The Immigration and Nationality Act (INA) establishes the criteria for a foreign national to be granted asylum in the United States. An alien must establish that he or she is unable or unwilling to return to their country of origin either because of past persecution, or a well-founded fear of future persecution due to “race, religion, nationality, membership in a particular social group, or political opinion.” The United States Attorney General, in Matter of L-E-A-, Respondent, 27 I&N Dec. 581 (A.G. 2019) dealt a serious blow to asylum seekers by restricting what qualifies as a “particular social group.”
L-E-A-, the respondent in this case, first illegally entered the United States in 1998. He was convicted of driving under the influence. He accepted voluntary departure from this country in May 2011, when he returned to Mexico and began residing with his parents in Mexico City, where his father owned a store. The respondent’s father had refused to sell a Mexican drug cartel’s goods from his store. Shortly after the respondent’s return to Mexico, he was shot at from a vehicle; he later concluded, based on the cartel’s attempts to pressure him to sell drugs from his father’s store and threats when he refused, that he had been targeted. When four masked men in the same vehicle attempted to kidnap the respondent, he left for Tijuana and again crossed illegally into the United States.
He was soon apprehended and claimed asylum on the basis that he had been persecuted, and would likely be persecuted again, based on membership in a particular social group: his father’s immediate family.
The immigration judge in his case denied the respondent’s request for relief. On appeal, the Board of Immigration Appeals found that the respondent’s father’s immediate family did constitute a “particular social group” for the purposes of the asylum statute, but denied asylum on other grounds.
The Acting Attorney General requested briefing on the issue of whether and when an alien could establish persecution based on membership in a “particular social group,” that social group being membership in a family unit. Attorney General William Bar concluded in his July 29, 2019 opinion that the Board of Immigration Appeals improperly recognized the respondent in this case ase being a member of a “particular social group” based on his family membership, for purposes of the asylum law.
Attorney General Barr stated that all applicants for asylum claiming membership in a “particular social group,” including those defined by kinship or family, must meet three criteria. They must establish that the group’s members share a common immutable characteristic. They must establish that the group is defined with particularity. And they must establish that the group is “socially distinct within the society in question.”
In the Matter of L-E-A-, the Attorney General found that the respondent’s family was not “socially distinct” within Mexican society. The rationale for this finding was, in part, that if being targeted by a cartel or other criminal created a social group by victimizing a member of a family, the requirement of being “socially distinct” would be meaningless.
The Attorney General’s ruling on this issue is bad news for asylum seekers. Many immigration law experts consider the reasoning behind the decision flawed, especially since there is a large volume of federal case law that is contrary to the decision in this case. The outcome of the case is that it will now be harder for some of the most vulnerable people seeking asylum, parents with their children, to qualify as members of a “socially distinct” group.
This decision follows last year’s Matter of A-B-, which stated that women who were unable to leave a violent relationship did not constitute a particular, cognizable social group for the purposes of seeking asylum. This decision was in direct opposition to an earlier case on the same issue. The net effect of Matter of L-E-A- and Matter of A-B- is to further restrict the ability of vulnerable individuals at risk of great harm to seek asylum in the United States.
The Attorney General did state in the decision in Matter of L-E-A- that the question of whether membership in a family constituted membership in a cognizable social group would have to be decided on a case-by-case basis on the facts of each case. It is essential to have legal representation to present the facts of your case in the most favorable light. If you have questions about whether you are eligible for asylum, please contact our law office.