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Matter of A-C-A-A-, 28 I&N Dec. 84 (A.G. 2020)

September 25, 2020 (2 min read)

Matter of A-C-A-A-, 28 I&N Dec. 84 (A.G. 2020)

(1) In conducting its review of an alien’s asylum claim, the Board of Immigration Appeals (“Board”) must examine de novo whether the facts found by the immigration judge satisfy all of the statutory elements of asylum as a matter of law. See Matter of R-A-F-, 27 I&N Dec. 778 (A.G. 2020).

(2) When reviewing a grant of asylum, the Board should not accept the parties’ stipulations to, or failures to address, any of the particular elements of asylum—including, where necessary, the elements of a particular social group. Instead, unless it affirms without opinion under 8 C.F.R. § 1003.1(e)(4)(i), the Board should meaningfully review each element of an asylum claim before affirming such a grant, or before independently ordering a grant of asylum. See Matter of L-E-A-, 27 I&N Dec. 581, 589 (A.G. 2019).

(3) Even if an applicant is a member of a cognizable particular social group and has suffered persecution, an asylum claim should be denied if the harm inflicted or threatened by the persecutor is not “on account of” the alien’s membership in that group. That requirement is especially important to scrutinize where the asserted particular social group encompasses many millions of persons in a particular society.

(4) An alien’s membership in a particular social group cannot be “incidental, tangential, or subordinate to the persecutor’s motivation . . . [for] why the persecutor[] sought to inflict harm.” Matter of A-B-, 27 I&N Dec. 316, 338 (A.G. 2018) (citations omitted). Accordingly, persecution that results from personal animus or retribution generally does not support eligibility for asylum.

"In Matter of A-C-A-A- (BIA Nov. 6, 2019) (“BIA Op.”), the Board dismissed an appeal by the Department of Homeland Security (“DHS”) challenging, as relevant here, the immigration judge’s determination that the respondent had established a nexus between her membership in a particular social group (“Salvadoran females”) and past persecution by her parents. ... For the reasons discussed above, I vacate the Board’s decision and remand this case for review by a three-member panel in accordance with this opinion. On remand, the Board should meaningfully assess whether the respondent qualifies for asylum, and not affirm the immigration judge’s decision unless the Board concludes that the respondent has met her burden and has satisfied each of the three Matter of M-E-V-G- elements: her membership in a particular social group, a nexus between such a group and her persecution, and the unwillingness or inability of the government of El Salvador to protect her. The Board should also determine whether DHS has sufficiently rebutted the presumption that, should the respondent successfully establish that she has suffered past persecution on account of her membership in a particular social group, she faces a well-founded fear of persecution on the same basis. If DHS has not rebutted that presumption, the Board should determine whether DHS has established the feasibility of internal relocation. Finally, should the Board find, as the immigration judge did, that DHS has rebutted that presumption, it should review the immigration judge’s subsequent conclusion that the respondent is eligible for a humanitarian grant of asylum."

[The link to the unpublished underlying Nov. 6, 2019 BIA opinion, above, was provided courtesy of Ben Winograd of IRAC.  Thank you, Ben!  @benwinograd @AppellateCenter]