Domestic and Gang Violence Claims After Matter of A-B-: Reactions to the Case and Strategies for Success

Courtney May and Stephen Yale-Loehr, Nov. 2020

"In June 2018, former Attorney General Sessions issued a precedential opinion in Matter of A-B- that on its face restricts the availability of asylum in the United States for survivors of domestic and gang violence. An asylum seeker must demonstrate a well-founded fear of persecution on account of “race, religion, nationality, membership in a particular social group, or political opinion.” The asylum seeker in Matter of A-B- claimed that she was “persecuted on account of her membership in the particular social group of ‘El Salvadoran women who are unable to leave the domestic relationships where they have children in common’ with their partners.” Attorney General Sessions’ decision cast doubt on whether being a victim of a private criminal activity such as domestic or gang violence can constitute a cognizable “particular social group” for asylum purposes, denying asylum in Matter of A-B-.

However, after Matter of A-B-, victims of domestic and gang violence may still apply for asylum through the traditional channels of affirmative and defensive asylum by alleging that they are persecuted as a result of their membership in a particular social group. Matter of A-B- stated that asylum claims pertaining to domestic violence or gang violence by private actors generally should not succeed, but did not foreclose such claims entirely.

Given that much of the Matter of A-B- decision is dicta, this article considers the practical effect of Matter of A-B-. Section I summarizes our research methods and our national survey of immigration attorneys. Section II addresses Matter of A-B-’s effect on case-by-case decision-making in asylum cases. Section III describes how federal courts have interpreted Matter of A-B-. Section IV characterizes interpretations of the case by immigration judges and the Board of Immigration Appeals. Section V identifies strategies for domestic and gang violence claims after Matter of A-B-. Section VI describes a new proposed rule that may further change the post-Matter of A-B- asylum landscape. The article concludes that Matter of A-B– makes asylum claims based on domestic and gang violence more difficult but not impossible."

[NOTE: This article will also appear in a forthcoming issue of Bender's Immigration Bulletin.  Not yet a subscriber?  Call your local LexisNexis rep or 1-877-394-8826.]