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Matter of A-B-, Decided by Attorney General June 11, 2018

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I strongly recommend reading this decision instead of relying on biased reports from the news media and the Trump/Sessions haters.
Nolan Rappaport


(1) Matter of A-R-C-G-, 26 I&N Dec. 338 (BIA 2014) is overruled. That decision was wrongly decided and should not have been issued as a precedential decision.

(2) An applicant seeking to establish persecution on account of membership in a ďparticular social groupĒ must demonstrate:

(1) membership in a group, which is composed of members who share a common immutable characteristic, is defined with particularity, and is socially distinct within the society in question; and

(2) that membership in the group is a central reason for her persecution. When the alleged persecutor is someone unaffiliated with the government, the applicant must also show that her home government is unwilling or unable to protect her.

(3) An asylum applicant has the burden of showing her eligibility for asylum. The applicant must present facts that establish each element of the standard, and the asylum officer, immigration judge, or the Board has the duty to determine whether those facts satisfy all of those elements.

(4) If an asylum application is fatally flawed in one respect, an immigration judge or the Board need not examine the remaining elements of the asylum claim.

(5) The mere fact that a country may have problems effectively policing certain crimes or that certain populations are more likely to be victims of crime, cannot itself establish an asylum claim.

(6) To be cognizable, a particular social group must exist independently of the harm asserted in an application for asylum.

(7) An applicant seeking to establish persecution based on violent conduct of a private actor must show more than the governmentís difficulty controlling private behavior. The applicant must show that the government condoned the private actions or demonstrated an inability to protect the victims.

(8) An applicant seeking asylum based on membership in a particular social group must clearly indicate on the record the exact delineation of any proposed particular social group.

(9) The Board, immigration judges, and all asylum officers must consider, consistent with the regulations, whether internal relocation in the alienís home country presents a reasonable alternative before granting asylum


Read more at http://cdn.cnn.com/cnn/2018/images/06/11/3929.pdf

Posted by Nolan Rappaport

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Updated 06-11-2018 at 05:30 PM by ImmigrationLawBlogs

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  1. ImmigrationLawBlogs's Avatar
    I will comment only on the decision dealing with the issue of gang violence as a claimed basis for seeking asylum. For now, I make no comment about the decision concerning domestic violence.

    As I read the attorney general's decision dealing with gang violence, it focuses on two possible objections to using this activity as grounds for a political asylum claim. First is that gangs are private organizations which have no connection with the government.

    The second is that victims or potential victims of gang violence do not constitute a " particular social group" for asylum purposes.

    With regard to the first issue, as I read the decision, Sessions appears to agree that inability of the government to control private criminal activity can be a legitimate ground for claiming persecution.

    If I am misreading this part of the decision, I would respectfully ask Nolan, who is a well-recognized expert on asylum law, to correct me.

    This brings us to the Sessions' second and, as I see it, main point, which he succinctly states as follows at the bottom of page 335:


    "Victims of gang violence often come from all segments of society, and they possess no distinguishing characteristic or concrete trait that would identify them as members of such a group."

    Here, in the context of the Trump administration's own statements and actions regarding victims of MS-13, we see what can only be called the appalling stench of hypocrisy.

    In numerous statements on this issue, Trump has referred to victims of MS-13 violence in the United States as a separate, easily identifiable group. He has invited the family members of such victims to the White House, included them in televised "Roundtable" discussions of MS-13 and in many rallies and other speeches designed to inflame hatred against, not only gang members, whom he calls "animals", but all Hispanic immigrants. In his now defunct VOICE program, which was official US policy, Trump referred to victims of not only gang violence, but all crimes allegedly committed by immigrants as a separate group.

    I have never seen or heard of the slightest objection to this on Sessions' part.

    If MS-13 gang members in the United States are "animals", are equally dangerous gang members in Central America not "animals" also?

    And if protecting mainly white potential victims of gang violence is a matter of top priority at the highest level of government in the US, do not victims or potential victims of equally horrible gang violence in Central America deserve protection under our laws, in this case, the asylum laws, too?

