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Taking his lead from Jeff Sessions and his infamous Matter of A-B- decision, acting U.S. Attorney General Matthew Whitaker has begun certifying Board of Immigration Appeals (BIA) decisions to himself for review. In one such case, Matter of L-E-A-, Whitaker has requested briefing on the issue of “[w]hether, 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.” Advocates, like the Catholic Legal Immigration Network (CLINIC), fear that the broad framing of this question could have a “significant impact on asylum seekers” fleeing family-based persecution. This RefBlog will explore why advocates are justified in their concerns that the Trump Administration may move away from recognizing the family unit as a particular social group.
While the “particular social group” ground enumerated in the 1951 Convention on the Status of Refugees is a highly-litigated area of refugee law given its ambiguity, the question of whether or not the family unit qualifies as such a group has been relatively well-settled in both domestic U.S. law and international law. When the BIA adopted the ejusdem generis approach to particular social group in Matter of Acosta, it actually included “kinship ties” as an example of an innate and immutable characteristic that may be shared by group members. The status of the family unit as a particular social group was thrown into question when the BIA later adopted its additional “social distinction” and “particularity” requirements, but courts have continued to recognize the family as a particular social group. In a 2015 decision the Ninth Circuit held that the family unit satisfied the BIA’s new test, even referring to the family as the “quintessential particular social group.”
The BIA’s decision in Matter of L-E-A- appeared to once again confirm this consensus by stating that the BIA has “long recognized that family ties may meet the requirements of a particular social group,” depending on the facts of the individual case. However, the respondent was still denied asylum because the BIA believed he failed to meet the nexus requirement. The respondent was seeking asylum based on his familial relationship to his father, who had been targeted by a Mexican drug cartel for extortion due to the location of his business. Upon the father’s refusal to sell drugs for the cartel in his store, the cartel went after the respondent, even attempting to kidnap him. The BIA recognized the particular social group of the respondent’s father’s family, but held that an applicant “must not only demonstrate that he or she is a member of the family but also that the family relationship is at least one central reason for the claimed harm.” And in this case, the BIA agreed with the Immigration Judge’s conclusion that one central reason for the cartel’s actions was the cartel’s desire to increase its profits by selling contraband in the father’s store, and that “any motive to harm the respondent because he was a member of his family was, at most, incidental.”
Given how onerous the nexus requirement already is for asylum seekers, it appears unlikely that the ruling will focus on that single aspect of the BIA’s decision in L-E-A-. Will Whitaker instead directly attack the idea that the family unit is inherently a particular social group? Given the breadth with which Whitaker articulated the briefing question, and the concentrated efforts of the Trump Administration in targeting legal protections for immigrants, advocates rightfully fear this may be the case. Perhaps Whitaker will reconsider how the family unit satisfies the BIA’s newer social distinction and particularity requirements for particular social groups, finding instead that the family unit actually does not satisfy these ambiguous tests. Parties and amici will need to focus on arguing not only the nexus part of the case (which was the basis of the BIA’s original decision), but also on defending the family unit’s status as the quintessential particular social group in U.S. asylum law.
This holding affirmed the BIA’s requirement that evidence pointing to a family-based motive on the part of the persecutor be presented in each individual case. This decision did not appear to establish any drastic changes in immigration law—the BIA simply reaffirmed its view that a familial relationship may constitute a particular social group, and that in such cases applicants must still provide sufficient evidence to demonstrate nexus. As such, it is unclear what Whitaker’s decision will look like once the parties and amici submit the requested briefs, due no earlier than January 18.
An attempt to undermine this area
of the doctrine would be in line with Jeff Sessions’s previous reviews of BIA
decisions, such as Matter of A-B-, where he unsettled an entire line
of precedent regarding the asylum claims of domestic violence victims. In fact,
in a footnote in Matter of A-B- Sessions actually said there was
“reason to doubt that a nuclear family can comprise a particular social group,”
hinting at the Administration’s unfavorable view of the family unit as such a
group, which Whitaker has appeared to grasp onto. Furthermore, attacking the
family unit as a particular social group would be consistent with the Trump
Administration’s anti-immigrant agenda, which has included the infamous family separation
changes to immigration courts, a desire to eliminate birthright
even more recent attempts to prevent immigrants from being able to enter the
U.S. and seek asylum.
Depending on how Whitaker chooses to formulate his decision in L-E-A-, it could
potentially affect the outcome of all future cases involving particular social
group formulations based on familial ties.
 James Hathaway & Michelle Foster, The Law of Refugee Status 424 (2d ed. 2014).
 Id., at 446 n.562-64.
 Id., at 426.
 Id. at 362.