both his membership in his family and the political opinion

that the gang members had imputed upon him due to his family’s military service); Mema v.

Gonzalez, 474 F.3d 412, 416 (7th Cir. 2007) (“[A]sylum is available to persons who have been

persecuted based on imputed political opinion, including situations where a persecutor

attributes the political opinion of one or more family members to the asylum applicant.”).

310

See, e.g., Ayele, 564 F.3d at 870 (“Every member of Ayele’s immediate family either is

in exile, has disappeared, has been imprisoned and tortured, or is under house arrest.”); see

also U.N. HIGH COMM’R FOR HUMAN RIGHTS, supra note 155, at ¶ 20 (noting that harm to

other family members may constitute evidence of a well-founded fear of future persecution).

311

See, e.g., Plaza-Ramirez v. Sessions, 908 F.3d 282, 286 (7th Cir. 2018) (noting the “[t]he

absence of evidence of threats to or attacks on other family members”); Macias-Padilla v.

Sessions, 729 F. App’x 541, 543 (9th Cir. 2018) (“Any inference of a nexus between the

cartel’s actions and the Padilla family relationship is undermined by the fact that other family

members continue to reside in Mexico, and in the same region, without any known issues

with the cartel.”); Ramirez-Mejia v. Lynch, 794 F.3d 485, 493 (5th Cir. 2015) (finding the

fact that other family members remained in Honduras and have not faced persecution as

Journal of Law & Public Affairs [Apr. 2020

clearly states that applicants are not required to show that other members of the

group––in this context, other family members––were also harmed by the same

persecutor.

312

However, it can significantly strengthen the legal theory to

affirmatively proffer an explanation of why they have remained safe.

In order to do so, the key question is what characteristics

distinguish the applicant from family members who were unharmed. In an

unpublished Board decision from 2018, Matter of G-F-N-A-, the

respondent posited that his siblings had not been harmed because they had

a different last name and thus were not readily identifiable as members of

the family.

313

In a recent Refugee & Human Rights Clinic case, the client

was substantially older than her siblings. We obtained an affidavit from

an expert indicating that gang members are more likely to target girls when

they have become sexually mature enough to be of interest to them.

314

Because the client’s sisters were all under the age of sexual maturity, the

expert hypothesized that this was why they had not yet been harmed.

315

Another possible explanation for family members that appear to be living

in safety is that they are in fact not actually safe, but are constantly

moving, in hiding, or have only been exposed to danger for a limited

evidence against nexus to family-based social group); DHS 2016 Brief, supra note 66, at 18

(indicating that evidence of whether the persecution was on account of family membership

should include “of course, any evidence about the circumstances of other family members

and whether they have been targeted on account of their family relationship”). This position

appears to be particularly predominant in the Eighth Circuit, which has consistently used the

fact that other family members were able to remain safely in the country as evidence to deny

petitions for review of family-based asylum claims. See, e.g., Cambara-Cambara v. Lynch,

837 F.3d 822, 826 (8th Cir. 2016) (noting that the fact that the petitioners each left daughters

in their country of origin undermined their claim); Aguinada-Lopez v. Lynch, 825 F.3d 407,

409 (8th Cir. 2016) (denying the petition and noting that “extended family” still lived in their

home country); Constanza v. Holder, 647 F.3d 749, 753-54 (8th Cir. 2011) (noting that the

petitioner’s siblings and children remained in El Salvador and had not been particularly

targeted). The Eighth Circuit almost seems to require that the entire family as a group have

been targeted. See, e.g., Antonio-Fuentes v. Holder, 764 F.3d 902, 905 (8th Cir. 2014)

(“Fuentes . . . did not establish that gangs specifically targeted his family as a group.”).

312

See, e.g., W.G.A. v. Sessions, 900 F.3d 957, 967 (7th Cir. 2018), reh’g denied (Oct. 22,

2018) (nothing that “it was improper for the immigration judge to rely on a lack of harm to

other family members, without more, to find that [petitioner] was not targeted on account of

his kinship ties”); Cordova v. Holder, 759 F.3d 332, 339 (4th Cir. 2014) (finding that “even

though the petitioner’s family members in El Salvador remained unharmed… this fact did

not ‘undermine the reasonableness of [petitioner’s] own fear of persecution’”); Mgoian v

INS, 184 F.3d 1029, 1036-37 (9th Cir. 1999).

313

G-F-N-A-, A XXX XXX 670 3 (B.I.A. Oct. 19 2018) (on file with IRAC).

314

Declaration of Héctor Silva Ávalos, Expert on Organized Crime in Guatemala (Dec. 2, 2017).

315

Id.

Vol. 5:3] Family Fleeing: Family Membership as a Basis for Asylum

time.

316

For example, the Fourth Circuit, in Crespin-Valladares v. Holder,

noted that even though the petitioner’s children remained in El Salvador,

the period during which they had been unharmed was only two months

long.

317

In addition to developing an explanation of why some family

members were not harmed, practitioners might consider narrowing the

particular social group formulation to exclude individuals who continue to

live in the country safely. In an unpublished 2017 decision a few months

prior to L-E-A-, the Board considered the case of a Salvadoran respondent

who argued the gangs had targeted him for recruitment as the child of a

policeman. In denying the appeal, the Board pointed out that the

respondent’s sister––another member of the particular social group

defined as nuclear family members of the respondent’s father––had not

been harmed by the gangs.

318

Per controlling authority, this fact should not

have been dispositive.

319

However, given that country conditions

documentation shows that gangs predominantly recruit young men,

320

may have been a more successful strategy to limit the particular social

group in this case to “male nuclear family members of the respondent’s

father” rather than formulating it as the entire nuclear family.