    The only possible conclusion is that there is a double standard in America regarding victims or potential victims of gang violence - protecting white American citizens as the nation's very top and urgent priority, while at the same time sending brown-skinned foreign citizens, back to their countries to become victims of the same kind of gang violence is now, as a result of Sessions' above decision, official US policy.

    This how "equal justice under the law" is now being defined in America in the "Donald Trump Era."

    I will discuss how Sessions' decision to make himself the judge in the same cases where he is also the chief litigant subverts democracy and the rule of law in America in general in my own ilw.com blog comment

    Roger Algase
    Attorney at Law
    Updated 06-12-2018 at 07:33 AM by ImmigrationLawBlogs
  2. ImmigrationLawBlogs's Avatar
    Further to my above comment, here is Jeff Sessions himself, speaking in Long Island NY in April about MS-13:

    "Our motto is justice for victims..."

    Sessions then mentioned two of these American victims by name, and (by obvious implication) promised to protect future potential US victims from this gang.

    Justice and protection for victims of a vicious and dangerous Central American gang, such as MS-13 - unless those victims happen to be non-white immigrants seeking protection from that same or similar gangs under the duly enacted asylum laws of the United States of America - that is.

    See:

    https://nypost.com/2017/04/28/sessio...ing-after-you/

    Roger Algase
    Attorney at Law
    Updated 06-12-2018 at 08:03 AM by ImmigrationLawBlogs
  3. ImmigrationLawBlogs's Avatar
    Quote Originally Posted by ImmigrationLawBlogs
    I will comment only on the decision dealing with the issue of gang violence as a claimed basis for seeking asylum. For now, I make no comment about the decision concerning domestic violence.

    As I read the attorney general's decision dealing with gang violence, it focuses on two possible objections to using this activity as grounds for a political asylum claim. First is that gangs are private organizations which have no connection with the government.

    The second is that victims or potential victims of gang violence do not constitute a " particular social group" for asylum purposes.

    With regard to the first issue, as I read the decision, Sessions appears to agree that inability of the government to control private criminal activity can be a legitimate ground for claiming persecution.

    If I am misreading this part of the decision, I would respectfully ask Nolan, who is a well-recognized expert on asylum law, to correct me.

    This brings us to the Sessions' second and, as I see it, main point, which he succinctly states as follows at the bottom of page 335:


    "Victims of gang violence often come from all segments of society, and they possess no distinguishing characteristic or concrete trait that would identify them as members of such a group."

    Here, in the context of the Trump administration's own statements and actions regarding victims of MS-13, we see what can only be called the appalling stench of hypocrisy.

    In numerous statements on this issue, Trump has referred to victims of MS-13 violence in the United States as a separate, easily identifiable group. He has invited the family members of such victims to the White House, included them in televised "Roundtable" discussions of MS-13 and in many rallies and other speeches designed to inflame hatred against, not only gang members, whom he calls "animals", but all Hispanic immigrants. In his now defunct VOICE program, which was official US policy, Trump referred to victims of not only gang violence, but all crimes allegedly committed by immigrants as a separate group.

    I have never seen or heard of the slightest objection to this on Sessions' part.

    If MS-13 gang members in the United States are "animals", are equally dangerous gang members in Central America not "animals" also?

    And if protecting mainly white potential victims of gang violence is a matter of top priority at the highest level of government in the US, do not victims or potential victims of equally horrible gang violence in Central America deserve protection under our laws, in this case, the asylum laws, too?

    The only possible conclusion is that there is a double standard in America regarding victims or potential victims of gang violence - protecting white American citizens as the nation's very top and urgent priority, while at the same time sending brown-skinned foreign citizens, back to their countries to become victims of the same kind of gang violence is now, as a result of Sessions' above decision, official US policy.

    This how "equal justice under the law" is now being defined in America in the "Donald Trump Era."

    I will discuss how Sessions' decision to make himself the judge in the same cases where he is also the chief litigant subverts democracy and the rule of law in America in general in my own ilw.com blog comment

    Roger Algase
    Attorney at Law
    I haven't finished reading this decision, but I have read most of it. I can see why Roger is having difficulty understanding the rationale. I think I am going to have to read it a few times.

