To be eligible for asylum in the United States, migrants must meet the definition of “refugee” as laid out in the Immigration and Nationality Act1 (INA). This determination requires a finding that the asylum applicant has been persecuted or has “a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”2 For decades, the Board of Immigration Appeals3 (BIA) and U.S. courts of appeals have consistently found that a family unit can constitute a particular social group.4 Recently, in Matter of L-E-A-5 (L-E-A- II), Attorney General William Barr overturned the BIA’s finding that the immediate family of the respondent’s father constituted a particular social group.6 In doing so, he contradicted decades of precedent and made sweeping claims that, if followed, would undermine long-established principles of asylum law.
The respondent in Matter of L-E-A- was a Mexican citizen who applied for asylum in the United States after facing threats from cartel members in Mexico.7 The respondent first entered the United States in 1998 and left under a grant of voluntary departure in May 2011 following the initiation of removal proceedings.8 Prior to his return to Mexico, members of a Mexican drug cartel, La Familia Michoacana, had asked the respondent’s father if they could sell drugs in his neighborhood store.9 The respondent’s father refused.10 In the weeks after the respondent returned to Mexico, he was approached multiple times by members of La Familia Michoacana, who fired shots from a car, asked him if he would sell drugs for them at his father’s store, and attempted to kidnap him.11 Shortly after these incidents, the respondent again entered the United States.12 The cartel members continued to contact his father, who ultimately began paying “rent” to La Familia Michoacana.13 The respondent was apprehended in the United States and requested asylum, claiming that he was persecuted in Mexico based on his “membership in the particular social group comprised of his father’s family members.”14
The immigration judge denied asylum.15 The judge determined that La Familia Michoacana targeted the respondent because of its interest in distributing drugs at the store, rather than out of a desire to harm the respondent’s family.16 The events at issue thus failed the nexus requirement for asylum.17 The respondent appealed his case to the BIA.18
The BIA dismissed the respondent’s appeal as it related to asylum.19 It found that, although the respondent’s immediate family did constitute a particular social group,20 the respondent had not established that his membership in that group was “at least one central reason” for the events he experienced.21 On the respondent’s Convention Against Torture claims, however, the BIA found that the immigration judge “did not make complete findings of fact.”22 It therefore remanded the record for further proceedings on that issue.23
The Attorney General has broad discretion to review immigration decisions and may certify any BIA decision to himself.24 On December 3, 2018, Acting Attorney General Matthew Whitaker directed the BIA to refer its decision to him for review, inviting briefs on “[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.”25
Attorney General William Barr (Whitaker’s successor) then issued a decision on July 29, 2019.26 In the decision, he overruled the portion of the BIA’s decision recognizing the respondent’s family as a particular social group and affirmed the remainder of the opinion.27 Before reaching the merits, the Attorney General addressed “several threshold arguments” about his authority to review the case.28 First, he concluded that his office could certify the matter for review — even though the BIA had remanded the case to the immigration judge for further proceedings — because “[n]othing in the INA or the implementing regulations” prevented him from doing so.29 Attorney General Barr also rejected the argument that his prior statements on asylum would “prevent [him] from acting as an unbiased adjudicator,” because his statements did not concern the facts of the case and he had no “personal interest” in the proceedings’ outcome.30 Finally, the Attorney General rejected the argument that the immigration judge never had jurisdiction because the original notice to appear had not included the time or place of the hearing as required by the INA and 8 C.F.R. § 1003.15.31 In dismissing this argument, he cited a recent BIA decision holding that “similar notices are adequate to establish jurisdiction, so long as subsequent notices provide that information.”32
Following his finding that he had authority to review the case, the Attorney General went on to address the extensive precedent from the BIA and courts of appeals recognizing family as a particular social group.33 He argued that such holdings relied on outdated dicta or failed to apply the recently revised social group framework from Matter of M-E-V-G-34 and Matter of W-G-R-,35 which required that a group be “(1) composed of members who share a common immutable characteristic; (2) defined with particularity; and (3) socially distinct within the society in question.”36 Alternatively, he argued, some courts may have been willing to accept the recognition of family as a particular social group because they ultimately denied asylum on other grounds, so those conclusions should not be given much weight.37 Additionally, to the extent that any court of appeals decision could be interpreted as adopting a categorical rule regarding nuclear families, the Attorney General wrote that he believed “such a holding [would be] inconsistent with both the asylum laws and the long-standing precedents of the Board,” which have emphasized that a “particular social group” finding must involve a fact-specific inquiry.38 He concluded the section on precedent by arguing that the Attorney General has primary responsibility for construing and applying immigration law provisions and that his interpretation of “particular social group” should be given deference under Chevron39 and other Supreme Court precedent.40
The Attorney General then provided his own interpretation of the term “particular social group” as it applies to family.41 He argued that both the absence of “family ties” in the refugee definition and the fact that “almost every alien is a member of a family of some kind” weighed against the recognition of nuclear family as a particular social group.42 He found no evidence that Congress intended the term to “cast so wide a net.”43 Applying the three-part test of immutability, particularity, and social distinction, he wrote that, though many family relationships will be immutable, some may be too vague or amorphous to meet the particularity requirement, and many will have trouble qualifying as socially distinct.44 On this third concept, he noted that evidence that “nuclear families” generally have societal importance “says nothing about whether a specific nuclear family would be ‘recognizable by society at large,’” adding that the “average family . . . is unlikely to be so recognized.”45