321

6. If the persecutor harmed other individuals outside of the family,

explain how the applicant’s persecution is distinguishable

In a way the converse of the preceding Subsection, where the

persecutor also targeted people that were not members of the family in

question, practitioners should be prepared to incorporate this into the theory

of the case. In the aforementioned 2017 Board decision, another of the

reasons that the Board found no nexus was that the gang members had also

tried to recruit the respondent’s friends rather than just members of the

316

Practitioners should take particular care not to concede that the applicant could live safely

and reasonably in another part of the country, for example by pointing out that it would not

be reasonable to have to constantly move around or remain confined in the house day-and-

night. The internal relocation prong of asylum eligibility is outside the scope of this paper

but should be carefully documented as well in all asylum cases.

317

Crespin-Valladares v. Holder, 632 F.3d 117, 127 n.6 (4th Cir. 2011).

318

Center for Gender & Refugee Studies Database Case No. 13187, 2 (B.I.A., Feb. 27, 2017).

319

See supra note 311 (citing to cases that stand for the proposition that applicants are not

required to show that other members of the group—in this context, other family members—

were also harmed by the same persecutor).

320

U.N. HIGH COMM’R FOR HUMAN RIGHTS, supra note 155, at ¶ 11.

321

This strategy may, however, make it more challenging to satisfy the particularity and

social distinction tests.

Journal of Law & Public Affairs [Apr. 2020

particular social group of the respondent’s nuclear family.

322

The fact that a

persecutor harmed others should have no impact on the nexus analysis as to

the specific applicant, though adjudicators sometimes use this information to

make inferences about a persecutor’s motivations.

323

Therefore, under these circumstances, practitioners should present

evidence that the persecutor treated the respondent differently than other victims

in some way. In this case, the respondent testified that the gang members

mentioned his father by name when they approached him and had an expert

witness testify that the gangs disproportionately targeted family members of

policemen for recruitment.

324

These facts support the argument that even if the

gang members persecuted other young men in the community, one central

reason for the respondent’s persecution was his family membership. Perhaps

additional facts could have been presented to further differentiate how the

respondent was treated versus his friends, who were also approached for

recruitment. If the respondent had been harmed more severely––such as

receiving more serious threats or more frequent attempts at recruitment––this

could have further supported the family-based nexus argument.

CONCLUSION

Last year, I was part of a group of students and attorneys that traveled

to the border to volunteer with migrants waiting to enter the United States. It

was eminently clear that Trump’s characterization of asylum seekers as

“stone cold criminals”

325

and their applications for asylum as a “big fat con

job”

326

could not be further from the truth. Person after person recounted truly

horrific stories, including children threatened with kidnapping, siblings

murdered, and entire families that uprooted their lives to escape abuses that are

322

Center for Gender & Refugee Studies Database Case No. 13187, 2 (B.I.A., Feb. 27, 2017).

323

The applicant is only required to show that “one central reason” for the persecution was

a protected ground. See supra note 34 and accompanying text. Persecutors may have similar

or different reasons for harming other victims, but this is immaterial to the nexus analysis as

to the individual applicant.

324

Center for Gender & Refugee Studies Database Case No. 13187, at 2.

325

Allen Smith, Trump Demands Mexico Send Migrants Back to Countries of Origin After

Border Patrol Fires Tear Gas, NBC NEWS (Nov. 26, 2018), https://www.nbcnews.com/

politics/immigration/trump-asks-mexico-send-migrants-back-countries-origin-after-border-

n939966 [https://perma.cc/C6CN-VHLX].

326

Maria Sacchetti, U.S. Asylum Process is at the Center of Trump’s Immigration Ire, WASH.

POST (Apr. 9, 2019), https://www.washingtonpost.com/immigration/us-asylum-process-is-

at-the-center-of-trumps-immigration-ire/2019/04/09/7f8259b8-5aec-11e9-842d-7d3ed7eb3

957_story.html?utm_term=.9fed1fe8c0db [https://perma.cc/3TGU-PT9L].

Vol. 5:3] Family Fleeing: Family Membership as a Basis for Asylum

unimaginable in our country. These were not individuals who made the decision

lightly to abandon their homes and undertake the dangerous journey north.

327

Attorney General Barr’s decision in Matter of L-E-A- gives

adjudicators who favor denials another excuse to rebuff asylum applicants

and return them to countries where they face serious harm, including death.

328

However, the central thesis of this Article is that family-based particular

social group membership is buttressed by decades of legal precedent that

cannot be erased with a stroke of the Attorney General’s pen. People are

being beaten, kidnapped, hunted down, tortured, and killed––not because of

anything that they have done, but because of who their family members are.

Our laws should––and do––protect these individuals.

327

See, e.g., PBS News Hour, Migrants Risk the Dangerous Trip to the U.S. Because It’s Safer

Than Staying Home, PBS (June 20, 2018), https://www.pbs.org/newshour/show/ migrants-risk-

the-dangerous-trip-to-the-u-s-because-its-safer-than-staying-home [https://perma.cc/NGY8-9B

YN] (interviewing asylum seekers who were escaping horrific situations in their home countries).

328

See, e.g., Maria Sacchetti, ‘Death is Waiting for Him,’ WASH. POST (Dec. 6, 2019),

https://www.washingtonpost.com/graphics/2018/local/asylum-deported-ms-13-honduras/?

utm_term=.57fa3520b4bc [https://perma.cc/7FRW-4NTD] (reporting on a case in which a

man was denied asylum, and was murdered soon after he was deported).