    The problem with asylum law is that judges and board members and courts tend to stretch it to include sympathetic cases. I did that too when I was writing decisions for the Board of Immigration Appeals.

    Gang violence is a crime, and crime isn't persecution. In the pre-Obama era, crime only became persecution if the criminal's motive was to hurt the victim in some way on account of race, religion, nationality, membership in a particular social group, or political opinion.

    I can remember some of the cases I handled involving the Ton Ton Macoute in Haiti. In one, the applicant claimed that a Ton Ton Macoute stole the applicant's pig and thought the applicant was going to report the theft to the police. The applicant claimed that he had to flee Haiti or the Ton Ton Macoute was going to kill him.

    In another, the applicant bumped into a Ton Ton Macoute at a dance and impulsively yelled curses at him.

    While it was true that the local police weren't going to be able or willing to protect either applicant, their problems weren't a proper basis for a persecution claim. In the pig case, killing the applicant would have been motivated by a desire to do away with someone who could establish that the killer had committed a theft. In the other, it would have been motivated by anger over offensive remarks at a dance.

    In neither case would the Ton Ton Macoute have been killing the applicant on account of his membership in one of the enumerated categories.

    Sessions seems to be going back to that standard.

    Nolan Rappaport
    Updated 06-12-2018 at 09:13 AM by ImmigrationLawBlogs
  4. ImmigrationLawBlogs's Avatar
    The rationale that Sessions used in his decision, as I read it and have quoted it, is quite clear: according to Sessions, gang victims do not qualify as a distinct and identifiable "social group"

    Unless, that is, they happen to be Americans victimized or threatened by MS-13 "animals" in this white majority country. With all due respect to Nolan, who is second to none in his expertise and experience with asylum and with immigration law in general, it does not take a lot of complex legal analysis to see the double standard, and the appalling hypocrisy, of Sessions and the Trump administration in this particular instance.

    Again with the highest respect to Nolan, who mentions this issue above, I do not find anything in Sessions' decision which uses that fact that gangs are non-state actors, i.e. not part of the government, as a basis for his decision.

    If I am wrong on this point, I would welcome a correction from Nolan, whose knowledge of and experience with asylum law is far greater than mine.

    Roger Algase
    Attorney at Law


    Updated 06-12-2018 at 09:53 AM by ImmigrationLawBlogs
  5. ImmigrationLawBlogs's Avatar
    Roger says, “The rationale that Sessions used in his decision, as I read it and have quoted it, is quite clear: according to Sessions, gang victims do not qualify as a distinct and identifiable "social group"”

    That’s probably correct. I can’t think of any reason why they should be considered a particular social group….unless all groups of crime victims are going to be considered as being in particular social groups.

    Roger doesn’t seem to understand the difference between crime and persecution. If a biker gang in South Africa rapes a very attractive woman who is wearing provocative clothes at a bar and walks into a deserted alley afterwards to get her car, is that persecution?

    Roger says, “Unless, that is, they happen to be Americans victimized or threatened by MS-13 "animals" in this white majority country. With all due respect to Nolan, who is second to none in his expertise and experience with asylum and with immigration law in general, it does not take a lot of complex legal analysis to see the double standard, and the appalling hypocrisy, of Sessions and the Trump administration in this particular instance.”

    I am not going to have a discussion with Roger regarding such irrational claims.

    Roger says, “Again with the highest respect to Nolan, who mentions this issue above, I do not find anything in Sessions' decision which uses that fact that gangs are non-state actors, i.e. not part of the government, as a basis for his decision.”

    Roger needs to read the decision more carefully. Asylum offers protection from government persecution with only one exception that I can recall, which is that someone is being persecuted on one of the enumerated grounds and the gov’t is unable or unwilling to stop the persecution. But you can’t go too far with this exception. Being able to stop the crime has to be a realistic objective.

    I can't teach Roger asylum law in brief comments. If he still has questions, he should read a CRS memo on asylum law. https://fas.org/sgp/crs/homesec/R41753.pdf

    Nolan Rappaport
  6. ImmigrationLawBlogs's Avatar
    I do not dispute Nolan's highly respected knowledge and unquestioned expertise in asylum law in general. But, for the reasons I have explained above, and again with all due respect to his expertise in this area, he is missing the point based on my reading of Sessions' decision which Nolan does not appear to dispute. I repeat: the fact that Central American gangs are non-state actors was NOT a reason for Sessions' above decision.

