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Immigration Law

Acting A.G. Remands Matter of A-B-

Acting Attorney General, Jan. 14, 2021, Matter of A-B-, 28 I&N Dec. 199 (A.G. 2021)

Headnotes:

(1) Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018), did not alter the existing standard for determining whether a government is “unwilling or unable” to prevent persecution by non-governmental actors. The “complete helplessness” language used in Matter of A-B- is consistent with the longstanding “unable or unwilling” standard, as the two are interchangeable formulations.

(2) The concept of “persecution” under the Immigration and Nationality Act, 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(a), (b)(i), is premised on a breach of a home country’s duty to protect its citizens. In cases where an asylum applicant is the victim of violence or threats by non-governmental actors, and the applicant’s home government has made efforts to prevent such violence or threats, failures in particular cases or high levels of crime do not establish a breach of the government’s duty to protect its citizenry.

(3) The two-pronged test articulated by the Board of Immigration Appeals in Matter of L-E-A-, 27 I&N Dec. 40, 43–44 (BIA 2017), is the proper approach for determining whether a protected ground is “at least one central reason” for an asylum applicant’s persecution, 8 U.S.C. § 1158(b)(1)(B)(i). Under this test, the protected ground: (1) must be a but-for cause of the wrongdoer’s act; and (2) must play more than a minor role—in other words, it cannot be incidental or tangential to another reason for the act.

"I hereby vacate the Board’s June 30, 2020 decision and remand this case for review by a three-member panel consistent with this order. ... I understand that existing case law in certain circuits may conflict with my conclusions that (1) Matter of A-B- reiterated and did not change the legal standard for determining when “persecution” by third parties may be attributed to the government; and (2) more than but-for causation is required to show that the alien’s protected characteristic is “at least one central reason” for the persecution. In my view, however, those decisions were made without the benefit of clear and controlling interpretations of the statutory “unable or unwilling,” “persecution,” and “one central reason” requirements. See Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 982 (2005) (“A court’s prior judicial construction of a statute trumps an agency construction otherwise entitled to Chevron deference only if the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion.”). The statutory language of the INA and the REAL ID Act do not unambiguously resolve these issues. See, e.g., Grace, 965 F.3d at 897 (“persecution” is ambiguous); Sanchez v. U.S. Att’y Gen., 523 F. App’x 682, 684 (11th Cir. 2013) (per curiam) (phrase “one central reason” is ambiguous). The Attorney General “has primary responsibility for construing ambiguous provisions in immigration laws” and his “reasonable construction” of such ambiguous terms “is entitled to deference” under Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844 (1984). Matter of A-B-, 27 I&N Dec. at 326. With this in mind, I have exercised my discretion in choosing what I view as the best interpretation of the statute. I remand this matter to the Board to issue a new opinion consistent with this opinion."