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 27 I. & N. Dec. 316; 2018 BIA LEXIS 24

U.S. Department of Justice, Office of the Attorney General

June 11, 2018, Decided

3929

Opinion

 [**1] 

 [*317]  BEFORE THE ATTORNEY GENERAL

On March 7, 2018, I directed the Board of Immigration Appeals ("Board") to refer for my review its decision in this matter, see 8 C.F.R. § 1003.1(h)(1)(i), and I invited the parties and any interested amici to submit briefs addressing questions relevant to that certification.  Matter of A-B-, 27 I&N Dec. 227 (A.G. 2018). Specifically, I sought briefing on whether, and under what circumstances, being a victim of private criminal activity constitutes a cognizable "particular social group" for purposes of an application for asylum or withholding of removal.

For the reasons set forth in the accompanying opinion, I vacate the Board's December 6, 2016 decision and remand this case to the immigration judge for further proceedings. Consistent with the test developed by the Board over the past several decades, an applicant seeking to establish persecution on account of membership in a "particular social group" must satisfy two requirements. First, the applicant must demonstrate membership in a group, which is composed of members who share a common immutable characteristic, is defined with particularity, and is socially distinct within [**2]  the society in question. And second, the applicant's membership in that group must be a central reason for her persecution. When, as here, the alleged persecutor is someone unaffiliated with the government, the applicant must show that flight from her country is necessary because her home government is unwilling or unable to protect her.

Although there may be exceptional circumstances when victims of private criminal activity could meet these requirements, they must satisfy established standards when seeking asylum. Such applicants must establish membership in a particular and socially distinct group that exists independently of the alleged underlying harm, demonstrate that their persecutors harmed them on account of their membership in that group rather than for personal reasons, and establish that the government protection from such harm in their home country is so lacking that their persecutors' actions can be attributed to the government. Because Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014), recognized a new particular social group without correctly applying these standards, I overrule that case and any other Board precedent to the extent those other decisions [**3]  are inconsistent with the legal conclusions set forth in this opinion.

OPINION

The Immigration and Nationality Act ("INA") authorizes the Attorney General to grant asylum if an alien is unable or unwilling to return to her country of origin because she has suffered past persecution or has a well-founded  [*318]  fear of future persecution on account of "race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(A), (b)(i). A recurring question in asylum law is determining whether alleged persecution was based on their membership in a "particular social group." Over the past thirty years, this question has recurred frequently before the Board and the courts of appeals, and the standard has evolved over time.

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 27 I. & N. Dec. 316 *;  2018 BIA LEXIS 24 **

Matter of A-B-, Respondent

Prior History:

 Matter of A-B-, 2018 BIA LEXIS 6, 27 I. & N. Dec. 227 (B.I.A., Mar. 7, 2018)

CORE TERMS

social group, asylum, persecution, membership, immigration judge, immigration, alien, unwilling, violence, persecutor, cognizable, immutable, domestic violence, circumstances, inflicted, domestic, particularity, ex-husband, purported, regulations, decisions, cases, factual findings, reasons, credibility determinations, ambiguous, deference, qualify, gang, relocation