    If Nolan thinks it should have been, and I am not clear about his views in this point, maybe he should have that argument with the Attorney General. I will stay out of the way in that event.

    Without doubt, the issue of what constitutes a particular social group in asylum law is a highly complex and contentious issue, with decisions going in many different directions in the past, as Sessions himself points out in his decision. Again, with the greatest respect to Nolan, he may possibly be making this issue seem far more simple than it really is, in his comments above.

    Neither Sessions nor Trump has had any problem identifying American victims of MS-13 gang violence as a distinct social group, when they can so so for the purpose of demonizing all Hispanic immigrants as criminals.

    But when it comes to protecting thousands of vulnerable Central American women and children from gang violence in their countries which is just as horrible as MS-13 is in the US, then, suddenly it turns out - according to Sessions - that they are not a distinct social group entitled to any protection under US law.

    As I have stated above, there is only one word for that - hypocrisy- which reeks to high heaven.

    Sorry if I am being less than polite about Sessions' decision on this issue.

    Roger Algase
    Attorney at Law
    Updated 06-12-2018 at 04:11 PM by ImmigrationLawBlogs
  7. ImmigrationLawBlogs's Avatar
    Quote Originally Posted by ImmigrationLawBlogs
    I do not dispute Nolan's highly respected knowledge and unquestioned expertise in asylum law in general. But, for the reasons I have explained above, and again with all due respect to his expertise in this area, he is missing the point based on my reading of Sessions' decision which Nolan does not appear to dispute. I repeat: the fact that Central American gangs are non-state actors was NOT a reason for Sessions' above decision.

    If Nolan thinks it should have been, and I am not clear about his views in this point, maybe he should have that argument with the Attorney General. I will stay out of the way in that event.

    Without doubt, the issue of what constitutes a particular social group in asylum law is a highly complex and contentious issue, with decisions going in many different directions in the past, as Sessions himself points out in his decision. Again, with the greatest respect to Nolan, he may possibly be making this issue seem far more simple than it really is, in his comments above.

    Neither Sessions nor Trump has had any problem identifying American victims of MS-13 gang violence as a distinct social group, when they can so so for the purpose of demonizing all Hispanic immigrants as criminals.

    But when it comes to protecting thousands of vulnerable Central American women and children from gang violence in their countries which is just as horrible as MS-13 is in the US, then, suddenly it turns out - according to Sessions - that they are not a distinct social group entitled to any protection under US law.

    As I have stated above, there is only one word for that - hypocrisy- which reeks to high heaven.

    Sorry if I am being less than polite about Sessions' decision on this issue.

    Roger Algase
    Attorney at Law

    I repeat: I can't teach Roger asylum law in brief comments. The subject is far too complicated. He can get a good introduction to the subject by reading the CRS memo on asylum law. https://fas.org/sgp/crs/homesec/R41753.pdf

    Incidentally, I am working on an analysis of the decision for the Hill with only two more days to finish it. Maybe my analysis will be easier to understand than Sessions' decision.

    I don't understand why he published a complicated, 31-page decision as a guide on what the term "particular social group" means.

    It's so long that he probably didn't have time to read it himself.

    Nolan Rappaport
    Updated 06-12-2018 at 09:59 PM by ImmigrationLawBlogs
  8. ImmigrationLawBlogs's Avatar
    I am looking forward to reading and learning from Nolan's analysis of Sessions' decision, and I agree with Nolan to the extent that Sessions' explanation of his reasons for overturning the BIA's decision on the issue of what constitutes a particular social group for asylum purposes is well worth looking into in more detail, both as a matter of legal analysis and because of the huge effect that the decision likely to have on thousands of men, women and children who are trying to escape from the same horrendous gang violence in Central America that Trump and Sessions have promised to eliminate in the US in order to protect potential victims here.

    Roger Algase
    Attorney at Law
    Updated 06-13-2018 at 05:51 AM by ImmigrationLawBlogs
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