The Attorney General concluded that the BIA had not performed the required fact-based inquiry to make that determination; instead, it had based its conclusions on the parties’ agreement that the respondent’s proposed family group did qualify as a particular social group.46 Therefore, he reasoned, the BIA’s summary conclusions had to be reversed.47
The Attorney General’s decision in L-E-A- II represents a sharp break with circuit court and BIA precedent, improperly dismissing decades of case law and contributing to continued efforts to erode the original definition of “particular social group.”48 Since the 1980s, the “particular social group” definition has readily included immediate families, even in light of recent changes to that definition.49 As happened in L-E-A- I, family-based claims may be denied due to the lack of a nexus between persecution and family membership,50 but courts have agreed in case after case that nuclear families do constitute social groups.51 In L-E-A- II, the Attorney General disclaimed that longstanding precedent, both by overruling the decision at hand and by making sweeping claims that, if followed, would undermine decades of asylum protections.52
The BIA and federal circuit courts have repeatedly affirmed that family can constitute a particular social group. In its original definition of the term in Matter of Acosta53 in 1985, the BIA determined that a particular social group consists of members who “share a common, immutable characteristic[,] . . . such as sex, color, or kinship ties.”54 Circuit courts have followed the BIA’s lead. The Ninth Circuit has called family the “quintessential particular social group”;55 the Fourth has called it “prototypical”;56 the First has said there can be “no plainer example of a social group” than the nuclear family;57 and every other U.S. court of appeals to reach the issue has similarly determined that family can constitute a particular social group.58
This consistency has persisted even after recent changes in the “particular social group” test. In the past decade,59 the BIA has added the requirements of “social distinction” and “particularity” to the “social group” definition.60 “Particularity” requires that the group be defined “by characteristics that provide a clear benchmark for determining who falls within the group,”61 while “social distinction” requires evidence that a group sharing a certain characteristic is perceived as a group by society.62 Although these new standards have been criticized for narrowing and complicating the definition of “particular social group,”63 nuclear families have still qualified in case after case.64 Even in the decisions best known for fleshing out this framework, the BIA approvingly cited decisions recognizing family as easily perceived by others as a social group.65
In L-E-A- II, however, the Attorney General departed sharply from this precedent in two key ways while claiming to adhere to this test. Firstly, his decision to overrule the BIA’s finding that the respondent’s nuclear family constituted a particular social group created a new threshold for factual analysis. The Attorney General’s reasoning for overruling the decision was that the BIA “did not perform the required fact-based inquiry” and instead based its decision on the parties’ stipulation.66 But as the Attorney General himself later noted, the BIA did look at the facts, writing that it made its decision “[i]n consideration of the facts of this case and the agreement of the parties” and noting that the respondent was a “son residing in his father’s home.”67 While this was admittedly a sparse explanation, it was no less thorough than many circuit court cases reaching similar conclusions.68 Circuit court decisions are “binding on the BIA when it considers cases arising in that jurisdiction,”69 but the Attorney General argued that such decisions could not be read as establishing a categorical rule because asylum claims must be adjudicated on a “case-by-case” basis.70 Even under this framework, however, these precedents have shown that courts can make that determination with relative ease when it comes to family, because there are “few groups more readily identifiable than the family.”71 The Attorney General, by finding that the BIA’s brief discussion of the facts was insufficient, created a new threshold for the level of factual analysis required.
Attorney General Barr’s second major departure from precedent was requiring a new level of social distinction for a family to qualify as a particular social group. Despite his insistence that social groups must be determined on a case-by-case basis,72 the Attorney General made sweeping statements about when family can qualify, writing that the average family is unlikely to be “recognizable by society at large.”73 This reasoning failed to consider that specific family units generally are recognizable by society at large, through a host of laws and social structures like marriage,74 inheritance law,75 and even zoning laws.76 The Attorney General’s formulation would ignore this type of social distinction and require a new level of societal fame, despite the fact that courts have consistently found this widespread societal recognition of families to suffice.77 Although properly classified as dicta,78 the Attorney General’s statements thus pose the danger of creating a new, unreasonable threshold for individuals pursuing family-based asylum claims.
While claiming to adhere to the social distinction and particularity tests, the Attorney General in L-E-A- II attempted to eviscerate an entire category of social group that has been upheld for decades. This opinion stretches the bounds of even the social distinction and particularity tests, which supposedly merely “refined the standard for identifying social groups.”79 But the Attorney General’s decision would have been outright impossible under the Acosta immutability standard formulated in 1985, which expressly included “kinship ties” as one example of an immutable characteristic.80 The Attorney General’s opinion thus demonstrates the danger of the ambiguity introduced by the social distinction and particularity tests and illustrates the potential for this revised framework to undercut long-established principles of asylum law.